SH. P.G.GUPTA ETC. ETC.

STATE OF GUJARAT AND ORS.

DECEMBER 14, 1994

[K. RAMASWAMY, S. MOHAN AND N. VENKATACHALA, JJ.]

Constitution of India, 1950: Articles 19 (J)(e) and 21-Right to residence.

Article 14-Equality--Cut off date-Housing Scheme-Resolution for converting rental basis scheme into hire purchase-Criteria for allotment with reference to date fixed in resolution held not arbitrary.

Housing-Government Housing Scheme-Allotment to Government employees-Conversion from rental scheme to hire purchase scheme- Government Resolution approving scheme-Eligibility Criteria- Requirement of continuous residence for fzve years-Challenge to allotment scheme-Quashing of only two eligible categories of employees by High Court-First those allotted better accommodation by Government and were consequently not in possession for five years on the date of reso/ution- Secondly, those transferred on permanent basis-Exclusion of these two categories held not arbitrary.

In a Lower Income Group ousing Scheme 396 houses were constructed at Pahari at Ahmedabad and were allotted to Government employees on rental basis. Subsequently the State Government obtained sanction from the Central Government to convert the rental scheme into hire purchase scheme for allotment to the Govt. employees.

As per the criteria for allotment continuous residence for five years was necessary. Further retired Govt. servants were excluded from the scheme. Consequently, on April 17, 1971, the Govt. passed a resolution under which 200 houses were converted from rental basis scheme to hire purchase scheme. Thereafter, the Government re-considered the matter and by its resolution dated June 22, 1972 resolved to allot all the 396 houses to the Government employees on hire purchase basis. Under the Resolution Category III and VI of employees were inter alia entitled to the benefit of said scheme. Category III was of those employees who were working in secretariat and were originally allotted the house at Pahari but later allotted better accommodation at Gandhinager. In Category VI there were employees who were transferred outside

Ahmedabad on permanent basis. The said scheme of allotment was A challenged before the Gujarat High Court which took into .account the criteria of June 22, 1972 as last date for fixing the entitlement for the priorities mentioned in the resolution and upheld the validity of the scheme save and except priority categories III and VI.

In appeal to this Court, it was contended on behalf of the appellant B that (i) in view of the compulsion by the State Government Category III employees had shifted from Pahari to Gandhinager, therefore, they cannot be deprived of their entitlement to allotment on hire purchase basis; and (ii) the denial of benefit of the scheme to Category VJ employees violates Articles 14, 19 and 21; the High Court committed manifest error of law in denying the benefit to the said Category C inasmuch as none had challenged the entitlement of allotment to that category.

Dismissing the appeals, this Court

HELD: 1. There is no illegality in excluding employees of cate- D gories (iii) and (vi) for allotment under hire purchase scheme. (636 DJ

2. It is true that initially when the Government of India had given sanction for converting 396 lower income group houses from rental scheme to hire purchase scheme, category III employees were in occupation of the respective allotted houses. It is seen that they had E vacated the respective premises as they were allotted government houses having better accommodation at Gandhinagar with concessional rates. But on the date of the resolution passed by the government, admittedly, they were not in possession of the houses at Pahari or some of them were in illegal occupation. In these circumstances, the conclusion reached by the High Court that the category III employees F are not entitled to the allotment, is just and reasonable. It is not vitiated by any error of law. [632 F, G)

3. It is true, that a date has to be fixed with reference to a particular case and fixation of any date always may appear to be arbitrary. But some connection has to be established for fixation of the G date of allotment of the houses. In this case, since the government had taken decision on June 22, 1972, to convert the rental basis scheme into hire purchase scheme that date bears rational relation to the object of allotment. Therefore, it cannot be said to be arbitrary or irrational offending Article 14 of the Constitution. (635 H, 636 A) H

4. From the judgment of the High Court it is clear that category III persons who had vacated the houses were treated on par with category VI employees transferred from the capital to the districts. From the material on record it would appear that the eligibility of category VI employees was also questioned. Though some of them managed to remain in possession, they cannot cltlim right to allotment under hire B purchase scheme. Therefore, the High Court has rightly considered that when category III employees were excluded on the ground that they shifted their residence from Pahari to Gandhinagar, the same parity should be applied to category VI employees who have been transferred from the capital to the districts. [636 C to DJ c

