Kushtha Sewa Snastha vs Union Of India

01- The petitioner before this Court, Kushtha Sewa Sanstha a registered Society, has filed present petition being aggrieved by order dated 30/12/2019 and 06/12/2019 passed by Competent Authority under the provisions of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 under Article 227 of the Constitution of India. The Competent Authority has dismissed the applications preferred by the petitioner Society under Order VII Rule 11 and Order VI Rule 17 of the Code of Civil Procedure, 1908.

02- The facts of the case, as stated in the writ petition, reveal that the petitioner Society has been constituted for welfare of the persons suffering from "Leprosy". The petitioner Society itself has stated that lands were allotted to them and they are in possession of about 14.70 acres of land, on which agricultural operation are being carried out by the persons suffering from "Leprosy".

03- The petitioner has further stated that the respondent No.3 has started proceeding under the provisions of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 as the land was required for construction of a Medical College / Super Specialty Hospital and allied services. An application was preferred before the Competent Authority in the year 2010-11 and a case was registered at Case No.34/2010-11. 04- Thereafter, again eviction proceedings were initiated for eviction of the petitioner Society and the Society obtained temporary injunction in Civil Suit No.497-A/2014. The petitioner has further stated that inspite of the aforesaid, as the petitioner Society was being evicted from the premises in question, a writ petition was preferred i.e. Writ Petition No.13883/2019 and this Court by an order dated 22/07/2019 has granted an interim order as averment was made by the petitioner that even encroachers cannot be forcibly dispossessed. The petition was finally decided on 18/09/2019 and the following order was passed:-

"Parties through their counsel.

The petitioner before this court has filed this present petition stating that they are being evicted from public premises, without following the due process of law. The Employees State Insurance Corporation has issued a notice on 09-07 -2019 directing the petitioners to vacate the premises and being aggrieved by the aforesaid notice a present petition has been filed.

Learned counsel Mr Phadke has stated before this court that even if the petitioners are encroachers the due process of law is required to be followed.

The respondents have filed a reply. Learned counsel appearing for the respondents have stated before this court that the State is constructing 300 bedded hospital and constitution is going on. However as on the part of the land the petitioners are in possession they are taking action against the petitioners, in accordance with law.

Learned counsel for the respondent has fairly stated that the respondent Corporation shall be certainly following the due process of law. They will not be evicting the petitioners forcibly.

In light of the aforesaid, the present petition stands disposed of with liberty to the respondents to proceed ahead in respect of eviction strictly and accordance with law.

Certified copy as per rules."

The facts further reveal that now the Competent Authority is proceeding ahead in the matter and again the present petition has been filed.

05- The petitioner has not stated full facts before this Court and the facts further reveal that 50 acres of land has been allotted for rehabilitation of the persons suffering from Leprosy. The petitioner Society is raising all hue and cry in the matter and is creating all kind of hurdles in respect of construction of hospital by Government of India. The project is about 400 Crores rupees project and construction is already at full swing and by obtaining interim orders, the petitioners are creating all kind of hurdles.

06- Earlier also another encroacher has preferred a writ petition i.e. Writ Petition No.7615/2011 (Manohar Deval Vs. Employees State Insurance Corporation & Ors.) and the Division Bench of this Court vide order dated 24/06/2019 in paragraphs No.03 to 07 has passed the following order:-

"3. The facts of the case reveal that the present petitioner is not a title holder of the property in question. It is undisputed that it is a government land and he is claiming right over the government land on account of alleged adverse possession. In respect of the government land, which is under the control of the Employees State Insurance Corporation (for short "ESIC"), proceedings were initiated against the petitioner under the provisions of Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam,1974 and the Competent Authority has passed an order in respect of eviction of the petitioner. The order passed by Competent Authority was subjected to appeal before the Commissioner and the learned Commissioner has dismissed the appeal. Meaning thereby, the petitioner has lost before 2 forums and being aggrieved by the order passed by the Competent Authority as well as appellate Authority, the present writ petition has been filed. The present writ petition was filed in the year 2011 and at that time, the petition was filed, an application for grant of stay was also filed. This Court on 22/09/2011 after hearing learned counsel for the petitioner as well as learned Govt. Advocate has passed a very exhaustive order. The order refers that the possession of the land in question is with the State Govt. In the aforesaid order, it has also been mentioned that the factum of possession with the State Govt. has not been disputed by the petitioner. Meaning thereby, in the year 2011 itself, learned counsel for the petitioner conceded that the State Govt. has taken possession of the land in question. The petitioner thereafter again preferred a stay application which was heard on 15/04/2019 and at the relevant point of time as a 300 bedded hospital was being constructed over the land in question, this Court has disposed of IA No.4005/2011, permitting the State Govt. to proceed ahead with the process of construction. Now a third application has been filed i.e. IA No.2901/2019 again restraining the respondents to proceed ahead with the construction process.

In the considered opinion of this Court, the present application is nothing but a sheer abuse of process of law. Inspite of the fact that stay was rejected in the year 2011, the E.S.I.C. has been permitted to construct the hospital, an application has been filed for directing the parties to maintain status quo. Meaning thereby, to stop the construction of the hospital, which is being constructed for weaker section of the society, inspite of the fact that the petitioner is not title holder of the property, there is no judgment and decree in his favour as on date.

Resultantly, the application after hearing learned counsel for the petitioner is rejected.

The petition is an admitted petition. The same be listed for final hearing in due course.

The respondent-ESIC shall make all possible endeavour to ensure that the hospital is completed within the time frame work as provided in the tender process. The ESIC shall also submit the progress report in respect of construction of hospital after every 3 months to the Registry of this Court."

The Division Bench of this Court has directed completion of 300 bedded hospital at an early date and now the petitioner Society is creating all kind of hurdles in the matter.

07- The another important aspect of the case is that the petitioner while filing present petition has not impleaded the persons, who were parties before the Competent Authority. It is true that persons suffering from Leprosy also deserves to be rehabilitated and the society has to look after them. Government of India is certainly under an obligation to help and to provide all kind of medical facilities and rehabilitation facilities to the persons who are suffering from Leprosy. 50 acres of land has already been allotted to them, houses have been constructed and if new locality is short of some facilities, the petitioner are certainly at liberty to file a fresh petition praying appropriate relief before this Court. Construction of a hospital cannot be stayed in the manner and method it is being prayed for by creating all kind of hurdles in the process of eviction.

08- The apex court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil reported in 2010 (8) SCC 329 in paragraph 49 held as under:-

"49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.

(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."

In light of the aforesaid judgment as no patent illegality has been committed by the trial court and the order passed by the trial court does not suffer from any jurisdictional error, this Court does not find any reason to interfere with the order passed by the Competent Authority and the writ petition deserves to be dismissed and is hereby dismissed with a direction to the Competent Authority to conclude the proceedings within a period of 60 days from the date of receipt of certified copy of this order.

09- Learned counsel is also heard on IA.Nos.1103/2020, 1467/2020 and 1468/2020. All the applications, in light of the order passed by this Court, are dismissed.

Certified copy as per rules.