"No Person Has Right To Retain Encroached Land": Gujarat High Court Denies Relief To Evicted Slum Dwellers; Asks State To Frame Land Allotment Policies

"Right to shelter is a fundamental right, which springs from the right to residence assured in Article 19(1)(e) and right to life under Article 21 of the Constitution. It is a constitutional duty of the State to provide house sites to the poor."

However, "No person has a right to encroach and erect structures or otherwise on footpath, pavement or public streets or any other place reserved or earmarked for a public purpose."

While declining relief to the Petitioners in the instant case, slum dwellers who were uprooted by the Government authorities in September 2020 from the Gandhinagar Railway Station area, a Division Bench comprising of Chief Justice Vikram Nath and Justice JB Pardiwala said,

"The weaker sections of the society like the writ applicants in the present case, no doubt, have the basic human and constitutional right to shelter and it becomes the paramount duty of the State to fulfill those. However, it gives no person the right to encroach and erect structures or otherwise on footpaths, pavements or public space or at any place reserved or earmarked for a public utility. This is exactly what seems to have happened in the case on hand. It may be true that the writ applicants were residing at the place in question past couple of years, but, still, as a Court of Law, we should not be oblivious of the fact that it was nothing, but encroachment over the government land over a period of time."

Background

The Petitioners claimed to have settled in the said area in around 1990s. They asserted their fundamental right to shelter against demolition orders passed by the State Government in July 2020. As a Single Bench of the High Court refused to grant interim relief, the demolition activities were carried out.

In appeal against the said interim order before a Division Bench, the Petitioners sought alternative accommodation. The State Government however contended that the dwelling place in question had not been declared as a slum in the year 1999 so as to make the Appellants eligible to avail the alternative accommodation in terms of the Government Resolution dated 3rd July 2003.

Right to Shelter does not confer right to encroach

At the outset, the Division Bench said,

"Mere long possession, over public land by way of encroachment by itself, is not sufficient to say that the encroachers are not liable to be evicted as they have a right to shelter. The right to shelter and encroachment are two different facet. An encroacher may save himself from being forcibly evicted only if during his period of stay over the encroached public land any enforceable legal right has crystallized in his favour. Otherwise, merely by asserting the "Right to Shelter", an encroacher, over public land, cannot say that he cannot be evicted.

We are not impressed with the submission canvassed on behalf of the writ applicants that the writ applicants cannot be said to be encroachers as they have a right to shelter being both a fundamental as well as a human right. The debate as regards the rights of encroachers over public land vis­a­vis the right to shelter should come to an end."

In this regard, the Bench referred to Olga Tellis v. Bombay Municipal Corporation, 1985 (3) SCC 545, whereby the Supreme Court considered the right to dwell on the pavements or in slums by the indigent and accepted the same as a part of right to life enshrined under Article 21 of the Constitution.

However, the Division Bench noted, the Supreme Court also held in this case that in all cases of ejectment of the encroachers, it is not obligatory on the part of the State/ Corporation to provide alternative accommodation. "No absolute principle can be laid down in this regard and would depend upon the facts of each case," the Top Court had held.

In the facts of the instant case, the Bench noticed that after a detailed verification, 128 hutment dwellers were identified and recognized as eligible for alternative accommodation in Government Resolution of July 2003. However, the subject land was not declared as "slum".

In this backdrop, it said,

"In the facts and circumstances of the present case, it is difficult for this Court to grant any relief as on date to the writ applicants. As noted above, the dwelling houses have already been demolished. The authorities have taken over the possession of the land. It is not possible at this point of time even to pass any order for providing alternative accommodation, as, according to the respondents, all those, who were eligible under the scheme of the State Government, more particularly, the resolution of the year 2003, have been granted alternative accommodation, whereas, all those, who were found to be not eligible, have been declined, which includes the present writ applicants."

Disagreement with Kenyan Jurisprudence

In its judgment, the Division Bench has taken note of the approach adopted by foreign Courts on the issue in question. It has thereafter categorically recoded its disagreement with the Kenyan Jurisprudence as per which— where the landless occupy public land and establish homes thereon, they acquire not title to the land, but a protectable right to housing over the same.

The Division Bench opined,

"The right to shelter may be a fundamental right under the Constitution, but, certainly, no person has any right to retain the land encroached upon under the purported right to shelter. It is to be enforced under the provisions of the Constitution. It is extremely difficult for us to accept the South African Jurisprudence or the Kenyan Jurisprudence, as discussed above."

Uniform land allotment Policy

The High Court was of the view that the State Government should identify and earmark certain lands acquired under the Land Ceiling Act and frame a uniform policy to allot them to people hailing from a very poor strata of the society.

"We remind the State Government that when it plans an industrial zone or commercial zone, the provisions should also be made for providing residential accommodation / housing facility to the downtrodden class or the persons taking up employment in the industries and for persons providing ancillary services," the Bench said.

It further suggested that the Government should consider formulating scheme in line with the principles laid down by the Apex Court in the case of Ahmedabad Municipal Corporation v. Nawabkhan Gulabkhan & Ors., AIR 1977 SC 152 for prompt removal of encroachments.

However, it cautioned that care should be taken to ensure that the land so vacated by the slum-dwellers is not re-occupied by another cluster of slum dwellers, and the alternative site is utilised by the same citizens to whom it is allotted.

Furthermore, the Bench suggested that the State Government must shift its focus from construction of houses to the provision of the allotment of land, from housing targets to housing justice and from market-based interventions to a human rights-based approach.

"A rights-based approach will ensure that housing is affordable, accessible to all, habitable, and culturally appropriate. People like the writ applicants do not want state constructed tenements. They want rights over the land on which they live and access to housing finance and technical assistance to build their homes. The State Government should consider to promulgate right to housing legislation and invest in adequate, low cost housing, including through the provision of rental housing."

Right to Shelter includes more than mere protection of life and limb

The Bench observed that everyone has the right to a standard of living, adequate health and wellbeing of himself and his family including food, clothing, housing, medical care and necessary social services.

On this note, it opined,

"The difference between the need of an animal and a human being for shelter has to be kept in view. For an animal, it is the bare protection of the body; for a human being, it has to be a suitable accommodation, which would allow him to grow in every aspect ­ physical, mental and intellectual. The Constitution of India aims towards ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house, but a reasonable home, particularly, for people in India can even be mud-built, thatched houses or a mud built, fireproof accommodation."

In its concluding remarks, the Bench expressed displeasure at the fact that despite so many laws, judicial activism shown by the Supreme Court and various High Courts over a period of time, the problem of adequate housing in India has not been addressed properly by the States.

"The rapid growth of congested slums in urban India speaks volumes about the problems faced by the dwellers…Since the time of the judgement in the case of Olga Tellis (supra), the Supreme Court, this High Court and various other High Courts of this country has been talking about the right to shelter. It has been now almost more than four decades that we have been talking about this so­ called right to shelter. Whether this judicial activism, over a period of more than 40 years, has made any difference to the various Governments of different political parties? Whether this discussion has brought around any change in the lives of lakhs of homeless people? Unfortunately, the answer to both these questions is a big "No". Today also, lakhs and lakhs of people are homeless living below the poverty line, and for them, the only shelter is the place where they go off to sleep in the night with the sky as their roof, whether it be monsoon, winter or scorching heat," it said.

Case Title: Vora Zakirhusain Valibhai v. State Of Gujarat

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