5. The right .to residence and settlement is a fundamentai right under Article 19(l)(e) and it is a facet of inseparable meaningful right to life under Article 21. Food, shelter and clothing are minimal human rights. The State has undertaken as its economic policy of planned development of the country and has undertaken massive housing schemes. As its part, allotment of houses as adopted, as is enjoined by Articles 38, 39 and 46, Preamble and Art 19(1) (e) facilities and opportunities to the weaker sections of the society of the right to residence make the life meaningful and liveable in equal status with dignity of person. It is, therefore, imperative for the State to provide permanent housing accommodation to the poor in the housing schemes undertaken by it or its instrumentalities within their economic means so tha~ they could make the payment of the price in easy installments and have permanent settlement and residence assured under Article 19(1)(e) and 21 of the Constitution. [635 C to E]

Olga Tellis v. Bombay Municipal Corporation, [1985] 3 SCC 545 and Shantistar Builders v. Narayan Khimalal Totame, AIR (1990) SC 630;

referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1529of1988 etc. etc.

From the Judgment and Order dared 7.11.87 of the Gujarat High Court G in S.C.A. No. 980of1980.

N. Dushyant Dave for Ms. Meenak:shi Arora and Harish J. Jhaveri for the Appellants.

B.K. Mehta, Krishna Mahajan, P.H. Parekh and E.R. Kumar, for the H Respondents.

The following Order of the Court was delivered:

Since common question of law has been raised, these appeals are being disposed of together. The Division Bench of the Gujarat High Court in its judgment dated November 7, 1987, decided Civil Application No.980/80

and batch. One of the questions therein raised was, whether the persons falling in categories (iii) and (vi) in the Government Resolution dated B February 18, 1975 are entitled to priority in allotment of government quarters under hire purchase scheme? The High Court, after elaborate consideration, had concluded that "In view of the aforesaid discussion, it must be held that the impugned resolutions dated 18.2.75 and 10.3.80 are legal and valid save and except priority categories (iii) and (vi) contained therein which are quashed and set aside. Rest of the resolutions shall be C operated upon and implemented by the respondent authorities.•·

In these appeals, we are concerned only with regard to category Nos.

(iii) and (vi) Admittedly, in the Lower Income Group Housing Scheme, 396 houses were constructed at Pahari at Ahmt:dabad and were allotted to the government employees on rental basis. Subsequently, the State Government D had obtained sanction from the Central Government in May 1969 to convert the scheme into hire purchase scheme and for allotment to the government employees on the criteria indicated therein, namely, continuous residence for five years and also the eligibility criteria excluding the government servants who had already retired from service. Thereafter on April 17, 1971, the government passed a resolution converting 200 out of E 396 houses for allotment on hire purchase basis. On a further resolution dated June 22, 1972, all the 396 houses Wf:re pooled for allotment on hire purchase scheme. In the offending resolution the allotment was also sought to be given to category (iii), such of those employees working in Sachivalay (Secretariat) and originally allotted the house at Pahari at Ahmedabad but F later they shifted their residence and they voluntarily vacated the houses and shifted to the houses allotted at Gandhi Nagar with better accommodation on concessional basis. It was also sought to be given to such of those employees in Category (vi) who had been transferred outside Ahmedabad on a permanent basis. The entitlement under the scheme came to be challenged by some of the .employef:s in the High Court. As stated G earlier, the High Court while upholding other criteria for other categories, quashed the entitlement to the allotment to category (iii) and (vi). Thus, these appeals by special leave.

Shri Dave, learned counsel for the appellants, contends that initially when the Government of India had given permission for converting these H

A houses for allotment from rental scheme to hire purchase basis, the requisite qualification of five years' stay therein was applicable. In view of the compulsion by the State Government, the category III employees had shifted from Pahari to Gandhinagar. Therefore, they cannot be deprived of their entitlement to allotment on hire purchase basis.

