M.P. Women'S Hockey Association vs State Of Maharashtra And Ors.
2005 Latest Caselaw 342 Bom

JUDGMENT

J. N. Patel, J.

1. These petitions can be disposed of by common judgment and order, as the question relates to the property of the petitioner M.P. Women's Hockey Association - in Writ Petition No. 2510 of 1985.

2. The background facts, which led to the filing of these petitions, can be summed up as under :

(A) By letter dated 20th November, 1985, addressed to Hon'ble Shri Justice B. A. Masodkar, the then Senior Judge of Nagpur Bench of the High Court of Bombay, the petitioner - M. P. Women's Hockey Association sought assistance of the Court for removal of encroachments from their playfield. In sum and substance, it was their grievance that after their Founder President, Advocate Avi J. Cama died in 1979, the encroachments on the land allotted to their Association begun and in spite of the petitioner Association having approached various Authorities, they could not prevent the land from being encroached. The petitioner has also annexed various communications made to the Authorities including the then Hon'ble Minister of State for Sports, Government of Maharashtra, the District Collector, Nagpur, the Municipal Administrator, Nagpur Municipal Corporation, Nagpur, and so on. This Court treated the said letter as a suo motu writ petition and directed the President of the M.P. Women's Hockey Association to file an affidavit in support of their allegations. It also directed that the Authorities like the Collector, Nagpur, the Municipal Administrator, Nagpur Municipal Corporation, Nagpur, the State of Maharashtra through its Revenue Department, and the Chairman, Nagpur Improvement Trust were also required to be heard in the matter and that is how the respondents -State of Maharashtra, Commissioner of Police, Nagpur, N.I.T., N.M.C., M.S.E.B. and one Dilip Chaudhary, the then Corporator, were included as respondents.

(B) In the course of hearing, by order dated 12th March, 1986, this Court appointed Shri Marpakwar, Advocate, as the Commissioner of the Court and asked him to submit his report in the matter with a direction to the Authorities to give all reasonable assistance to the Commissioner of the Court in preparation of the report. It was also ordered that in case any new encroachment is made and the petitioner reports to the Commissioner of Police for help in removing the encroachment, the said assistance shall be rendered without any unreasonable delay to see that at least no further encroachments should take place. It appears that thereafter the matter was pending.

(C) According to the petitioner Association, by lease-deed dated 30th November, 1936 between the Government of Bombay State and the petitioner Association, the State granted a plot of nazul land admeasuring 1,80,000 sq.ft. or 4.13 acres thereabout out of Khasara No. 8-9/Mouza Sitabuldi (Nagpur). A plan also came to be annexed to the lease-deed. This fact is not disputed by the respondents.

(D) Insofar as the stand taken by the Authorities, like the Commissioner of Police, it is specifically stated that the Commissioner of Police is not the Authority to remove encroachment and it is the duty of other Government Agency. It is also stated that whenever the encroachments are required to be removed by the N.I.T., N.M.C. or P.W.D., the police assistance is provided, on assessment that there is a likelihood of obstruction to removal of encroachment and to ensure smooth operation of removal of encroachment.

(E) The N.I.T. took the stand that as the land allotted to the petitioner Association is not the property of the N.I.T., nor it was acquired by the N.I.T. and they being not the lessee of the N.I.T. and the said land being outside the improvement schemes of the N.I.T., they have nothing to do in the matter. They have stated that the land is belonging to the Nazul Department, which has allotted it to the petitioner Association, and they only expressed their ignorance in the matter. They not only are ignorant of the fact when the land was allotted to the petitioner Association by the Revenue Department, but also they do not know when the encroachments were commenced on the land, how they had increased and to what extent they had reached now.

(F) On behalf of the N.M.C., it has been submitted that the land, which is popularly known as Tiger Gap ground, was granted by the then Government of Bombay to the petitioner in 1956. They admit that the total area was about 4.13 acres. They also admit that the land belongs to the petitioner, which is a Public Trust. But it is their stand that the petitioner ought to have taken steps to prevent encroachments on the said land by the nearby slum dwellers. However, they have not taken any steps and prevented their land from being encroached and, therefore, they have nothing to say in the matter, except for saying that they, by putting a compound wall, have prevented further encroachments on the land.

3. We have gone through the report of the Commissioner Shri Marpakwar, which is placed on record. In the report, he has stated that the land has been encroached from all sides by the persons. He has furnished the list of persons, who have been found to be on the land of the petitioner Association during the period he inspected the site. He has also annexed the photographs and a copy of the plan. On the day the Commissioner visited the land and prepared the list, that is on 19-3-1986, he found that there were 145 persons, out of which 103 occupants were paying the municipal taxes. This was obtained from the petitioner - Nagpur Zopadpatti Vikas Samiti, Nagpur - in Writ Petition No. 3908 of 2001. The petitioner Samiti has also filed an application for intervention through one Vijay Udaram Kataria, who claims to be the Joint Secretary of Nagpur Zopadpatti Vikas Samiti, Nagpur.

