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PETITIONER: RAM PRASAD YADAV & ORS.

       Vs.

RESPONDENT: CHAIRMAN, BOMBAY PORT TRUST & ORS.

DATE OF JUDGMENT29/03/1989

BENCH: PATHAK, R.S. (CJ) BENCH: PATHAK, R.S. (CJ) KANIA, M.H.

CITATION:  1989 SCALE  (1)716

ACT:     Constitution  of  India 1950: Article  136.  Problem  of hutment     dwellers--A    human     problem--removal     of hutments--Causes  untold hardship and  misery--Provision  of alternative sites--Whether a condition precedent.     Practice   and   Procedure:  Hutment   dwellers--Removal of--Appointment of Commission for identification of  benefi- ciaries in terms of ’cut off date fixed by interim order  of Court--Whether ground for extending ’cut off date.     Bombay Rents, Hotels and Lodging Houses Rates  (Control) Act, 1947--Applicability of--To Bombay Port Trust Lands.

HEADNOTE:     In  May  1985, some of the hutments in the  Bombay  Port Trust  lands were cleared by the Port Trust and  these  hut- ments were demolished. The petitioners filed a writ petition in  the  Bombay High Court for restraining the  Bombay  Port Trust  from carrying out any further demolition of the  hut- ments. The writ petition was dismissed by a Single Judge  of the High court. An appeal preferred against the order of the Single  Judge was dismissed by a Division Bench.  Hence  the appeal by special leave to this Court.     By  an interim order dated 27th January 1986 a  Division Bench of this Court fixed a cut off date as January 1,  1981 for the purpose of granting relief in the form of  providing alternative sites to the hutment dwellers and directed  that those hutment dwellers who have been continuously in occupa- tion  for at least two years prior to January 1, 1981  shall not-be  thrown out unless and until, alternative  sites  are provided  to  them  for occupation. A  Commission  was  also appointed  to  identify the persons who  were  eligible  for alternative  sites in terms of the aforesaid interim  order. In its report submitted on 4th November 1986, the Commission pointed out that only 50 hutment dwellers could satisfy  the Commission that they were living on the site for a period of two  years  prior  to the cut off date.  The  other  hutment dwellers were unable to do so. 174     It  was contended on behalf of the petitioners that  (i) in view of the time which has gone by, cut off date fixed by this  Court should be extended, and (ii) the policy  of  the State of Maharashtra was not to evict unauthorised occupants on  public  lands except after  providing  them  alternative

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accommodation. Disposing of the special leave petition, it was,     HELD:  1.  The problem of hutment dwellers  is  a  human problem  and  the removal of hutments is bound to  cause  an untold  hardship  and misery to the occupants.  However,  on that consideration, the Bombay Port Trust cannot be prevent- ed from putting its land to its own use. [178C]     2.  Once the cut off date has been fixed by this  Court, there  is  no basis for extending the cut  off  date  merely because time has gone by since that would render the  entire task  given  to the Commission futile.  Moreover,  doing  so would  run counter to the intention of this Court in  making the aforesaid order which was to protect only those  hutment dwellers  who had been in occupation for at least two  years prior to 1.1.1981. In view of the fact that no policy state- ment  of  the  Government of the State  of  Maharashtra  was pointed  out it cannot be taken into account. Moreover,  the Port Trust land cannot be regarded as public land in occupa- tion of the Government, either the Central Government or the State Government. [177E-H]     2.1. Under the circumstances, directed that the said  50 hutment  dwellers  along with their families  who  had  been identified  by  the Commission as having occupied  the  said hutments  for two years or more prior to the cut  off  date, namely, 1.1.1981, shall not, be removed from their  hutments and  their  hutments shall not be  demolished  except  after provision of alternative sites for them. The Port Trust will be at liberty to remove these hutments after giving alterna- tive sites to these hutment dwellers. [177H; 178A-B]     3.  It  is not possible for this Court  to  say  whether there  would be a greater injury to public interest  by  the removal of the unauthorised hutment dwellers or by  prevent- ing  the  Port Trust from putting its own land to  a  proper use. [178C-D]     4.  The  State Government or the Central  Government  or even  the  Bombay  Port Trust may make  some  provision  for providing  alternative sites at least to some of these  hut- ment dwellers. However, 175 the provision of such alternative sites is not made a condi- tion precedent to the removal of the hutment dwellers or the hutments  in question other than those who are  entitled  to protection on the basis set out earlier.