B Shri Mehta, learned senior counsel appearing for category (vi), urges that the impugned government resolution militates against the statutory regulation of allotment made pursuant to s. 74 of the Gujarat Housing Board Act, 1961 (for short, 'the Act'). The government have, therefore, no power under s.82 of the Act to pass any resolution contrary to the statutory regulations. It is also contended that the lower income group housing scheme was C initiated to benefit the people of lower income group having an annual income of Rs. 6,000 to purchase the houses on hire purchase scheme. The initial scheme to give benefit to the poorer employees has been given a gobye hitting hard the weaker segments among the employees and their rights and allotment on priority basis was, therefore, defeated. The criteria adopted by the government are, therefore, irrational and arbitrary and it has D no nexus between the object of allotment on hire purchase basis and the policy. The denial thereof to category (vi) employees violates articles 14,19 and 21 of the Constitution. It is also contended that though none has challenged the entitlement to allotment of category (vi) employees, the High Court, after reserving the cases for consideration, had denied them the benefit in the judgment. Therefore, the High Court has committed manifest E error oflaw.

Having given our anxious consideration to the contentions raised by the learned counsel for the appellants, we are of the considered view that there is no force in any of them. It is true that initially when the Government of India had given sanction for converting 396 lower income F group houses from rental scheme to hire purchase scheme, category (iii) employees were in occupation of the respective allotted houses. It is seen that they had vacated the respective premises as they were allotted government houses having better accommodation at Gandhinagar with concessional rates. As on the date of the resolution passed by the government, admittedly, they were not in possession of the houses at Pahari G or some of them were in illegal occupation. In these circumstances, the conclusion reached by the High Court that the category (iii) employees are not entitled to the allotment, is just and reasonable. It is not vitiated by any error oflaw.

With regard to the exercise of power by the State under s. 82 of the act H vis-a-vis the regulations made under s.74 of the Act, we need not go into

that question. The reasons are eloquent. Though the lower income group A Houses were constructed for the allotment to the weaker sections, from the funds allotted by the Government of India, after the bifurcation of the Bombay State, Gujarat State was formed, the capital of the State of Gujarat was shifted from Bombay to Ahmedabad in the year 1970. Thereafter at the request of the State Government, the Government of India had given permission for allotment of those houses to the government employees. The B statutory exercise of power under s.82 and operation of the regulations under s.74, under these circumstances, have no bearing in relation to the allotment of these houses to the government employees in question. Thus, it is unnecessary for us to go into the question of legality of the exercise of the power by the government under s.82 vis-a-vis the statutory regulations made under s.74 by the Board with previous consent of the State C Government.

. It is true that Gujarat Housing Board had constructed houses under low income group scheme for allotment to the poorer segments of the society within prescribed annual income. Article 19(1) (e) protects the right to residence and settlement in any part of the territory of India. The protection D of life assured under Article 21 has bezn given expanded meaning of right to life. It is settled law that all the related provisions under the Constitution must be read together and given meaning of widest amplitude to cover variety of rights which go to constitute the meaningful right to life. The preamble to the Constitution says that the people of India resolved to secure to all our citizen social and economic justice also have made it subject to E equality of status and of opportunity to promote the dignity of the individtutl in the united and integrated Bharat. Article 37 declares the rights in part IV or fundamental law in the governance of the country. Article 39(b) enjoins that the ownership and control of the material resources of the community are to promote the welfare of the people by securing social and F economic justice to the weaker sections so as to subserve the common good to minimize the inequalities in income and endeavour to eliminate inequalities in statues. The State, thereby, evolved the scheme to provide facilities and opportunities to the individuals and also groups of people to have no houses of their own. Article 46, in particular, enjoins that the State shall promote with special care the economic interest of the weaker sections G of the people and to protect them from social injustice.

Article 11 (I) of the International Covenant on Economic, Social and Cultural Rights laid down that the States' parties to the Covenant recognize the "right to everyone to an adequate standard of living for himself and for his family including food, clothing and housing and to the continuous H

improvement of living conditions". The State parties will take appropriate steps to ensure the realization of these rights. Recognizing these obligations of the State and to give effect to the essential importance of International co-operation, the directions contained in Arts section 38, 39 and 46, the Housing Scheme for allotment to lower income group of the people was made. Possession of real property is the basis for and the symbol of wealth and influence in society. To the poor, settlement with a fixed abode and right to residence guaranteed by Art, 19( 1 )( e) remain more a teasing illusion unless the State provides them the means to have food, clothing and shelter so as to make their life meaningful and worth-living with dignity.

