At High Court of Delhi at New Delhi
Coram ; HON’BLE THE CHIEF JUSTICE AJIT PRAKASH SHAH, HON’BLE , JUSTICE S. MURALIDHAR
Judgement - 11th February, 2010
1) WP (C) 8904/2009
Sudama Singh & Others vs Government of Delhi & Anr
2) WP (C) 7735/2007
Maya Devi & Others vs Government of Delhi & Ors.
3) WP (C) 7317/2009
Majnu vs Commissioner MCD & Ors.
4) WP (C) 9246/2009
MUKANDI LAL CHAUHAN & OTHERS vs Municipal Corporation of Delhi & Ors.
JURISDICTION
The instant case od Sudama Singh and Others vs Government of Delhi and Anr, has been filed through four write petitions under Article 226 of the Indian Constitution. The four petitions were clubbed and collectively addresses before the division bench of Hon’ble Justice A.P Shah and Justice S. Muralidhar on February 13th 2010.
INTRODUCTION
The petition was filed for the relocation and rehabilitation of slum dwellers in Delhi. The petitioners approached the Hon’ble High Court of Delhi for alternative living land with ownership rights in furtherance of the demolition of their houses. This petitions involves questions of great importance being the Right to Shelter, Right of Way and further the State’s opposition.
The facts of this case trace back to 1990, when the government decided to resettle the jhuggies (hutmen). A three point strategy was devised by the Municipal Corporation of Delhi was sent to the Delhi Administration and Planning Commission to solve the problem of the dwellers. Prior to this, all jhuggi clusters except those residing on road, footpath were identified by the Corporation within the cut-off date of January 1990.
The Petitioners in the instant case, belong to the low-income groups involved in peripheral activities in the neighborhood. They contend that the act of the government of demolishing the slums without proper relocation plans is violating their fundamental right to shelter. Further, it violates human rights under the covenants of the Universal Declaration of Human Rights, International Covenant of Economic, Social and Cultural Rights and Resolution No. 1993/77 adopted by Commission of Human Rights entitled ‘Forced Evictions and Human Rights’.
The petitioners have been residing at their respective jhuggis’ for the many years and have proper identity proof of residence which puts them within the meaning of the term , Urban Poor’. This makes them eligible for the benefits under the Heading ‘Housing for Urban Poor’. Further, the demolition was in violation of the Master Plan for Delhi 2021, dealing with the Housing for Urban Poor. This category comprised of inhabitants of squatter settlements and informal service providers such as domestic helps, hawkers and vendors. The jhuggi clusters were situated on both sides of the road. RTI applications were filed, and the PWD responded informing them that the total width of land in both sides of the road is known as Right of Way, hence no compensation is paid to the encroachers who exist in the Right of Way of the road.
SUBMISSION ON BEHALF OF PETITIONERS
1. It was contended that the demolition of the jhuggis, without any rehabilitation plan was arbitrary and discriminatory, and is in violation of their Fundamental Right. Further, the contention of the respondents with regard to the non-allocation of alternative land is contrary to the 2000 scheme of the Delhi government and does not come under Right of Way.
2. The lack of alternative place to live in Delhi, and not with the slum dwellers not in a position to afford rented accommodation, the removal from their settlement will leave them without a shelter. With no relocation it would be violation of their human rights and the Fundamental Right to Life under Article 21.
SUBMISSION ON BEHALF OF RESPONDENTS
1. It was contended that the slum dwellers were on the Right of Way and it constituted encroachment on public land. There is no legal right vested in any person on a Right of Way. Thus, it it stated that unauthorized occupants on the right of way have no legal right. The relocation policy is not applicable to the petitioners, who are encroachers upon the Right of Way.
Following are the prime issues which have been raised in this instant petition.
1. RIGHT TO SHLETER
Adequate housing facilities are crucial factors for human well being and development. Its importance is enormous in society and has been re-emphasized through the United Nations General Assembly which considered housing as a Fundamental Human Right u/Art 25(1). Article 11 of the International Covenant on Economic, Social and Cultural Rights expanded on the principles of the UDHR.
It has been recognized that any major clearance operation should be undertaken only when conservation and relocation are feasible and measure are made. Agenda 21 stated that people should be protected by law against unfair eviction from their homes or land. The right to housing has been emphasized clearly in law international through the ratifications of international declarations conventions and conferences.
It is imperative that among those evicted who are unable to provide for themselves have access to essential food, sanitation , medical services and other livelihood sources. To prevent violation of human right, highest standard of physical and mental health should be maintained. (paras 35).
The UN Committee gave its opinion on the issue of homelessness. The committee was concerned with the lack of a national housing policy and the needs of the disadvantaged and marginalized individuals groups, who are living in the slums. It was recommended by the Committee to the State party to take immediate measures to effectively enforce laws and regulations prohibiting displacement and forced evictions. Along with this, the person evicted were to be provided with adequate compensation and alternative accommodation. ( para 36).
