IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3426 of 1998 with SPECIAL CIVIL APPLICATIONS NOS. 2251, 2255, 3172, 3185, 4041 AND 4384 OF 1999 with SPECIAL CIVIL APPLICATION NO. 4202 OF 1995 with CIVIL APPLICATIONS NO.4870/99 & 14020/99 in Special Civil Application No. 3172 of 1999 For Approval and Signature: Hon'ble CHIEF JUSTICE MR DM DHARMADHIKARI and Hon'ble MR.JUSTICE B.C.PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- PEOPLES UNION FOR CIVIL LIBERTIES Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3426 of 1998 MR GIRISH PATEL, SR. ADVOCATE FOR MR AJ YAGNIK for Petitioners MS HARSHA DEVANI ASST. GOVERNMENT PLEADER for Respondent No. 1 MRS KETTY A MEHTA for Respondent No. 2 NOTICE SERVED BY DS for Respondent No. 3, 5 MR PRANAV G DESAI for Respondent No. 4 2. Special Civil Application No. 2251 of 1999 MR H.M.MEHTA SR. ADVOCATE WITH MR J.M. MALKAN FOR PETITIONERS MR PRASHANT G. DESAI FOR THE CORPORATION 3. Special Civil Application No. 2255 of 1999 MR. H.M. MEHTA, SR. ADVOCATE WITH MR. JM MALKAN FOR PETITIONERS MR. H.S.MUNSHAW FOR AUDA 4. Special Civil Application No. 3172 of 1999 MR. H.M. MEHTA, SR. ADVOCATE WITH MR. JM MALKAN FOR PETITIONERS MR. S.N. SHELAT, LD A.A.G. WITH MR RR MARSHAL FOR CORPORATION 5. Special Civil Application No. 4041 of 1999 MR. H.M. MEHTA, SR. ADVOCATE WITH MR. JM MALKAN FOR PETITIONERS MR RR MARSHAL FOR THE CORPORATION 6. Special Civil Application No. 4202 of 1995 MR. H.M. MEHTA, SR. ADVOCATE WITH MR. JM MALKAN FOR PETITIONERS MR. PRANAV G. DESAI FOR THE CORPORATION MS HARSHA DEVANI, AGP 7. Special Civil Application No. 4384 of 1999 MR. H.M. MEHTA, SR. ADVOCATE WITH MR. JM MALKAN FOR PETITIONERS MF PG DESAI, FOR THE CORPORATION 8. Special Civil Application NO. 3185 of 1999 MR.H.M. MEHTA, SR. ADVOCATE WITH MR. JM MALKAN FOR PETITIONERS MR. PRANAV G. DESAI FOR THE CORPORATION MS. HARSHA DEVANI, AGP -------------------------------------------------------------- CORAM : CHIEF JUSTICE MR DM DHARMADHIKARI and MR.JUSTICE B.C.PATEL Date of decision: 05/09/2000 C.A.V. COMMON JUDGMENT (Per D.M.Dharmadhikari, C.J. and B.C. Patel, J.) #. This writ petition as also the connected writ petitions (SCA Nos. 2251, 2255, 3172, 3185, 4041 AND 4384 OF 1999 and SCA No. 4202 of 1995) have been filed as public interest litigations by voluntary service oriented organisations, namely, Peoples' Union of Civil Liberties, Shishu Milap, Samvad, Council of Social Justice and a few individuals for and on behalf of hutment dwellers. They seek directions for their resettlement and for payment of compensation to them for their forcible removal in violation of their constitutional and human right. #. The petitioners who have approached individually and for and on behalf of the hutment dwellers do not dispute that the land on which they were living in their huts were public properties, belonging to the State of Gujarat and within the control of either the Municipal Corporations, Urban Development Authorities or the Housing Boards at Ahmedabad and Vadodara. #. On behalf of hutment dwellers it is complained by the petitioners, some of whom are affected individuals and other service organisations, that the State and the various public authorities possessed of muscle powers through police and bulldozers have ruthlessly crushed their hutments with their belongings. Thus, with the use of physical force, they have been evacuated from the lands on which they were living. A few of the hutment dwellers before us in this batch of petitions have approached this Court on apprehension of their evacuation in ruthless manner mentioned above. A few of the hutment dwellers, who have already been forcibly evacuated and their hutments removed, state that in the absence of any alternative site for living made available or permissible to them nearby the place of their humble occupation and working, they had no option but to squat near the same place from where they were evacuated. #. Before dealing with the cases separately in the facts and backgrounds of individual cases, it would be necessary to state the stand almost consistently taken by and on behalf of the public authorities, i.e., the Municipal Corporations, Revenue authorities of the State, Urban Development Authorities and Housing Boards. It is stated that the hutment dwellers are occupying lands, such as reserved for proposed roads under the housing schemes, on the banks of rain water channel, on public roads and other objectionable sites. They cannot be allowed to remain there, to the detriment of the general interest and convenience of other members of the society, who expect proper development of urban areas to ensure uncongested and unpolluted environment. On behalf of the public authorities, it is submitted that planned development of cities for inhabitants is the need of the society. Individual or collective rights of hutment dwellers will have to be sacrificed for planned urban development, which is in general public interest. It is submitted that the hutment dwellers were duly served with notices reasonably in advance to give them time and period to vacate the encroached lands with their families and belongings. It is only when after such notices the hutment dwellers refused to vacate or leave the encroached lands, that minimum required physical force was used, to evict them. Some of the public authorities have stated that the hutment dwellers living on public properties were duly identified on the basis of their names in the electoral rolls, ration cards and other public documents. Such identified hutment dwellers after their removal have been provided with alternative sites, but this procedure was followed only in respect of hutment dwellers or encroachers