In Olga Tellis v. Bombay Municipal Corporation, [1985] 3 SCC 545 at 572 para 32, when the squatters and the pavement dwellers were sought to be ejected by the respondent, without due process of law, they invoked the jurisdiction of this Court under Article 32. A Constitution Bench held that their eviction from the dwellings would result in deprivation of their livelihood. Right to life under Article 21 includes right to livelihood and so if deprivation of livelihood is effected without reasonable procedure established by law, it would be violative of Article 21. In that context, this Court held the sweep of the right to life conferred by Article 21, is wide and far reaching. Life means more than animal existence. It does not mean merely that life cannot be extinguished or taken away as, for example, by imposition of execution of death sentence, except according to procedure established by law. That is but one aspect of right to life. An equally important facet of that right to livelihood is no person can live withut 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. There is, thus, a close nexus between life and the means of livelihood and as such that, which alone makes it possible to live, leave aside what makes life liveable, must be deemed to be an integral component of the right to life.

G In Shantistar Builders v. Narayan Khimalal Totame, AIR (1990) SC

630, a Bench of three Judges, to which one ofus (K. Ramaswamy, J.) was a Member, held that :- ·

"The right to life 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

P.G.GUPTAv. STATE 635

between the need of an animal and a human being for shelter A has to be kept in view. For the 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 Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is B not necessary that every citizen must be ensured of Jiving in a well-built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fire-proof accommodation."

As stated earlier, the right to residence and settlement is a fundamental C right under Article 19 (1). (e) and it is a facet of inseparable meaningful right to life under Article 21. Food, shelter and clothing are minimal human rights. The State has undertaken as its economic policy of planned development of the country and has undertaken massive housing schemes.

As its part, allotment of houses was adopted, as is enjoined by Arts 3 8, 39 and 46, Preamble and 19(1) (e), facilities and opportunities to the weaker D sections of the society of the right to residence, make the life meaningful and liveable in equal status with dignity of person. It is, therefore, imperative pf the State to provide permanent housing accommodation to the poor in the housing schemes undertaken by it or its instrumentalities within their economic means so that they could make the payment of the price in E easy installments and have permanent settlement and residence assured under Article 19( l) ( e) and 21 of the Constitution. Thus for there is no problem but the crucial question is whether that right is till available to the appellants in category (vi).

It is seen that after the capital was shifted to Ahmegehad, these houses F were allotted to Govt. employees. That came with the shifting of the capital.

Initially, on April 17, 1971, 200 houses were got converted from rental basis scheme to the hire purchase scheme. Tl1ereafter the Govt. have reconsidered the matter and by resolution dated June 22, 1972, resolved to allot all the 396 houses to the Government employees on hire purchase scheme. Thus, the diversion became compulsive necessity. Therefore, the G High Court has taken the criteria of June 22, 1972 as last date for fixing the entitlement for the priorities mentioned in the offending resolutions and allotment of the houses to the Govt. employees. It is true, that a date has to be fixed with reference to a particular case and fixation of any date always may appear to be arbitrary. But some connection has to be established for fixation of the date for allotment of the houses. In this case, since the H

A government had taken decision on June 22, 1972, to convert the rental basis scheme into hire purchase scheme that date bears rational relation to the obje::t of allotment. Therefore, it cannot be said to be arbitrary or irrational offending Article 14 of the Constitution.

It i!i contended that appellants in category (vi) were taken by surprise B of the adverse order like a bolt from the blue from the decision of the High Court without arguments nor challenge made to it, has no substance. From the judgment it is clear that category (iii) persons who had vacated the houses were treated on par with category (vi) employees transferred from the capital to the districts. From the material on record it would appear that the eligibility of category of (vi) employees was also questioned. Though C some of them managed to remain in possession, they cannot claim right to allotment under hire purchase scheme. Therefore, the High Court has rightly considered that when category (iii) employees were excluded on the ground that they shifted their residence from Pahari to Gandhinagar, the same parity should be applied to category (vi) employees who have been

D transferred from the capital to the districts.

In these circumstances, we do not find any Illegality in excluding employees of categories (iii) and (vi) for allotment under hire purchase scheme. The appeals are accordingly dismissed. No costs.

T.N.A.

Appeals dismised.