"No Person Has Right To Retain Encroached Land": Gujarat High Court Denies Relief To Evicted Slum Dwellers; Asks State To Frame Land Allotment Policies

In a significant judgment touching upon the interplay of slum dwellers' right to shelter and menace of land encroachment, the Gujarat High Court has held, "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." However, "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." While declining relief to the Petitioners in the instant case, slum dwellers who were uprooted by the Government authorities in September 2020 from the Gandhinagar Railway Station area, a Division Bench comprising of Chief Justice Vikram Nath and Justice JB Pardiwala said, "The weaker sections of the society like the writ applicants in the present case, no doubt, have the basic human and constitutional right to shelter and it becomes the paramount duty of the State to fulfill those. However, it gives no person the right to encroach and erect structures or otherwise on footpaths, pavements or public space or at any place reserved or earmarked for a public utility. This is exactly what seems to have happened in the case on hand. It may be true that the writ applicants were residing at the place in question past couple of years, but, still, as a Court of Law, we should not be oblivious of the fact that it was nothing, but encroachment over the government land over a period of time." Background The Petitioners claimed to have settled in the said area in around 1990s. They asserted their fundamental right to shelter against demolition orders passed by the State Government in July 2020. As a Single Bench of the High Court refused to grant interim relief, the demolition activities were carried out. In appeal against the said interim order before a Division Bench, the Petitioners sought alternative accommodation. The State Government however contended that the dwelling place in question 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. Right to Shelter does not confer right to encroach At the outset, the Division Bench said, "Mere long possession, over 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. The right to shelter and encroachment are two different facet. An encroacher may save himself from being forcibly evicted only if during his period of stay over the encroached public land any enforceable legal right has crystallized in his favour. Otherwise, merely by asserting the "Right to Shelter", an encroacher, over public land, cannot say that he cannot be evicted. We are not impressed with the submission canvassed on behalf of the writ applicants that the writ applicants cannot be said to be encroachers as they have a right to shelter being both a fundamental as well as a human right. The debate as regards the rights of encroachers over public land visavis the right to shelter should come to an end." In this regard, the Bench referred to Olga Tellis v. Bombay Municipal Corporation, 1985 (3) SCC 545, whereby the Supreme Court considered the right to dwell on the pavements or in slums by the indigent and accepted the same as a part of right to life enshrined under Article 21 of the Constitution. However, the Division Bench noted, the Supreme Court also held in this case that in all cases of ejectment of the encroachers, it is not obligatory on the part of the State/ Corporation to provide alternative accommodation. "No absolute principle can be laid down in this regard and would depend upon the facts of each case," the Top Court had held. In the facts of the instant case, the Bench noticed that after a detailed verification, 128 hutment dwellers were identified and recognized as eligible for alternative accommodation in Government Resolution of July 2003. However, the subject land was not declared as "slum". In this backdrop, it said, "In the facts and circumstances of the present case, it is difficult for this Court to grant any relief as on date to the writ applicants. As noted above, the dwelling houses have already been demolished. The authorities have taken over the possession of the land. It is not possible at this point of time even to pass any order for providing alternative accommodation, as, according to the respondents, all those, who were eligible under the scheme of the State Government, more particularly, the resolution of the year 2003, have been granted alternative accommodation, whereas, all those, who were found to be not eligible, have been declined,...

"No Person Has Right To Retain Encroached Land": Gujarat High Court Denies Relief To Evicted Slum Dwellers; Asks State To Frame Land Allotment Policies

Akshita Saxena

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