Supreme Court Allows Railways To Proceed With Eviction Of Slum Dwellers; Permits Dwellers To Apply Under Rehabilitation Schemes

Upholding judgments of the High Courts of Gujarat and Punjab & Haryana which refused to interfere with the eviction drive launched by the Indian Railways against slums, the Supreme Court on Thursday allowed the Railways to serve eviction notices on the slum dwellers for reclaiming the railway properties.

A bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar however held that a solatium of Rupees 2000 per month has to be paid per the demolished hut for a period of 6 months.  The railways, the concerned local authority and the state government are jointly and severally liable to share the burden for paying this solatium amount.

The Court further held that if the local government has any rehabilitation scheme, the affected persons can apply for being rehabilitated under the scheme if eligible. Subject to the verification of eligibility, the local government may provide them accommodation in lieu of rehabilitation.

If there is no scheme formulated by the local authority and in force, the persons likely to be affected by the action of demolition can apply for allocation of residential premises under the Pradhan Mantri Away Yojana(PMAY) scheme. Such application has to be processed within 6 months of the date of the receipt and taken to the logical end application-wise within such period, the Court directed.

The railways may immediately issue notices to occupants of the concerned unauthorized structures which are falling within the belt and give two weeks time to the occupants to vacate the premises

In respect of structures that are not immediately required to be vacated, 6 weeks time can be given in the proposed notice for eviction and removal. In either case, if the occupant fails to vacate the structure, it will be open to the authorities to initiate appropriate legal action or forcible dispossession and removal of unauthorized structures by taking assistance of local police. The Superintendent of Police or Commissioner of Police of the concerned area shall ensure that adequate support is provided for the railway authorities for commencing the eviction process and demolition of unauthorized structures.

Before commencing the process of removal, the collector of the concerned district must ensure that necessary details of the names and person occupying g the concerned structures including their identity are recorded.

Railways equally liable

The Court rejected the argument of the railway that it is the responsibility of the local government and the state government to ensure that no encroachments take place.

"Although the submission seems to be attractive at the first blush, it does not commend to us. There is a special enactment which enables the Railways to protect their property. Railway establishment also maintains a protection force for the railways.

As a result, the nuanced distinction made by Railways does not commend to us. We hold the railways equally responsible for the situation and for that reason it should provide some support to the people who are to be removed", the bench observed.

The bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar was considering a special leave petition filed by an NGO named "Utran Se Besthan Railway Jhopadpatti Vikas Mandal" challenging a judgment of the Gujarat High Court which denied relief to the slum dwellers.

The Western Railways said that they want to execute the railway line project between Surat- Udhna- Jalgaon, but that project, conceived in 2012 is getting obstructed due to these standing structures on the railway property to the extent of 2.65 kilometres. The total length of the project is 10 km.

The bench was also considering a special leave petition filed against an order of Punjab and Haryana High Court declining to interfere with the eviction notices served on slum dwellers in railway properties in Faridabad(Deepak Sharma and others versus Union of India). 

Initiate criminal action against encroachers

The bench directed that the Railways should initiate criminal action against unauthorized occupants immediately. Also action should be taken against erring officials who allow the encroachments to take place.

"This primary responsibility of ensuring that there is no encroachment is that of the local govt. Local govt must start taking responsibility. This is a sad story going on for 75 years. Ultimately the taxpayers money will go down the drain", Justice Khanwilkar orally remarked during the hearing.

Courtroom Exchange

When the matter was called for hearing, Additional Solicitor General KM Nataraj appearing for the Railways reiterated the stand that the Railways did not have any rehabilitation policy for the eviction and it was for the State and the Municipal Corporation to take the responsibility of rehabilitation.

On ASG's submission, Justice AM Khanwilkar, the presiding judge of the bench said that on the last date of hearing it had asked the Solicitor General to take a firm stand on the issue of encroachment in the railway property by the slum dwellers in Gujarat and Haryana and take a decision with respect to their rehabilitation.

"You have to take some policy and we'll consider the same. Other forums you've said that you will examine it. Now the ball is in your court and you have to examine it so that in future cases there is no problem. Fortunately everywhere the political dispensation is the same. Take a policy decision which will help the future project of railways," the bench remarked.

Referring to the ASG's stand that under section 147 of the Railways Act 1989, any kind of encroachment and occupation of land is an offence, the bench asked if the Railways had taken action in that regard.

