IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.914 of 2010 1. SAMI AHMAd S/O LATE AZIZUDDIN R/O NEW MARKET, P.S- KOTWALI, DISTT- PATNA 2. ABDL KAYUM S/O ABDUL RASHID R/O NEW MARKET, P.S- KOTWALI, DISTT- PATNA 3. MD. ILYAS S/O ABDUL QUAYUM R/O NEW MARKET, P.S- KOTWALI, DISTT- PATNA 4. MD. MANZUR S/O MD VILATH R/O NEW MARKET, P.S- KOTWALI, DISTT- PATNA 5. MD. INAMUL HAQUE S/O AALENABI R/O NEW MARKET, P.S- KOTWALI, DISTT- PATNA 6. MD. NIZAM S/O REYAZUDDIN R/O NEW MARKET, P.S- KOTWALI, DISTT- PATNA 7. MD. SHAKIL S/O HAZI BHOLA KURAISHI R/O NEW MARKET, P.S- KOTWALI, DISTT- PATNA 8. MD. SHAUQUT, S/O AJMAT ALI R/O NEW MARKET, P.S- KOTWALI, DISTT- PATNA 9. MD. SHAMSHAD S/O ABDUL SAMAD R/O NEW MARKET, P.S- KOTWALI, DISTT- PATNA 10. MD. ZAHID S/O MD. SHAKIL R/O NEW MARKET, P.S- KOTWALI, DISTT- PATNA 11. MD. KALLU S/O LATE ISMAIL R/O NEW MARKET, P.S- KOTWALI, DISTT- PATNA 12. LAALTUN CHAUDHARY (JHAJHI) S/O HARIS CHNDRA CHAUDHARY R/O NEW MARKET, P.S- KOTWALI, DISTT- PATNA 13. AAGA MD. SABIR S/O LATE MAHBUBUR RAHMAN R/O NEW MARKET, P.S- KOTWALI, DISTT- PATNA 14. MD. ANZAR S/O SAMI AHMAD R/O NEW MARKET, P.S- KOTWALI, DISTT- PATNA Versus 1. THE STATE OF BIHAR THROUGH SECRETARY, DEPARTMENT OF TOWN DEVELOPMENT AND HOUSING BIHAR, PATNA 2. THE DISTRICT MAGISTRATE, PATNA 3. THE EXECUTIVE OFFICER, PATNA MUNICIPAL CORPORATION, PATNA ----------- 4/ 09/12/2010 Heard learned counsel for the petitioners, for the State and for Patna Municipal Corporation. The petitioners claim to be doing business in petty shops on certain lands which, they claim, were settled to them by the Patna Municipal Corporation as far back as 1967. They claim to have made temporary structures and also have electricity connections in their - 2 - names and are paying municipal rent. The area is euphemistically described as „New Market‟ near the Patna Railway Station. They apprehend forcible dispossession in the name of beautification of the town of Patna taking away their livelihood. The writ application has been filed in January, 2010 after serving copies in the office of the Advocate General and upon the Patna Municipal Corporation. A very short and cryptic counter affidavit declining to make any comments on merits has been filed by the District Magistrate, Patna that it is only a pro forma party as the District Administration is only expected to provide ministerial support in the process. The Patna Municipal Corporation has not considered it necessary to assist the Court in dispensation of justice by filing a counter affidavit for nearly one year despite two adjournments specifically given for the purpose. Noticing the attitude of the Patna Municipal Corporation this Court on 30.9.2010 had directed that pending disposal of the application no coercive steps shall be taken for removal of the petitioners from the shops in question. Learned counsel for the Patna Municipal Corporation submits that the petitioners are in unauthorized occupation. However, learned counsel finds - 3 - it difficult to explain how and why encroachers have been permitted to continue on the lands of the Corporation for long years right since 1967, as claimed and for all these years the Corporation took no steps to evict them or to develop the area in a planned manner. To oust the petitioners today, perhaps, may not be very difficult by simply describing them as encroachers. But it involves a more serious question of taking away their livelihood over night. If their livelihood is taken away, naturally they will resort to other means of livelihood which may not necessarily be conducive to the society at large. The Corporation also has to answer how and in what manner such persons claim to have continued for such long years. Obviously, this could not have been possible without the active connivance of the officials of the Corporation for a consideration. Their eviction is one aspect of the matter. The duty of a Welfare State to ensure facilities and circumstances to avail livelihood by the citizens is another aspect of the matter. If the petitioners were encroachers in the recent past of even two to four years, the matter may have been entirely different. The State by brute force and authority cannot take away a citizen‟s livelihood overnight finding fault with them ignore its own lapses and condonation by conduct. The State can - 4 - certainly impose planning. Planning visualizes taking care of those who may be displaced by the process of planning. To simply allow this application may not necessarily be conducive to the planning of Patna town which, in any event, is a matter of serious concern. To dismiss the writ application outright by describing the petitioners as encroachers may not be doing justice to the petitioners. In AIR 1986 SUPREME COURT 180 "Olga Tellis v. Bombay Municipal Corporation" dealing with the issue of encroachers vis a vis their right to life and livelihood it was held at paragraphs 22, 28, 32, 33, 35 and 49 as follows:- “22. It is further urged by the petitioners that it is constitutionally impermissible to characterise the pavement' dwellers as trespassers" because, their occupation of pavements arises from economic compulsions. The State is under an obligation to provide to the citizens the necessities of life and, in appropriate cases, the courts have the power to issue orders directing the State, by affirmative action, to promote and protect the right to life. The instant situation is one of crisis, which compels the use of public property for the purpose of survival and sustenance. Social commitment is the quintessence of our Constitution which defines the conditions under which liberty has to be enjoyed and justice has to be administered. Therefore, Directive Principles, which are fundamental in the governance of the country, must serve as a beacon light to the interpretation of the constitutional provisions. Viewed in this context, it is urged, the impugned action of the State Government and the Bombay Municipal Corporation is violative of the provisions contained - 5 - in Articles 19(1)(e), 19(1)(g) and 21 of the Constitution. The paucity of financial resources of the State is no excuse for defeating the fundamental rights of the citizens. 28. It is not possible to accept the contention that the petitioners are estopped from setting up their fundamental rights as a defence to the demolition of the huts put up by them on pavements or parts of public roads. There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. For example, the concession made by a person that he does not possess and would not exercise his right to free speech and expression or the right to move freely throughout the territory of India cannot deprive him of those constitutional rights, any more than a concession that a person has no right of personal liberty can justify his detention contrary to the terms of Article 22 of the Constitution. Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated. But the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community. The Preamble of the Constitution says that India is a democratic Republic. It is in order to fulfil the promise of the Preamble that fundamental rights are conferred by the Constitution, some on citizens like those guaranteed by Articles 15, 16, 19, 21 and 29 and, some on citizens and non- citizens alike, like those guaranteed by Articles 14, 21, 22 and 25 of the Constitution. No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise. that he does not possess or will not - 6 - enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all-powerful State could easily tempt an individual to forgo his precious personal freedoms on promise of transitory, immediate 32. As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Art. 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Art. 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the - 7 - villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live : Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas J. in Baksey, (1954) 347 M.D. 442 that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois, (1877) 94 US 113, means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P., (1964) 1 SCR 332: (AIR 1963 SC 1295). 33. Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Art. 41, which is another Directive Principle, provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any Court, are nevertheless fundamental in the governance of the country. The Principles contained in Arts. 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right, to life conferred by Art. 21.benefits…..” - 8 - 35. Turning to the factual situation, how far is it true to say that if the petitioners are evicted from their slum and pavement dwellings, they will be deprived of their means of livelihood. It is impossible. in the very nature of things, to gather reliable data on this subject in regard to each individual petitioner and, none has been furnished to us in that form. That the eviction of a person from a pavement or slum will inevitably lead to the deprivation of his means of livelihood, is a proposition which does not have to be established in each individual case. That is an inference which can be drawn from acceptable data. Issues of general public importance, which affect the lives of large sections of the society, defy a just determination if their consideration is limited to the evidence pertaining to specific individuals. In the resolution of such issues, there are no symbolic samples which can effectively project a true picture of the grim realities of life. The writ petitions before us undoubtedly involve a question relating to dwelling houses but, they cannot be equated with a suit for the possession of a house by one private person against another. In a case of the latter kind, evidence has to be led to establish the cause of action and justify the claim. In a matter like the one before us, in which the future of half of the city's population is at stake, the Court. must consult authentic empirical data compiled by agencies, official and non-official. It is by that process that the core of the problem can be reached and a satisfactory solution found. It would be unrealistic on our part to reject the petitions on the ground that the petitioners have not adduced evidence to show that they will be rendered jobless if they are evicted from- the slums and pavements. Commonsense, which is a cluster of life's experiences, is often more dependable than the rival facts presented by warring litigants. 49. The jurisprudence requiring hearing to be given to those who have encroached on pavements and other public properties evoked a sharp response from the respondents' counsel. "Hearing to be given to trespassers who have encroached on public properties. To persons who commit crimes", they seemed to ask in wonderment. There is no doubt that the petitioners are using pavements and other public properties for an unauthorised purpose. But, their intention or object in doing so is not to "Commit an offence or - 9 - intimidate, insult or annoy any person". which is the gist of the offence of 'Criminal trespass' under section 441 of the Penal Code. They manage to find a habitat in places which are mostly filthy or marshy, out of sheer helplessness. It is not as if they have a free choice to exercise as to whether to commit an encroachment and if so where. The encroachments committed by these persons are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice. Trespass is a tort. But, even the Law of Torts requires that though a trespasser may be evicted forcibly the force used must be no greater than what is reasonable and appropriate to, the occasion and, what is even more important. "the trespasser should be asked and given a reasonable opportunity to depart before force is used to expel him" [See Ramaswamy Iyer's 'Law of Torts 7th Edn. By Justice and Mrs. S. K. Desai, (Page 98, para 41) ]. Besides, under the Law of Torts, necessity is a plausible defence, which enables a person to escape liability on the ground that the acts complained of are necessary to prevent greater damage, inter alia, to himself. "Here, as elsewhere in the Law of torts, a balance has to be struck between competing sets of values "[See Salmond and Heuston, 'Law of Torts', 18th Edn.. (Chapter 2 L page 463, Article 185 - 'Necessity' ) ].” This writ application is referred to the Secretary, Department of Urban Development, Government of Bihar who shall provide due opportunity of hearing to the petitioners, examine their claims individually and if he is satisfied that they do hold shops in the New Market area for long years before they are asked to move out, the State Government shall provide them alternative shops at a suitable place. It is expected that the place to be provided shall again not be an ad hoc arrangement, but shall be a part of a considered plan for - 10 - a better Patna of tomorrow. Only if the petitioners file such an application within a period of 30 days from today before the Secretary, Urban Development Department, let him consider and dispose off matters by a reasoned and speaking order within a maximum period of six months from the date of receipt/presentation of such application along with a copy of this order before him. It is expected that the Secretary, Urban Development Department shall pass necessary interim orders in light of the Court‟s order dated 30.9.2010 so that the claims of the petitioners are not rendered infructuous before he passes final orders. The writ application stands disposed. KC ( Navin Sinha, J.)