4. Insofar as the petitioner Nagpur Zopadpatti Vikas Samiti, Nagpur is concerned, they have filed Writ Petition No. 3908 of 2001 in this Court on 20-11-2001, that is almost after 15 years. It is their case that the petitioner Society is a registered under the Societies Registration Act, 1860. The aims and objects of the Society are to protect the interest and welfare of the people living in Zopadpatti, that is slum, and the members of the petitioner Association of Survey No. 8-9/1 of Mouza Sitabuldi (Nagpur) are residing on the land since last 30-40 years, which is a notified slum. It is their case that the Government has issued a resolution that the people living in the slum should not be dispossessed till they are provided with alternate plot or land and for that they are paying the regular municipal taxes. It appears that during this period, the name of the petitioner Association was changed from M.P. Women's Hockey Association to Vidarbha Women's Hockey Association.

5. Shri Meghe, the learned counsel appearing for the petitioner -Association, submits that the respondent-Authorities have failed to co-operate with the petitioner - Association in protecting their land from encroachers and, therefore, they have approached this Court for a writ of mandamus to the Authorities, particularly the State of Maharashtra through the Collector, to remove all encroachments on the land of the petitioner - Association. It is submitted that the petitioner - Association tried their level best to safeguard their property, but for want of co-operation of the Authorities, they could not do so. The learned counsel emphasized that it is difficult for the petitioner Association to protect the land from encroachments unless they have the assistance of the Authorities.

Shri Meghe further submits that the encroachers have no right to remain on the land of the petitioner Association and, therefore, they being rank trespassers, this Court should direct the Authorities to remove all encroachments from the petitioner-Association's land.

Shri Meghe submits that the petitioner Association undertakes to protect the land by raising a compound wall, for which also they will require the assistance of the Authorities, as abutting the land of the petitioner Association, there is a slum. The slum dwellers do not permit the petitioner Association to carry out any construction work or even for that purpose enter upon their land. It is submitted that after this Court treated the letter written by the President of the Petitioner Association to this Court, presently the Petitioner Association is able to use the play ground, which is insufficient for the Association, but it is being kept in use so as to prevent further encroachments and it is because of the intervention of this Court that the ground is saved. It is submitted that this is the only play ground available to the petitioner Association in Vidarbha.

6. Shri Yengal, the learned AGP appearing for respondent - State, drew our attention to the Government Resolution dated 10th July, 2002, which provides that in case of encroachments by slum dwellers on the land belonging to the Society or Trust, it is their responsibility to remove them and rehabilitate them at their costs and, therefore, the State has a very limited role to play in the matter. It is specifically contended that the petitioner Association having failed to protect their land, cannot blame the Authorities for the encroachments.

7. Shri Samarth, the learned counsel appearing for the respondent -Municipal Corporation, pointed out to this Court that the Corporation, which is the Competent Authority under the Maharashtra Slum Area (Improvement, Clearance, Re-Development) Act, 1971, has notified the land abutting the play ground of the petitioner Association as slum area by the notification dated 3rd September, 1971 and so far as the land allotted to the petitioner, that is play ground, is concerned, it is not covered under the notification. It is submitted that the slum dwellers from the adjoining slum probably have encroached upon the petitioner-Association's play ground.

8. There is no dispute about the fact that the land is allotted to the petitioner Association by the State Government and the members of the petitioner Association have tried their level best to protect the play ground from being encroached, which is evident from the fact that as soon as it was noticed by them that the persons from neighbouring slum area were encroaching upon the play ground of the petitioner Association, they had approached all the Authorities concerned, but could not get any help or assistance to prevent the encroachments. Therefore, this cannot be said to be an inaction on the part of the petitioner Association. On the other hand, the Authorities stood by as onlookers and allowed the slum dwellers to encroach the play ground, putting the petitioner Association in a hapless position. Having left with no choice, the then President of the petitioner Association was required to write a letter to the Senior Judge of the Nagpur Bench of the High Court of Bombay and it is the High Court, which took the cognizance of the matter and treated the said letter as a suo motu writ petition and appointed the Commissioner to inspect the land and submit his report, which is filed on record.

9. Insofar as the petitioner - Nagpur Zopadpatti Vikas Samiti, Nagpur, is concerned, they do not claim any right over the land allotted to the petitioner Association. Their anxiety is only to protect the interest of the people living in Zopadpatti, that is slum. The petitioner - Nagpur Zopadpatiti Vikas Samiti, Nagpur, has never claimed that it is the object of their Society to grab the land by encroaching it and allot the same to their members and this cannot be an object of any Society, which is legally registered, as it will be against the law and public policy and, therefore, they cannot claim any right to encroach upon the land allotted to the petitioner Association.

