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TMI Blog1996 (10) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... able accommodation was provided to them. The High Court also further held that before removing the unauthorised encroachments the procedure of hearing, consistent with the principles of natural justice should be followed. 4. We requested Shri Dushyant Dave, the learned senior Counsel of the Bar to assist the Court as amicus curiae and Smt. K. Sharda Devi has been assigned as legal Aid counsel to argue on the behalf of the respondents since they are not appearing either in person or through counsel. By order dated September 11.1995 this Court directed the appellant thus: We think that the Municipal Corporation should frame a Scheme to accommodate them at the alternative places so that the hutment can shift their residence to the places of accommodation provided by the Corporation to have permanent residence. Corporation is accordingly directed to frame a scheme and place before this Court within two months from today. 5. Pursuant thereto, a Scheme has been framed and placed before this Court. It would appear that only 10 persons out of original petitioners in the High Court whose names have been mentioned in the supplementary affidavit are residing there; of them Nurmahomma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Every citizen has a right to pass or repass on the pavement, street, footpath as general amenity for convenient traffic. A Constitution Bench of this Court in Sodan Singh Etc. Etc. v. New Delhi Municipal Committee and Anr. Etc. [1989] 2 SCR 1038 was confronted with and had considered the question can there be at all a fundamental right of a citizen to occupy a particular place on the pavement where he can squat and engage in trading business? We have no hesitation in answering the issue against the petitioners. The petitioners do have the fundamental right to carry on a trade or business of their choice, but not to do so on a particular place. Hawkers cannot be allowed to, or be permitted to, carry on trade or business on every road in the city. If the road is not wide enough to conveniently accommodate the traffic on it, no hawking may be permitted at all, or may be sanctioned only once a week, say on Sundays when the rush considerably thins out. Thereby, this Court has minimised the hardship to pedestrians and the hawkers in doing their business by hawking on the public street and at the same time has protected the public from free passes or re-passes of the traffic on the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public purpose like (for e.g. garden or playground) and that the provision contained in Section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case. 10. The Constitution does not put an absolute embargo on the deprivation of life or personal liberty but such a deprivation must be according to the procedure, in the given circumstances, fair and reasonable. To become fair, just and reasonable, it would not be enough that the procedure prescribed in law is a formality. It must be pragmatic and realistic to meet the given fact-situation. No inflexible rule of hearing and due application of mind can be insisted upon in every or all cases. Each case depends upon its own backdrop. The removal of encroachment needs urgent action. But in this behalf what requires to be done by the competent authority is to ensure constant vigil on encroachment of the public places. Sooner the encroachment is removed when sighted, better would be the facilities or convenience for passing or re-passing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places. On the contrary, the longer the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and his family including food, clothing, housing and to the continuous improvement of living conditions. In Chameli Singh and Ors. v. State of U.P. and Anr. AIR1996SC1051 , a Bench of three Judges of this Court had considered and held that the right to shelter is a fundamental right available to every citizen and it was read into Article 21 of the Constitution of India as encompassing within its ambit, the right to shelter to make the right to life more meaningful. In paragraph 8 it has been held thus: In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty of the State to fulfil the basic human and constitutional rights to residents so as to make the right to life meaningful. In Shantistar Builders v. Narayan Khimalal Totame AIR1990SC630 , another Bench of three Judges had held that basic needs of man have traditionally been accepted to be three-food, clothing and shelter. The right to life is guaranteed in any civilised society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. 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 surplus urban-vacant land was directed to be used to provide shelter to the poor. In Olga Tellis case (supra), the Constitution Bench had considered the right to dwell on pavements or in slums by the indigent and the same was accepted as a part of right to life enshrined under Article 21; their ejectment from the place nearer to their work would be deprivation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in fulfilment of the constitutional objectives. 