5 July 2022 4:16 AM GMT
While granting relief to five jhuggi dwellers in the city, the Delhi High Court has observed that when the poor and deprived knock at the doors of the Court, it is required to be sensitive and sensitised in equal measure.Justice C Hari Shankar further observed that the Court is required to remain alive to the fact that such litigants do not have access to exhaustive legal resources."Law, with...
While granting relief to five jhuggi dwellers in the city, the Delhi High Court has observed that when the poor and deprived knock at the doors of the Court, it is required to be sensitive and sensitised in equal measure.
Justice C Hari Shankar further observed that the Court is required to remain alive to the fact that such litigants do not have access to exhaustive legal resources.
"Law, with all its legalese, is worth tinsel, if the underprivileged cannot get justice. At the end of the day, our preambular goal is not law, but justice with all its legalese, is worth tinsel, if the underprivileged cannot get justice."
The Court granted relief to the five petitioners, residents of the Shahid Basti jhuggi in city's Nabi Karim area near the railway tracks or the foot over bridge at New Delhi Railway Station, who had filed the plea in 2008.
The Court said that in case the petitioners were residents from a date prior to 30th November 1998, and had been continuously living in jhuggis till 14th June, 2008 when they were removed, and if they are still residing in jhuggis, they would be entitled to be relocated and granted plots in accordance with their entitlement as per the Relocation Policy of the Delhi Government.
The alternative accommodation was however subject to the condition that the the petitioners will have to demonstrate to the authorities, that they were residents of the jhuggi in Nabi Karim from a date prior to the cut off date.
"Given the length of time for which this petition has remained pending, this right would, however, enure to the petitioners‟ benefit only if they are able, additionally, satisfy the respondents that they continue, till date, to be jhuggi residents," it said.
According to the relocation policy, the cut off date for beneficiaries was stated to be November 30, 1998. It provided that in order to verify the eligibility, Ration Cards issued prior the cut off date will be taken into account. It added that the name name of the allottee must also figure in the notify Voters'List as on the cut off date. Furthermore, it was provided that Jhuggis which came up after the cut off date will be removed without any alternative allotment by the project Executing Agency.
"The homeless, who people the pavements, the footpaths, and those inaccessible nooks and crannies of the city from where the teeming multitude prefer to avert their eyes, live on the fringes of existence. Indeed, they do not live, but merely exist; for life, with its myriad complexions and contours, envisaged by Article 21 of our Constitution, is unknown to them. Even a bare attempt at imagining how they live is, for us, peering out from our gilt-edged cocoons, cathartic. And so we prefer not to do so; as a result, these denizens of the dark continue to eke out their existence, not day by day, but often hour by hour, if not minute by minute," the Court observed.
Referring to Article 38 and 39 of the Constitution of India, the Court said that alleviation of the plight of the poor and homeless is subsumed in the said directive principles which, though they are not enforceable by Court, but are fundamental in the governance of the country and mandatorily required to be borne in mind by the State while making laws.
It added "The onus that the law places on the petitioner who petitions the Court, to positively establish every ingredient necessary to entitle him to relief has, in the case of the impecunious with meagre resources at hand, to be tempered with the conviction that, if the litigant is entitled to relief, relief should not be denied to him on technical considerations. As one of the three co- equal wings of the government, albeit functioning independent of, and uninfluenced by, the other two, the judiciary is required to remain as sensitive to the call of Articles 38 and 39 as the legislature, or the executive."
The petitioners claimed to have been residing in the Shahid Basti jhuggi (slum) cluster since the 1980s. They claimed that their names were entered in the Electoral Register and that they were also exercising voting rights. They also claimed to be in possession of ration cards or other documents establishing their claim that, since the 1980s, they had been residing in the Shahid Basti slum colony.
In 2002-2003, the Railways, who were seeking to convert the New Delhi Railway Station into a "world-class" railway station and in order to increase the number of platforms from 9 to 16, desired to acquire the land on which the petitioners were situated. The petitioners argued that they were shifted to another location on the opposite side of the tracks, situated at Lahori Gate, and set up a slum colony there.
The Court was of the view that if a resident of the Lahori Gate jhuggi had been a jhuggi dweller, albeit on the other side of the tracks, from a period prior to the cut off date, it would be unjust, unfair and contrary to the avowed purpose and objective of the Relocation Policy to deny him the benefit of relocation.
While noting that the Relocation Policy did not grant any beneficial amnesty to jhuggi dwellers who were residing in jhuggis elsewhere prior to the cut off date, the Court said that the same did not state that such "pre-30th October, 1998 residence" in jhuggis located elsewhere, is irrelevant in determining the entitlement of the jhuggi dwellers to relocation.
"In fact, the Relocation Policy does not address the plight of persons who, though the jhuggis in which they were residing at the time of visit by the authorities had come up after 30th October, 1998 were, in fact, residing in jhuggis elsewhere prior to the said cut-off date," it said.
The Court further observed that the Relocation Policy cannot be so applied so as to extend its benefits to a jhuggi dweller who has been a jhuggi dweller for a shorter length of time and deny benefits to a jhuggi dweller with a longer period of jhuggi stay to his credit.
"It stands acknowledged by the Railways, therefore, that the jhuggis which came up in the Lahori Gate area in 2003 were peopled by dwellers of jhuggis on the other side of the track, from where they were removed by the Railways in 2003. There were, therefore, at least some Lahori Gate jhuggi dwellers who had been jhuggi residents even prior to their shifting to Lahori Gate at the instance of the Railways," the Court noted.
The Court said that jhuggi dwellers rarely can claim to permanently establish themselves at any particular site and that they are often uprooted from the place where the place where they dwell, and shifted, perforce and often against their will, elsewhere.
"Hounded by poverty and penury, they have no option but to comply. Slum dwellers do not stay in slums out of choice. Their choice of residence is a last ditch effort at securing, for themselves, what the Constitution regards as an inalienable adjunct to the right to life under Article 21, viz. the right to shelter and a roof over their heads. As to whether the roof provides any shelter at all is, of course, another matter altogether," the Court added.
Granting the relief, the Court ordered that the petitioners will have to give a proof of residence not only by Ration Cards or by Voter ID Cards, but also by any other document, issued by a public or Governmental authority, which is verifiable in nature.
"It would be for the Railways to verify the authenticity, genuineness and acceptability of the concerned document. In case any of the petitioners is required to produce any additional document, in the event of the documents produced by said petitioner(s) being found to be unsatisfactory, the Railways would apprise the concerned petitioner(s) accordingly," it said.
The Court also added that the petitioners who are found to be entitled to alternative allotment, would be allotted the same as per their entitlement and in accordance with the Relocation Policy.
"This shall be done as expeditiously as possible and not, in any event, later than 6 months from the date of production of the documents by the concerned petitioner(s) before the Railways," the Court said.
The plea was accordingly disposed of.
Case Title: SAMARPAL & ORS v. UOI & ORS
Citation: 2022 LiveLaw (Del) 605
Click Here To Read Order