10. In our opinion, it is not necessary for this Court to hear any of the encroachers, in order to issue writ of mandamus to the Authorities. It is a settled law that no person shall be deprived of life, liberty or property without due process of law. It is, therefore, obligatory on the part of the State to protect its citizen from any violation of the law and punish the person, who takes law in his hand. It is all the more necessary when the law is violated by use of criminal force to dispossess a person of his property, i.e. by unlawful means, they strike at the roots of the Society itself. The respondents having failed to protect the property of the petitioner, which they were duty bound, have abdicated their statutory duty, resulting in petitioner's loosing possession of part of their property to the aggressors, who encroached their land. If such unlawful acts are not prevented, there will be no peace and good order in Society. Rule of law will cease to exist, chaos and anarchy will prevail, as law abiding citizens would be coerced to take law in their lands. In the fact situation the petitioner-Association was dispossessed, they were overawed by force, and inaction on the part of law enforcement agency on their complaints rendered them helpless.

11. The petitioner-Association is, therefore, entitled to be put back in possession for which the Authorities can be directed to remove all encroachments from the land of the petitioners by following due process of law, that is after giving them sufficient notice to move out of the petitioner-Association's land, and then mark the boundaries and extend protection to the petitioner Association to enable them to construct a compound wall and protect and preserve it.

12. Therefore, the Collector, Nagpur, can be directed to take necessary steps to remove all encroachments from the land allotted to the petitioner Association after following due process of law and for that purpose, the respondent Commissioner of Police and all Authorities including N.I.T., N.M.C. and M.S.E.B. would extend all necessary co-operation.

13. We may make it clear that the Government Resolution dated 10th July, 2002 issued by the Government cannot be read against the interest of the petitioner Association for the simple reason that the land allotted to the petitioner Association was encroached by the adjoining slum dwellers due to the inaction on the part of the Authorities for extending co-operation to the petitioner Association in protecting their land from the encroachments and, therefore, if at all the State of the view that all these encroachers on the land of the petitioner Association are required to be rehabilitated, we direct them to do so at their own costs and responsibility in accordance with the scheme, if any, for rehabilitation, which also finds place in the communication dated 29th January, 1985 made by the Collector to the Chairman, N.I.T., which also clearly records that there are only 128 encroachments on hockey ground and 99 on the Government land adjacent to it. 43 out of these are prior to 1980 and 184 are subsequent to that year. It is further mentioned that it would be easy to get the hockey playground vacated if alternate sites are provided to the encroachers. The important fact is that when the petition was pending in this Court from the year 1985, this Court had directed the Authorities not to permit further encroachments. Insofar as the encroachers, who have come on the land of the petitioner Association after this communication was sent to the Collector, Nagpur, are concerned, they would not get such a protection. We further make it clear that the Government Resolution dated 10th July, 2002 will also not be applicable to the case of the petitioner Association, as it was subjudice before this Court from the year 1985 and there is no reference to such matters in the GR where the parties have approached the Court for seeking the relief of removing the encroachments, nor this can act as an impediment in the way of the Court in issuing a writ of mandamus.

14. We, therefore, direct the State of Maharashtra through the Collector, Nagpur, to remove all encroachments from the petitioner-Association's land within a period of three months by following due process of law, that is by giving notices to the encroachers to vacate the land within a period of fifteen days. If the encroachers are not able to place on record any document, which confirms a legal right on them to continue to occupy the land under encroachment and if they are not able to justify their claim over the land encroached by them, they may be removed by using reasonable force and by taking police assistance.

15. We further direct the respondents - Collector, Nagpur and Commissioner of Police, Nagpur, to extend sufficient protection to the petitioner Association to enable them to construct a compound wall to secure their land and erect a gate. The Collector, Nagpur and the Commissioner of Police Nagpur, are further directed that as and when the petitioner Association approaches them with a grievance of any encroachment, they would give immediate assistance to the petitioner Association to remove such encroachment by providing them assistance and police protection.

16. The Nagpur Municipal Corporation would not assess or recover any tax on any structure erected by any encroachers on the land belonging to the petitioner Association and would demolish all such unauthorised constructions if they are done without obtaining any sanction as required under the Building Bye-laws and Rules of the Nagpur Municipal Corporation.

17. We direct the Commissioner, Nagpur Municipal Corporation, Nagpur the Collector, Nagpur, and the Commissioner of Police, Nagpur, to act in coordination for complying with the writ of this Court and submit their report on 8th June, 2005.

18. So far as Writ Petition No. 2510 of 1985 filed by M.P. Women's Hockey Association, Nagpur, is concerned, rule is made absolute in the aforesaid terms.

19. As regards Writ Petition No. 3908 of 2001 filed by Nagpur Zopadpatti Vikas Samiti, Nagpur is concerned, it is dismissed and the rule stands discharged. The petitioner Society is granted liberty to approach the State Government for their rehabilitation, if any, on the condition that they voluntarily vacate the encroachments on the playground of Vidarbha Women's Hockey Association within the stipulated period.