"You have to exercise the right that you have. You have a police force also, you have to protect the property. Why are you not taking action against your officers?", bench remarked.

While ASG submitted that it had issued a circular with regards to the same, the bench said, "Where is that circular. Ultimately it is public property. You are the biggest landholder after cantonment. You yourself say that encroachment is an offence but what have you done? How many cases are registered? A comprehensive approach should be there and not projectwise. It is my tax and your tax which is wasted."

Agreeing that there was a lapse on the aspect of action against the encroachers, ASG said, "Now we've taken some positive steps. Pan India we had done it. Earlier there was lapse."

"We need to see what mechanism you have figured out. There are 2 projects before us there might be other projects also. Do that within 15 days within 3 weeks, they are willing to vacate. Shift them to other places, do that on war footing. We don't see any serious effort put in by you. Investment is going to waste," the bench added.

Referring to the submissions made by Senior Advocate Colin Gonsalves for the petitioners that the encroachers were willing to vacate and were requesting for arehabilitaiton, the bench said that Railways was not taking any initiative.

"We told you to take steps, they are willing to vacate. But you are not taking any initiative. Only 2.5 km is remaining and the entire project is ready. Remove that and tell us within 2 weeks. Where is the interim order? What is the arrangement for that person?", the bench added.

When ASG KM Nataraj submitted that it was the State's and the Corporation's responsibility to take initiative, Senior Advocate Colin Gonsalves at this juncture submitted, "Surat as a matter of practice have relocated A,B,C,D jhuggi dwellers and I have placed that on record."

Solicitor General of India Tushar Mehta at this juncture entered appearance and submitted that if the States wished to have a platform in their state then it was either the State or the Corporation's responsibility to remove the encroachers.

"If you start from A place and in the meanwhile, if they wish the railway line to pass through them, they take the responsibility to remove them. Corporation or state- it's between them, whoever wants to decide. If you wish a platform in your city you take the burden and if you don't, the same shall pass", SG submitted in this regard.

Appearing for the Surat Municipal Corporation, Senior Advocate Mukul Rohatagi submitted that the administrative control was with the Railways and it was not that the corporation was not under any obligation.

On Senior Counsel submission that the Corporation had no scheme and that only PMAY scheme would be applicable, the bench said,

"Local politics would prevail. Corporations must have a scheme, if you don't have finance, you take help from the state and accommodate those who are eligible as per your scheme. Have you seen that Khori scheme(referring to Khori Gaon evictions)? You take the scheme of Khori and this can be extended to the Corporation too. Let the corporation apply that scheme to them until they forumate the scheme of their own."

"Scheme is pending since 2014 and is complete except for the 2.65 km stretch. The entire project has to be completed except that stretch. Whatever stretch is there, it is not the Railway's responsibility but corporation's responsibility? When are the corporation elections and state elections due, let that be encroachment v. development," Justice Khanwilkar said.

"So far as this aspect is concerned, this urgency part of the 2.5 km, anxiety will be all about development. Your own people also who are looking for their scheme, would it not be in their interest to vacate themselves despite taking any coercive action against them? You will have to work out sir," added Justice Dinesh Maheshwari.

"Local level leadership who will have to come forward. 2 areas are being connected which is very essential for all purposes. Movement, transport, business. Local level leadership should come forward. If you want the project to complete, local leadership should come forward and get that resolved. Corporation and state leadership should come forward," Justice Khanwilkar further added.

Appearing for the State of Gujarat Advocate Deepanwita Priyanka submitted that the Railways had a land of more than 8 lakhs square feets.

With regards to the question posed by the bench as to the units available for immediate allotment for this 2.65 km stretch of land, the counsel submitted that she would have to take instructions in that regard.

While Senior Advocate Colin Gonsalves submitted that the encroachers could vacate provided there was any temporary arrangement, the bench said, "Project has to go on, to be vacated immediately. They can take accommodation wherever they want. For 6 months they will get 2,000 as solatium and till then let them apply under PMAY. We will direct the State to pay. Let the collector work out on the arrangement. Solatium by State and Corporation equally. For the time being let the collector pay and then the corporation will give its part of share"

Case Title: Utran Se Besthan Railway Jhopadpatti Vikas Mandal V. Government Of India| D No. 19714/2021

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