14. That apart, Section 284(1) of the Act also imposes a statutory duty on the Corporation to make provision for accommodation enjoining upon the Commissioner, if it is satisfied that within any area or any part of the City it is expedient to provide housing accommodation for the poor classes and that such accommodation can be conveniently provided without making an improvement scheme, it shall cause such areas to be defined on a plan. The Corporation is required to pass a resolution authorising the Commissioner who shall thereupon have power to provide such an accommodation either by erecting buildings or in any other manner on any land belonging to the Corporation or any land acquired by the Corporation for the purpose or by conversion of any building belonging to the Corporation into dwelling for poor classes or by enlarging, altering or repairing or improving any buildings, which have, or an estate or interest which has been acquired by the Corporation. This duty is apart of the Constitutional mandate, Under the Urban Ceiling Act, the excess urban vacant land is earmarked to elongate the above objective. 15. The appellant-C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of 11 years. It includes plinth area plus W.C. and Chokadi. There are around 700 to 1000 unallotted units available and if the respondents are willing they would be provided with the accommodation in the said Scheme. Thirdly, it was stated that there are hutment dwelling units at Vinzol/Lambha Part I and Lambha Part II of Economically Weaker Sections Scheme operated by Gujarat Slum Clearance Board. Therein, at Vinzol plot admeasuring 15.50 sq. mtrs. or 14.76 sq. mtrs. of land at Lambha with facility of one room, W.C. and Chokadi are available. 142 tenements are available at Vinzol. 140 tenements are available at Lambha Part I and 150 tenements are available at Lambha part II. This was the information furnished by the Gujarat Slum Clearance Board. The schemes are floated for economically weaker sections of the society and the cost of each tenement at Vinzol is ₹ 16,187 and of tenement at Lambha Part I and Part II is ₹ 17,094 and ₹ 18,030 respectively. The initial payment to be made for the accommodation at Vinzol is ₹ 6604 and in respect of tenement at Lambha Part I is ₹ 7,476 and for Part II it is ₹ 7,200. The monthly installment for Vinzol t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not available, lands could be acquired and houses could be constructed and accommodation provided in terms of the directions given by this Court so that pavement dwellers would have right to residence and the planned construction could not be affected. It was stated in the additional affidavit of the respondents in this regard that in 1991 they had identified 5 lakhs slum dwellers or pavement dwellers out of population of 29 lakhs and for acquisition and construction of the houses, the budget estimates would be ₹ 220 crores. The Government has stopped giving assistance to the Corporation for construction of houses. 18. This Court in SLP No. 47-51/96 titled Maha Gujarat Hawkers Vyapar Mahajans Etc. v. Ahmedabad Municipal Corporation had given directions to regulate hawking. The Corporation has regulated, in terms of the said order, the hawking business on the pavements by dwellers in the city of Ahmedabad within the specified areas and identified some as non-hawking zones in the Scheme which is operated in the city of Ahmedabad. No direction in derogation thereof would be given permitting the pavement dwellers to convert the hutments for commercial purpose. It is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... habilitation to every slum dweller by providing alternate accommodation. However, this is not to say that the Corporation has permitted Section 261(1) to remain on the statute book only. 9754 houses have been duly constructed by the Corporation under the Slum Clearance Scheme for accommodation slum dwellers and allotted to them and another 2220 houses have been constructed under the HUDCO Scheme for economically weaker sections and low income group people and allotted. Besides this, the Corporation has also provided land with necessary infrastructure to 315 hutment dwellers under the site and service scheme and has constructed another 2260 houses for the flood affected hutment dwellers under the Integrated Urban Development Programme. So far 733 hutments which existed prior to May 1976 (cut off date) have been shifted from their earlier location in the interest of public and all of them have been given alternate site by the Municipal Corporation which includes 709 pavement dwelling families also. This protection is not available to those who have come up after 1-5-1976 (cut off date). 20. The Corporation has been further subsidising 80% cost of construction of individual l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent panchas. This procedure would avoid the dispute that they were not given opportunity; further prolongation of the encroachment and hazard to the traffic and safety of the pedestrians. 23. In the additional affidavit of the appellant-Corporation, it raised and addressed four important questions of constitutional dimensions. The first question raised was to prevent the constant influx of the rural people to the urban areas and consequential growth of slums and encroachments; the second one relates to the need for preservation of the public property like road margin, street, place of public resorts like parks etc. to maintain ecological balance, sanitation and safety of pedestrians; the third question relates to lack of resources in the budgetary provisions to construct and allot houses for the poor and migrants of urban areas; and the fourth one relates to interference by the courts protecting the encroachers from ejectment, the delay in disposal of the cases and resultant rights accruing to the encroachers. These questions bear vital dimensions which need careful examination and answers. 