Rich Businessman Possessing Large Portions Of Land In Slums Cannot Be Called Slum Dweller: Allahabad High Court

The Lucknow Bench of the Allahabad High Court has held that by common sense, businessman having possession of large portions of land by illegally taking the same from the slum dwellers without required sanctions cannot be termed as slum dweller.

“Presuming in a slum, a businessman finding good business opportunity, takes possession of a large piece of land from the actual slum dwellers and illegally, without required sanctions, constructs a multiplex or a big hotel or a big shopping complex or raises any other such big business constructions. Can he, merely because he did these activities within a slum, claim to be a slum dweller entitled to the protection given to dingy houses of slum dwellers, despite all aspects of the matter reflecting his disparity with actual slum dwellers? The answer 'NO' comes to us too loudly.”

The bench comprising Justice Vivek Chaudhary and Justice Om Prakash Shukla held that slum dwellers have been held to be people who due to their poorness and circumstances have been forced to live in inhumane conditions. All sympathies must be considered for such people while disturbing their possession, held the Court while talking about the segregated batch of petitions of actual slum dwellers.

The Court referred to Olga Tellis and Others Vs. Bombay Municipal Corporation wherein the Apex Court had observed that “Common sense, which is a cluster of life's experiences, is often more dependable than the rival facts presented by warring litigants.”

Case Background

Petitioners are owners of khasras in area know as Akbar Nagar-I and II and claimed to be enjoying possession for more than 40 to 50 years. In one of the petitions, it was claimed that the petitioner had set up a shop and built residence on the same plot. He was served with a show cause notice for proceedings under Section 27(1) of the U.P. Urban Planning and Development Act, 1973. It was alleged that the petitioner was carrying out commercial activities and the land was in 'Doob Kshetra'.

Demolition order was passed against all petitioners, stating that the land was illegally occupied by them and was a part of green belt area. Petitioners preferred appeals against an order of demolition. Due to threat of eviction, the petitioners approached the High Court in another writ wherein they were granted interim protection till 20^th December, 2023 to provide them reasonable opportunity to avail alternate remedy.

Since the appeals filed by the petitioners were dismissed, they approached the High Court against the order of the dismissal. Upon urgency being pressed, all petitions were taken up by the Court.

In December, the Court had stayed the demolition of drive in Akbar Nagar I and II in Lucknow. While staying the demolition drive, Justice Pankaj Bhatia had observed,

“At this stage, it is not clear as to what is the tearing hurry in which huge occupations by the relatively poor class of persons are being proposed to be demolished forthwith without even waiting for the scheme of relocating the adversely affected persons being implemented in letter and spirit and also exposing the poorest of the poor to the ensuing harsh winters.”

At the final hearing, counsel for respondent-Lucknow Development Authority argued that the petitioners had not approached the High Court with clean hands. It was argued that certain petitioners had concealed the fact of their income, size and location of plots from the Court while praying for urgent interim stay.

Per contra, counsel for petitioners contended that anyone whether residing in a slum or carrying out commercial activity from the slum area will be referred to as a slum dweller. Reliance was placed on the definition of 'slum' in Section 2(i) of the U.P. Slum Areas (Improvement and Clearance) Act, 1962 to say that the concept of rich or poor does not apply here. It was argued that the nature of business, tax returns and land size were not relevant considerations for not treating them as slum dwellers.

High Court Verdict

The Court observed that the petitioners, affluent persons, posing to be slum dwellers had obtained the stay order from the High Court. Based on their GST and income tax returns, 25 petitions were separated from the bunch of actual poor slum dwellers.

Looking at the dictionary meaning of 'slum', the Court held

“.. in normal parlance the term slum relates to an area in a city where poor and needy people live in an unhealthy, unhygienic and in conditions not fit and suitable for human habitat and poor living in the said conditions are called slum dwellers.”

The Court held that the actual slums begin behind the showrooms/ workshops set up by these wealthy petitioners. It was held that the showrooms and workshops of the petitioners are on the main road which enjoys the benefits of the city and cannot be categorized as a slum.

“At best they exist at the edge of Akbar Nagar slum area and not in the said slum area. Similarly, the facts that they have had enough money to spend on illegal construction of huge showrooms/workshops, are paying their GST and filing income tax returns and/or most of them are having their own residences in good and posh localities of city and/or other properties, we are unable to hold them as slum dwellers.”

The Court held that exhaustive hearing was given to all parties and what had emerged from the facts was that the petitioners had incorrectly posed as slum dwellers before the authorities. Accordingly, the Court held that no writ could be issued in favour of such petitioners only.

While segregating this bunch of petitioners from the actual slum dwellers, the Court referred to the “words of caution” of the Supreme Court in case of Almitra H. Patel v. Union of India, where it was observed that

“Establishment or creating of slums, it seems, appears to be good business and is well organised. The number of slums has multiplied in the last few years by geometrical proportion. Large areas of public land, in this way, are usurped for private use free of cost. It is difficult to believe that this can happen in the capital of the country without passive or active connivance of the land-owning agencies and/or the municipal authorities. The promise of free land, at the taxpayers' cost, in place of a jhuggi, is a proposal which attracts more landgrabbers. Rewarding an encroacher on public land with a free alternative site is like giving a reward to a pickpocket.”

The Supreme Court had expressed displeasure with the Department of Slum Clearance as it had failed to clear any slum since its existence. The Apex Court had observed that “instead of “slum clearance” there is “slum creation” in Delhi.”

Case Title: Syed Hamidul Bari vs. State Of U.P. Thru. Addl. Chief/Prin. Secy. Housing And Urban Planning Deptt. Lko. And 4 Others 2024 LiveLaw (AB) 124 [WRIT - C No. - 11383 of 2023]

Case Citation: 2024 LiveLaw (AB) 124

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Also Read: 'Exposing Poorest Of Poor To Ensuing Harsh Winters': Allahabad HC Stays Demolition Drive In Lucknow's Akbarnagar For 4 Weeks