100% Women Reservation In Govt House Allotment Scheme Unconstitutional; Discriminates Against Men & Transgenders: Andhra Pradesh High Court

The Andhra Pradesh High Court has held that the Government housing scheme which allot house sites exclusively to women is unconstitutional.

"100% reservation in allotment of house site to women household is against the total concept of equality. Failure to allot house site to transsexuals ignoring them totally would amount to depriving their right of equality.", the court observed.

This Court is not against allotment of house site to women household, but it amounts to discrimination, Justice M. Satyanarayana Murthy observed while directing the Government to consider the eligibility of men and transsexual for allotment of house site under the scheme 'Navaratnalu Pedalandariki Illu".

As per clause 2 of the scheme, one House Site Patta shall be issued for an extent of 1.5 Cents to an eligible household in the name of woman beneficiary of the house. 129 persons had approached the High Court challenging this clause contending that it discriminated men and transsexual from women in allotment of house site.

Directly amounts to depriving eligible men to claim the benefit under

Agreeing with the contentions raised by the petitioner, the court observed that the scheme directly amounts to depriving eligible men to claim the benefit under the said scheme, It said:

Taking into consideration the hypothetical situation where a bachelor, widower with children living below poverty line, they are not entitled to claim the benefit of scheme ―Navaratnalu – Pedalandariki Illu‖. Does it amount to distribution of resources based on equality is a question to be decided. If the principle laid down by the Apex Court in ―Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh‖ (referred supra), certainly it amounts to discrimination of eligible men from women and they will remain as houseless poor forever on account of denial of house site allotment under the scheme ―Navaratnalu – Pedalandariki Illu‖. Similarly, if a woman obtains divorce after allotment of house site, husband and children would remain houseless poor. These hypothetical situations were not visualised and taken into consideration by the State while taking such policy decision. Thus, it directly amounts to depriving eligible men to claim the benefit under the said scheme, which is violative of Article 14 of the Constitution of India and contrary to the obligation that vested on the State to distribute material resources among the citizens equally as prescribed under Article 39 of the Constitution of India

Denial of allotment of house sites to transsexuals is violative of their fundamental rights

The court added that denial of allotment of house sites to transsexuals is violative. It said:

In case of transsexuals, most of them are living below the poverty line and living by begging, without any shelter for their protection. They are facing lot of humiliation for the treatment extended to them. Though, it is the obligation of the State to take necessary steps to treat transsexual on par with men and women, the State did not take any positive action so far. Denial of allotment of house sites to transsexuals is violative of Article 14 of the Constitution of India since Article 15 speaks about men and women, but not about transsexuals, for the reason that the Constitution framers did not visualise such situation by the time of preparing Constitution of India

The court also observed that allotment of Ac.0.01 cent site for residential purpose by the State in Municipal Area and Ac.0.01 ½ cent in Gram Panchayat areas is inadequate for housing and on account of cluster housing and group housing, the environment impact on health hazards, fire safety, adequacy of drinking water and facilities to drain out sullage water is to be examined by the State before insisting the allottees to construct house in the site allotted to them.

The court, on the privacy aspect, observed thus:

As the limited site is allotted to the eligible women household, right of privacy shall be taken into consideration since the house is meant for living with family to lead matrimonial life. The Apex Court declared right to privacy as a fundamental right. In view of the law laid down by the Supreme Court, it is the duty of the State to protect the privacy to lead marital life by a couple in a small house with grownup children and elders in the family. Hardly, there will not be any space to move freely in the house either to the children or to the elder people, who required some assistance at the old age.

The court therefore issued the following direction to the State:

(c) Further, the State is directed to appoint a special committee consisting of expert from Central Pollution Control Board; expert from Ministry of Housing and Urban MSM,J wp_25275_2020 108 Affairs; Health expert from Ministry of Health and Family Welfare to examine the issues discussed in the earlier paragraphs, within one (1) month from the date of receipt of copy of this Order to submit a report within one (1) month thereafter and publish the report in two local newspapers inviting objections from the public and finalise the scheme ―Navaratnalu – Pedalandariki Illu‖ for construction of houses in the house sites keeping in view the impact on environment, health hazards etc. and increase/enhance the area, if necessary by acquiring more site, allotted to the beneficiaries modifying the layouts keeping in view the report to be submitted by the Special Committee. Till completion of such exercise, constructions shall not be proceeded in the land allotted to beneficiaries under the scheme ―Navaratnalu – Pedalandariki Illu‖

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