Andhra Pradesh High Court - Amravati
Podili Siva Murali vs The State Of Ap on 8 October, 2021
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
****
WRIT PETITION No.25275 OF 2020
Between:
Podili Siva Murali and 128 others.
... Petitioners
And
State of Andhra Pradesh,
Through its Principal Secretary,
Revenue (Assignment-I) Department,
Secretariat, Amaravathi and 5 others.
... Respondents.
JUDGMENT PRONOUNCED ON 08.10.2021
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? - No-
2. Whether the copies of judgment may be
marked to Law Reporters/Journals -Yes-
3. Whether Their Ladyship/Lordship wish to see
the fair copy of the Judgment? -Yes-
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* THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
+ WRIT PETITION No.25275 of 2020
% 08.10.2021
# Podili Siva Murali and 128 others
....Petitioners
v.
$ State of Andhra Pradesh,
Through its Principal Secretary,
Revenue (Assignment-I) Department,
Secretariat, Amaravathi and 5 others.
.... Respondents
! Counsel for the Petitioners : Sri V.S.R.Anjaneyulu
Counsel for Respondents: Sri Ponnavolu Sudhakar Reddy,
Additional Advocate General.
<Gist :
>Head Note:
? Cases referred:
1. (1980) 3 SCC 625
2. (1985) 3 SCC 545
3. (1981) 1 SCC 608
4. 1973 (4) SCC 225
5. (2004) 4 SCC 714
6. (2006) 10 SCC 337
7. (2015) 9 SCC 657
8. AIR 1993 SC 1202
9. (2009) 15 SCC 221
10. AIR 1991 SC 1902
11. AIR 2000 SC 3060
12. AIR 1967 SC 295
13. (2007) 4 SCC 669
14. AIR 2007 SC 1161
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15. AIR 2004 SC 1402
16. (1981) 1 SCC 568
17. (1986) 4 SCC 566
18. (1981) 4 SCC 675
19. (1991) 3 SCC 91
20. (1994) 2 SCC 691
21. (1997) 7 SCC 592
22. (1998) 4 SCC 117
23. (2000) 10 SCC 664
24. (2002) 2 SCC 333
25. (1980) 3 SCC 97
26. (2003) 4 SCC 289
27. (2014) 5 SCC 438
28. 1997 (6) ALT 548
29. AIR 1995 SC 1648
30. [1987]1SCR1
31. [1975]3SCR254
32. AIR 1993 SC 477
33. ILR 1953 Bom 842
34. (2002) 5 SCC 195
35. 1999 Supreme Court Cases (L&S) 625
36. AIR 1972 All 305
37. 1990 (3) SCC 130
38. AIR 2001 SC 467
39. AIR 1951 SC 226
40. AIR 2003 SC 3331
41. (2011) 5 SCC 29
42. (2015) 1 SCC 192
43. [1959] SCR 279
44. (1976) 2 SCC 310
45. ILR 1979 Delhi 422
46. (2020) SCC Online SC 383
47. 1963 Supp 1 SCR 439
48. (1964) 6 SCR 368
49. (2001) 7 SCC 126
50. (1980) 1 SCC 634
51. (1981) 1 SCC 722
52. (1978) 1 SCC 248
53. (1979) 3 SCC 489
54. AIR 1946 PC 66
55. AIR 1992 SC 932
56. AIR 1979 SC 1165
57. AIR 1976 SC 588
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58. AIR 1958 Bom 498
59. AIR 1959 SC 395
60. AIR 1961 SC 954
61. AIR 1960 SC 1191
62. AIR 1967 SC 647
63. 260 (2019) DLT 581
64. AIR 2009 Cal. 87
65. 2008 (8) MLJ 1037
66. AIR 1997 Cal. 374
67. AIR 2011 Cal. 64
68. (1995) 3 SCC 42
69. AIR 1996 SC 114
70. AIR 1996 SC 90
71. (1996) 2 SCC 549
72. 1995 (1) SCALE 653
73. (2013) 1 SCC 353
74. (2007) 6 SCC 59
75. 2005 (6) ALD 488
76. AIR2017SC4161
77. (1990) 1 SCC 520
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THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.25275 of 2020
ORDER:
The prestigious laudable flagship programme initiated by the
State under the name and style of ―Navaratnalu - Pedalandariki
Illu‖ is challenged initially by three petitioners by filing this petition
under Article 226 of the Constitution of India, later petitioner Nos.4
to 129 came on record vide orders of this Court dated 03.08.2021
passed in I.A.No.01 of 2021, to issue a writ of Mandamus declaring
G.O.Ms.No.367 Revenue (Assignment-I) Department dated
19.08.2019 and G.O.Ms.No.488 Revenue (Assignment-I)
Department, dated 02.12.2019 are illegal, arbitrary and violative of
Articles 14 and 15 of the Constitution of India, directing the
respondents 1 to 4 to assign/allot the plots under Constitutional
transparent policy; consequently direct them not to proceed further
in pursuance of G.O.Ms.No.367 Revenue (Assignment-I)
Department, dated 19.08.2019 and G.O.Ms.No.488 Revenue
(Assignment-I) Department, dated 02.12.2019.
The petitioner Nos.1 to 3 and other petitioners are residents of
Tenali claiming that they are houseless poor, eking out their
livelihood as daily labourer, living below poverty line. Petitioners have
no property to take shelter or any other source of livelihood.
Petitioners submitted a representation dated 25.10.2016 requesting
respondent Nos.3 and 4 to allot house site, but no site was allotted
to them. Consequently, they were constrained to file W.P.No.45475
and 46463 of 2016 before the High Court of Andhra Pradesh at
Hyderabad, to issue a writ of Mandamus directing respondents to
assign house site plots. The High Court of Andhra Pradesh at
Hyderabad vide order dated 26.12.2016 disposed of the writ petition
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No.45475 of 2016 directing to consider their request for assignment
of plots in Tenali Municipality area in accordance with law, if they
are otherwise eligible and entitled for the said benefit. The High
Court of Andhra Pradesh at Hyderabad, vide order dated 02.01.2017
disposed of W.P.No.46463 of 2016 with the same direction.
Respondent Nos.3 and 4 received copy of the order, but failed
to comply with the directions. Thereupon, the petitioners filed
C.C.Nos.1353 and 1354 of 2017 before the High Court of Andhra
Pradesh at Hyderabad. Respondent No.4 filed counter alleging that
the department made an enquiry to find out suitable land for
acquisition and to allot the same, since suitable land was not found,
it takes time to distribute the land. Both the CCs are pending before
this Court now.
Petitioners again submitted a representation dated 03.06.2020
requesting respondent Nos.3 to 5 to assign house plots. Vide orders
dated 26.12.2016 and 02.01.2017, respondent Nos.3 to 5
represented that they would consider their cases in ―Navaratnalu
programme (Pedalandariki illu)‖. Having failed to receive any
communication, the petitioners approached respondent No.4
requesting to consider their case in the ensuing programme, who
in turn, though directed them to approach the authorities several
times, failed to take any action. When one of the petitioners
questioned respondent No.4 as to why the matter is being
procrastinated, the authorities asked him to get out of the office
using highly objectionable language and insulted him. Respondent
No.4 has asserted that since the programme is only for the benefit
of the women, they would only be considered and even for them
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one has to obtain a consent letter from the local Volunteer, which is
seldom possible for the petitioners.
It is specifically asserted that the volunteers are openly asking
whether the petitioners belong to the Ruling party, demanding
money. Respondent Nos.3 to 5 are fully supporting the version of
the volunteers for the reasons known to them. Since the Tahsildar
supported the version of volunteer, he was impleaded personally as
respondent No.6. Respondent Nos.3 to 5 are allotting the plots
in favour of the persons, suggested by the volunteers,
without following established transparent procedure, under the
colour of flagship programme. As the allotment would be made
only to the persons suggested by the volunteers and that
respondent Nos.3 to 5 did not grant pattas to the petitioners, in
violation of the orders of the High Court of Andhra Pradesh,
petitioners approached the High Court of Andhra Pradesh under the
circumstances stated above.
Respondent No.1 vide G.O.Ms.No.367 Revenue
(Assignment-I) Department, dated 19.08.2019, approved the Policy
guidelines to implement the flagship programme "Navaratnalu
Pedalandariki Illu" for distribution of 25 lakh House Site
Pattas/Housing units. Clause (2) deals with Size/Extent of the
House site Patta. One House Site Patta shall be issued for an extent
of 1.5 Cents to an eligible house hold, in Rural area, vide Clause
(2A), whereas, Housing units shall be constructed following the
G+3 pattern about 100 units in about Ac.l.00 cts, in the name
of the "Woman Beneficiaries" of the House in Urban Area vide
clause "(2B)". House site pattas shall be issued with the
conditions of B.S.O-21 and in terms of the Andhra Pradesh
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Assigned Lands (Prohibition of Transfers) Act, 1977 (for short ―the
A.P. Act 9 of 1977‖) (As amended from time to time),
vide Clause (3).
Respondent No.1, vide G.O.Ms.No.488 Revenue (Assignment-
I) Department, dated 02.12.2019 issued additional guidelines in
addition to the earlier Policy Guidelines (G.O.Ms.No.367).
Clause 2-ii, reads as follows:-
(ii) Wherever possible individual plot of an extent of 1 cent
(Ac. 0.01 cent) shall be provided instead of flats in urban
areas, thus accommodate 55 plots per acre
Clause 2 (x), (xi), (xii), and (xiii) are also relevant, they are as
follows:
(x) The present house site allotment is treated as
concessional allotment and not a free assignment.
(xi) Accordingly, Plots shall be allotted duly collecting Rs.20/-
(Rs.10/- towards cost of stamp paper and Rs.10/-
towards lamination charges) from the beneficiary. Plot
allotment certificate (Patta) shall be issued on free hold
basis with a lock-in period of 5 years for sale purpose
from the date of issue of allotment order.
(xii) After completion of 5 years period, in case of personal
exigency, beneficiary can sell the plot and sub-registrar
shall honour for registration without any NOC from any
department whatsoever. However the beneficiaries will
not be entitled for house site once again, and are
debarred permanently.
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(xiii) The house site is a bankable document and bank loan can
be raised at any time.
It is further alleged that the Tahsildar is appointed as
Joint Sub- Registrar under Section 6 of the Registration Act,
1908 for executing and registering the conveyance deeds,
vide G.O.Ms.No.42 Revenue (Registration-1) Department, dated
12.02.2020. Respondent No.1 vide G.O.Ms.No.44 Revenue
(Lands-I) Department, dated 12.02.2020 issued orders for
registration of House site pattas as conveyance deeds in favour
of the Beneficiaries and the relevant Clauses are follows»
8. After careful examination, Government
hereby order to execute Conveyance deed for
house site pattas, to be issued under the
programme norms "Navaratnalu -
Pedalandariki Illu" .
9. The Conveyance deed shall contain following
features:
(i) Party details (Executants/Claimant)
(ii) Property details
(Schedule) (iii) Witnesses
(iv) Photographs & Thumb impressions and
Signatures of parties in from 32
(A).
Respondent No.1 vide G.O.Ms. No. 99 Revenue (Lands-I)
Department, dated 31.03.2020 modified policy guidelines
and relevant portion of Para (3) reads as follows:-
"...... The main objective of the programme is to
provide Shelter (house) to the houseless poor in
the State.......‖
According to Clause (6-B):-
(i) The House site shall be allotted at concessional
rate of Re. 1/- (one rupee) as the house site is
being allotted to people, Below Poverty line (BPL), to
enable them to construct own house.
(ii) Hence, Rs.211- (Rell-towards cost of House
site, Rs.lO/- towards cost of stamp paper and
Rs.l 0/- towards lamination charges) shall be
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collected from the beneficiary
Clause 6-D. Allotment House Site Patta
(i) House site patta will be allotted in the
form of conveyance deed to...........
(ii) This is to enable and ensure that the
beneficiaries get the loans from the banks
for construction of house
(iii) Sale of Vacant House site is prohibited.
However, the beneficiary after construction
of house and occupying it for a minimum
period of 5 years can transfer, in case
of any necessity, subject to conditions
imposed financial institutions.
