Tuesday, December 5, 2023

Samuel Blind “Justice Needs Judicial Mind”

By Adv Harshal Mirashi

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Occasionally, every now and then, unwarranted, hustle and bustle, is what goes on in a Lawyers life. I called it needless, hustle and bustle, because ninety per cent one of every, Advocate is engaged in activities, which are though unproductive, but nonetheless, inevitable. Academic or pseudo scholastically, we know something like “sine qua non” and understand it, as well. Look at some procedural skirmish, three copies of Writ Petitions to be served to Government! ‘O’ God, the Government pleader needs to be given a spare copy personally. This is internal, “high court science”. You better dare escape from it as I said “sine qua non”. Besides anyways, ultimately the Government Pleader is going to object in admission of the Petition, alleging that he has not been, served the copy by Petitioner. You cannot escape this abuse, as almost every time it happens that, the acknowledged copy, is lost by your clerk and the ill-fated Advocate, has to face the music. 

It was my seventh year of practice. What I know then was that, I know nothing. People have no business to blame lawyers, for being egocentric. A truthful lawyer has to control his “e” that connotes many riders, such as, he has to be sort of, equipped, elegance, eager, and most pivotal protect his economics. If you are not, switched for any of these or especially the terminal “e” the “go” automatically emanate. Thus ego cannot be an integral part of a Lawyers career, since it’s crushed already in every years of slogging. As Swami Vivekand quotes, “Go to people, who crush your ego and destroy your identity, simply then, and only then, you can learn” I was exceedingly privileged, that many to people who encountered me in my practise, gave me enormous lessons of life. The story, I am narrating is a haemorrhage tale, of a client who was visually impaired, had no vision. I can tell you but, even though he did not had sight to see, he usher a tremendous amount of insight, drifted, for his faith in law and judiciary.       

Samuel, an aged old, visually impaired, citizen of India. You look into his eyes and I bet, you might, forget all your sorrows. Be ensure, I am very much in my senses. It’s not to your dismay. I am aware that, Samuel does not have vision. But almighty gave him courageous way to see the world optimistically. His indulgent was much ripened and pragmatic, unlike any visual person. There stimulate a kind of buoyancy, which is hope and light for everyone, who was around Samuel. Samuel is suffering from disability, since his childhood. He is entailed to be protected by the Law, especially under, statue promulgated for Disabled qua the Disability Act, 2017. This story reads as “No rise in ashes of phoenix, remnants merely”.    

Samuel came to Mumbai in the year 1986 and started residing on road with his family. He for a roof, managed to erect a shanty for himself and his family. Samuel would take routine chores for his livelihood. The Brihan Mumbai Corporation “BMC” and Housing development body of Maharashtra “MHADA” happen to give him, false promise of rehabilitating him to alternative premises. As a matter of fact Samuel has been the occupier of premises viz Opp. building No. 240, Kannamvar Nagar,No. 2, Vikhroli (E), Mumbai – 400 083. 

Samuel was able to carry out his daily routine with help of his family member’s i.e Wife and Daughters. He has been issued a disability certificate by the Govt. of Maharashtra for visual impairment of 100%. The Government of India has recently promulgated an Act for the purpose of protecting the rights of disabled persons. However, the fruits of the act were, at bay for him. It may not even reach him and exactly that has, regrettably happened. This is an archetypal story of every downtrodden, deprived of this country. Thought, destiny theatres incidence which might be beyond humans reach, nevertheless if our legal system is responsible we need to intensely, introspect our judicial system and law. 

Samuel approached me through one of my friends, Adv Deepak Paikrao, who, believes in helping needy and in legal activism. Adv Paikrao is prominent for his altruistic approach in Mumbai. He griped me that, Samuel has legal right over his shanty, but the local authority is troubling him. I mull over my brains. The questions I put to myself were, whether Samuel is a protected occupier, under the Slum Rehabilitation Act, whether he is entitled for an alternative accommodation. These were mixed question of, fact and law, which perhaps may sort justice to him. Incidentally, exercising fundamental right through Writ Jurisdiction stood, always an option, inviting me.  

