Sabir Siddiq Malik Vs. Bombay Environmental Action Group and Ors.
EmailAppeal: Civil Appeal No. 2352 of 2009
With
C.A. Nos. 2344-2349, 2353, 2354, 2350, 2329 of 2005.
[From the Judgement and Order dated 15.09.2003 of the High Court of Judicature at Bombay in Writ Petition No. 305 of 1995]
With
C.A. Nos. 2344-2349, 2353, 2354, 2350, 2329 of 2005.
[From the Judgement and Order dated 15.09.2003 of the High Court of Judicature at Bombay in Writ Petition No. 305 of 1995]
Petitioner: Sabir Siddiq Malik
Respondent: Bombay Environmental Action Group and Ors.
Apeal: Civil Appeal No. 2352 of 2009
With
C.A. Nos. 2344-2349, 2353, 2354, 2350, 2329 of 2005.
[From the Judgement and Order dated 15.09.2003 of the High Court of Judicature at Bombay in Writ Petition No. 305 of 1995]
With
C.A. Nos. 2344-2349, 2353, 2354, 2350, 2329 of 2005.
[From the Judgement and Order dated 15.09.2003 of the High Court of Judicature at Bombay in Writ Petition No. 305 of 1995]
Judges: Dr. Arijit Pasayat & Asok Kumar Ganguly, JJ.
Date of Judgment: May 08, 2009
Appearances:
Appearances
Mr. Swarup Singh, Mr. Shyam Diwan, Ms. Indu Malhotra, Ms. Indira Jaisingh, Mr. Pallav Shishodia, Mr. Shekhar Nephade, Mr. P.S. Narsimha, Seniors Advocates, Mr. S.K. Chaudhary, Mr. Aniruddha P. Mayee, Ms. Sunieta Ojha, Mr. Vasuman, Ms. Shilpa Singh, Mr. Mukesh K. Giri, Mrs. Jayshree Wad, Mr. Ashish Wad, Mr. Chirag S. Dave, Mr. Sameer Abhyankar, Mr. S. Vikram (for M/s. J.S. Wad & Co.), Mr. Samrat, Ms. Kavita Wadia, Mr. Sanjay Sharawat, Mr. Vikas Mehta, Mr. D.N. Mishra, Mrs. M. Qamaruddin, Mr. Atishi Dipankar, Mr. Ravindra Keshavrao Adsure, Mr. Dilip Annasaheb Taur, Mr. Santosh Kr. Tripathi, Mr. Atul Y. Chitale, Ms. Sunaina Dutta, Mrs. S.A. Chitale, Mr. Akhil Sibal, Mr. Ankur Saigal, Ms. Bina Gupta, Ms. Anisha Ranjan, Mr. Gaurav Singh, Mr. K.D. Abhichandaani, Mr. Bhargava V. Desai, Mr. Rahul Gupta, Ms. Reema Sharma, Mr. E.C. Agrawala, Mr. S.D. Singh, Mr. Vijay Kumar, Mr. Vishwajit Singh and Ms. Asha Gopalan Nair, Advocates with them for the appearing parties.
Mr. Swarup Singh, Mr. Shyam Diwan, Ms. Indu Malhotra, Ms. Indira Jaisingh, Mr. Pallav Shishodia, Mr. Shekhar Nephade, Mr. P.S. Narsimha, Seniors Advocates, Mr. S.K. Chaudhary, Mr. Aniruddha P. Mayee, Ms. Sunieta Ojha, Mr. Vasuman, Ms. Shilpa Singh, Mr. Mukesh K. Giri, Mrs. Jayshree Wad, Mr. Ashish Wad, Mr. Chirag S. Dave, Mr. Sameer Abhyankar, Mr. S. Vikram (for M/s. J.S. Wad & Co.), Mr. Samrat, Ms. Kavita Wadia, Mr. Sanjay Sharawat, Mr. Vikas Mehta, Mr. D.N. Mishra, Mrs. M. Qamaruddin, Mr. Atishi Dipankar, Mr. Ravindra Keshavrao Adsure, Mr. Dilip Annasaheb Taur, Mr. Santosh Kr. Tripathi, Mr. Atul Y. Chitale, Ms. Sunaina Dutta, Mrs. S.A. Chitale, Mr. Akhil Sibal, Mr. Ankur Saigal, Ms. Bina Gupta, Ms. Anisha Ranjan, Mr. Gaurav Singh, Mr. K.D. Abhichandaani, Mr. Bhargava V. Desai, Mr. Rahul Gupta, Ms. Reema Sharma, Mr. E.C. Agrawala, Mr. S.D. Singh, Mr. Vijay Kumar, Mr. Vishwajit Singh and Ms. Asha Gopalan Nair, Advocates with them for the appearing parties.
Head Note:
Constitution
Constitution of India, 1950
Articles 14, 16, 226 – Writ Petition – Jurisdiction under – Dispute with regard to certain persons alleged to be encroachers in Sanjay Gandhi National Park and their eviction – The question of unauthorized occupation being a disputed question of facts. Held that such a question cannot be decided in the Writ Petition. A direction issued for approaching the competent authorities.