who were living on the land prior to 1976. On behalf of the public authorities, it is submitted that each and every encroacher of the land, where the encroachment is comparatively of recent origin, cannot be provided with alternative site to live, as it is not within the financial resources and capacity of the public bodies. It is contended that no law or the Constitution recognises any fundamental right to live by committing encroachment on public properties. It is submitted that the public authorities have taken action permissible under the relevant laws, such as, the Bombay Provincial Municipal Corporations Act, the Gujarat Town Planning and Urban Development Act and the Bombay Land Revenue Code. It is pointed out that under the provisions of the State enactments, the public authorities are empowered to remove encroachments on public land, for the purpose of fulfilling the objects of those enactments, namely, to regulate the municipal administration in cities, to make planned and systematic development of urban areas and to protect the public properties and lands for public use. It is submitted that the Constitution Bench decisions of Supreme Court in OLGA TELLIS AND OTHERS VS. BOMBAY MUNICIPAL CORPORATION AND OTHERS (AIR 1986 SC 180) AND AHMEDABAD MUNICIPAL CORPORATION VS. NAVABKHAN GULABKHAN AND OTHERS (AIR 1977 SC 152), permit the civic authorities to adopt the procedure followed in these cases for restoring possession of properties for public use, by removing illegal encroachments. #. The submission made on behalf of public authorities is that the Constitution recognises fundamental `right of living' which is extended to cover `means of livelihood' and further extended to include `right to shelter'. Such fundamental right is, however, subject to reasonable restrictions. Nobody can exercise his right so as to cause obstruction to public and public activities or to cause inconvenience and annoyance to other sections of the society. It is submitted that the public authorities have meticulously and scrupulously followed all the directions and safeguards desired to be adhered to by the two Supreme Court decisions in the case of Olga Tellis and Navabkhan (supra). #. On behalf of the hutment dwellers, arguments were advanced by Senior Counsel Shri H.M. Mehta and Shri Girish Patel. Learned Sr. Counsel Shri Mehta extensively read the observations of the Supreme Court in the case of Olga Tellis (supra) and contended that the five member Constitution Bench decision in Olga Tellis could not have been indirectly overruled or disregarded by the two member Bench of the Supreme Court in the case of Navabkhan (supra). #. We have read along with the learned counsel the judgements of the Supreme Court in the two cases i.e., Olga Tellis and Navabkhan (supra). On a careful reading, we find no substantial conflict in the views expressed by the Supreme Court in the two cases (supra). So far as the High Court is concerned when two judgments of Supreme Court appear to be inconsistent on common issues brought before it in two different cases, it is expected to follow both the verdicts and try as best as possible to resolve seeming conflict, if any, between the two decisions of the Supreme Court. #. On behalf of the petitioners, it is submitted thus: Migration of unemployed labour from villages to cities is a compulsion for those migrating. The urban population needs labour for urban development. No urban development can be achieved without involvement of manual labour. The landless agriculturists or unemployed labour who migrate to cities are employed for national growth, housing, raising of multistoryed complexes, construction of roads, sewerages, canals, electricity and telephone lines, pathways and various other kinds of public and private works. Some unemployed labour not so utilised seek private employment for work in the factories or domestic work in the houses. To earn a living such poor persons are compelled to squat by the side of the roads and sometimes to erect hutments or slum colonies on vacant available public land. Some times such labour employed on a work site are allowed to squat or live just near the work site or at a distance from such sites. When the work or need of employment for them is over at one place, they are asked to immediately shift and sometimes even without giving them a reasonable notice. In urban development, the unemployed poor are engaged for the needs of affluent sections of the society for providing the latter shelters and sometimes better shelters. Those who are employed for providing shelters to others cannot be allowed to be rendered without shelter. #. Learned Sr. Counsel Shri Girish Patel narrated a poignant event which is a global phenomena. A poor homeless person was sleeping in the premises of a Court. The Marshal came and scolded him. He was asked to go away. The man who was woken up from his slumber said `I am prepared to leave this place, but tell me at which place I should sleep'. The Marshall had no answer. ##. After narrating the above story, learned counsel submits that the Marshal had no answer to the query of the homeless person and no one in Government or in public bodies or those forming the affluent sections of the society have any answer to the question of the helpless homeless person. This is a tragic phenomena of poor, unemployed and homeless persons all over the world. ##. Learned Sr. Counsel Shri Girish Patel in his petition on behalf of forcibly evicted hutment dwellers of Vadodara (in Special Civil Application No. 3426 of 1998) in his affidavit-in-rejoinder has surveyed the International Law which recognises rights of the homeless persons. He has also annexed extracts from