24. As regards the first question, it is axiomatic that India lives in villages. The t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an integrated Bharat. The fundamental rights and the directive principles and the preamble being trinity of the Constitution, the right to residence and to settle in any part of the country is assured to every citizen. In a secular socialist democratic republic of Bharat hierarchical caste structure, antagonism towards diverse religious belief and faith and dialectical difference would be smoothened and the people would be integrated with dignity of person only when social and economic democracy is established under rule of law. The difference due to caste, sect or religion pose grave threat to affinity, equality and fraternity. Social democracy means a way of life with dignity of person as a normal social intercourse with liberty, equality and fraternity. The economic democracy implicit in itself that the inequalities in income and inequalities in opportunities and status should be minimised and as far as possible marginalized . The right to life enshrined under Article 21 has been interpreted by this Court to include meaningful right to life and not merely animal existence as elaborated in several judgments of this Court including Hawkers' case, Olga Tellies case and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n particular the Scheduled Castes and Scheduled Tribes with socio-economic and political injustice and to prevent their exploitation and to prevent them from injustice. The Union of India have evolved Indira Avas Yojna Scheme exclusively to provide housing accommodation to the Scheduled Castes and Scheduled Tribes and separate annual budgets are being allotted in that behalf by the Parliament and the appropriate Legislatures in allied matters. In that behalf, in implementation of the housing scheme evolved for them, the budgetary allocation should exclusively be spent for them and should not be diverted to any other projects or similar schemes meant for others. The Planning Commission has evolved the principle of allotment of a specified percentage for the overall developments of the Scheduled Castes and Scheduled Tribes. As a facet of it, the annual budget including for housing accommodation is being prepared and passed by the Parliament. Similarly for other schemes covered by the State budgets. Therefore, when the State, namely, Union of India or the appropriate State Government or the local bodies implement these schemes for housing accommodation of the Scheduled Castes and Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, Schedules Castes, Scheduled Tribes, Backward Classes and other poor are integrated as cohesive social structure. The expenditure should be met from the respective budgetary provisions allotted to their housing schemes and in the respective proportion be utilised. All of them would, therefore, live in one locality in an integrated social group so that social harmony, integrity, fraternity and amity would be fostered, religious and caste distinction would no longer remain a barrier for harmonised social intercourse and integration. The facts in this case do disclose that out of 29 encroachers who have constructed the houses on pavements, 19 of them have left the places, obviously due to such pressures and interests of rest have come into existence by way of purchase. When such persons part with possession in any manner known to law, the alienation or transfer is opposed to the Constitutional objectives and public policy. Therefore, such transfer are void ab initio conferring no right, title or interest therein. In some of the States law has already been made in that behalf declaring such transfer as void with power to resume the property and allot the same to other needy people fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to what would be the appropriate procedure required to be adopted in the given facts and circumstances. 31. It is true that in all cases it may not be necessary, as a condition for ejectment of the encroacher, that he should be provided with an alternative accommodation at the expense of the state which if given due credence, is likely to result in abuse of the judicial process. But no absolute principle of universal application would be laid in this behalf. Each case is required to be examined on the given set of facts and appropriate direction or remedy be evolved by the Court suitable to the facts of the case. Normally, the Court may not, as a rule, directs that the encroacher should be provided with an alternative accommodation before ejectment when they encroached public properties, but, as stated earlier, each case requires examination and suitable direction appropriate to the facts requires modulation. Considered from this perspective, the apprehensions of the appellant is without force. 32. As regards the direction given by the High Court to provide accommodation as a condition to remove the encroachment, as held earlier, since the Municipal Corporation has a consti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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