Samuel apprised that, he resides since 1998. He was in possession of certain documents such as survey carried out by District Collector of the area, Letter of such correspondence made by Shri. Chandrakant Handore the Mayor of Mumbai, then. This cogent evidence goes to show rights of Samuel. Furthermore it also came to light that, N.A. Assessment is made by Additional, Tahsildar of Kurla. Additional to this, an order under section 44 of the Maharashtra Land Revenue Code has also been passed, showing Samuel as an occupier of the hutment.

Everything was well placed for me within by limited knowledge and skills to commence drafting. Now started actual theorist’s game with multiple quills, which Lawyers, hates and also loves. The basis universal dilemma is, if designed strategy works, nobody is going to reward the Advocate but if it fails, help not, he will be blamed for betrayal and nonetheless disloyalty.

The decision was to be taken inevitably. Thus, I filed a suit for injunction before the City Civil Court at Mumbai, hoping to get a protection.  I strongly avowed in my pleadings, that the Plaintiff resides in the suit premises, since long. I harped upon appropriate, extracts from the Assistance Electoral Registration Officer. The said certificate clearly indicates Samuel’s possession in the premises earlier to year 1992. The Human Rights Mission, a local organisation has also made representations for him, which was relied upon ingeniously. The Additional District Collector had issued a letter to Samuel in the year 1993 to inquire about his application made to Tahasildar. I tried to build a case that, Samuel is protected occupier under law and entitled for necessary protection contemplated in the Slum Act.

As any average lawyer, I was not verily attentive to what exactly happens in the Court. I produce the papers and moved, notice of motion for injunction. The Lawyer appearing for Municipal Corporation produced the layout plan, wherein the said structure was depicted downright, over the footpath. What would have happened, of my notice of motion, shall be nothing more than a feeble speculation skill to rub over. The Court dismissed my motion squarely. When I argued that, the Plaintiff has no place to reside, the court candidly hinted to approach the High Court.          

I believe that every Lawyer has to fight tooth and nail, to get justice for his client. I had two options and I availed both. I filed an Appeal from order (AO) as well a Writ Petition. In my AO I took grounds which are already drafted by veteran Lawyers, and interestingly, while drafting, we get a slight feeling that, this might have been drafted for us. Nevertheless I drafted Writ Petition carefully. I averred that, in view of being a protected occupied, under the Slum Rehabilitation Scheme, BMC is required to provide accommodation, to the Petitioner, I also agitated that (BMC) and (MHADA) has turned the blind eye, toward the genuine, request of the Petitioner. I reproduced the relevant portion qua Section 19 of the Slum Rehabilitation Act, and asserted that Samuel falls, in the criteria of evicted tenant by the BMC. In all unworkable submissions, I did not but forget to include that, BMC and MHADA is required to protect the right to live, guaranteed under article 21 of the Constitution of India.  

Once a Writ Petition is filed, it’s a routine principle of Government bodies, to restrain themselves from taking, adverse steps against respective Petitioner. I immediately like a punctual Advocate served the BMC and MHADA. In the dense, wild bitter experiences, these are unprinted secrets a Lawyer inculcates by himself. I got some breathing time, as my client did not bothered me for at least a month. 

I am much blessed to encounter certain experience, giving insight of certain invisible powers. Mankind may not be aware of it. As Albert Einstein, ones quoted “I do not know, what and which, super power is this, what I know, is that, it exists” I was remarkably impressed, when I got to read this. I was ample Lucky to get a jiff of it, too. You may call it superstitious, but the real equipment of success is surrendering your ego. Irrespective of what science may agree or not, however, this of my experience is interesting and mysterious. 

