Supreme Court Asks Railways To Explain Contrary Positions Taken In Different Cases On Rehabilitation Policy For Slum Dwellers

The Supreme Court today pulled the Ministry of Railway ("Ministry") for taking contradictory stands before different forums including the Top Court with regards to its Rehabilitation Policy for evicted slum dwellers.

The bench of Justices AM Khanwilkar and CT Ravikumar directed the Secretary, Ministry of Railways to explain the conflicting position taken before different forums including Supreme Court of India, Gujarat High Court & Punjab & Haryana High Court with regards to the Rehabilitation Policy by filing an affidavit.

Directions were also issued to submit a timeline within which the Railways proposed to complete the rehabilitation with regards to the project of 2.65 kms which would be affecting the seven bastis.

Accordingly, the bench while adjourning the special leave petition assailing orders for demolition passed by the Gujarat High Court for slums adjacent to railway tracks in Surat in its order said, for November 29, 2021 in its order said,

"We have heard Senior Counsel Colin Gonsalves for the petitioner and ASG KM Nataraj for the Ministry of Railways. It is brought to our notice that in some other proceedings before Delhi High Court, railways had given assurance to Delhi High Court that the rehabilitation policy propounded by Delhi Government would be adopted by Railways as can be discerned from 2019 SCC Online Del 7618. Not only that, the Solicitor General for railways in WP (Civil) 13029 of 1985 before this court gave assurance on 14th September 2020 that necessary rehabilitation plans would be made shortly. On the other hand the Stand taken by Railways before Gujarat High Court was completely contrary to the position that railways does not have any policy. We call upon the Secretary, Ministry of Railways to explain the conflicting position taken before different forums including Supreme Court of India, Gujarat High Court & Punjab & Haryana High Court by filing an affidavit. List this matter on Nov 29. In addition the affidavit must disclose the timeline within which rehabilitation plan will be taken forward especially with regards to the project of 2.65 Kms which may affect 7 bastis as informed by Counsel for petitioners."

On August 24, the Apex Court had directed the State of Gujarat to maintain status quo with regards to demolition of 10000 jhuggis in the State. The order for maintenance of status quo was passed by the division bench of Chief Justice NV Ramana and Justice Surya Kant.

Courtroom Exchange

When the matter was called for hearing, Senior Advocate Colin Gonsalves, appearing for the petitioner-NGO, submitted that the State Government had filed an "interesting" affidavit with regards to the authority that was responsible for the rehabilitation policy.

Reading the contents of the affidavit filed by the State of Gujarat, Senior Counsel said, "They say that the State is a committee to implement the Pradhan Mantri Awas Yojana ("PMAY"). Secondly they say that as a universal principle the cost of rehabilitation is part of project cost and in this case it is to be borne by the executing agency, Ministry of Railways. Railways has a good chunk of land in and around Surat and the same may be granted by Railways. Once the railway agrees, they say the State Government will provide all logistic support and other accessibilities."

In the affidavit submitted by the Surat Municipal Corporation, Senior Counsel submitted that the Corporation was washing off their hands by stating in the affidavit that that land in question was under the ownership of the Government of India and Railways and the Corporation had nothing to do with the same.

"Let me say what the municipality is saying, Land in question is under the ownership of the Government of India and Railways and we have nothing to do. Surat Municipal Corporation is washing their hands. They say that the project cost has to be done by the railways."

Apprising the bench of the question posed by it on the last date as to who was responsible for rehabilitating the slum dwellers evicted from the railway land - whether the Indian railways, the Gujarat Government or the Surat Municipality, Senior Counsel submitted that the Corporation was saying that Railways had good chunks of land.

"Why Railway Land and why not State or Corporation Land? PMAY is not on railway land but on State land. Whatever happens is a long term plan," Justice Khanwilkar remarked at this juncture.

To submit that the stand taken by the Ministry of Railways that it did not have any rehabilitation policy for evicted slum dwellers was not correct, the Senior Counsel relied on the Ministry's stand taken before the Delhi High Court in Ajay Maken's case 2019 SCC Online Del 7618 in which the Ministry had submitted that it had Delhi Plan which was a Door Step Plan.

"Railways says that they have no policy but that is not the correct position. When a matter came up before the Delhi High Court, they said that they have a Delhi plan which is Door Step Plan. It was found in Ajay Makhan's case 2019 SCC Online Del 7618. So the railways saying that they have no policy is not correct. They should not be in bits and pieces to say that there is no policy. There is a pan India policy of Delhi," Senior Counsel submitted.

To further elaborate his contention, Senior Counsel drew Court's attention to the stand taken by the Solicitor General Tushar Mehta appearing for the Ministry of Railways in MC Mehta v Union of India (WP (Civil) 13029 of 1985) before the Top Court wherein assurance was given on 14th September 2020 that necessary rehabilitation plans would be made shortly.

"We're waiting for the affidavit to be filed on behalf of the Ministry of Railways. My prayer today is that the good chunk of land that the railway has, should immediately start rehabilitating the 6 bastis. We request them to do that in a humane manner and do rehabilitation in some way and make long term plans and we're ready to cooperate. All that they have to do is a survey. They have all the documents and they are eligible. We're also very keen on not being in the situation of uncertainty. 1255 families are there for the stretch," Senior Counsel submitted.

Representing the Ministry of Railways, Additional Solicitor General KM Nataraj submitted that the Ministry had no policy for rehabilitation. He further referred to section 147 of the Railways Act 1989 to submit that under this section any kind of encroachment and occupation of land is an offence.

"We're not interested in knowing how you manage your property. What is the solution? You want to go ahead with the project? If there is some plan, you need to start moving into action. You start working on the plan," Justice Khanwilkar remarked.

Responding to the questions posed by the bench, ASG KM Nataraj submitted that rehabilitation had to be done by the local administration authorities and the State Government.

"How can you say that the local state govt will have to take responsibility. Your officers want to go on merry. How can you take contrary stands before different courts? In one matter you said that you will adopt the Delhi Plan and before Guj HC you said you had no plan. On 14th September 2020, you said you're working on the plan and now you say you have no plan. Can you take contrary positions in different courts? Before the Supreme Court you are doing that. If there is no policy we will say that you work on the Delhi Policy," bench further remarked.

On ASG's submission that the Ministry would work on the policy but it would take some time, the bench remarked,

"We'll call upon the Secretary to explain this position as to why railways are taking different stands in different courts before different forums including the Supreme Court."

Case Title: Utran Se Besthan Railway Jhopadpatti Vikas Mandal V. Government Of India & Ors| Diary Number 19714/2021

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