1 IN THE HIGH COURT OF JDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1666 OF 2009 Nanandlal Dwarkaprasad Dhobi ... Petitioner Vs. The Senior Inspector of Police, Dadar Railway Police Station and ors. ... Respondents Shri. S. Y. Katkade for the petitioners. Shri Milind More, AGP for the Respondent-1, 2 and 4 Shri. A. N. Samant for Respondent No.3. CORAM : SMT. RANJANA DESAI AND MRS. MRIDULA BHATKAR, JJ. DATE : 3rd December, 2009. P. C. 1. In this petition filed under Section 226 of the Constitution of India, the petitioner has, inter alia, prayed that this Court may direct the respondents to reconstruct the shed in which the petitioner and his family were residing, at their cost and allow the petitioner to continue his business of ironing clothes in the said premises. 2. The case of the petitioner is that since 1946, the 2 petitioner s family had been conducting the business of ironing ’ clothes in a shed situated in the compound of Dadar Railway Police Headquarters, LakhamaiNaeo Road, Mumbai 400014. After the death of his father in 1979, the petitioner has been carrying on the said business in the said shed. According to the petitioner, on 31.3.1989 a notice was issued by the Railway Police to the petitioner intimating to him that he was unauthorisedly carrying out the business of ironing clothes in the said shed. The petitioner was asked to vacate the said premises within a period of 15 days. The petitioner, therefore, filed a suit in the City Civil Court, being Suit No. 3112 of 1989 praying for declaration that the said shed belongs to him and for injunction restraining the respondents from disturbing his possession. Learned counsel pointed out that on 15.6.1989, a statement was made by learned counsel for the respondents that the respondents will follow due process of law and on that basis the suit was disposed of. It may be noted here that the Central Government was not party to the said suit. 3. Learned counsel for the petitioner pointed out that on 17.5.2003 another notice came to be issued to the petitioner by the 3 Senior Inspector of Police, Dadar Railway Police Station asking him to remove the unauthorised construction and informing him that if he fails to do so, the respondents will take forcible possession thereof. Learned counsel submitted that on 6.2.2009, the premises have been demolished by the respondents. Learned counsel further submitted that the present case is governed by the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. He submitted that in view of the statement made by learned counsel for the respondents in the City Civil Court, the respondents ought to have followed the due process of law. Learned counsel submitted that the petitioner has a ration card and an election card. He submitted that with the permission of the respondents the petitioner has obtained electrical connection. The respondents could not have demolished the shed without following due process of law. In the circumstances this court must direct the respondents to reconstruct the shed and hand it over to the petitioner. 4. 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 ) 4 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). 5. Learned counsel appearing for the Union of India and the Central Railway stated that the land on whichthe petitioner had constructed the said does not belong to the Central Railway but it belongs to the State Government. 6. Learned counsel for the respondent -State stated that the said land belongs to the State and therefore, the present case is not governed by the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, but by the Bombay Government Premises Eviction Act, 1955. He stated that due process of law is followed. 7. We shall first refer to the judgements cited by the learned counsel. 5 8. 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 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. 6 9. 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. 10. In M/s. Wire-netting Stores case the petitioners claimed to be lessees of the Delhi Development Authority. Their claim was 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. 11. The order of the Division Bench of this court in Pramod 7 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. 12. There can be no doubt that the respondents are expected to follow due process of law while evicting persons from government land or premises if they are in settled possession. In this case, the shed is demolished. The case of the respondents is that due process of law is followed. According to the respondents, the petitioner has no legal right to encroach upon Government land. Reconstruction of a demolished shed can be granted in very rare cases in writ jurisdiction. Prima facie, in our opinion, the petitioner s’ claim that he was permitted to occupy the said shed will have to be proved by leading evidence. Atleast as of today, he has not produced any documents before us in support of his claim. That he has a valid claim and that due process of law was not followed can be proved by him by leading evidence. It is not possible for us to direct reconstruction of the demolished premises in our writ jurisdiction. 13. While disposing of the writ petition, we make it clear that 8 we have not gone into the question as to which Act applies to this case. It will be open to the petitioner to file a suit or adopt any other appropriate remedy if he so desires for redressal of his grievance. Needles to say that the observations made by us are prima facie observations and the court seized of the proceeding, if any, filed by the petitioner shall deal with it independently and in accordance with law and it shall not be swayed by any observations made by us in this order on the merits of the petitioner s case. ’ 14. The petition is disposed of in the aforesaid terms. (MRIDULA BHATKAR, J.) (RANJANA DESAI, J.) jpc/-