As a background to narrate the Writ Petition had appeared, on the board of Justice Smt Naik and heard also. The BMC Lawyer powerfully submitted that, the Petitioner has filed a suit in the City Civil Court. Though, I had not supressed this fact, the Court was fretful and asked for the copy of suit to the BMC Lawyer. I was lucky. BMC Lawyer was not carrying a copy. The Court directed her to bring a copy. The Court further made oral observation that “I am going to give this Petition what it deserves”. This clearly indicated the fate of my Petition. 

One morning my clerk called me and apprised that, today both AO and Writ Petition are on board. Incidentally the AO was high on board before Justice Bhatkar and WP obviously before Justice Naik. I was already stunned about the consequences of my Writ Petition. Nevertheless, consequently hopes of AO were alive and it was the only possibility. There was no need to prepare for AO as, in all effortful litigating travel, I had become well verse with the facts. I argued thoughtfully and at length. It was a grace of Justice Bhatkar she never stopped a Lawyer when, he is arguing a matter. Once he stops she used to expressly ask him, whether he has finish with his argument and need to further argue. I have done with my argument, My Lady, I told the Court. Yes, she said and started dictating the order dismissing my AO. Let me reproduce the order from the Court itself.

“Considering the submissions made by the learned counsel for both the sides, I am of the view that there is no substance in the Appeal and the same is disposed of’ Though, I had made submission that the Appellant is blind, it made no difference, and she has covered my ground as below: 

“Learned counsel for the appellants submits that appellant No.1 is a blind and he has no other place of residence and, therefore, he is to be protected. He further submits that some more time be given to the appellants to shift to other place”

The Justice may be called is bind, since reasonableness, procedures and many more things make obfuscates a laymen. Accordingly thus, the AO was dismissed and I just could not retain any strength, to think or any type of fighting instinct within me. Whatever instinct may call it I had completely lost that. I became completely helpless, stranded and felt destitute, to my destiny. The feeling was as if, I am not. This realizes I am nobody to give justice to other landed blank. 

I suddenly realize that, I need to argue Writ Petition deserved to be dismissed, before Justice Naik. I doubted if could utter a word in the Court I just went and sat in the Court room. The BMC Lawyer was this times more commanding, in her arguments. She showed the order of City Civil Court and everything appropriate for her at that relevant time. At that moment, some miracle might have happened. The Court looked at me and said Yes, Mr Counsel, what, you want to say. As I had lost all my desire of fruits, on this matter, desire less words, which came out of my mouth, without me knowing were tremendously politely, and in a respective low tone “My lady, the purpose of this Writ Petition is for safeguarding my fundamental rights, and the suit is totally unrelated” On this Justice Naik, started turning pages of my Petition, for some time and said to the BMC Lawyer. If the Petitioner has documents cogent of his occupation in the premises, why cannot you find him alternative premises” This was orally and not part of the order, but both BMC and MHADA were directed to file reply.

The BMC never took any action for a long period of time after this order. However, but after a year some crooked officer, for whatever reason, started demanding a stay from demolition. Virtually, there was no stay and this Writ Petition, was for a different purpose. I tried to get such orders, but could not succeed. In the course, the BMC in a demolition drive was compelled to demolish the structure, due to political pressure.

At the time of demolition there was, voluntary agitation on the sight by various social workers, including Adv Deepak Paikrao. Adv Paikrao tried to protect the premises, to the highest possible way he could. The demolition drive took its course and Samuel and his family was left high and dry. 

About Government bodies who are duty bound to protect fundamental right of the Citizen. The Slum Rehabilitation Authority turned blind eye. MHADA not bothered. In the guise of cleaning Mumbai BMC, to shield and protect its clean image demolished this premises. Rehabilitation of displaced, homeless has become an imaginary, fantasy, as government bodies have shed no light on this problem of poor. There is no proper plan with the MHADA, MMRDA, BMC or any of the Government body for rehabilitation of such individuals who are ensnared by false promises by government official.

I feel enormously depressed and sad to include the sad demise of Samuel, amid this legal battle. Samuel was a brave soul I name him a real warrior. Tills his last breath he did not give away, hopes. 

Always Samuel trust in the Court and its Justice and also its Judicial Mind.


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