Sameer Usman Shaikh and 3 Ors. Vs Union of India through Government Pleader and 5 Ors.

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sg

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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 WRIT PETITION NO.3048 OF 2019
WITH

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CHAMBER SUMMONS NO.277 OF 2018

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Sameer Usman Shaikh And 3 Ors....Petitioners

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vs

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Union of India Through Government
Pleader And 5 Ors....Respondents

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Ms. Gayatri Nayak, a/w. Ms. Manisha Mundhe, i/b. Mr. Rajesh
Khobragade, for the Petitioners.

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Mr. Chetan Agrawal, a/w. Ms. Jyoti S. Agrawal, for Respondent Nos. 2
to 4.

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Mr. H.S. Ansari, for the Applicant to the Chamber Summons.

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 CORAM : S.C. GUPTE, J.

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DATED: 06 FEBRUARY, 2020

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P.C. :

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. Heard learned Counsel for the parties.

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2.This writ petition challenges a notice issued under the
Public Premises (Eviction of Unauthorised Occupants) Act (“Act”) and an
order of eviction passed by the competent authority on the basis of such
notice. The case of Union of India as well as Western Railways, who are
Respondents in the present petition, is that the subject land belongs to
the railways and was illegally encroached upon by the Petitioners. The
Petitioners claimed to have registered themselves under the name of

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Bandra Navpada Rahiwashi Co-operative Housing Society Ltd. They
claim to be in possession of the land under an indenture of lease with
MHADA. It appears that there is a development agreement in respect of
the land. The land, however, with which we are concerned in the
petition, does not form part of the leasehold land but outside it. The
Petitioners resisted the eviction notice of the competent authority and
the proceedings under the Act purportedly on the basis that they had
certificates and other documents under the Shops and Establishment Act
as well as electricity connections and other requisite licences, ration
card, etc. to show their legal possession of the disputed land.

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3.So far as the railway’s case for eviction is concerned, the
authority had to decide, firstly, whether the land belonged to the
railways and, secondly, whether the Petitioners had any authority from
the railways, as such owners, to occupy the land. The authority
particularly found that the demarcation maps and property card clearly
showed the boundaries and the distance of the suit lands from the
society’s land. The authority considered the communication of
Brihanmumbai Mahanagarpalika (letter dated 6 December 2019), under
which the Corporation had confirmed that the land, on which illegal
encroachments of galas were found, and which were the subject matter
of the eviction proceedings, did not belong to the Corporation but
belonged to Western Railways. So also, there was a letter on record
issued by Deputy Collector, Bandra East, Mumbai (letter dated 16
October 2017) confirming that the land, illegally encroached upon, did
not belong to the Collector but to Western Railways. There was nothing
on record to justify any authority in the Petitioners to occupy the subject

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land. The subject land was neither claimed by the Petitioners as of their
ownership or under any other tenure. The documents produced by the
Petitioners did not support their case concerning their authority to
occupy the subject land. The authority found that in accordance with
the provisions of the Act, the occupants had failed to discharge their
burden to show that they had authority to occupy the subject land. After
carefully going through the records, the authority was of the view that
there was a case for eviction of the Petitioners from the subject land and,
accordingly, ordered removal of the encroachments.

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4.No fault can be found with the impugned order of the
authority passed under sub-section (2) of Section 5A of the Act. The
authority has considered all relevant and germane circumstances and
materials and has not considered any irrelevant or non-germane
material or circumstance for arriving at the conclusion. The conclusion
of the authority is in keeping with the law and supported by some
evidence. The documentary evidence of demarcation maps, property
register card as well as written confirmations of Brihanmumbai
Mahanagarpalika and Deputy Collector, Bandra East, Mumbai, support
the ownership claim of Western Railway. As against it, there is no
material to support the Petitioners’ case either that the land is owned by
the Municipal Corporation or that they have authority to occupy the
land. The impugned order cannot thus be termed as either perverse or
unreasonable.

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5.There is, accordingly, no merit in the petition. The petition
is dismissed.

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6.At the request of learned Counsel for the Petitioners, the
status quo operating in the matter during the pendency of the petition so
far, shall continue to operate for a further period of four weeks.

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7.In view of the disposal of the petition, the chamber
summons does not survive and is disposed of.

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( S.C. GUPTE, J. )

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Digitally signed by Smita Smita Gonsalves Gonsalves Date: 2020.02.1116:20:28 +0530

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Sameer Usman Shaikh and 3 Ors. v. Union of India through Government Pleader and 5 Ors.

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Sameer Usman Shaikh and 3 Ors. v. Union of India through Government Pleader and 5 Ors.

Case brief

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