several sociological research papers, particularly from the Article "Homelessness and the Issue of Freedom by Jeremy Waldron" published in book titled "Contemporary Political Philosophy - An Anthology" edited by Robert Goodin and Phillip Pettit (Blackwell Publishers, 1977). ##. On behalf of the hutment dwellers, who were allegedly removed from near a rain water channel in Vadodara and whose huts and belongings were crushed under the iron wheels of a bulldozer, learned Sr. Counsel Shri Girish Patel has raised certain questions of general public importance based on the constitutional rights, if any, of the homeless in India. Section 68 of Gujarat Town Planning and Urban Development Act, 1976 permits the Authorities of the Housing Board to forcibly remove encroachments of persons in course of implementation of its approved housing schemes. It is contended that the provisions of the said Act have to be interpreted and implemented without invading the fundamental 'right to life' of homeless persons, lest they would be ultra vires the Constitution, particularly, Articles 14, 19 and 21 thereof. It is submitted in the affidavit-in-rejoinder on behalf of the petitioners that large number of poor people in Gujarat and all over India live in slums or huts. Some of these people are those whose social and economic base has been destroyed or weakened in the rural areas by various forces compelling them to migrate to the cities in search of livelihood. When they come to the cities they are in search of work and means of livelihood. Such poor people in need of work and means of livelihood must have some place to live. Unfortunately, the lands in the cities are either public lands which are within the control of several public bodies or institutions to be utilised for different public purposes or there are some private lands. The public lands are not available to the poor people. The private lands are so costly that the poor people cannot afford even a piece of it sufficient to construct a hut. As a consequence of these conditions, these poor people try to live whereever they get opportunity. This is how hutments are built and slum areas are created. A large number of such hutments or slum colonies thus become a permanent and inseparable part of cities. ##. It is submitted that the slum dwellers and hutment dwellers because of their poverty, illiteracy and being unorganised become victims of exploitation in the cities. The land on which they live does not belong to them, and therefore they face continuous threats of eviction and demolition. The hutment dwellers live in such precarious conditions. To earn their living, they are engaged in various types of productive activities. Thus, to some extent, they contribute to the material wealth of the cities by supplying goods, services and labour. It is estimated that about 40% to 50% of the production of the city is contributed by these people. In modern terms, they are described as Informal Sector of Economy. Yet, unfortunately, they have no place to live in the cities. ##. On behalf of the hutment dwellers, it has been contended in the affidavit-in-rejoinder that right to housing is an internationally recognised ingredient of human rights. Reliance is placed upon the International Covenant on Economical, Social and Cultural Rights of the Year 1966, as adopted by the United Nations General Assembly on 14-12-1966. Reference is made to Article 11 of the Covenant on Social and Cultural Rights which reads:- "........ an adequate standard of living for himself and his family, including adequate food, clothing and housing and the continuous improvement of living conditions." ##. The universal declaration of human rights as adopted by General Assembly of the United Nations on 10-12-1948 enunciate right to housing as a basic right under Article 25. It is pointed out that India has ratified such declaration. ##. On behalf of the hutment dwellers, it is submitted that the United Nations declarations adopted by India is a very useful guide in interpretation of National Laws. It is submitted that the provisions of Municipal Law should be judicially so interpreted as to make them accord, as much as possible, with the relevant international declarations, specially those which are ratified by India. Reference is made to the observations of the Hon'ble Supreme Court of India in the case of Jolly George Verghees Vs. Bank of Cochin (AIR 1980 SC 870). The contention advanced on behalf of the hutment dwellers is that the provisions of the State enactments, such as the Bombay Provincial Municipal Corporations Act, the Gujarat Town Planning and Urban Development Act and the Bombay Land Revenue Code and such other laws, conferring powers on the public authorities to remove encroachments for their various developmental activities and to protect the public properties, must be interpreted in the light of international obligations of India as a result of adoption of United Nations declarations and resolutions to which India is a party. The pathetic condition of homeless people is thus recognised throughout the world. Except human beings, even animals and birds have place to reside. Where the land is divided into public land and private land, the question naturally arises - those who have no land at all have no right to sleep, to eat, to urinate or to defecate or to take bath or to perform other biological functions?? Thus, homeless means, the denial of most basic rights of human being. In fact, a human being without having any earth or place to sit or stand or sleep is in worst condition as compared to animals. ##. The case of hutment dwellers is pleaded thus:- If a man is born on earth, a reasonable place on it for