:1: bgp bgp bgp IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.4770 OF 2008 NO.4770 OF 2008 NO.4770 OF 2008 Hemraj Ambalal Nagda ..Petitioner Vs. Nalasopara Municipal Council & Ors. ..Respondents Mr.U.S.R.Singh for petitioner. Mr.P.S.Dani for respondent No.1. Mr.A.H.Palekar, AGP for respondent No.2. Mr.Suresh Kumar for respondent Nos.3 and 4. CORAM CORAM CORAM :- V.C.DAGA & :- V.C.DAGA & :- V.C.DAGA & MRS.MRIDULA MRS.MRIDULA MRS.MRIDULA BHATKAR,JJ. BHATKAR,JJ. BHATKAR,JJ. DATE DATE DATE : 27TH FEBRUARY,2009 : 27TH FEBRUARY,2009 : 27TH FEBRUARY,2009 P.C. P.C. P.C. . Heard learned Counsel for parties. . Perused petition. 2. This petition is directed against the order dated 22nd February, 2006 passed by Estate Officer and Divisional Engineer (Estate), Western Railway, Mumbai Central, Mumbai, under the provisions of Section 5 of the Public Premises (Eviction of unauthorised Occupants) Act, 1971. 3. The notices of the proceeding were issued to the petitioner. The petitioner has attended the eviction proceeding on 25th June, 2004, 30th July, 2004 and 25th March, 2005 but failed to submit his written submissions. Consequently, the Estate Officer had no option but to proceed with enquiry and conclude it, holding that the subject land belongs to the Railway administration, and that the petitioner is unauthorised occupant of the railway property :2: directing removal of the petitioner within 15 days from the structure occupied by him. This order is the subject matter of the present petition filed under Article 226 of the Constitution of India. 4. The learned Counsel appearing for petitioner submits that the premises in question is not a public premises and that the petitioner is not an unauthorised occupant. He further submits that the land being gavthan land would be subject to the provisions of the Maharashtra Project Affected Persons Rehabilitation Act,1986 and that the impugned action is against the provisions of Article 19(1)(e)(f), 21, 39-A, 300-A of the Constitution of India. He also submits that the documents were not supplied to petitioner and that the impugned order is breach of the principles of natural justice. He placed reliance on the decision of the Apex Court in the case of Olga Olga Olga Tellis Tellis Tellis and and and Ors. Vs. Bombay Municipal Corporation and Ors. Vs. Bombay Municipal Corporation and Ors. Vs. Bombay Municipal Corporation and Ors. Ors. Ors. AND Vijyapuri Kuppuswami and Ors. Vs. State of AND Vijyapuri Kuppuswami and Ors. Vs. State of AND Vijyapuri Kuppuswami and Ors. Vs. State of Maharashtra Maharashtra Maharashtra 1985(2) 1985(2) 1985(2) Bom.C.R.434 Bom.C.R.434 Bom.C.R.434, Ramdas Thanu Dessai & Ramdas Thanu Dessai & Ramdas Thanu Dessai & Ors. Ors. Ors. Vs. State of Goa & Ors. 2008(6) ALL MR 153 Vs. State of Goa & Ors. 2008(6) ALL MR 153 Vs. State of Goa & Ors. 2008(6) ALL MR 153 and M/s.Shree M/s.Shree M/s.Shree Bajrang Hard Coke Manufacturing Corporation Bajrang Hard Coke Manufacturing Corporation Bajrang Hard Coke Manufacturing Corporation Vs. Vs. Vs. Ramesh Prasad and Ors. AIR 2003 Jharkhand 17 Ramesh Prasad and Ors. AIR 2003 Jharkhand 17 Ramesh Prasad and Ors. AIR 2003 Jharkhand 17, in support of his contention. 5. The above contentions were strongly controverted by learned Counsel appearing for the respondent Railway. He further submits that in spite of giving an opportunity, petitioner did not encash that opportunity. He did not file his reply and failed to produce any document in support of his :3: contentions. He further submits that the petitioner though attended three different dates of hearing, no explanation is being furnished as to why he could not file reply to the show cause notice and that why he chose to remain absent on subsequent dates of hearing. No explanation is offered as to why he did not engage any Advocate to represent his interest. He also submits that from time to time the notices were served on petitioner and petitioner chose to remain absent. Under these circumstances, he submits that there is no breach of principles of natural justice. CONSIDERATION CONSIDERATION CONSIDERATION : : : 6. Having heard rival contentions of both parties, we find no substance in the submissions made by the learned Counsel for the petitioner. The findings recorded by the Estate Officer are proper and reasonable. An opportunity of hearing was given to petitioner. Petitioner appeared before the Estate Officer on almost three dates referred to hereinabove, during the period from 25th June, 2004 to 25th March, 2005. Therefore, it cannot be said that the proceeding was taken behind the back of petitioner. 7. The petitioner had ample opportunity to file his reply and to produce documents and to contest the proceeding after engaging the services of the Advocate. The petitioner failed to encash opportunity afforded to him. Under these circumstances, the contention that the impugned action is in breach of principles of natural justice needs to be over ruled. :4: 8. So far as unauthorised occupation of the petitioner is concerned, no material is produced on record that in what capacity the petitioner was occupying the subject premises. Merely because the suit premises has been constructed with bricks walls and cement sheets roof, it does not mean that the petitioner is an authorised occupant. 9. So far as the applicability of the provisions of Maharashtra Project Affected Persons Rehabilitation Act,986 are concerned, we failed to understand how the provisions of the said Act would get attracted. 10. So far as the submissions leading to breach of fundamental rights are concerned, the same are stated merely for rejection. We do not find any substance in these submissions made. The petition is devoid of substance. It is, therefore dismissed in limine with no order as to costs. (MRIDULA (MRIDULA (MRIDULA BHATKAR,J.) BHATKAR,J.) BHATKAR,J.) (V.C.DAGA,J.) (V.C.DAGA,J.) (V.C.DAGA,J.)