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) No. 7883 of 1985.     From  the  Judgment  and Order dated  24.5.1985  of  the Bombay High Court in Appeal No. 461 of 1985.     M.C.  Bhandare, G.S. Chatterjee and Ms.  C.K.  Sucharita for the Petitioners.     B.  Datta, G. Ramaswamy, Additional Solicitor  Generals, A.S.  Bhasme,  Praveen Kumar, R.P. Srivastava,  Mrs.  Sushma Suri, U.J. Makhija, B.S. Bhasania, Mrs. A.K. Verma, and Turn Bangs for the Respondents. The Judgment of the Court was delivered by KANIA, J. Heard Counsel.     This is a Petition under Article 136 of the Constitution for special leave to appeal against a judgment and order  of a  Division  Bench of the Bombay High Court  dated  May  24, 1985.     Original  Petitioner  No. 1 who is dead  was  a  hutment dweller and Petitioner No. 2 is a Union representing hutment

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dwellers  having  their hutments in lands belonging  to  the Bombay  Port Trust. Respondents Nos. 1 to 3 to the  petition are  the Chairman of the Bombay Port Trust, Union  of  India and the State of Maharashtra respectively.     Some of the hutments in the Bombay Port Trust lands were cleared  by the Bombay Port Trust in the first part  of  May 1985  and  these hutments were demolished.  The  Petitioners filed  a Writ Petition No. 992 of 1985 on the Original  Side of  the  Bombay High Court inter alia  for  restraining  the Bombay  Port Trust from carrying out any further  demolition of hutments and asking for several other reliefs.     A  learned Single Judge of the Bombay High Court in  his judgment  and  order  dated May 15, 1985  disposing  of  the petition  pointed  out  that the  Petitioners’  Counsel  was unable to point out any legal 176 fight in the petitioners. The property admittedly belongs to the  Bombay  Port  Trust and the provisions  of  the  Bombay Rents,  Hotels and Lodging House Rates (Control)  Act,  1947 are  not applicable to the said property. The learned  Judge further  pointed out that although the  petitioners  claimed that  there  was  some policy of the  State  Government  for providing  alternative accommodation before the hutments  on public  lands  were  demolished, no statement  of  any  such policy  was  brought to the attention of the Court  and  the learned Counsel for the State denied that there was any such policy  for the Bombay Port Trust lands. The  learned  Judge dismissed  the  writ petition but directed that  status  quo should be maintained till and inclusive of 30th May, 1985 on certain  conditions.  The Petitioners  preferred  an  appeal against  the  said order which was dismissed by  a  Division Bench  of  the Bombay High Court by the order sought  to  be impugned before us.     Certain interim orders were passed in the said  Petition from  time  to time with which we are not concerned.  By  an order dated January 27, 1986 a Division Bench of this  Court comprising  Bhagwati, C.J. and Oza, J. observed that as  far as  they gathered, about 406 families were involved  in  the operation  relating to the removal of unauthorised  hutments on  the lands of Bombay Port Trust. They also observed  that it  was  fair and just that some alternative land  sites  be provided  to those who have been continuously in  occupation since  at least two years prior to a cut off date, fixed  by them as January 1, 1981 should be provided with  alternative sites before being thrown out of the said land and  directed that  those hutment dwellers who have been in occupation  of the  Bombay Port Trust lands along with their  families  for the  said period, shall not be thrown out unless and  until, as a condition precedent, alternative sites are provided  to them for occupation. The Division Bench appointed a  Commis- sion  for  the purposes of inquiring and determining  as  to which of the persons whose names and addresses were given in the  affidavit  filed on behalf of the petitioners  were  in occupation of hutments in the Bombay Port Trust lands for at least two years prior to January 1, 1981. A plain reading of the said order makes it clear that the State Government  was directed to provide alternative sites only to those  hutment dwellers who were ultimately found entitled to protection as being in occupation for the period set out earlier i.e.  two years prior to the cut off date. The Commission appointed by this  Court  submitted its Report on November 4,  1986.  The Commission pointed out that out of 411 families mentioned in the  affidavit filed on behalf of the Petitioners, the  Com- mission could make an inquiry in regard to 302 hutment 177

