Thane Zilla Shramik Zopadpatti Sudhar Sangh and Others vs The Thasildar and Others

N.D. Vyas, J.—By the present petition which is under Article 226 of the Constitution of India, the Petitioners have asked for quashing and setting aside of notices dated 4th February 1989 issued u/s 50 of the Maharashtra Land Revenue Cede.

The Petitioner No. 1 is a registered Association and the Petitioner No. 2 is the Secretary thereof. The members of the Association viz. the Petitioner No. 1 Association are having nearly 146 huts occupied by various persons, a list whereof is annexed to the petition. These huts arc situated on Survey No. 141/A at Boisar Village, Taluka Palghar, District Thane, which land belongs to the State Government. It is the Petitioners'' case that the said huts are used for residential purpose and also for carrying on business as shop-keepers. Many of the residents are working in the nearby industries as labourers and their offices are situated near about .The residents are paying assessment to the Village Panchayat, Boisar, and the Village Panchayat is also charging water tax to the residents of the zopadpatti. They are also paying electricity charges to the Maharashtra State Electricity Board. Thus, the residents are in a settled/possession of the land in question for 30 to 40 years. These residents made several representations to the State Government for allotment of plots which are in their occupation on several occasions. These representations were made in 1983, 1985 and some had even applied prior thereto in 1982. There was no response from the State Government. However, on 4th February 1989, several notices, copies whereof arc annexed to the Petition as Exh. ''C� collectively, were issued on the residents u/s 50 of the said Act stating therein that it had come to the notice of the authorities that on the said survey number which belongs to the State Government, unauthorised constructions/encroachments have taken place and therefore the residents were asked lo remove the constructions/encroachments within a period of seven days of the receipt thereof, failing which the same would be removed by the State Government at the cost and expenses of the residents. The Petitioners have challenged these notices in the present petition. Although the petition has been filed way back in 1989 and the Respondents have been served, no affidavit in reply is filed by the Respondents. Not only that, but when the matter reached on 1st October 1996, none appeared for the State. When the matter has reached today, again there is none appearing for the Respondents. Mrs. Agarwal, the learned Counsel appearing for the Petitioners attacked the said notices impugned in the said petition. The gravamen of the charge was that the Respondents instead of considering the applications made by the residents of the Petitioner No. 1 Association, have issued these notices to evict the Petitioners from the said plot of land. It is her submission that the Petitioners have been in settled possession for 30 to 40 years, the huts are used not only for residential purpose but also as shops and without giving any hearing, the shelter over their heads is sought to be removed and the Petitioners are sought to be deprived of their livelihood.

In the petition, the Petitioners have in no uncertain terms averred that the Respondents had without considering the welfare attitude, issued the impugned notices, which approach of the Respondents was arbitrary and malafide. Mrs. Agarwal relying on these averments submitted that in fact it was the duly of the State Government to provide shelter to its citizens and to take such harsh action without even showing the decency of giving a hearing to the Petitioners was not only arbitrary and malafide but inhuman. As indicated earlier, we do not have the benefit of any reply by the Respondents. In these circumstances, the averments made in the petition go unchallenged and uncontroverted. The fact however remains that although the Respondents have power u/s 51 of the said Act of regularising the encroachments in question, despite applications after applications made by the Petitioners, nothing is done. It is Mrs. Agarwal''s submission that the least the Respondents could have done was to give a hearing to the Petitioners in order to investigate possibilities and terms on which the regularisation could have been granted.

We may only refer to the observations of the Apex Court in the matter of M/s. Shantistar Builders Vs. Narayan Khimalal Totame and others, which observations, in our opinion, apply completely to the situation with which we are faced. The Supreme Court has observed that:-

Basic needs of man have traditionally been accepted to be three - food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect - physical, menial and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fire-proof accommodation.

With the increase of population and the shift of the rural masses to urban areas over the decades the ratio of poor people without houses in the urban areas has rapidly increased. This is a feature which has become more perceptible after independence. Apart from the fact that people in search of work move to urban agglomerations, availability of amenities and living conveniences also attract people to move from rural areas to cities. Industrialisation is equally responsible for concentration of population around industries. These are features which are mainly responsible for increase in the homeless urban population. Millions of people today live on the pavements of different cities of India and a greater number live animal like existence in jhuggis.

In our view, the above observations do not require any elucidation. In our view, nothing further is required to be stated as the learned Judges of the Supreme Court have aptly taken note of the duty of the State to provide shelter as well as livelihood.

In these circumstances, we are of the view that although Section 50 under which the impugned notices have been purportedly given, does not specifically speak of any hearing to be given, it is a settled law that principles of natural justice are to be read into such provisions. The impugned notices as mentioned earlier do not speak of any hearing at all. On the face of it, it smacks of arbitrary exercise of power. Least the Respondents could have done was to give hearing to the Petitioners before passing such drastic orders whereby families after families would be removed from the place where they have been residing and carrying on business for decades.

The petition, for the above reasons, requires to be and is made absolute in terms of prayer (b) of the petition. Although the said prayer speaks of only one notice, we take it that the same is only a typographical error. Rule is made absolute with no order as to costs.

Certified copy expedited.