A cumulative reading of various clauses of the respective
Government Orders (referred above), it could be culled out that
the State originally has taken a policy decision that the House site
allotment shall be made with the conditions, vide B.S.O-21 and in
terms of the A.P.Act 9 of 1977 (as amended from time to time),
vide G.O.Ms.No.367 and later issued G.O.Ms.No.488 giving
additional guidelines, that the "House site allotment", is treated as
"concessional allotment" and not as "free assignment". The State
vide G.O.Ms.No.99, brought partial modification and issued
revised criteria, that the House sites will be allotted in the form
of "conveyance deed", at a concessional rate of Re.l/- . Hence, it is
clear that the State has brought various Government Orders
changing the basic policy from time to time without any definite
sound and transparent Policy, for execution of ―Navaratnalu -
Pedalandariki Illu‖ programme.
Part-II of the Andhra Pradesh Revenue Board Standing Orders
(for short ―B.S.O‖) deals with the disposal of land. B.S.O-21 deals
with the Assignment of House site in Villages and Towns to the
landless poor. Among the eligible landless poor applicants,
preference shall be given to the people in the Village/Town, where
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the land is situated and who owns no land at all. Among these
category of persons, preference shall be given to the members of
Scheduled Tribe, Schedule Caste, converted Christians and other
Backward Classes in the assignment of waste lands at the disposal
of the Government.
Part-IV of the Constitution of India deals with "Directive
Principles of State Policy". Relevant portion of Article 39 of the
Constitution of India reads as follows:-
Article 39: Certain principles of policy to be followed by the
State: The State shall, in particular, direct its policy towards
securing-
(a) That the citizens, men and women equally, have the right to
an adequate means of livelihood.
(b) That the ownership and control of the material resources
of the community are so distributed as best to subserve
the common good;
(c) That the operation of the economic system does not result
the concentration of wealth and means of production to the
common detriment.
As per Article 39 of the Constitution of India, the State shall
direct its policy towards securing all the citizens equally, since "all
have the right to adequate means of livelihood". It is the duty of the
State to apply the Directive Principles in making the laws, since
Article 39 specifies the directive principles of State policy required to
be followed by the State. The fundamental rights and the Directive
principles are two wheels of the Chariot in establishing the
egalitarian social order (vide: Minerva Milts Ltd. v. Union of
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India1). The State shall direct its policies towards securing that
the men and women equally have the right to adequate
means of livelihood. Any person, if deprived of his "Right to
livelihood", only by just and fair procedure, established by law,
can challenge the deprivation of offending right to life, vide Art.
21 of the Constitution of India (Olga Tellis v. Bombay
Municipal Corporation2‖). Article 39(b) adumbrates a mandate
to secure the ownership and control of the material source of the
community are so distributed, to subserve the common good.
It is further asserted that the object sought to be achieved is to
eradicate rural indebtedness and thereby to secure the common good
of the people living in the abject. The policy to assign the
Government land is to prevent perpetuation of injustice and feudal
order and to prevent concentration of material resource of the
community in the hands of citizens, few. Assignment of the land
to the weaker sections of the Society is in furtherance of a
Constitutional obligation imposed upon the State to secure the
citizen, an adequate means of livelihood, adequate housing without
any discrimination, as per the principle laid down in ―Francis
Coralie Mullin v Administrator, Union Territory of Delhi3‖,
wherein the Court held as follows:
"6.....The Fundamental right to life which is the most precious
human right and which forms the ark of all other rights must
therefore be interpreted in a broad and expansive spirit so as to invest
it whit significance and vitality which may endure for years to come and
enhance the dignity of the individual and the worth of the human person."
(1980) 3 SCC 625
(1985) 3 SCC 545
(1981) 1 SCC 608
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Allotment of House sites in favour of vulnerable sections of the
Society is a necessary corollary and acquired the Constitutional
status.
Clause (6) of G.O.Ms.No.367 deals with the "method of
selection". The applications shall be invited at village/ward level
considering Village/Town, as a unit respectively (Clause 6-A) and
all the applications shall be enquired by the Village/Ward
"Volunteers" adherence to the eligibility conditions. The process of
selection and "identification of the Beneficiaries" are too vague and
unscientific. Any amount of mischief can be played for identification
especially, since the power of conducting enquiry is vested with the
village/ward volunteers whose competency is highly doubtful,
keeping aside the employees, acquainted in conducting socio-
economic survey.
It is further submitted that the mode of "invitation" and
"publication" are without any scientific approach besides being
vague. Admittedly, the State has undertaken the process of
distribution of 25 lakhs House site pattas initially and now making
propaganda, programming for the distribution of 30 lakhs of House
site pattas covered by 62,000 acres incurring an expenditure of
about Rs.30,000/-Crore and out of the same, about 25,000
acres of land has been purchased paying market value
incurring an expenditure of about Rs.10,000/- crore and an
amount of Rs.5,000/-Crore from NRGA funds. About 25000 acres
is a Government land, value of it is about 10,000/-Crore. Rest of
the land is acquired from land pooling scheme, CRDA and
TIDCO incurring an expenditure of about Rs.10,000/-Crore. This
is the estimated cost of the project, without any definite policy. Vide
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G.O.Ms. No.313, the allotment of plots to the beneficiaries is by
"Drawing of lottery," an equally too vague. State has no definite
policy and changing the same from time to time.
The whole process being undertaken for such large scale of
project is too vague and is unscientific. Allotment of land must be
founded on sound, transparent, discernable and well defined policy.
There is any amount of mischief in the process of allotment. Persons
belonging to the Ruling party are being given prime plots, though not
eligible. When some beneficiaries questioned the concerned,
about the process being implemented, who in turn, gave a
reply, that whatever given, is a charity. This sort of attitude is
highhanded and a colourable exercise of power. Process of
allotment/assignment to the weaker sections of the Society is not a
charity, but part of obligation of State as per the Directive Principles
of the State policy and a Constitutional goal.
Article 15 of the Constitution of India deals with the
"Prohibition of discrimination on the grounds of religion, race,
caste, sex or place of birth". Relevant Article reads as follows:
Article 15 - Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth :-
1)The State shall not discriminate the citizen on grounds only religion,
race, caste, sex, place of birth or anyone of them.
xxxxxxxx
3) Nothing in this Article shall prevent the State from making any
special provision for women and children.
As per clause 2 (A) and 2 (B) of G.O.Ms.No.367, a House
Site Patta shall be issued in the name of "woman beneficiary"
of the House hold. The State has programmed to distribute 30
lakhs of House site Pattas in the name of women. Admittedly, the
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State has undertaken the scheme of concessional allotment; in view
of the Constitutional duty enshrined in Part IV of the Constitution
of India. Directive principles of the State Policy are fundamental in
the governance of the Country and it is the duty of the State to
apply these principles without any discriminative attitude in the
process of allotment/conferring the largesse.
The gender equality is a fundamental right and the
discrimination by the State is absolutely violative of the
Constitutional mandate. A special provision must be within
reasonable limits and same principle applies to Article 15 (3) of the
Constitution of India also. 100% allotment in favour of women
beneficiary is unconstitutional. Equal protection mandates, all the
persons should be treated, alike. Policy must answer the test of
arbitrariness embedded in Article 14 and prohibits discrimination in
any form, since it aims at equality. Any violation would be violative
of basic structure and essential feature of the Constitution of India.
Every action of the State to confer benefits/largesse must be
founded and shall be implemented/executed by adopting a definite,
transparent well defined non-discriminatory and non-arbitrary
policy, irrespective of the class or category of the persons proposed
to be benefited by the Policy, with an established procedure. Any
allotment of land on political considerations with a view to nurture
the vote bank for future, is constitutionally impermissible. Any
allotment of land/grant by a Democratic Government/the State
cannot adopt arbitrary and discriminative Policy, which does not
stand to legal scrutiny, to the test of reasonableness, violating the
respective Constitutional provisions and goals. The State has
evolved the scheme of allotment of House site policy to women of
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the house hold, depriving the other categories as vote bank
policy with an ulterior motive. In allotment of any public
property/largesse, the State cannot act at its will and pleasure and
has to follow the equality clause, vide Article 14 of Constitution
of India in general and Article 15(1) of the Constitution of India in
particular.
The Court has power to examine the validity of the
policy/Statue, if it is in violation of any provision of the
Constitution including the fundamental rights of a citizen. As
long as the fundamental rights exists and are part of the
Constitution, the power of Judicial review has to be exercised, since
the same cannot be violated. To declare an invalid legislation,
which transgresses the Constitutional limits, it is a concomitant
obligation of the Court.
State is under the obligation to respect the Constitutional
mandate. The Democratic Government shall not be permitted to act,
at its whim and fancy. The whole approach of the State is in violation
of Rule of law, a basic feature of the Constitution and its fabric. The
State incurring thousands of crores of public money cannot and
shall not be permitted to act, at its whims and fancies. The whole
process is unconstitutional and violative of basic structure of
Constitution of India. The Rule of law is recognized as a basic
feature of our Constitution (vide: Kesavananda Bharathi v. State
of Kerala4). Rule of law is a social justice based on public order and
demands protection of individual human rights. Since the
respondents are proceeding to assign/allot the plots in favour of
the women beneficiaries exclusively, depriving all the other
1973 (4) SCC 225
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classes, having no other alternative the petitioners approached
this Court, to protect fundamental rights of citizen of the State and
human rights of human beings at large, requested to issue a
direction as claimed in the writ petition.
Respondent Nos.1 and 4 filed separate counters.
Respondent No.1 admitted about passing of Government
Orders and the scheme formulated by the State for allotment of
house site plots to landless poor vide G.O.Ms.No.367 Revenue
(Assignment - I) Department dated 19.08.2019 and G.O.Ms.No.488
Revenue (Assignment-I) Department dated 02.12.2019. The said
Government orders are issued in pursuance of a policy of the
Government to provide house plots to landless poor. The policy of the
Government could be set aside only on limited grounds where
fundamental rights are violated. In the present case, it is not the
case of the writ petitioners that their fundamental rights are violated,
the petitioners are canvassing that the plots are being allotted in the
name of women and it amounts to discrimination on the ground of
sex, the said contention is misconceived as Article 15(1) and (3) have
to be read harmoniously, but not in isolation. The entire Article 15
has to be read as a whole and cannot be read in punctuated manner
or in isolated manner. In Article 15, the framers of the Constitution
in their wisdom had carved out an exception that may be termed as
protective discrimination i.e., the State shall make special provisions
for advancement of women or children and empower socially and
economically backward classes. The state in its august object for the
advancement of women had formulated policy under G.O.Ms.No.367
Revenue (Assignment -I) Department dated 19.08.2019 to allot land
in the name of women in a family. A family is taken as a unit for
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allotment of land, family consists of both spouses and children. Mere
allotting land on the name of women does not amount to
discrimination as the said benefit is derived to entire family as all
family members live in the house that would be constructed in the
said land. The Government policy for framing guidelines is,
exclusively, domain of the Government of the day, the views of a
particular individual cannot be substituted in place of policy of the
Government. If that analogy is adopted there would be no end for
placates of litigation. The petitioners failed to demonstrate the policy
so framed is offending fundamental rights of the petitioners. The
only ground that was canvassed is it cannot be granted in the name
of women and they rely upon Article 15 of the Constitution, Even a
bare reading of Article 15 does indicate that there is principle called
as protective discrimination.
It is further contended that the Supreme Court in ―The State
of UP v. Johrimal5", laid down the principle that the scope of
judicial review is limited and further states that the power of judicial
review is not interject to assume a supervisory role or done the ropes
of omnipresent, the power is not intended either to review
governance under rule of law nor the courts step into areas
exclusively reserved for Suprema Lex to other organs of the State.
The decisions and actions do not have adjudicative disposition and
may not strictly fall for consideration before the judicial review court.
Apart from that without anything more is not enough to attract,
similarly the Hon'ble Apex Court in ―Ekthashakti foundation v.
Government of NCT of Delhi6" laid down the ratio that Constitution
(2004) 4 SCC 714
(2006) 10 SCC 337
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does not permit the court to direct or advise the executive, in the
matters of policy or to teermana any matter each under the
Constitution within the sphere of legislature or executive, provided,
these authorities do not transgress their Constitutional limits or
Statutory limits. The Hon'ble Supreme Court in ―Parisons Agrotech
(P) Ltd. v. Union of India7" had laid down similar principle that
while exercising power of judicial review of administrative action, the
court cannot act as appellate authority and Constitution does not
permit the Court to interfere in the matters of policy. The Apex
Court in ―Premier Tyres Limited v. Kerala State Road
transport8‖ laid down the ratio that courts cannot possibly assess
or evaluate what to be the impact of particular immunity or
exemption whether which would serve the purpose in view or not.
