1 IN THE HIGH COURT OF JDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1667 OF 2009 Anant T. Bhekare ... Petitioner Vs. The Senior Inspector of Police, Dadar Railway Police Station and ors. ... Respondents WITH WRIT PETITION NO. 1668 OF 2009 Vithoba P. Parit ... Petitioner Vs. The Senior Inspector of Police, Dadar Railway Police Station and ors. ... Respondents Shri. S. Y. Katkade for the petitioners. Shri. A. N. Samant for Respondent No.3. Ms. Madhubala Kajale, AGP for the Respondent-State CORAM : SMT. RANJANA DESAI AND MRS. MRIDULA BHATKAR, JJ. DATE : 3rd December, 2009. P. C. 1. Both these petitions can be disposed of by a common order because the facts are similar and the issues involved are also similar. 2. The petitioner in Writ Petition No. 1667 of 2009 is employed 2 in the Public Works Department of the Government of Maharashtra since, 1977. According to him he was posted at the Railway Police Quarters, Dadar. He was permitted to construct a shed in the compound of the said quarters and has been staying there since 1977. The case of the petitioner in Writ petition No. 1668 of 2009 is that he is working in Public Works Department of the Government of Maharashtra as Civil Engineer since 1981. According to him in 1987 he was permitted to construct a shed in the compound of Railway Police Quarters, Dadar and since then he has been staying in the said shed. According to the petitioners, they have obtained electrical connection with the permission of the Commissioner of Railway Police. The petitioners also have ration cards and election cards. The grievance of the petitioners is that without following due process of law on 6.2.2009, the respondents dispossessed them by demolishing their sheds. According to the petitioners, the respondents ought to have followed the procedure prescribed under the Public premises (Eviction of Unauthorised Occupants )Act, 1971 and the rules made thereunder. The petitioners have inter alia prayed that the respondents may be directed to reconstruct the said sheds and put the petitioners in possession thereof. 3 3. We have heard learned counsel for the petitioners at some length. He reiterated the submissions made in the petition. He submitted that the petitioners ought to have followed due process of law and inasmuch as they have not done so this Court should direct reconstruction of the demolished sheds. In support of his submissions, learned counsel has relied on the judgments of the Supreme Court in : i. Olga Telis vs. Bombay Municipal Corporation. )AIR 1986 Supreme Court 180 ) ii. Krishna Ram Mahale Vs. Shobha Venkat Rao(AIR 1989 Supreme Court 2097) iii. Wire-Netting Stores and another Vs. Delhi Development Authority and others (1969 (3) supreme Court Cases 415) and iv. An interim order dated 9th September, 1997 of Division Bench of this Court in Writ petition No. 1128 of 1997- (Pramod Dattaram Jawkar Vs. State of Maharashtra and others). 4. Learned counsel appearing for the Union of India and the Central Railway stated that the land on which the said sheds are constructed does not belong to the Central Railway but it belongs to the State Government. 5. Learned counsel for the State stated that the said land 4 belongs to the State and therefore the present case is not covered by the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, but is covered by the Bombay Government Premises Eviction Act, 1955 and due process of law is followed under that Act. 6. It is not possible for us to accept the submissions of learned counsel for the petitioners. We shall first refer to the judgments cited by him. 7. In Olga Tellis & Ors., the Supreme Court was dealing with a writ petition challenging removal of huts from the pavements. The case of the pavement dwellers was that they cannot be evicted from the huts unless they are provided with alternative place. The Supreme Court held that if the slum dwellers are evicted from pavement dwellings they would be deprived of their livelihood which will be in breach of Article 21 of the Constitution. The Supreme Court observed that Section 314 of the Bombay Municipalities Act confers the discretion on the Commissioner to remove encroachment with or without notice, but that discretion has to be exercised in a reasonable manner. The procedure must be fair and reasonable. The 5 Supreme Court also observed that no person has a right to encroach on footpaths or public places. The State Government gave an assurance to the Supreme Court that the pavement dwellers will be given alternate place at Malvani. The Supreme Court worked out an arrangement in that behalf and disposed of the petition. Prima facie we feel that on the basis of this judgment, the petitioners who are Government employees and who are said to have illegally constructed sheds on Government land cannot seek a direction that the demolished sheds be reconstructed. 8. In Krishna Ram Mahale s case ’ the licensee was illegally dispossessed by the licensor. His case was based on an agreement. The licensee filed a suit for recovery of possession. The Supreme Court in the circumstances held that the licensee was entitled to a decree of possession since she was unlawfully dispossessed. Here again, the case of the licensee was based on an agreement and the matter arose out of a suit. 9. In M/s. Wire-netting Stores case the petitioners claimed to be lessees of the Delhi Development Authority. Their claim was 6 based on a letter of allotment dated 7/5/1954. They were regularly paying rent. The Delhi Development Authority without following the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 forcibly dispossessed the petitioners. The petitioners approached the Supreme Court under Article 32 of the Constitution. It is in these circumstances that the Supreme Court ordered that possession be restored to the petitioners. The case of the petitioners was based on a letter of allotment and regular payment of rent. 10. The order of the Division Bench of this court in Pramod Dattaram Jawkar v. State of Maharashtra & Ors. dated 9/9/1997, is an interim order. Facts of that case are not before us and, therefore, that order will not help the petitioners. 11. Prima facie it appears to us that the present case cannot be compared to the above cases. In very rare cases where claim of the person dispossessed is based on genuine documents and weighty evidence order directing reconstruction could be issued. But this course cannot be followed in all cases. Prima facie, the claim of 7 the petitioners that they were allowed to construct the said sheds and stay there does not appear to us to be a claim which can be accepted without leading evidence. This is, therefore, not a case where reconstruction of the sheds can be ordered in writ jurisdiction. We make it clear however that we have not gone into the question as to which Act applies to the present case. It will be open to the petitioners to file a suit or adopt any other appropriate remedy if they so desire for redressal of their grievances. Needless to say that the observations made by us are prima facie observations and the court seized of the proceedings, if any, filed by the petitioners shall deal with them independently and in accordance with law and they shall not be swayed by any observations made by us in this order on the merits of the petitioners case ’ 12. The petitions are accordingly disposed of. (MRIDULA BHATKAR, J.) (RANJANA DESAI, J.) jpc/-