Encroachment Over Public Land Can't Be Retained Citing Right To Shelter: Gujarat High Court

"The debate as regards the rights of encroachers over public land vis a vis the right to shelter should come to an end. 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."

Background

The Petitioner-Union, a trade union working for human rights, had filed a PIL seeking the rehabilitation and resettlement of slum dwellers and restraint on Respondent authorities from evicting the dwellers from the slum colony in pursuit of the construction of Ahmedabad-Mumbai Bullet Train.

Per the Petitioner, there were 350 slum dwellers residing in the concerned colony for 30 years. They were daily wage workers and were entitled to the benefits of the Gujarat Slum Rehabilitation Policy of 2013. The demolition had taken place, first in 2018 when the slum dwellers were surveyed and assured of houses under the Pradhan Mantri Awas Yojna. However, this allotment was not completed.

It was argued that since the dwellers were from impoverished backgrounds and entitled to dignified existence under Article 21, they could not have been evicted in an arbitrary manner on two different occasions. Only few selected persons according to the whims of the authority were made eligible for rehabilitation. Per the Railway Act (Section 147(2)), there was no absolute right in favour of authorities to evict persons in occupation of railway land, it was further contended.

Per contra, the Respondent contented that the slum dwellers requesting protection had encroached upon railway land. Even after being uprooted, they had continued to encroach. This tendency, per the Respondents, should have been enough to restrict the Petitioner from invoking extra-ordinary jurisdiction of the Court.

Further, it was alleged that the slum dwellers were not members of the Petitioner-Union and there was no connection between the two. Hence, the PIL was not maintainable. Additionally, it was submitted that if the slum dwellers were not evicted, it would have jeopardized the project and led to immense costs. The Respondents relied on the Petition to claim that the slum dwellers were not residing in the colony situated opposite to the railway and therefore, they were misleading the Court.

Judgement

The Bench affirmed that the Railway Act, granted the railway administration the absolute right to remove the encroachment or illegal activity on railway land. The Court while examining the Resettlement and Rehabilitation policy relied on the definition of 'affected family' in the policy and concluded that the land on which the dwellers were residing was not the 'affected area'.

The Bench averred that the persons who moved in after the cut-off date specified in the Policy would not be entitled to any compensation or assistance. In the instant case, the slum dwellers, had moved in again after their dwellings were demolished in 2018. There were also discrepancies in the number of persons who were alleged to have been evicted. The Bench relied on a previous judgement of the Gujarat High Court to state:

"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."

The Bench referred to Ahmedabad Municipal Corporation vs. Nawabkhan Gulabkhan and others [AIR 1977 SC 152] to conclude:

"If the encroachment is of a recent origin the need to follow the procedure of principle of natural justice could be obviated in that no one has a right to encroach upon the public property and claim the procedure of opportunity of hearing which would be a tardious and time-consuming process leading to putting a premium for high handed and unauthorised acts of encroachment and unlawful squatting. On the other hand, if the Corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to see, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary."

Thus, it was for the Court to decide in exercise of its constitutional powers whether the deprivation of life or personal liberty is by procedure, which is just, fair and reasonable or otherwise. Keeping in view, these facts and precedents, Court dismissed the Petition with the permission to the Petitioner to avail any other remedy with State authorities.

Case Title: Bandhkaam Mazdoor Sangathan vs State Of Gujarat
Case citation: 2022 LiveLaw (Guj) 26

Case No.: C/WPPIL/59/2021

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