Thus, the power of this Court to test the legality of the Government
Orders referred above is limited.
Respondent No.1 denied the allegation that G.O.Ms.No.367
Revenue (Assignment -I) Department, dated 19.08.2019,
G.O.Ms.No.99, Revenue (Lands -I) Department, dated 31.03.2020
were issued without any transparent policy for execution of
―Pedalandariki illu‖ program is misconceived, as a bare perusal of
the aforesaid Government Orders clearly reflects that the policy is
based on the objective considerations and it is a transparent policy
to reach people belonging to below poverty line who are houseless.
Therefore, the petitioners are suffering from contextual shrinkage in
understanding the horizons of the Government Orders.
(2015) 9 SCC 657
AIR 1993 SC 1202
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The judgment in ―Francis Coralie Mullin v. Administrator,
UT of Delhi‖ (referred above) referred by the petitioners has no
application to the present facts of the case.
Respondent No.1 denied the allegation of identification of
vague or unscientific method for selection of beneficiaries and
contended that the beneficiaries who are identified should be white
ration card holders on the basis of their annual income. Therefore,
these are guiding factors to ascertain the beneficiaries, as such there
are objective yardsticks in identifying the beneficiary. It appears
that the petitioners are suffering from Jaundice in understanding the
policy of the Government in the breath. The petitioners are also
beneficiaries of this policy as the petitioners have secured housing
plots in favor of their wives.
Respondent No.1 denied the allegation made against the
volunteers in the process of identification of beneficiaries, so also
allotment of prime plots to the ruling party supporters and
contended that it is not supported by any material. Therefore, in the
absence of any document, the Court may draw an adverse inference
under Section 114 (G) Indian Evidence Act.
It is further contended that the petitioners failed to understand
the purport, horizons, amplitude of Article 15 of Constitution of
India, even going by para 19 of the affidavit filed by the petitioners
the verbatim of Article 15 is extracted where Clause-1 states that
State shall not discriminate any person only on the grounds of
religion, sex, caste or place of birth etc. The same Article 15(3) of
Constitution of India stipulates that nothing in this article shall
prevent the state from making any special provision for women and
children. Therefore, the action of the Government in the impugned
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G.O. traces its source of power from Article 15(3) and also from
directive principles of state policy enshrined under Part IV of the
Constitution of India. The impugned government orders are
sustainable as they are in consonance with Article 15(3) of the
Constitution of India. Therefore, the entire pleadings of the Writ
Petitioners are misconceived. Because of that the wives of petitioners
were allotted plots, no cause of action survives.
It is further contended that G.O.Ms.No.367 is framed with an
object to provide house site and family as unit, and family consists of
both spouses and children. Therefore, the petitioners are also
beneficiaries, thereby, the contention of discrimination is illusory
and also suffers from contextual shrinkage.
Respondent No.1 also denied the allegation that allotment of
land is on political consideration to secure vote bank while
contending that the Government Orders were issued in pursuance of
directive principles of State policy.
Finally, it is contended that the Courts have been consistently
maintaining restraint in interfering with the policy matters. Thus,
there is distinction between presence of the judicial review and
maintaining judicial restraint apart from that there is ―laxman
rekha‖ between three organs of a State, that the executive is acting
within its frontier. Finally, requested to dismiss the writ petition.
Respondent No.4 admitted about passing of Government
Orders and the scheme formulated by the State for allotment of
house site plots to houseless poor vide G.O.Ms.No.367 Revenue
(Assignment - I) Department dated 19.08.2019 and G.O.Ms.No.488
Revenue (Assignment-I) Department dated 02.12.2019. The said
Government orders are issued in pursuance of a policy of the
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Government to provide house plots to landless poor. Respondent
No.4 also admitted the endorsement made by him that the land is
not available in Tenali Municipality.
Respondent No.4 denied the allegation that the volunteers are
demanding money while contending that in the absence of
volunteers, the said allegation cannot be examined.
Respondent No.4 also denied the allegation that the house site
pattas are being allotted to ruling party supporters, requested to
dismiss the writ petition.
During hearing, Sri V.S.R.Anjaneyulu, learned counsel for
the petitioners, raised the following contentions:
(a) G.O.Ms.No.367 Revenue (Assignment-I) Department
dated 19.08.2019 and G.O.Ms.No.488 Revenue
(Assignment-I) Department, dated 02.12.2019 are too
vague and they were issued contrary to the Andhra
Pradesh Revenue Board Standing Order 21 and the A.P.Act
9 of 1977, additional guideline vide G.O.Ms.No.99 dated
31.03.2020 for allotment of house site and execution of
conveyance deed vide clause (d) is not consistent with
object.
(b) Additional guidelines issued in G.O.Ms.No.488 Revenue
(Assignment-I) Department, dated 02.12.2019 permitting
the beneficiary to sell the property after completion of 5
years would defeat the very object of providing house site
for construction of shelter to the houseless poor, who are
living below the poverty line.
(c) The said Government Orders are too vague with regard to
selection process and eligibility; and inconsistent to one
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another.
(d) Exclusive allotment of house site to women is in
contravention of preamble of the Constitution of India and
Articles 14, 15 (1) and 21 of the Constitution of India
besides violation of Human Rights.
(e) The State also did not take into consideration cases where
widower, who is living with his children, and a transsexual,
who are eligible for allotment satisfying the requirements
under the said Government Orders and it amounts to
denial of equal opportunity to get benefit of distribution of
natural resources like house site.
(f) Allotment of Ac.0.01 cent in the Municipalities and
Ac.0.01 ½ cent in villages is inadequate and the State did
not consider the effect on the right of privacy, growth of
children both spiritual, educational, mental and physical
and impact on the health also.
(g) Granting Ac.0.01 cent in the Municipalities and Ac.0.01 ½
cent in the villages is virtually putting an end to their
growth educationally, spiritually, and it may cause health
hazards to the members of those families. He relied on
several decisions in support of his contentions, which will
be referred at appropriate stage.
Sri Ponnavolu Sudhakar Reddy, learned Additional
Advocate General raised the following contentions.
(a) Undisputedly, G.O.Ms.No.367 Revenue (Assignment-I)
Department dated 19.08.2019, G.O.Ms.No.488 Revenue
(Assignment-I) Department, dated 02.12.2019 and
G.O.Ms.No.99 dated 31.03.2020 were issued by the State
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as policy decision in discharge of their obligation under
Article 39 of the Constitution of India and it is for the
benefit of poor houseless persons, thereby such policy
decision of the State cannot be interfered with by this
Court and if the Court interferes with such policy decision,
it would amount to judicial over reach.
(b) The petitioners are residents of Tenali and wives of
petitioner Nos.1 to 3 were allotted house site in the scheme
known as ―Navratnalu - Pedalandariki Illu‖, but without
disclosing the said fact, the present writ petition is filed, as
such they are disentitled to claim any relief in the writ
petition.
(c) There is no vagueness and inconsistency in the said
Government Orders impugned in the writ petition and on
the other hand, there is any amount of certainty regarding
procedure for allotment viz. eligibility, selection process
and rights of such beneficiaries after allotment of plots.
(d) There are no sufficient pleadings in the writ petition
enabling the respondents to answer those allegations
raised by the learned counsel for the petitioners, and it is
for the petitioners to establish the violation of any
provisions of statute or Constitution of India, but the
petitioners failed to raise specific pleas in the petition.
(e) Though Article 15 (1) of the Constitution of India prohibits
discrimination on the ground of sex, religion, caste etc., an
exception is carved out to Article 15 (1) i.e. 15 (3) of the
Constitution of India, which permits the State to make a
special provision for the benefit of women and that the
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allotment of house sites to the household women would fall
within exception contained in Article 15 (3) of the
Constitution of India.
(f) The main reason for allotment of house site in the name of
women is to avoid sale of land by male members of the
family for their vagaries and with a hope that the women
will protect the property.
(g) The very allotment of property on concessional rate of
Rs.1/- per plot is nothing but alienation of the property
and when there is no prohibition regarding alienation in
future by the beneficiary, grant of permission to alienate
property after 5 years of construction of house would not
frustrate the very purpose since such beneficiaries are
disentitled to claim house site patta in future and that it is
not violative of provisions of A.P.Act 9 of 1977 and B.S.O.
21 and it is inconsonance with B.S.O.21.
(h) Sri Ponnavolu Sudhakar Reddy, learned Additional
Advocate General would submit that the entire process is
over, except construction of houses, even if houses are
constructed, it will not infringe the constitutional right
guaranteed under Articles 14, 15 (1) and 21 of the
Constitution of India or any right under any Statute, while
requesting to dismiss the writ petition, upholding both the
Government Orders impugned in the writ petition.
In view of the specific contentions of both the learned counsel
for the petitioners and the learned Additional Advocate General, this
Court has to examine -
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(1) The scope of interference of this Court while exercising
power under Article 226 of the Constitution of India in the
policy or administrative decisions of the State,
(2) Vagueness as pointed out by the learned counsel for the
petitioners and denied by the learned Additional Advocate
General,
(3) Inconsistency between three Government Orders with
reference to B.S.O.21 and the A.P.Act 09 of 1977; and the
terms and conditions of the allotment as per Government
Orders,
(4) Discrimination of women from men, transsexual while
allotting house site plots irrespective eligibility of men and
transsexual for allotment with reference to Articles 14, 15
(1) and 15 (3) of the Constitution of India, and
(5) Inadequate residential accommodation/shelter to the
families living below the poverty line, affect of it on the right
of privacy, health, psychological and spiritual development,
economic growth, if so, is it violative of Article 21 of the
Constitution of India, and Human rights guaranteed under
Universal Declaration of Human Rights as well as
international covenants on Civil and Political rights?
P O I N T No1:
Scope of judicial interference in the policy and
administrative decisions of the State while exercising
power under Article 226 of the Constitution of India by
the High Court.
The petitioners in the writ petition itself made a vague
allegation that the policy to allot/assign the Government land is to
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prevent perpetuation of injustice and feudal order and to prevent
concentration of material resource of the community in the hands
of citizens, few. Assignment of the land to the weaker sections
of the Society is in furtherance of a Constitutional obligation
imposed upon the State to secure the citizen, an adequate means
of livelihood and shelter without any discrimination vide ―Francis
Coralie Mullin v. Administrator, UT of Delhi‖ (referred supra),
and that this Court can interfere with the policy decisions, if such
policy decisions are against the constitutional goal, violative of
fundamental rights guaranteed under Part III of the Constitution of
India or violative of any statutory provision.
Whereas, Sri Ponnavolu Sudhakar Reddy, learned Additional
Advocate General, mainly concentrated on permissibility of
interference of this Court with the policy decision taken by the State
and in paragraph No.4 of the counter, respondent No.1 raised a
specific plea about the power of the High Court to interfere with such
policy decisions of the State while exercising power under Article 226
of the Constitution of India is limited and relied on the judgments of
the Hon'ble Apex Court in ―the State of UP v. Johrimal" ,
"Ekthashakti foundation v. Government of NCT of Delhi",
"Premier Tyres Limited v. Kerala State Road transport‖ (referred
supra). On strength of the principles laid down in the above
judgments, it is contended that the impugned Government Orders
are issued based on the policy decision taken by the State and this
Court cannot examine the legality of the said Government Orders,
but can examine only to the extent of violation of fundamental rights
guaranteed to any citizen of India or any other statutory provisions
and shall not interfere with the administrative or policy decisions of
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the State in casual and routine manner, while requesting to dismiss
the writ petition.
In view of these contentions, it is necessary to examine the
scope of Article 226 of the Constitution of India and power of this
Court to interfere with the policy decisions of the State.
Undisputedly, power of this Court under Article 226 of the
Constitution of India is wider than the power under Article 32 of the
Constitution of India since Article 32 is limited to violation of
fundamental rights, whereas Article 226 permits to examine the
validity of any action of the State or even policy decisions in view of
the language employed under Article 226 of the Constitution of India.
It has already been pointed out that the power of the High
Court to issue the writs under Article 226 can be exercised for a
twofold purpose, viz., the enforcement of (a) fundamental rights, as
well as of (b) non-fundamental or ordinary legal rights."