him to eat, drink and sleep and for that purpose to raise a shelter is his human right by birth. To evacuate human beings, crush their hutments with their belongings by bulldozer and to drive them and their families from alleged encroached land in a ruthless manner are acts in gross violation of their human rights. It is a deprivation of shelter without providing an alternative one to live with bare necessities of human existence. ##. The concept of fundamental right of life and liberty, is founded on natural rights or human rights. Fundamental rights in Indian Constitution are subject to reasonable restrictions. The Indian Constitution uses the expression `interest of the general public' in clauses (5) and (6) of Article 19, as a ground of permissible limitation to the freedoms of movement, residence and profession guaranteed under Article 19(1)(e) and (g) of the Constitution. ##. In determining whether the measure is in the interest of general public, the Court has to assess whether the measure would further the welfare or progress of the society as a whole (Joti Vs. Union Territory AIR 1961 SC 1602) even though it might cause hardship to a Section of a community, owing to the peculiar conditions in which they are placed. ##. As fundamental rights which are also human rights are available against the State; In cases of conflict between the interest of the individual and the State guarantee of human rights must necessarily contain the limitations or exceptions. The guarantee of human rights will prevail subject to these limitations, so that the collective interest may not be jeopardised. It is, therefore, always necessary for the Court to balance the need for the protection of the guaranteed individual rights with social justice which the State is enjoined by the Constitution to protect. In other words, the Constitution protects the rights and freedoms only within the limits of reason and the Court can interfere where the State has exercised its power in a "manifestly unfair or arbitrary manner". ##. In ascertaining the reasonableness of the restrictions on fundamental rights, the Court has to look at the objective of the law as well as means chosen to implement that object. The reasonableness of the means involves - (i) the means chosen shall not be arbitrary and (ii) it should impair as little as possible the right of freedom under consideration. In protecting, therefore, a fundamental right to life and liberty with its extended meaning as given by the Supreme Court in the cases reviewed above, and taking into consideration that reasonable restrictions in general public interest can be imposed on such rights, in cases of slum dwellers, homeless and squatters on public pavements or roads, on their complaint of violation of their human rights or fundamental rights, they should be given the relief, keeping in view the needs and requirements of general public. It is, therefore, always necessary to reach a just balance between the rights of an individual and society. When there is unequal contest on such vital issues involving human rights of individuals, between rich and poor, or strong and the weak, persons with shelter and those without it - the issues need to be resolved as far as possible to protect the rights of the weak and the needy sections of the society and to promote at the same time the interest of the society in general. ##. Mr. H.M. Mehta, Sr. Counsel appearing in this batch of petitions for slum dwellers in his zeal and intense feelings for the deprived sections of the people, whom he represents, while addressing this Court created an impression as if the Members of the Bench are totally heartless and insensitive to the woes of these poorest section of the Society. He had to be reminded that a Judge on assuming office during his tenure sits cut off from the society as he cannot continue to be in public life, but as he also comes from the society with his own experience of it, he is better stationed at a distance from the problems of the society to view them in a more objective, detached and dispassionate manner, than those involved in it, and for that reason, he is more suited to resolve conflicts and competing claims of the individual and the society. ##. Learned Counsel then appealed fervently to this Court to be merciful and compassionate towards hutment dwellers. We are aware that law is heartless and therefore, it requires medium of mercy to implement it. We do not think that in balancing rights of individuals and society, we would be less kind and merciful towards the section which justly deserves it. ##. At the same time as observed by the Supreme Court in the case of Navabkhan (supra), the needs of the general society of urban area cannot be disregarded while protecting the alleged violation of human rights of hutment and slum dwellers. The following observations in Navabkhan's case do not appear to us to be in any manner in conflict with the law laid down by the Constitution Bench in the case of Olga Tellis' case (supra):- "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" ##. In the latest decision of the Supreme Court in ALMITRA H. PATEL AND ANOTHER VS. UNION OF INDIA AND OTHERS (2000) 2 SCC 679 dealing with disposal of solid waste for cleaning up Delhi to protect environment from pollution on large scale slum colonies coming up in cities like Delhi, the following observations keeping in view the societal needs came to be made:- "Establishment or creating of slums, it seems, appears to be good business and is well organised. The number of slums has multiplied in the last few years by geometrical proportion. Large areas of public land, in this way, are usurped for private use free of cost. It