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dwellers. 59 of them had already left for Govandi a place in Bombay  where alternative sites were presumably allotted  to them  and  the Commission held that these persons  were  not staying on the Bombay Port Trust lands. The Report makes  it clear  that inquiry could not be made with  certain  persons mentioned  in the affidavit as they were not  available  for inquiry  despite  the fact that the Commission  visited  the sites at least six times and spent considerable time  there. Out of the persons concerned, the Commission found-that,  on the  evidence, only 50 hutment dwellers with their  families could  satisfy the Commission that they were living  on  the site  for a period of two years prior to the cut  off  date, namely, 1.1.1981. The other hutment dwellers were unable  to satisfy the Commission with their evidence. The  commission- er, however, stated that it was possible that some of  these persons,  who had been unable to establish  their  residence for  the aforesaid period, might have been unable to  do  so because  of  their  poverty, lack of literacy  and  want  of documentary proof.     It  is after that making of this Report that the  matter has come up before us. As far as we can see, in view of  the aforesaid order of this Court, the main task before us is to implement that order.     It  was contended by Mr. Bhandare, learned  Counsel  for the Petitioners that although the cut off date was fixed  as 1.1.1981, we should extended the cut off date in view of the time which has gone by. He further contended that there  was a  policy of the State of Maharashtra not to evict  unautho- rised  occupants on the public lands except after  providing them alternative accommodation. We are unable to accept  the submissions of Mr. Bhandare. Once the cut off date has  been fixed  by  this Court by the aforesaid order,  there  is  no basis for extending the cut off date merely because time has gone  by  since  that order because that  would  render  the entire task given to the Commission futile. Moreover,  doing so  would  run  counter to the intention of  this  Court  in making  the aforesaid order which was to protect only  those hutment dwellers who had been in occupation for at least two years prior to 1.1.1981. Although the policy of the  Govern- ment of the State of Maharashtra was referred to, no  policy statement was pointed out to us and the learned Counsel  for the  State of Maharashtra made it clear that no such  policy would be applicable to the Bombay Port Trust lands. In  view of  this,  we are unable to take into  account  any  alleged policy of the State. Moreover, the Port Trust land cannot be regarded  as public land as being in the occupation  of  the Government,  either  the  Central Government  or  the  State Government. Under the circumstances, we direct that the said 50 hutment 178 dwellers  along with their families who had been  identified by  the Commission as having occupied the said hutments  for two  years  or  more  prior to the  cut  off  date,  namely, 1.1.1981, shall not be removed from their hutments and their hutments  shall not be demolished except after provision  of alternative  sites  for  them. As already  directed  by  the earlier order, the duty of carrying out this task is imposed on the State of Maharashtra but, even if either the  Central Government  or  the Port Trust is able to  give  alternative sites  to these hutment dwellers, the Port Trust will be  at liberty to remove these hutments.     We  realise  that the problem of hutment dwellers  is  a human problem and the removal of hutments is bound to  cause an untold hardship and misery to the occupants. However,  on that  consideration,  we cannot prevent Bombay  Port  Trust,

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from putting its land to its own use. It is not possible for this  Court  to say that whether there would  be  a  greater injury to public interest by the removal of the unauthorised hutment  dwellers or by preventing the Port Trust from  put- ting  its own land to a proper use. In order to obviate  the hardship referred to earlier, although to a limited  extent, we direct that even the hutments on the said lands which are not  entitled  to protection, will not be demolished  for  a period of six months from the date of signing of this order. We  only  hope and trust that it will be  possible  for  the State  Government  or  the Central Government  or  even  the Bombay  Port  Trust  to make some  provision  for  providing alternative  sites at least to some of these hutment  dwell- ers,  if not all. However, we make it clear that the  provi- sion  of  such  alternative sites is not  made  a  condition precedent  to  the removal of the hutment  dwellers  or  the hutments  in question other than those who are  entitled  to protection on the basis set out earlier.     The Special Leave Petition is disposed of by this order. There will be no order as to costs. T.N.A.                                     Petition disposed of. 179