The High Court has jurisdiction to review an administrative
order which is perverse or arbitrary as also where there is non-
compliance with statutory duty by statutory authority. But the court
will not go into factual findings as held in ―M.P.State Co-op Dairy
Federation Ltd. v. Rajnesh Kumar Jamindar9‖
While exercising power, the court has to see whether the
impugned action or decision has been taken reasonably and
intelligently and that it relates to the purpose for which it is to be
exercised. The authority cannot act whimsically or arbitrarily. It
should be done objectively, fairly and reasonably. (Vide: Banglore
Medical Trust v. B.S.Muddappa10) . It is also observed that when
wide power is vested in the government, it has to be exercised with
(2009) 15 SCC 221
AIR 1991 SC 1902
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greater circumspection. Greater is the power, greater should be the
caution. Though large or wide powers are given, the same are not
absolute and exercise of power should only be made for public good
and for public cause. Hence interference is permissible, on the
principle that there is violation of public trust doctrine, which means
action should be for good governance. (Vide: Consumer Action
Group v. State of Tamil Nadu11). Interference is also called for
when the conditions necessary for taking or initiating action are not
satisfied. It is a case of want of jurisdiction and hence ultra vires.
(Vide: Barium Chemicals v. Company Law Board12)
If an action taken by any authority is contrary to law,
improper, irrational or otherwise unreasonable, a court of law can
interfere with such action by exercising power of judicial review. One
such mode of exercising power, known to law is the ―doctrine of
proportionality‖. It was observed that the Government and its
department, in administering the affairs of the country are expected
to honour their statements of policy or intention and treat the citizen
with full personal consideration without abuse of discretion. There
can be no "selective application‖ or ―pick and choose of the
government norms or unfairness, arbitrariness or unreasonableness.
Any violation of the above rule is a ground for interference.‖ (Vide:
Coimbatore District Central Co-operative Bank v. Employees'
Association13 and Noida Enterpreneurs Association v. Noida14‖)
The Supreme Court declared broad principles of judicial review
i.e., illegality, irrationality and procedural impropriety have greatly
been overtaken by other developments, as for example, generally not
AIR 2000 SC 3060
AIR 1967 SC 295
(2007) 4 SCC 669
AIR 2007 SC 1161
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only in relation to proportionality and human rights, but also in the
direction of principles of legal certainty, notably legitimate
expectation. But it restrains itself in relation to interference in policy
matters. (Vide: Union of India v. S.B.Vohra15). Thus, there is no
clear interdict on the power of the High Court to interfere with the
policy decision.
Faith reposed on the judiciary by the people of India, stands
on a much higher rung than on any other organ of the State. This is
because of the judiciary being considered as the land of last resort.
Judiciary has always indulged itself when it has found that the
illumination of the Indian Constitution has started losing its
sheen. Constitution stands at the pinnacle of the pyramid, under
which everything done by State to diverge from its reach can be
tested by the Indian judiciary. As the ultimate guardian of the rights
of the people of this populous land, Indian courts have found
themselves at the helm of affairs, in dealing with the State
machinery. Judicial review, when undertaken in consonance with
the Indian Constitution, brings realisation to the hopes and
aspirations of millions. Inheritance of powers, does not come without
limits. Judicial restraint forms part and parcel of judicial review.
Under the mandate of the Indian Constitution, courts cannot sit to
harmonise the functions of different organs of the State. Their role
gets restricted in providing access to those who bring to light the
darkness springing out State actions. This darkness can only be
tested under the parasol of Indian Constitution. True realisation of
the Preamble of the Constitution, which represents the knot of all the
Articles of the Constitution, comes home only when each organ of the
AIR 2004 SC 1402
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State works in conformity within the horizons set down for their
limits.
A policy decision taken by the Government is not liable to
interference, unless the Court is satisfied that the rule-making
authority has acted arbitrarily or in violation of the fundamental
right guaranteed under Articles 14 and 16 of the Constitution of
India. Dealing with the powers of the Court while considering the
validity of the decision taken in the sale of certain plants and
equipment of the Sindri Fertilizer Factory, which was owned by a
public sector undertaking, to the highest tenderer, the Supreme
Court in ―Fertilizer Corpn. Kamgar Union (Regd.), Sindri v. Union
of India16", while upholding the decision to sell, observed that:
"35. ... We certainly agree that judicial interference with the
administration cannot be meticulous in our Montesquien system of
separation of powers. The court cannot usurp or abdicate, and the
parameters of judicial review must be clearly defined and never exceeded. If
the directorate of a government company has acted fairly, even if it has
faltered in its wisdom, the court cannot, as a super auditor, take the Board
of Directors to task. This function is limited to testing whether the
administrative action has been fair and free from the taint of
unreasonableness and has substantially complied with the norms of
procedure set for it by rules of public administration.‖
In ―State of M.P. v. Nandlal Jaiswal17", the change of the
policy decision taken by the State of Madhya Pradesh to grant licence
for construction of distilleries for manufacture and supply of country
liquor to existing contractors was challenged. Dealing with the power
of the Court in considering the validity of policy decision relating to
economic matters, it was observed that:
34. But, while considering the applicability of Article14 in such a case,
we must bear in mind that, having regard to the nature of the trade or
business, the Court would be slow to interfere with the policy laid down by
(1981) 1 SCC 568
(1986) 4 SCC 566
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the State Government for grant of licences for manufacture and sale of
liquor. The Court would, in view of the inherently pernicious nature of the
commodity allow large measure of latitude to the State Government in
determining its policy of regulating, manufacture and trade in liquor.
Moreover, the grant of licences for manufacture and sale of liquor would
essentially be a matter of economic policy where the Court would hesitate to
intervene and strike down what the State Government has done, unless it
appears to be plainly arbitrary, irrational or mala fide. We had occasion to
consider the scope of interference by the Court under Article 14 while dealing
with laws relating to economic activities in K. Garg v. Union of India18. We
pointed out in that case that laws relating to economic activities should be
viewed with greater latitude than laws touching civil rights such as freedom
of speech, religion, etc. We observed that the legislature should be allowed
some play in the joints because it has to deal with complex problems which
do not admit of solution through any doctrinaire or straitjacket formula and
this is particularly true in case of legislation dealing with economic matters,
where, having regard to the nature of the problems required to be dealt with,
greater play in the joints has to be allowed to the legislature.‖
The legislature after all has the affirmative responsibility. The
courts have only the power to destroy, not to reconstruct. When
these are added to the complexity of economic regulation, the
uncertainty, the liability to error, the bewildering conflict of the
experts, and the number of times the Judges have been overruled by
events -- self limitation can be seen to be the path to judicial wisdom
and institutional prestige and stability.
The Court cannot strike down a policy decision taken by the
State Government merely because it feels that another policy
decision would have been fairer or wiser or more scientific or logical.
The court can interfere only if the policy decision is patently
arbitrary, discriminatory or mala fide. It is against the background of
these observations and keeping them in mind this Court now
proceed to deal with the contention of the petitioners based on
Article 14 of the Constitution as held by the Apex Court in State of
M.P. v. Nandlal Jaiswal (referred supra).
(1981) 4 SCC 675
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A policy decision of the Government whereby validity of
contract entered into by Municipal Council with the private developer
for construction of a commercial complex was impugned came up for
consideration in ―G. B. Mahajan v. Jalgaon Municipal Council19",
and it was observed that:
"The criticism of the project being ―unconventional‖ does not add to or
advance the legal contention any further. The question is not whether it
is unconventional by the standard of the extant practices, but whether
there was something in the law rendering it impermissible. There is, no
doubt, a degree of public accountability in all governmental enterprises.
But, the present question is one of the extent and scope of judicial review
over such matters. With the expansion of the State's presence in the field
of trade and commerce and of the range of economic and commercial
enterprises of Government and its instrumentalities there is an
increasing dimension to governmental concern for stimulating efficiency,
keeping costs down, improved management methods, prevention of time
and cost overruns in projects, balancing of costs against time scales,
quality control, cost-benefit ratios, etc. In search of these values it might
become necessary to adopt appropriate techniques of management of
projects with concomitant economic expediencies. These are essentially
matters of economic policy which lack adjudicative disposition, unless
they violate constitutional or legal limits on power or have demonstrable
pejorative environmental implications or amount to clear abuse of power.
This again is the judicial recognition of administrator's right to trial and
error, as long as both trial and error are bona fide and within the limits of
authority.‖
In ―Premium Granites v. State of T.N.20", while considering
the court's powers in interfering with the policy decision, it was
observed that:
54. It is not the domain of the Court to embark upon unchartered
ocean of public policy in an exercise to consider as to whether a
particular public policy is wise or a better public policy can be evolved.
Such exercise must be left to the discretion of the executive and
legislative authorities as the case may be.
(1991) 3 SCC 91
(1994) 2 SCC 691
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While considering the validity of the industrial policy of the
State of Madhya Pradesh relating to the agreements entered into for
supply of sal seeds for extracting oil in ―M.P. Oil Extraction v. State
of M.P.21", the court held:
―41. After giving our careful consideration to the facts and
circumstances of the case and to the submissions made by the learned
counsel for the parties, it appears to us that the Industrial Policy of 1979
which was subsequently revised from time to time cannot be held to be
arbitrary and based on no reason whatsoever but founded on mere ipse dixit
of the State Government of M.P. The executive authority of the State must be
held to be within it competence to frame a policy for the administration of the
State. Unless the policy framed is absolutely capricious and, not being
informed by any reason whatsoever, can be clearly held to be arbitrary and
founded on mere ipse dixit of the executive functionaries thereby offending
Article. of the Constitution or such policy offends other constitutional
provisions or comes into conflict with any statutory provision, the Court
cannot and should not outstep its limit and tinker with the policy decision of
the executive functionary of the State. This Court, in no uncertain terms, has
sounded a note of caution by indicating that policy decision is in the domain
of the executive authority of the State and the court should not embark on
the unchartered ocean of public policy and should not question the efficacy
or otherwise of such policy so long the same does not offend any provision of
the stature or the Constitution of India. The supremacy of each of the three
organs of the State i.e. legislature, executive and judiciary in their respective
fields of operation needs to be emphasised. The power of judicial review of
the executive and legislative action must be kept within the bounds of
constitutional scheme so that there may not be any occasion to entrance
misgivings about the role of judiciary in outstepping its limit by unwarranted
judicial activism being very often talked of in these days. The democratic set-
up to which the polity is so deeply committed cannot function properly
unless each of the three organs appreciate the need for mutual respect and
supremacy in their respective field.
(emphasis supplied)
The validity of the change of government policy in regard to the
reimbursement of medical expenses to its serving and retired
employees came up for consideration before Supreme Court
(1997) 7 SCC 592
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in "State of Punjab v. Ram Lubhaya Bagga22". The earlier policy
upholding the reimbursement for treatment in a private hospital had
been upheld by this Court but the State of Punjab changed this
policy whereby reimbursement of medical expenses incurred in a
private hospital was only possible if such treatment was not available
in any government hospital. Dealing with the validity of the new
policy, the court observed that:
25. Now we revert to the last submission, whether the new State policy
is justified in not reimbursing an employee, his full medical expenses
incurred on such treatment, if incurred in any hospital in India not being
a government hospital in Punjab. Question is whether the new policy
which is restricted by the financial constraints of the State to the rates in
Aiims would be in violation of Article 21 of the Constitution of India. So
far as questioning the validity of governmental policy is concerned in our
view it is not normally within the domain of any court, to weight the pros
and cons of the policy or to scrutinise it and test the degree of its
beneficial or equitable disposition for the purpose of varying, modifying or
annulling it, based on howsoever sound and good reasoning, except
whether it is arbitrary or violative of any constitutional, statutory or any
other provision of law. When Government forms its policy, it is based on a
number of circumstances on facts, law including constraints based on its
resources. It is also based on expert opinion. It would be dangerous if
court is asked to test the utility, beneficial effect of the policy or its
appraisal based on facts set out on affidavits. The court would dissuade
itself from entering into this realm which belongs to the executive. It is
within this matrix that it is to be seen whether the new policy violates
Article 21 when it restricts reimbursement on account of its financial
constraints.
(emphasis supplied)
In Narmada Bachao Andolan v. Union of India23, there was
a challenge to the validity of the establishment of a large dam. It was
held by the majority that:
(1998) 4 SCC 117
(2000) 10 SCC 664
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It is now well settled that the courts, in the exercise of their
jurisdiction, will not transgress into the field of policy decision. Whether
to have an infrastructural project or not and what is the type of project to
be undertaken and how it has to be executed, are part of policy-making
process and the courts are ill-equipped to adjudicate on a policy decision
so undertaken. The court, no doubt, has a duty to see that in the
undertaking of a decision, no law is violated and people's fundamental
rights are not transgressed upon except to the extent permissible under
the Constitution.
