IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9310 of 2009 SANJAY KUMAR . Versus THE STATE OF BIHAR & ORS . For the Petitioner:- Mr. Birendra Kant Choudhary, Mr. Baidnath Thakur and Mr. Ravindra Kumar, Advocates For the Nagar Parishad:- Mr. Purushotam Jha, Advocate For the State:- Mr. A.A.G.-2 ----------- 04. 18.01.2011 Heard learned counsel for the petitioner, for the State and for the Nagar Parishad, Madhubani. The petitioner submits that he was settled a shop on 26.2.1999 under a valid lease agreement on a monthly rent of Rs. 567/- and was also required to deposit Rs. 1,22,000/- which was to be adjusted against future rent. The petitioner then applied for settlement of the adjacent shop which was so given to him on 4.7.2005 after the earlier settlee vacated it. The shops were constructed by the Nagar Parishad, Madhubani. The petitioner was served a notice on 9.6.2008 by the District Administration that he had encroached upon public lands by making the constructions which was duly replied to by the petitioner that it was duly settled with him by the Nagar Parishad, Madhubani and which had made the construction. Notwithstanding the same, the petitioner was threatened with demolition with 16.7.2009 in the name of road widening. 2 No counter affidavit has been filed on behalf of the Nagar Parishad, Madhubani. Learned counsel for the Nagar Parishad however very fairly acknowledges that the constructions have been made by it and settlement made to the petitioner. In view of the counter affidavit filed by the D.C.L.R. on behalf of the State Government stating in no uncertain terms of encroachment upon Government lands the Nagar Parishad unable to counter the same takes the stand that was an inadvertent error and the Nagar Parishad regrets its action. In an era of accountability and answerability the defence of the Nagar Parishad has only to be stated to be rejected. If indicates of the manner in which it functions with complete lack of accountability. The matter however cannot end there. In a stand off between the State Government and the Nagar Parishad the petitioner is being minced and his fundamental rights under 19 (1) (g) being violated. The shops measure 9 X 12 feet. From the size of the shop, it is apparent that the petitioner is a petty shopkeeper running two medicine shops to eke out a leaving. The casualness with which the Parishad proceeds deals with issue of his livelihood thoroughly disappoints the Court. If the petitioner were to be 3 ousted today simplicitor on the ground that the settlement made to him was illegal and therefore writ Court cannot grant him relief that shall be doing gross injustice to him. His whole world shall collapse overnight for no fault of his. Upholding the petitioner’s rights under 19 (1) (g) of the Constitution and balancing it with the rights of State to himself reasonable restraining by preventing running of the business on an illegal construction made by the Nagar Parishad relying upon AIR 1986 SUPREME COURT 180 "Olga Tellis v. Bombay Municipal Corporation" at paragraphs 32 and 33, the Court directs that till such time the Nagar Parishad and the District Administration do not relocate the petitioner and provide him a constructed premise of the same dimensions at least, they are restrained from demolishing the shops of the petitioner so as to interfere with the source of his livelihood. It is now up to the respondents how quickly they wish to implement their own scheme as road widening. The present is not a simple case of encroachment. “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 4 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 villages. The motive force which propels their desertion of their hearths and homes in the village is 5 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 6 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.” Nothing precludes the District Administration from taking appropriate action against those who made the illegal construction. In fact the bona fides of the State stand to test in this case. The application stands disposed. P.K. ( Navin Sinha, J.)