Sabir Siddiq Malik vs Bombay Environmental Action Group & Ors

Sabir Siddiq Malik ...Appellant

Versus

Bombay Environmental Action Group and Ors. ...Respondents

(With Civil Appeal Nos. 2344-2349 of 2005 Civil Appeal No. 2350 of 2005 Civil Appeal No. 2353 of 2005 Civil Appeal No. 2354 of 2005 Civil Appeal No. 2329 of 2005

JUDGMENT

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

2 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

3 final decision of the matter. We express no opinion in that regard. The

appeals are accordingly dismissed.

........................................J. (Dr. ARIJIT PASAYAT)

........................................J. (ASOK KUMAR GANGULY)

New Delhi, May 08, 2009

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