In a democracy, it is the prerogative of each elected
Government to follow its own policy. Often a change in Government
may result in the shift in focus or change in economic policies. Any
such change may result in adversely affecting some vested interests.
Unless any illegality is committed in the execution of the policy or
the same is contrary to law or mala fide, a decision bringing about
change cannot per se be interfered with by the Court. Wisdom and
advisability of economic policies are ordinarily not amenable to
judicial review unless it can be demonstrated that the policy is
contrary to any statutory provision or the Constitution. In other
words, it is not for the courts to consider relative merits of different
economic polices and consider whether a wiser or better one can be
evolved. For testing the correctness of a policy, the appropriate forum
is parliament and not the Courts as held by the Apex Court in
―Balco Employees' Union (Regd) v. Union of India24‖
In ―T.N. Education Department Ministerial and General
Subordinate Services Assn. v. State of T.N.25", noticing the
jurisdictional limitations to analyse and fault a policy, the Apex
Court opined that:
(2002) 2 SCC 333
(1980) 3 SCC 97
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The court cannot strike down a G.O., or a policy merely because there
is a variation or contradiction. Life is sometimes contradiction and even
consistency is not always a virtue. What is important is to know whether
mala fides vitiates or irrational and extraneous factor fouls
The wholesome rule in regard to judicial interference in
administrative decisions is that if the Government takes into
consideration all relevant factors, eschews from considering
irrelevant factors and acts reasonably within the parameters of the
law, courts would keep off the same. (Vide: Federation of Railway
Officers Association v. Union of India26)
On review of the law laid down by the Apex Court in various
judgments (referred above), interference of the High Court while
exercising power under Article 226 of the Constitution of India is not
totally taken away, but the Court must exercise reasonable restraint
while interfering with such policy decisions to avoid judicial over-
reach. Therefore, keeping in view the principles laid down in the
above judgments, this Court has to examine the other contentions. If
the Court finds that the policy decisions of the State are violative of
any fundamental right guaranteed under the Constitution of India or
Human rights, the Court is bound to interfere with such policy
decisions.
P O I N T Nos.2 and 3:
Vagueness and inconsistency between Government Orders
as contended by the petitioners and denied by the
respondents, with reference to B.S.O.21, the A.P.Act 9 of
1977 and the terms and conditions of allotment as per the
Government Orders.
(2003) 4 SCC 289
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The petitioners are, undisputedly, landless and houseless poor
and they were not allotted any house site despite the directions
issued by the High Court of Andhra Pradesh at Hyderabad in
W.P.No.45475 and 46463. It is contended by the respondents that
the wives of petitioner Nos.1 to 3 were allotted house site/plot under
the scheme of ―Navaratnalu - Pedalandariki Illu‖, which is the
subject matter of G.O.Ms.No.367 dated 19.08.2019, but so far as
other petitioners are concerned, it is not their case that the women
household were allotted house site under the scheme ―Navaratnalu
- Pedalandariki Illu‖. Irrespective of allotment or non-allotment of
house site patta to any of the petitioners, it is necessary to examine
the issue of vagueness and inconsistency between G.O.Ms.No.367
dated 19.08.2019, G.O.Ms.No.488 dated 02.12.2019 and
G.O.Ms.No.99 dated 31.03.2020 and whether they were issued
contrary to B.S.O.21 and the A.P.Act 9 of 1977?
Policy guidelines were issued by the State in G.O.Ms.No.367
dated 19.08.2019. According to policy guideline No.3, house site
Pattas shall be issued with the conditions laid down in BSO-21
and in terms of the Andhra Pradesh Assigned Lands
(Prohibition of Transfer) Act, 1977 (as amended from time to
time).
Whereas, in G.O.Ms.No.488 dated 02.12.2019 the State issued
additional guidelines for allotment of house sites to 25 lakhs
beneficiaries. In paragraph No.2 of the said G.O., it is stated that,
deliberations were held on distribution of House sites/Dwelling units
in the State and certain decisions have been taken to implement the
programme successfully to cover all eligible families. Therefore,
Government issued additional guidelines in addition to the Policy
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guidelines already issued in G.O.Ms.No.367 dated 19.08.2019 to all
District Collectors in the state for implementation of distribution of
House sites/Dwelling units under ―Navaratnalu - Pedalandariki
Illu‖ Programme.
Taking advantage of language employed in paragraph No.2 i.e.
additional guidelines in addition to the policy guidelines already
issued in G.O.Ms.No.367 dated 19.08.2019, Sri V.S.R.Anjaneyulu,
learned counsel for the petitioners, contended that there is any
amount of inconsistency between G.O.Ms.No.367 dated 19.08.2019
and G.O.Ms.No.488 dated 02.12.2019 as the guidelines issued in
G.O.Ms.No.488 are not in supersession of guidelines issued in
G.O.Ms.No.367 dated 19.08.2019. Thus, there is any amount of
vagueness and inconsistency between few clauses of the said G.Os.
issued for allotment of house site by granting patta or executing
conveyance deed. Hence, it is appropriate to refer to the relevant
policy guidelines issued in G.O.Ms.No.367 and additional guidelines
issued in G.O.Ms.488 and they are extracted hereunder:
G.O.Ms.No.367 G.O.Ms.No.488
dated 19.08.2019 dated 02.12.2019
The Hon'ble Chief Minister Therefore, Government hereby
of Andhra Pradesh as part issue following ―additional guidelines‖
of the flagship program in addition to the Policy guidelines
―NAVARATNALU - already issued in G.O. 1st read
PEDALANDARIKI ILLU‖ has above to all District Collectors in the
announced for distribution of 25 state for implementation of
lakh House Site Pattas to all the distribution of House sites/Dwelling
eligible beneficiaries residing in units under ―Navaratnalu -
Rural & Urban areas on Pedalandariki Illu‖ Programme:-
Saturation Mode irrespective of
Caste, Creed or Religion to ii. Wherever possible individual plot
facilitate the construction of of an extent of 1 cent (Ac.0.01
houses for the homeless poor. cent) shall be provided instead of
The process of issue of House flats in urban areas, thus
Site Pattas will be taken up on accommodate 55 plots per acre.
mission mode and distribution
to all eligible houseless poor will v. Encroachers in objectionable
be taken up on the day of Ugadi- government lands shall be evicted
2020. immediately after giving house sites in
the present scheme.
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―1.Objective: x. The present house site
To provide a House Site allotment is treated as concessional
Patta to the Homeless poor people in allotment and not an free assignment.
Rural/Urban areas in order to facilitate
xi. Accordingly, Plots shall be
the construction of a Pucca House
allotted duly collecting Rs.20/-
under the flagship programme (Rs.10/- towards cost of stamp paper
―Navaratnalu - Pedalandariki Illu‖. and Rs.10/- towards lamination
charges) from the beneficiary. Plot
allotment certificate (Patta) shall be
2. SIZE/EXTENT OF HOUSE SITE issued on free hold basis with a lock-
PATTA: A) Rural Area: in period of 5 years for sale purpose
from the date of issue of allotment
i. One House Site Patta shall order.
be issued for an extent of 1.5
Cents to an eligible xii. After completion of 5 years
household in the name of period, in case of personal exigency,
woman beneficiary of the beneficiary can sell the plot and
house. The patta shall be sub-registrar shall honour for
handed over to the registration without any NOC from
beneficiary on the day of any department whatsoever. However
Ugadi, 2020. the beneficiaries will not be entitled
for house site once again, and are
ii. The Housing Department debarred permanently.
shall issue sanction for
construction of Individual xiii. The house site is a bankable
Housing Unit to the eligible document and bank loan can be
beneficiary under the raised at any time.
available schemes in phased
manner.
B) Urban Area:
i. Housing Units shall be
constructed following the
G+3 pattern at the rate of
about 100 units in an extent
of Ac.1.00cts.
ii. House Site Patta shall be
issued as Undivided Land
Share for an extent of about
1.0 Cent to an eligible
beneficiary in the name of
the woman of the house. The
patta shall be handed over to
the beneficiary on the day of
Ugadi, 2020.
iii. Housing Units will be
constructed and handed over
to the beneficiaries by
APTIDCO/ ULB/ other
government agency under
available schemes.
3. House Site Pattas shall be
issued with the conditions laid
down in BSO-21 & in terms of the
Andhra Pradesh Assigned Lands
(Prohibition of Transfer) Act, 1977
(As amended from time to time).
4. All individual plots shall be
given a Unique Number similar to
the 11-digit Bhoodhar Number.
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5. ELIGIBILITY: The following
eligibility conditions are to be
strictly adhered to for identification
of eligible beneficiaries.
A) Rural Area:
i. The beneficiary shall belong to
the identified Below Poverty Line
(BPL)
category household having white
ration card.
ii. The beneficiary shall not have
an own House/House Site
anywhere in the
State of Andhra Pradesh.
iii. The Beneficiary shall not have
been covered in any previous
Housing Scheme of the
State/Central Government.
iv. The Beneficiary shall not have
more than Ac.2.5 cts of Wet Land
or Ac.5.00 cts of Dry Land.
v. The beneficiary shall possess
an valid Aadhaar Card. Aadhaar
details shall be collected only with
the consent of beneficiary.
B) Urban Area:
i. The beneficiary shall not have
an Own House/House Site
anywhere in the
State of Andhra Pradesh.
ii. The beneficiary shall not have
been covered in any previous
Housing Scheme of the
State/Central Government.
iii. The beneficiary shall not have
more than Ac.2.5 cts of Wet Land
or Ac.5.00 cts of Dry Land.
iv. The Annual Income (from all
the sources) of the Household
should not exceed
Rs.3,00,000/- (Rupees three lakhs
only).
v. The beneficiary shall possess a
valid Aadhaar Card. Aadhaar
details shall be collected only with
the consent of beneficiary.
6. METHOD OF SELECTION:
a) The Applications shall be
invited at Village/Ward Level
considering village/town as a unit
respectively.
b) All applications shall be enquired
by the Village/Ward Volunteers for
adherence to the eligibility
conditions.
c) The draft List of identified
eligible beneficiaries shall be
published at
Village/Ward Secretariat calling for
further claims & objections.
d) Grama/Ward Sabha shall be
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conducted to finalise the list of
beneficiaries duly redressing the
claims & objections.
e) The final list of beneficiaries
shall be submitted for approval of
the District Collector by the
Tahsildars and Municipal
Commissioners in the Rural and
Urban areas respectively.
f) The final list of beneficiaries
approved by the District Collector
shall be published in the respective
Village/Ward Secretariat.
g) In case of any further claims or
objections, the Tahsildar/Municipal
Commissioner shall function as the
redressal officer duly taking
approval from the District Collector.
15. CANCELLATION:
The allotment of House Site Patta
will be cancelled immediately in
case, if it is established that the
same has been obtained by fraud or
suppression of facts. The cancelled
House Site Patta will be allotted to
other eligible beneficiary.
On comparison of original guidelines and additional
guidelines, the object of original guidelines is to provide house site
to houseless poor, but as per condition No.3, house site pattas
shall be issued with the conditions laid down in BSO - 21 and in
terms of the Andhra Pradesh Assigned Lands (Prohibition of
Transfer) Act, 1977 (as amended from time to time). As per
additional guideline (x) and (xii) issued in G.O.Ms.No.488, the
present house site allotment is treated as concessional
allotment and not a free assignment. Accordingly, Plots shall be
allotted duly collecting Rs.20/- (Rs.10/- towards cost of stamp
paper and Rs.10/- towards lamination charges) from the
beneficiary. Plot allotment certificate (Patta) shall be issued on free
hold basis with a lock-in period of 5 years for sale purpose from the
date of issue of allotment order. After completion of 5 years period,
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in case of personal exigency, beneficiary can sell the plot and
sub-registrar shall honour for registration without any NOC from
any department whatsoever. However the beneficiaries will not be
entitled for house site once again, and are debarred permanently.
As per G.O.Ms.No.367 allotment is based on B.S.O.21 and in
terms of the A.P.Act 9 of 1977. Hence, it is appropriate to advert to
B.S.O.21, which is a guideline for the revenue officials for disposal
of the Government land.