The scope of Right to Shelter within the ambit of Right to Life under Article 21 has been expanded by the Supreme Court through various precedents. ( para 37- 42). It is imperative that the people who help the rest of the city live a decent life are given the protection and the respect to life and dignity that they deserve.
2. URBAN POVERTY
In India, the national reports suggest that the poverty figures in urban areas are much above that in rural areas. The problem of urban poverty comes with problems of housing and sanitation, education, social security and needs of the vulnerable groups such as women, children, and the elderly. As per 2001 census report the slum population of India in cities and towns with a population of 50,000 and above was 42.6 million, which is 22.6 per cent of the urban population of the states / Union Territories reporting slums. For most living in the slum area they do not have access to basic services like sanitation or water.Solutions have been proposed for urban poverty. (1-7).
Due to pressure on agricultural land and lack of employment opportunities in the villages, a large number of people moved to the cities. Due to their financial constraints most ended up living in slums. Their wage comes from selling vegetables or as daily wage laborers or as workers in the industrial unites. The women are often employed as domestic helps. Keeping this in mind, if they are uprooted from their slums each member looses a ‘bundle’ of rights, the right to livelihood, to shelter, to health, to education, to access to civic amenities and public transport and the most paramount the right to live with dignity.
3. GOVERNMENT INITIATIVES
The Delhi government implemented a scheme for the relocation for the Jhuggi clusters. The relocation should be in conformity with the land use policy under the Master Plan and the NCR Plan. The land will be acquired near existing residential areas. A target of shifting 10,000 jhuggies in 2000-2001 is laid down. A cut-off date has been set. The name of the allottee must also fi gure in the notifi ed Voters’ List as on 30.11.98. Jhuggies who come up after 30.11.98 will be removed without any alternative allotment by the project Executing Agency. Further, The construction of dwelling units on the plots will be carried out by the allottee in accordance with the sanctioned plans within a period of one year from the actual date of shifting.
Provisions have been mentioned in relation to the water, electricity supplies. Individual electricity metered connections will be provided to each allottee. Water will be provided to individual allottee . Each allottee of a site and services plot shall be issued a Laser Card by the DC of the revenue district. This card will carry all relevant details of the allottee and his family members. This Laser Card will be used by the District authorities to check allotment of more than one plot to a family.
The Master Plan for Delhi 2021, deals with the rehabilitation or relocation of the existing squatter settlement or slum dwellers. It provides for giving them alternative accommodation. Further, it is to be noted that, resettlement whether in form of in-situ upgradation or relocation should be based mainly on built-up accommodation of around 25 sq.mtrs. with common facilities.
Survey’s which are conducted should be keeping in mind the fact that the dwellers are in a desperate need of alternate accommodation. The survey at the homes should be at a time when all the members are present as in other times with some members not present there may be a discrepancy in the conclusion. The dwellers should be kept in the middle of the repeated visits and other such pans
4. RIGHT OF WAY.
It is contended by the petitioners that the stand taken by the government that alternative land is not required to be allotted as the inhabitants comes under Right of Way. This stands to be contrary to the States’ policy governing the rehabilitation and relocation of the slum dwellers. The policy of the state does not exempt people merely on the ground of Right to Way. The respondents’ have failed to produce any such policy which provides for exclusion of the slum dwellers on the ground that they are living on “Right of Way.
Further, there exists no written policy of Right to Way and nothing is explicitly mentioned as to what is Right to Way. A letter of the Lt Governor merely states that the jhuggi dwellers fall under Right to Way and this will not be entitled to relocation. It has been further argued by the Petitioners that as long as the dwellers were not on an existing road, they cannot be denied the benefit of rehabilitation and relocation. This denial of relocation is a violation under Article 21 of the Constitution of India and a violation of the Fundamental Rights.
The Master Plan clearly states the relocation of the slum dwellers as a priority for the government. The government will have failed their statutory and constitutional obligations if it fails to identify spaces equipped infrastructurally with the civic amenities that can ensure a decent living to those being relocated prior to initiating the moves for eviction.
In the context of the Plan, the jhuggi dwellers are not to be treated as secondary citizens. They are entitled to basic survival needs and it is the State’s constitutional and statutory ensure that if the jhuggi dweller is forcibly evicted and relocated, the dweller is not worse off than before. The relocation has to be a meaningful in consistent with the rights to life, livelihood and dignity of such jhuggi dweller.
CONCLUSION
1. Firstly, the contention of the Respondents that the Petitioners are on the Right to Way, is held to be illegal and unconstitutional.
2. The cases of the petitioners, i.e the jhuggi dwellers will be considered for relocation.
3. Within four months of this judgment, every dweller who is eligible of the relocation policy will be given an alternative resident and such decision shall be reached upon in a meaningful manner upon discussion with the dwellers.
4. Civic amenities in consonance with right to life and dignity of the dwellers should be made available at the relocated site.
