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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIKRAM NATH, J.B.PARDIWALA, JJ.
VORA ZAKIRHUSAIN VALIBHAI - Appellant
Versus
STATE OF GUJARAT - Respondent
LETTERS PATENT APPEAL NO. 661 of 2020
SPECIAL CIVIL APPLICATION NO. 9138 of 2020
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020
LETTERS PATENT APPEAL NO. 661 of 2020
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 2 of 2020
LETTERS PATENT APPEAL NO. 661 of 2020
With
LETTERS PATENT APPEAL NO. 766 of 2020
In
SPECIAL CIVIL APPLICATION NO. 9091 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
LETTERS PATENT APPEAL NO. 766 of 2020
In
SPECIAL CIVIL APPLICATION NO. 9091 of 2020
Decided On : 20-02-2021
BPMC Act, 1948 - Section 284 - GPMC Act, 1949 - Section 284 (E) and 284 (I) - Land Acquisition Act – Section 5A - Budget Implementation Act – Section 4,13,14,26 - Constitution of India,1950 – Articles 19(1)(e), 21,39,38 , 46,21,39(b),25(1),23,43,20(5),21(2) - Appellants constructed small kutchha and pukka houses on said land and started residing over there - It appears that all this happened almost three decades back - In other words they started residing at subject land since 1990 - It is the case of appellants that they have documentary evidence in form of valid Voter I.D., Birth Certificate, School Leaving Certificate Bank Account Statement in support of their claim that they are residing at place in question since 1990 - Executive Engineer Capital Project Division Gandhinagar issued demolition notices - Appellants took up the issue with the State Government and requested for an alternative accommodation - Request for alternative accommodation was declined on the ground that appellants do not fulfill necessary conditions as stipulated in the Government Resolution - This Hon’ble Court passed several interim orders in directing the respondents to provide for all basic amenities and the petitioners were allotted plots which were numbered, electricity connection as well as water facilities and toilets were provided by the Respondent Authorities - Petitioners submits that the petitioners have been residing in the slums prior to 2010 however they were displaced from their original slums and given the said area to construct and live because of the petition filed in this Hon’ble Court being 15216 of 2010 - That therefore the respondents by showing the Google earth images of 2003 onwards to indicate that the petitioners have not been living in this area is misplaced and factually incorrect
Finding of the court: It is not obligatory on the part of the State/Corporation to provide alternative accommodation, and it cannot be argued for a moment that in view of the judgment of the Supreme Court, it is the right of an encroacher either to stay at the encroached place permanently or to get an alternative accommodation. Even the Apex Court has not laid down an absolute principle that in all cases of removal of encroachments, the State/Corporation must provide alternative accommodation. It depends upon facts and circumstances of each case - Right to shelter is a fundamental right, which springs from the right to residence assured in Article 19(1)(e) and right to life under Article 21 of the Constitution. It is a constitutional duty of the State to provide house sites to the poor - Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation.. The right to life is guaranteed in any civilised society. It is the duty of the State to construct houses at reasonable cost and make them easily accessible to the poor - No person has a right to encroach and erect structures or otherwise on footpath, pavement or public streets or any other place reserved or earmarked for a public purpose. State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter to make the right to life meaningful, effective and fruitful - weaker sections of the society, no doubt, have the basic human and constitutional right to shelter. However, it gives no person the right to encroach and erect structures, or otherwise, on any public place saying that he has no other place to go. Mere long possession even with documents like voter card, ration card, electricity bill, etc., over any public land by way of encroachment, by itself, is not sufficient to say that the encroachers are not liable to be evicted, as they have a right to shelter - State Government should identify and earmark certain lands acquired under the Land Ceiling Act and frame a uniform policy to allot them in accordance their with people hailing from a very poor strata of the society. We remind the State Government that when it plans an industrial zone or commercial zone, the provisions should also be made for providing residential accommodation / housing facility to the downtrodden class or the persons taking up employment in the industries and for persons providing ancillary services -State Government should consider formulating scheme in line with the principles laid down by the Apex Court in the case of - In doing so, care shall be taken to ensure that the land so vacated by the slumdwellers is not reoccupied by another cluster of slum dwellers, and the alternative site is utilised by the same citizens to whom it is allotted. Otherwise, it may happen that a particular person takes possession of the alternative accommodation and never goes there or dispose it of and the same person reoccupies the vacated premises or joins another cluster or slum dwellers in the vicinity
Result: Civil Applications disposed of
JUDGMENT :
J.B.PARDIWALA, J.
1 Since the issues raised in both the captioned appeals are the same and the challenge is also to a common interim order passed by a learned Single Judge of this Court, those were heard analogously and are being disposed of by this common judgement and order.
2. For the sake of convenience, we treat the Letters Patent Appeal No.661 of 2020 as the lead matter.
3. This appeal under clause 15 of the Letters Patent is at the instance of the original writ applicants of the Special Civil Application No.9138 of 2020 and is directed against an interim order passed by a learned Single Judge of this Court dated 19th September 2020, by which the learned Single Judge rejected the Civil Application (for stay) and thereby declined to grant any relief against the demolition of the dwelling houses of the appellants.
4. The facts giving rise to this appeal may be summarised as under:
4.1 The appellants hail from a very poor strata of society. Over a period of time, they started occupying government land situated at the Sectors 13 and 14 respectively falling within the radius of the Gandhinagar Railway Station. The appellants constructed small kutchha and pukka houses on the said land and started residing over there. It appears that all this happened almost three decades back. In other words, they started residing at the subject land since 1990. It is the case of the appellants that they have documentary evidence in the form of valid Voter I.D., Birth Certificate, School Leaving Certificate, Bank Account Statement in support of their claim that they are residing at the place in question since 1990. The Executive Engineer, Capital Project Division, Gandhinagar issued demolition notices dated 17th July 2020. The appellants took up the issue with the State Government and requested for an alternative accommodation. The request for the alternative accommodation was declined on the ground that the appellants do not fulfill the necessary conditions as stipulated in the Government Resolution dated 3rd July 2003. One of the reasons for not granting the alternative accommodation, as assigned by the State Government, is that the appellants were not possessing valid identity cards issued at the time of a survey conducted in the year 1999. In other words, the dwelling place had not been declared as a slum in the year 1999 so as to make the appellants eligible to avail the alternative accommodation in terms of the Government Resolution dated 3rd July 2003.
5. It appears that this is the second round of litigation. In the past, two writ applications were preferred in this High Court by the appellants being the Special Civil Application No.1544 of 2019 and Special Civil Application No.3587 of 2019 respectively. These two writ applications came to be disposed of by a learned Single Judge of this Court vide judgement and order dated 17th September 2019. While disposing of these two writ applications, this Court issued few directions to the State Government and the grievance of the appellants in the present litigation is that the demolition drive undertaken is in violation of the directions issued by this Court in the first round of litigation.
6. We take notice of the fact that before the two main writ applications could be taken up for hearing, the authorities concerned started demolishing the dwelling houses. This led to the filing of the two Civil Applications by the appellants for urgent interim orders restraining the authorities from proceeding further with the demolition of the dwelling houses. The Civil Applications were heard by a learned Single Judge of this Court and vide the common order dated 19th September 2020 rejected both the Civil Applications and thereby declined to grant any relief.
7. The two appeals have been preferred against the interim order passed by the learned Single Judge dated 19th September 2020 declining to stay
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