B.S.O.21 deals with ―assignment of House-site in villages and
towns‖. This standing order applies to the disposal of house sites
for private purposes only whether to individuals, firms or societies
and whether the grant is free or is made on payment of the full or a
concessional value for the land. Assignments for industrial,
commercial or co-operative purposes will be in addition to the
usual conditions of assignment be subject to conditions on the
lines of these prescribed in paragraph 6 of the standing order
No.24 mutatis mutandis, the conditions in sub-paragraph (2) of the
paragraph being followed in cases in which the full market value of
the land is paid by the assignee and those in sub-paragraph (i) in
other cases. The disposal of buildings sites for public purposes is
governed by Standing Order No.24. Section 1 deals with allotment
of site in villages. It specified scale of grant, and limit is 10 cents
both for house construction and for cattle shed in villages. Clause
(2) of Section -1 deals with procedure in dealing with applications.
Clause 2 (x) of Section 1 prescribes procedure for preparation of
plotted sketches. As per clause 2(x) of section 1, plotted sketches of
the sites to be granted should invariably be prepared. Also
measurements should be taken connecting the sites with any
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permanent or semi-permanent marks in the neighbourhood or
union survey stones where they exist with a view to the sites being
located in the event of disputes. All these measurements should be
entered in the plotted sketches which should form part of the
assignment records. Clause (xiii) of Section 1 deals with extent of
house site allotted. According to it, Tahsildars should not grant
house sites in excess of 10 cents nor sites for separate cattle-sheds
in excess of 4 cents without the previous sanction of the Revenue
Divisional Officer.
Similarly, section II deals with assignment of house sites in
towns. Clause (8) defined the word ―town‖, which includes
municipal area or Cantonment Act is in force or the place has a
population of not less than 5,000 inhabitants residing in houses
more or less contiguous, not in scattered collections as hamlets
and has distinctly urban character such as that of a market town.
Clause (10) (i) of section II deals with scale of grant for
building purposes. According to it, in towns portions of house-site
at the disposal of Government may be granted for building
purposes in accordance with a scale fixed or to be fixed by
Collectors with reference to the requirements of their districts or of
particular towns or quarters of a town and subject to the
conditions laid down in paragraphs 11 to 15 of section II of
B.S.O.21. The scale may be altered by Collectors, from time to time,
according to their discretion, but every such alteration should be
previously published in the District Gazette.
Clause (11) deals with procedure to be observed for disposal of
applications. At the same time, clause 11 (vi) says that except as
provided in paragraph 14, all vacant Government lands in towns
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shall be offered for sale in public auction. The auction should be
held by the Tahsildar or by some officer duly authorized by him on
the date fixed in the notification or any subsequent date to which
the sale may be adjourned for good reason, of which fact due public
notice shall be given and the lot should be knocked down to the
highest bidder. In cases where any expenditure has been incurred
in lying out land including the site applied for as house-sites or in
providing roads thereon or in other-wise fitting it for occupation, a
proportionate portion thereof shall be fixed as the upset price. In
cases where the Government is bound, e.g., under Section 184 of
the Andhra Pradesh Municipalities Act or any other Act to provide a
road of otherwise to make the land fit for occupation, the estimated
cost of a proportionate portion of the estimated cost of making a
road or otherwise making the land fit for occupation shall be fixed
as the upset price. In towns surveyed on the town survey system
the successful bidder should in address pay the cost of survey and
demarcation as laid down in Standing Order No.34-A,
paragraph 17. In the case of other towns, he should pay the cost of
survey and demarcation as provided in paragraph 2 (ix) of Section I
of B.S.O.21.
Thus, disposal of land is two types; one is free allotment by
issue of assignment/patta and the other is by auction sale.
Here, the Government allotted land at concessional rate of
Rs.1/- subject to payment of Rs.10/- towards cost of stamp paper
and Rs.10/- towards lamination charges.
Besides above two G.Os., the State also issued another
G.O.Ms.No.99 Revenue (Lands-1) department dated 31.03.2020 for
providing housing to all families living in below poverty line both in
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urban and rural areas. Clause (b) and (d) reads as follows:
―B. Allotment Price:
i. The house site shall be allotted at concessional rate of Re.1/-
(One Rupee) as the house site is being allotted to people Below Poverty
Line (BPL) to enable them to construct own house.
ii. Hence, Rs.21/- (Re.1/- towards cost of House site, Rs.10/-
towards cost of stamp paper and Rs.10/- towards lamination charges)
shall be collected from the beneficiary.‖
Similarly, clause (d) is also relevant for the purpose of
deciding controversy herein, which is as follows:
D. Allotment of House site Patta:
i. House site patta will be allotted in the form of conveyance deed to
avoid duplication of beneficiaries, eliminating bogus beneficiaries as the
deed contains security features like the Photographs & Thumb
Impressions and Signatures of parties along with their details
(Executant/Claimant), Property details (Schedule), Witnesses. This is
apart from the security features like watermark, emblems etc., existing on
the stamp paper.
ii. This is to enable and ensure that the beneficiaries get the loans
from the banks for construction of house.
iii. Sale of vacant House site is prohibited. However, the beneficiary
after construction of house and occupying it for a minimum period of 5
years can transfer, in case of any necessity, subject to conditions
imposed by financial institutions.‖
A bare reading of clause (b) and (d), allotment is on
concessional rate of Rs.1/- and conveyance deed is being executed
by the concerned in favour of the allottee. Thus, the language
employed in clause (b) and (d) of G.O.Ms.No.99 dated 31.03.2020
directly indicates that the allotment is only by executing conveyance
deed on payment of Rs.1/-. Thus, the transaction of allotment of site
is nothing but sale as defined under Section 54 of the Transfer of
Property Act. If clause (3) of G.O.Ms.No.367 dated 19.08.2019,
additional guideline issued in G.O.Ms.No.488 dated 02.12.2019 and
further guidelines issued in G.O.Ms.No.99 dated 31.03.2020 if read
in conjunction with other, there is any amount of inconsistency
between these clauses. When once the transaction of allotment of
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land is outright sale as defined under Section 54 of the Transfer of
Property Act, any condition or restriction repugnant to the interest
crated therein is void. When conveyance deed is executed and
registered with the Registrar (for the purpose of registration,
Tahsildars are designated as Registrars under the Registration Act),
the question of following B.S.O.21 and provision of A.P.Act 09 of
1977 as enumerated in clause (3) of G.O.Ms.No.367 dated
19.08.2019 does not arise. Such inconsistency in the guidelines lead
to chaos and on account of such inconsistency, it is impracticable to
implement either of the guidelines or cancel the allotment made in
terms of the G.Os.
As per Board Standing Orders, grant shall be subject to the
conditions set out in the order of assignment to be issued in such
case, viz. land assigned shall be heritable but not alienable.,
otherwise it would not fall within the definition of ―assigned land‖
as defined under Section 2 (b) of the Act 09 of 1977.
But G.O.Ms.No.488 dated 02.12.2019 and G.O.Ms.No.99
dated 31.03.2020 totally relaxed the conditions of heritability and
non alienability of the land allotted to the petitioner, it is taken
away from the purview of assigned land as defined under Section 2
(b) of the Act 09 of 1977. Thereby, the question of issuing pattas in
terms of B.S.O. 21 subject to provisions of A.P.Act 09 of 1977 does
not arise and clause (3) of G.O.Ms.No.367 dated 19.08.2019
become redundant, in case such alienability is permitted. The
purpose of allotment is only to provide house site to houseless
poor, when the State allotted the site by way of sale, it would defeat
the very object of allotment. Therefore, the clauses (x) (xi) and (xii)
in G.O.Ms.No.488 and clause (b) and (d) of G.O.Ms.No.99 are
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hereby declared as illegal and contrary to original guidelines, liable
to be set aside.
The main object of allotment of land is only to provide shelter
to houseless or homeless poor in both rural and urban areas as it is
the obligation of the State to provide shelter to the poor as per the
directive principles of state policy vide Article 39 of the Constitution
of India. (extracted in the earlier part of order)
In view of Article 39 of the Constitution of India the State can
distribute material resources to subserve the common good. Here,
the scheme ―Navaratnalu - Pedalandariki Illu‖ is taken up as a
policy decision by the Government. At the same time, the policy must
be fair and reasonable. Here, in this case, granting permission to sell
property after five years of construction of house will have serious
consequence in future, though they are debarred from claiming
allotment in future. The avowed object of scheme is to provide shelter
to the houseless poor permanently. If the beneficiary has a right to
sell the property after five (5) years, again such beneficiary will
become houseless poor and sometimes they may misuse the
situation prevailing in the State and obtain allotment in different
ways. When the State intends to provide permanent shelter to the
houseless poor, incorporating such condition allowing them to
alienate the property after five (5) years is against the object of
scheme. On account of permission granted to the allottees to sell the
property, the very object of the scheme is being defeated. On the
allotment of house site, the houseless became owners of house sites
and on construction, owner of house; after sale, it is nothing but
restoring status quo ante i.e. he will be a houseless poor again
consequent upon the sale. Distribution of material resources of the
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community is not for making money by the houseless poor, taking
advantage of the policy decision of the Government. Therefore, the
additional ground Nos.(x) (xi) and (xii) issued in G.O.Ms.No.488 dated
02.12.2019 is contrary to the object of the scheme and Article 39 of
the Constitution of India. Therefore, additional guidelines (x) (xi) and
(xii) not only defeat the very purpose of allotment of house sites to
the landless poor, but also violates Article 39 of the Constitution of
India, besides B.S.O.21. Hence, additional guideline Nos. (x) (xi) and
(xii) issued in G.O.Ms.No.488 are illegal, arbitrary and not in the
interest of houseless poor. On the other hand, the same is defeating
the very object of allotment of house sites to the houseless poor and
in violation of Article 39 of the Constitution of India. Hence, the
additional guidelines (x) (xi) and (xii) G.O.Ms.No.488 dated
02.12.2019 are hereby declared as illegal, arbitrary and violative of
Article 39 of the Constitution of India, contrary to the object of
allotment of house site.
As discussed above, clauses in three G.Os (referred supra) are
inconsistent to one another and they are vague, impracticable for
implementation and enforcement. Therefore, while upholding clause
(3) of G.O.Ms.No.367 dated 19.08.2019, clause (x) (xi) and (xii) of
G.O.Ms.No.488 dated 02.12.2019 and clause (b) and clause (d) of
G.O.Ms.No.99 dated 31.03.2020 are declared as illegal, arbitrary and
inconsistent with one another. Therefore, on this ground alone, the
said clauses are liable to be set aside. Accordingly, the point is
answered.
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P O I N T No.4:
Discrimination of women from men, transsexuals
while allotting house site plots irrespective
eligibility of men and transsexual for allotment
with reference to Articles 14, 15 and 21 of the
Constitution of India and International Covenants
on Human Rights with reference to equality.
One of the major contentions of the learned counsel for the
petitioners is that the respondents discriminated men and
transsexual from women in allotment of house site under the
scheme ―Navaratnalu - Pedalandariki Illu‖ and allotted house
sites to women exclusively, which is contrary to the preamble of the
Constitution of India and violative of Articles 14, 15 (1) and 21 of the
Constitution of India, besides violative of Universal Declaration of
Human Rights as well as international covenants on Civil and
Political rights, international covenants on economic, social and
cultural rights and discriminating transsexual is contrary to the law
laid down by the Apex Court in ―National Legal Services
Authority v. Union of India27‖, requested to set aside clause (2) of
G.O.Ms.No.367 dated 19.08.2019 as it amounts to 100% reservation
in allotment of house site to women.
Whereas, respondents raised a plea that the allotment of
house site in the name of woman is only for the benefit of family and
not for individual. Since the petitioners are living below the poverty
line, there is every possibility of misusing the property if allotment is
made in the name of male, as such grant of patta in favour of
women household is for the benefit of members of the family. It is
(2014) 5 SCC 438
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further contended that though Article 15 (1) prohibits
discrimination, Article 15 (3) is an exception to Article 15 (1) of the
Constitution of India which permits protective discrimination to
women and children from men, as such the State based on doctrine
of protective discrimination, made allotment of house sites in favour
of women household to avoid further complications. Hence, it is not
violative of any of the Articles of the Constitution of India and
Universal Declaration of Human Rights etc.
It is an undisputed fact that the allotment was made
exclusively in the name of women household as per G.O.Ms.No.367
dated 19.08.2019. Clause (2) of G.O.Ms.No.367 dated 19.08.20219
reads as follows:
2. SIZE/EXTENT OF HOUSE SITE PATTA:
A) Rural Area:
i. One House Site Patta shall be issued for an extent of 1.5 Cents to
an eligible household in the name of woman beneficiary of the
house. The patta shall be handed over to the beneficiary on the day
of Ugadi, 2020.
ii. The Housing Department shall issue sanction for construction of
Individual Housing Unit to the eligible beneficiary under the
available schemes in phased manner.