Constitution of India, 1950
Articles 14, 16, 226 – Writ Petition – Jurisdiction under – Dispute with regard to certain persons alleged to be encroachers in Sanjay Gandhi National Park and their eviction – The question of unauthorized occupation being a disputed question of facts. Held that such a question cannot be decided in the Writ Petition. A direction issued for approaching the competent authorities.
Held:
There can be absolutely no doubt that the question whether a person is unauthorisedly in occupation cannot be decided in a writ petition. Where factual disputes of this nature can be adjudicated, obviously, adjudication has to be done by statutory authority. It is open to the appellants to move any authority which according to them has the jurisdiction to decide that issue within four months. If there is adverse adjudication it shall be open to the appellants to move to the statutorily provided forum to consider the grievances. To the extent the order of the High Court is varied. The grievance redressal committee cannot be substituted for statutorily prescribed body. Needless to say the challenge if any to the prescribed authority in case of adverse adjudication has to be taken within the prescribed period of limitation. (Para 4)
JUDGEMENT:
Dr. ARIJIT PASAYAT, J.
1. In these appeals challenge is to the judgment of a Division Bench of the Bombay High Court in several writ petitions and notice of motion. Allegation was that appellants were encroachers in Sanjay Gandhi National Park and therefore they were to be evicted. The basic stand of the appellants is that they are not encroachers and they are not occupying any portion of Sanjay Gandhi National Park. It is their case that the High Court has shut out all remedies statutorily available. It is submitted that there has to be factual adjudication as to whether they are encroachers.
2. Learned counsel for the respondent-State of Maharashtra submitted that these questions are being repeatedly raised by the appellants. There has been not once but several adjudications made by various authorities that they are in fact unauthorized occupants/encroachers who have made unauthorized constructions. It is submitted that the High Court has appointed a High Level Committee to look into the grievances to cut short the prolonged litigation and repeatedly filing of petitions to prolong the proceedings, the High Court has directed to constitute a Committee who shall entertain any proceeding in this behalf.
3. Whether the appellants are unauthorized occupants cannot be decided obviously in a writ petition. The Bombay Environment Action Group one of the writ petitioners had brought to the notice of the Court that there were large number of persons unauthorisedly occupying vast portion of the land in Sanjay Gandhi National Park. There is dispute that the question relating to unauthorized occupation has to be adjudicated by any competent authority statutorily.
4. Learned counsel for the State of Maharashtra submitted as noted above that there have been several rounds of adjudication. This position is strongly denied by learned counsel for the appellants. There can be absolutely no doubt that the question whether a person is unauthorisedly in occupation cannot be decided in a writ petition. Where factual disputes of this nature can be adjudicated, obviously, adjudication has to be done by statutory authority. It is open to the appellants to move any authority which according to them has the jurisdiction to decide that issue within four months. If there is adverse adjudication it shall be open to the appellants to move to the statutorily provided forum to consider the grievances. To the extent the order of the High Court is varied. The grievance redressal committee cannot be substituted for statutorily prescribed body. Needless to say the challenge if any to the prescribed authority in case of adverse adjudication has to be taken within the prescribed period of limitation. It is open to the parties to seek such protection as is available in law pending final decision of the matter. We express no opinion in that regard. The appeals are accordingly dismissed.
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1. In these appeals challenge is to the judgment of a Division Bench of the Bombay High Court in several writ petitions and notice of motion. Allegation was that appellants were encroachers in Sanjay Gandhi National Park and therefore they were to be evicted. The basic stand of the appellants is that they are not encroachers and they are not occupying any portion of Sanjay Gandhi National Park. It is their case that the High Court has shut out all remedies statutorily available. It is submitted that there has to be factual adjudication as to whether they are encroachers.
2. Learned counsel for the respondent-State of Maharashtra submitted that these questions are being repeatedly raised by the appellants. There has been not once but several adjudications made by various authorities that they are in fact unauthorized occupants/encroachers who have made unauthorized constructions. It is submitted that the High Court has appointed a High Level Committee to look into the grievances to cut short the prolonged litigation and repeatedly filing of petitions to prolong the proceedings, the High Court has directed to constitute a Committee who shall entertain any proceeding in this behalf.
3. Whether the appellants are unauthorized occupants cannot be decided obviously in a writ petition. The Bombay Environment Action Group one of the writ petitioners had brought to the notice of the Court that there were large number of persons unauthorisedly occupying vast portion of the land in Sanjay Gandhi National Park. There is dispute that the question relating to unauthorized occupation has to be adjudicated by any competent authority statutorily.
4. Learned counsel for the State of Maharashtra submitted as noted above that there have been several rounds of adjudication. This position is strongly denied by learned counsel for the appellants. There can be absolutely no doubt that the question whether a person is unauthorisedly in occupation cannot be decided in a writ petition. Where factual disputes of this nature can be adjudicated, obviously, adjudication has to be done by statutory authority. It is open to the appellants to move any authority which according to them has the jurisdiction to decide that issue within four months. If there is adverse adjudication it shall be open to the appellants to move to the statutorily provided forum to consider the grievances. To the extent the order of the High Court is varied. The grievance redressal committee cannot be substituted for statutorily prescribed body. Needless to say the challenge if any to the prescribed authority in case of adverse adjudication has to be taken within the prescribed period of limitation. It is open to the parties to seek such protection as is available in law pending final decision of the matter. We express no opinion in that regard. The appeals are accordingly dismissed.
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