B) Urban Area:
i. Housing Units shall be constructed following the G+3 pattern at the
rate of about 100 units in an extent of Ac.1.00cts.
ii. House Site Patta shall be issued as Undivided Land Share for an
extent of about 1.0 Cent to an eligible beneficiary in the name of the
woman of the house. The patta shall be handed over to the
beneficiary on the day of Ugadi, 2020.
iii. Housing Units will be constructed and handed over to the
beneficiaries by APTIDCO/ ULB/ other government agency under
available schemes.
A close perusal of the above clauses, the proposal to allot
house site in the name of women both in rural and urban areas is
an undisputed fact. At the same time, it is stated in paragraph No.1
of G.O.Ms.No.367 dated 19.08.2019, that the respondents intend to
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allot 25,00,000 house site to all the eligible beneficiaries residing in
rural and urban areas on saturation mode ―irrespective of Caste,
Creed or Religion to facilitate the construction of houses for
the homeless poor.‖
The intention of the State is clear from the preamble of the
G.O.Ms.No.367, they intend to discriminate men, transsexual from
women by conspicuously omitting the word ―sex‖ obviously for the
reasons best known to the State. The legality and validity of such
discrimination is to be examined with reference to various provisions
pointed out by the learned counsel for the petitioners and the law
laid down by the Apex Court and other Courts. At this stage, it is
appropriate to advert to the preamble of the Constitution of India,
which reads as follows:
"WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute
India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC
REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all FRATERNITY assuring the dignity of the
individual and the unity and integrity of the Nation"
The preamble of the Constitution itself provided equality
clause. At the same time, Article 14 guarantees fundamental right of
equality. As per Article 15 (1) there is prohibition of discrimination
on grounds of religion, race, caste, sex or place of birth. However,
carved out an exception under Article 15 (3), which enable the State
to make special provision to women and children, which is known as
protective discrimination.
In the case on hand, the State in discharge of its obligation to
provide house site to houseless poor under Article 39 (a) and (b) of
the Constitution of India, took a policy decision, issued
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G.O.Ms.No.367 Revenue (Assignment-I) Department dated
19.08.2019 and G.O.Ms.No.488 Revenue (Assignment-I)
Department, dated 02.12.2019. However, Article 39 of the
Constitution of India itself indicates that the material resources of
the State shall be distributed equally among equals. Despite
―equality‖ clause in preamble, equal protection of laws enunciated
under Article 14 and prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth under Article 15 of the
Constitution of India, State consciously omitted the word ―sex‖ in
the preamble of G.O.Ms.No.367 dated 19.08.2019, decided to allot
house site plot to women household as per guideline No.2 of the said
Government Order as extracted in earlier paragraphs.
Such discrimination of men, transsexual from women is
violative of Article 14, 15 (1) and the ‗equality' clause under
preamble of the Constitution of India as contended by the learned
counsel for the petitioners. Of course, learned Additional Advocate
General took advantage of Article 15 (3) which is an exception to
Article 15 (1) of the Constitution of India, carved out by the framers
of the Constitution of India with an avowed object to provide special
protection to women and children by invoking doctrine of protective
discrimination.
To substantiate the contentions of the petitioners, learned
counsel for the petitioners relied on the Division Bench judgment of
the High Court of Andhra Pradesh in ―P.Katama Reddy v. Revenue
Divisional Officer, Anantpur28‖. In the facts of the judgment, a
policy decision to provide 100% reservation was taken in allotment
of Fair Price shops to women by the State. The Division Bench of the
1997 (6) ALT 548
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High Court of Andhra Pradesh at Hyderabad while referring to
judgment in ―Government of A.P. v. P.B. Vijaya Kumar29‖ held
that as the Government framed a scheme for running fair price
shops by appointing agents (dealers), it cannot discriminate, ousting
men from being allotted in entirety, as that will be violative of
equality clause under Article 14 of the Constitution in general and
Article 15(1) in particular and that ratio laid down by the Supreme
Court in ―State of M.P. v. Nandlal30‖ is applicable, in which,
dealing with the preference to women in granting excise license, it
was held that it is the monopoly of the State and the State can run
the same, but once a decision is taken by the State to allot it to
private individuals, then equality clause is applicable and if there is
a violation of equality clause under Article 14, then the
Governmental action can be set at naught. It is apt to extract the
relevant proposition :
"But, before we do so, we may, at this stage, conveniently refer to a
contention of a preliminary nature advanced on behalf of the State
Government and Respondent Nos.5-11 against the applicability of Article
14 in a case dealing with the grant of liquor licences. The contention was
that trade or business in liquor, so inherently pernicious that no one can
claim any fundamental right in respect of it and Article 14 cannot,
therefore, be invoked by the petitioners. Now, it is true, and it is well
settled by several decisions of this Court including the decisions in ―Har
Shanker v. Deputy Excise and Taxation Commissioner 31‖, that there
is no fundamental right in a citizen to carry on trade or business in
liquor. The State under its regulatory power has the power to prohibit
absolutely every form of activity in relation to intoxicants - its
manufacture, storage, export, import, sale and possession. No one can
claim as against the State the right to carry on trade or business in liquor
and the State cannot be compelled to part with its exclusive right or
privilege of manufacturing and selling liquor. But, when the State decides
to grant such right or privileges to others, the State cannot escape the
rigour of Article 14. It cannot act arbitrarily or at its sweet will. It must
AIR 1995 SC 1648
[1987]1SCR1
[1975]3SCR254
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comply with the equality clause while granting the exclusive right or
privilege of manufacturing or selling liquor It is, therefore, not possible to
uphold the contention of the State Government and Respondent Nos.5-11
that Article 14 can have no application in a case where the licence to
manufacture or sell liquor is being granted by the State Government. The
State Government cannot ride rough shed over the requirement of that
Article."
While referring to the said principle, the Division Bench of the
High Court of Andhra Pradesh at Hyderabad held that in the
allotment of fair price shops, the Government cannot act at its will
and pleasure and has got to follow the equality clause contained
under Article 14 in general and Article 15(1) of the Constitution in
particular, subject to such permissible discrimination, under Article
15(1) read with special reservation, permitted under Article 15(3) of
the Constitution of India.
In ―P.Katama Reddy v. Revenue Divisional Officer,
Anantpur‖ (referred suirpa), the Division Bench of the High Court
of Andhra Pradesh at Hyderabad also relied on another judgment
of the Apex Court in ―Indra Sawhney v. Union of India32‖, and
concluded as follows:
―(i) that women reservation in the matter of allotment of fair price
shops shall be fixed at 30%:
(ii) that while making the women reservation as specified above, the
Government has to follow the other reservations already in vogue;
(iii) that the fair price shop dealers selected from women quota shall
have to be adjusted both in the reserved category and also open category;
(iv) that the Government, while making reservations both for women
and other categories, shall ensure that reservations should not exceed
50% of the fair price shops;
(v) all notifications pursuant to the impugned memo stand set aside.
(vi) that the Government shall issue instructions in accordance with
the above directions, to all the appointing authorities for fair price shops
dealers; and
(vii) that each revenue division/circle shall be taken as a unit.‖
AIR 1993 SC 477
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If these principles are applied to the present facts of the case,
allotment of house sites exclusively to women is a clear violation of
principle of equality enshrined under preamble, Article 14 and 15 (1)
of the Constitution of India.
In ―Government of A.P. v. P.B. Vijay Kumar‖ (referred
supra), the Apex Court held that "making special provisions for
women in respect of employment or posts under the State is an
integral part of Article 15(3). This power conferred under Article
15(3) is not whittled down in any manner by Article 16. The special
provision, which the State may make to improve women's
participation in all activities under the supervision and control of the
State can be in the form of either affirmative action or reservation.
Article 15 deals with every kind of State action in relation to the
citizens of this country. Every sphere of activity of the State is
controlled by Article 15(1). There is, therefore, no reason to exclude
from the ambit of Article 15(1), employment under the State. At the
same time, Article 15(3) permits special provisions for women. Both
Articles 15(1) and 15(3) go together."
It was further held in that decision that the power conferred
by Article 15 of the Constitution is wide enough to cover the entire
range of State activity including employment under the State, that
the insertion of Clause (3) of Article 15 in relation to women is a
recognition of the fact that for centuries, women of this country have
been socially and economically handicapped, and that it is in order
to eliminate the socio-economic backwardness of women and to
empower them in a manner that would bring about effective equality
between men and women that Clause (3) is placed in Article 15, that
the avowed object is to strengthen and improve the status of the
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women and that an important limb of this concept of gender equality
is creating job opportunities for women. The Supreme Court also
condemned that to say that under Article 15(3), job opportunities for
women cannot be created, would be to cut at the very root of the
underlying inspiration behind this Article. Reservation can be
provided by invoking Article 15 (3) of the Constitution of India, but
Article 15 (1) and 15 (3) shall go together. As such, special provision
for women cannot be faulted, but conferment of any benefit
exclusively on women is found fault by the Division Bench of the
High Court of Andhra Pradesh at Hyderabad.
State legislature is competent to provide for reservation of
seats for women in the local authorities as the subject of local
Government is left exclusively to the State Legislature and there is
nothing in the Constitution which prohibits the State Legislature
from providing separate representation for women. Article 15 (3)
which is only a proviso to Article 15 (1) must be read with it. By
virtue of the proviso the State may discriminate in favour of women
against men but it cannot discriminate in favour of men against
women. The exception made by Article 15 (3) to Article 15 (1) applies
as well to existing laws as those which the State may make in
future. (Vide: ―Dattatraya Motiram More v. State of Bombay33‖)
Even according to the law laid down in the above judgment, a
special reservation can be provided for women in the local body
elections. But it is not a case of 100% reservation which conferring
benefit on the women taking advantage of Article 15 (3) of the
Constitution of India.
Very reading of the principle laid down by the Apex Court, it is
ILR 1953 Bom 842
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clear that special provision can be made for women and children as
permitted under Article 15 (3) of the Constitution of India, but total
discrimination of men, transsexual from women is prohibited. The
expression "special provision for" denotes provisions especially for
women & children as distinguished from the general which is
applicable to all alike and that such special provision is 'for' i.e. in
favour of women or children. The idea is to enable the State to make
special provision in favour of women and children to protect their
interest which the framers of the Constitution thought in their
wisdom demand protection in the present context of social well-
being in this country.
In the facts of ―S.Renuka v. State of A.P.34‖ recruitment has
taken up for appointment of Judges to Families Courts and Mahila
Courts in the cadre of District and Sessions Judges, Grade-II. All the
posts of District and Sessions Judge, Grade II created for such
appointment reserved for women candidates though 100%
reservation was not permissible under the Rules. The Supreme
Court held as follows:
―It is settled law that no right accrues to a person merely because a
person is selected and his or her name is put on a panel. The Petitioners
have no right to claim an appointment. Even otherwise, the selection was
contrary to the rules in force at that time. There could not be 100%
reservation for women. Also the reservation policy had not been adhered
to. The posts which are created are posts of District and Sessions Judges,
Grade II. There are no separate posts of Judges of Family Courts and
Mahila Courts. Thus the Petitioners could not be appointed as Judges of
Family Courts and Mahila Courts in ex-cadre posts even provisionally.
This would amount to creation of Ex-cadre posts not sanctioned by the
Government. No fault can be found with the High Court being in favour of
not appointing the Petitioners.
The unfortunate part is that even though Family Court and Mahila
Courts have been established no appointments have been made. Thus,
till date the Family Courts and Mahila Courts are not being manned.‖
(2002) 5 SCC 195
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In ―Union of India v. Permanand Singh35‖ 40 posts of
Telephone Operator were reserved for female candidates. It was held
that no provision available in recruitment rules for reservation of
posts of Telephone operators exclusively for women but while
issuing advertisement, the posts thrown open to female candidates
only, hence, the same is unconstitutional.
Thus, from the principles culled out in the above judgments, it
is clear that making special provision for allotment of house sites
exclusive to women under policy which is known as ―Navaratnalu -
Pedalandariki Illu‖ though not directly a reservation, which would
fall under Article 15 (4) and 16 (4) of the Constitution of India, but it
is only protective discrimination of women from men, transsexual.
In ―Smt.Savitri Agrawal v. K.K.Bose36‖, the Apex Court held
as follows:
―Article 15(1) forbids discrimination on the ground of sex but Article
15(3), which is in the nature of a proviso to Article 15(1). permits
discrimination in favour of women and children by the State if it makes a
special provision therefor. It does not permit such discrimination unless a
special provision is made for the purpose. Since it is the special provision
which enables the State to do what would otherwise have been
unconstitutional, the special provision must be distinct from the action
and the making thereof must precede the action sought to be justified
thereunder. The use of the word 'provision' also indicates that the special
provision must be made before a legal discrimination in favour of women
or children can be made. In the Webster Twentieth Century Dictionary,
two of the meanings given to the word 'provision' are:--
(1) something provided, prepared or supplied for the future; and
(2) preparatory arrangement or measure taken in advance for meeting
some future needs.
It thus appears that the special provision is to be made, so that it may
be applied to cases or matters which have not yet been decided.
The effect of Article 15(3) is that any special provision made for women
or children cannot be challenged on the ground that there is no
1999 Supreme Court Cases (L&S) 625
AIR 1972 All 305
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reasonable basis for the classification having regard to the object of the
provision; such a provision is protected from attack on the ground of
contravention of Articles 14 and 15(1). The special provision must be for
benefiting generally women or children as a class. The word 'provision'
includes within its meaning a legislative enactment, a rule, a regulation
and a general order and it is in this sense that it has been used in Article
15(3). What Article 15(3) contemplates is the making of special provision
for women as a class and not the making of provision for an individual
woman. It is not possible to read the word 'provision' as including a
decision given in a particular case or matter as it can lead to arbitrary
and anomalous results. If that could be done, then an officer, before
whom three cases are pending, may give preference to women in one, to a
member of the scheduled caste or tribe in another and to the most
deserving person only in the remaining case; or he may give preference to
women in all the cases or to members of the scheduled castes and tribes
in all the cases or may decide all the cases on merits. Such a result was
not intended by the Constitution makers.
(emphasis supplied)
The policy of protective discrimination is an endeavor to
achieve social justice in India. It aims at granting special privileges
to the socially backward and underprivileged section of the society,
most commonly the scheduled castes, scheduled tribes, other
backward classes, and women. These are the sections of people who
often face racial or caste-based discrimination through centuries by
the privileged classes on account of their differences based on sex,
religion, place of birth, race, and most prominently based on the
institution called the caste system. Efforts had been made by the
founding fathers of the Constitution to address the malady through
affirmative action. These actions are justifiably enshrined in the
Constitution of India as ―Protective Discrimination‖. In India, the
Constitution through its various provisions guarantees the rights of
the downtrodden and underprivileged by way of reservations or
quota in educational institutions, employment, and parliamentary
privileges as well as command the legislatures to legislate special
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provisions for their overall advancement. Article 14 of the
Constitution does not speak of mere formal equality but embodies
real and substantive equality. The essence of equality as a facet of
the Constitutional tenets adopted to strike out inequalities arising
on account of vast social and economic disparities among the
citizens and is thus consequently an indispensable element of social
and economic justice. However, absolute equality is impossible. The
right to equality under part III of the Constitution therefore is not
absolute and is subject to reasonable exceptions. Equality does not
essentially mean that all laws should be universal and general in
application neither all laws can be applicable in all circumstances.
Explaining the concept of equality, the Supreme Court in "Marri
Chandra Sekhar Rao v. Dean, Seth G.S Medical College37",
observed that, equality must be a living reality for the people. Those
who are unequal in status and opportunity cannot be treated by
identical standards. Article 14 permits reasonable classification
between potential underprivileged and privileged sections of citizens
based on definite schemes but strikes out class legislation.
Reasonable classification explains that classification or segregation
must not be artificial, evasive, and arbitrary. Such classifications
must be based on the rule of intelligible differentia which
differentiates between different classes or group of persons from
those left out of the group. Most importantly, there must be rational
nexus between the differentia and the object sought to be achieved.
(Vide:K.Thimmappa v. Chairman, Central Board of Directors,
SBI38‖)
Article 15(1) restricts the state from unreasonable bias or
1990 (3) SCC 130
AIR 2001 SC 467
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adverse distinction from one another only on account of caste, sex,
race, religion, and place of birth. However, when the discrimination
rests only on these grounds, Article 15(1) comes to play. There is an
intrinsic correlation between Article 14 and Article 15. Whilst these
articles guarantee equality of opportunity and equality of treatment
to all, neither of these articles prohibits reasonable classification. It
means that special treatment meted out to a particular class of
citizen by the State on account of some special reasons and
circumstances is justifiable, but should be on reasonable grounds.
Article 15(3) enables the State to confer special rights to
women, and children. This provision empowers the State to make
special provisions and enactments in favor of women and children
for their all-round upliftment in the society. This provision is
specially designed to strengthen and improve the status of women.
In ―State of Madras v. Champakam Dorairajan39", a
landmark judgment on reservation, the decision of Madras
Government to reserve seats in the State Medical and Engineering
Colleges for different communities on the grounds of religion and
caste in the proportion of students in each community was
challenged as violative of Article 15(1). The state government
contended that the order was made in furtherance of the Directive
Principle of State Policy enshrined in Article 46 of the Constitution.
Although the Apex court held the impugned order is void, it was
observed that the State must enforce only the justiciable provision of
the Constitution. The court gave a literal interpretation to the
Constitutional provisions which led to the insertion of Clause (4) to
Article 15.
AIR 1951 SC 226
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Where the essence of the right to equality is pervading
throughout the constitution, it also speaks of special treatment to a
particular section. The very idea of granting special privilege to
depressed and backward classes is termed as ‗protective' or ‗positive'
discrimination.
The special provision/protective discrimination contemplated
under Article 15 (3) of the Constitution of India which the State may
make to improve women's participation in all activities under the
supervision and control of the State can be in the form of either
affirmative action or reservation. It was also held in ―Government of
A.P. v. P.B. Vijaya Kumar‖ (referred supra), the State may fix a
quota for appointment of women in Government Services. Also, a
rule saying that all other things being equal, preference would be
given to women to the extent of 30% of the posts is valid. It was
stated therein that though Article 15 (1) prohibits discrimination on
the ground of sex, Article 15 (3) carves out permissible departure
from the rigor of Article 15 (1) of the Constitution of India. Women
as a class neither belong to a minority group nor are they regarded
as forming a Backward Class. India has traditionally been a male
dominated society and, therefore, presently women suffer from many
special and economic disabilities and handicaps. It thus becomes
necessary that such condition be created and necessary ameliorative
steps be taken, so that women as a class may make progress and
are able to shed their disabilities as soon as possible. This principle
is reiterated by clause (1) of Article 15 of the Constitution of India by
providing that ―the State shall not discriminate against any citizen
on grounds only of religion, race, caste, sex, place of birth or any of
them‖. Article 15 (3) is an exception to Article 15 (1) of the
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Constitution of India, which is intended for empowerment of women
and to make them financially more sound. It is intended for
empowerment of women within the permissible limits as held in
―Government of A.P. v. P.B. Vijaya Kumar‖ (referred supra). In
employment, reservation can be provided to women in terms of
Article 15 (4) and 16 (4) of the Constitution of India, but it must be
read together with Article 15 (3) of the Constitution of India,
otherwise it is difficult to construe these provisions harmoniously.
What does the expression ―Special Provision‖ under Article 15
(3) of the Constitution of India means? The ―special provision‖ which
the State may make to improve women's participation in all
activities under the supervision and control of State can be in form
of either affirmative action or reservation. It includes the power to
make reservation for women. Talking about the provision giving
preference to women, the Court held that this provision does not
make any reservation for women. It amounts to affirmative action. It
operates at the initial stage of appointment and when men and
women candidates are equally meritorious. Under Article 15 (3) both
reservation and affirmative action are permissible in connection with
employment or posts under the State. Article 15 is designed to
create an egalitarian society.
Here, in this case, a positive action is taken by the State to
allot house sites to women household not for their improvement or
empowerment, but such reservation in allotment of house site must
be within the permissible limit or not, is a question to be decided
keeping in view the principle laid down in ―Government of A.P. v.
P.B. Vijaya Kumar‖ (referred supra), where 30% reservation is
created and the same is questioned, but the Court did not accept
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the contention raised by the petitioners therein, since such positive
discrimination is within reasonable or permissible limits.
In support of the affirmative action taken by the State, learned
Additional Advocate General relied on the judgment of the Apex
Court in ―Vijay Lakshmi v. Punjab University40‖, wherein the
Division Bench upheld the contention of the State that provision to
attend women as principal of women college cannot be held to be
violative of right of equality since it is special provision for treatment
of women under Article 15 (3) of the Constitution of India.
The said principle has no application to the present facts of
the case for the reason that it is a case where appointment was
made to Girls College/Women College, and contact with a man by
many women/girls may seriously affect the privacy of a girl or
women. So, in the circumstances, the Supreme Court held that it is
a permissible discrimination.
Sri V.S.R.Anjaneyulu, learned counsel for petitioners, while
contending that the special provision under Article 15 (3) of the
Constitution of India must be within a reasonable/permissible limit,
otherwise the same has to be struck down as it is violative of Article
15 (1) read with Article 14 of the Constitution of India, he placed
reliance on ―Akhil Bhartiya Upbhokta Congress v. State of
Madhya Pradesh41‖ wherein the Apex Court held that the
distribution of largesse like allotment of land by State and its
agencies/instrumentalities shall be done in fair and equitable
manner.
In ―Charu Khurana v. Union of India42‖ the association of
AIR 2003 SC 3331
(2011) 5 SCC 29
(2015) 1 SCC 192
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Make-up artists refused membership to female members on the
basis of gender discrimination. When the same is challenged, the
Apex Court concluded that the discrimination done by Association
could not take route of discrimination solely on basis of sex; the
Association really played foul of statutory provisions; and if female
artist did not get opportunity to enter into arena of being member of
Association, she could not work as female artist. Likes of petitioners
were given membership as hair dressers, but not as make-up artist,
and that there was no fathomable reason for the same and denial of
issue of card to work as make-up artists on ground that one was not
resident of state, had no rationale. As the clauses relating to
membership and domicile were vioaltive of statutory provisions and
constitutional mandate, quashed such clauses and directed the
Association to register the petitioners therein as their members.
The aim of the scheme is to provide house site to houseless,
but not to provide house site to women exclusively. Article 14 and
Article 15 (1) of the Constitution of India deals with equality.
However, an exception is carved out under clause (3) of Article 15 of
the Constitution of India. Similarly, Article 15 (3) and 16 (4) deals
with equality and equal opportunities in public employment and
Article 15 (3) while permitting special provision to women and
children, similarly, SCs and STs and other BCs. Same analogy can
be applied either to Article 15 (1), 15 (3), 15 (4) and Article 16 (4) of
the Constitution of India.
Article 14 of the Constitution of India states that: ―the State
shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.‖ In practice this
guarantee has been read to infer ‗substantial' equality as opposed to
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‗formal' equality, as judicially explained and elaborated upon in
series of judgments of the Apex Court and other Courts in India. The
latter dictates that only equals must be treated as equals and that
unequal may not be treated as equals. This broad paradigm itself
permits the creation of affirmative action by way of special laws
creating rights and positive discrimination by way of reservations in
favour of weaker classes of society.
Article 15 is an extension of Article 14 which talks about
―equality among individuals‖ and ―equality before the law‖. It has
been reiterated by the Apex Court in number of decisions including
the Indra Sawhney v. Union of India‖ (referred supra). Article 15
derives its entire power from Article 14 as Article 15(3) is not a
stand-alone constitutional provision, but nestled within the Articles
14,15 and 16 equality scheme. The use of the phrase nothing in this
Article, as a precursor to Article 15(3) suggests that where a
legislative classification might otherwise have fallen foul of the non-
discrimination guarantee of Article 15(1), Article 15(3) would save it.
However, Article 15(3) is itself a part of Article 15, suggests that the
goal of such classification must also fit within the concept of
equality. Consequently, laws making ―special provisions‖ for women
(and children) ought to be judicially reviewed to find out whether or
not they bear some connection with remedying the historical and
structural subordination of women. This necessitates that the
principle aim of Articles 14 and 15 (1) to treat the equals equally. But
Clause (3) of Article 15 is a special provision and both the provisions
have to be harmonised keeping in mind the fact that both are but the
restatements of the principle of equality enshrined in Article 14.
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In ―Shri Ram Krishna Dalmia v. Shri Justice S.R.
Tendolkar" and Ors43‖, it was held that ―the Constitution permits
valid classification founded on an intelligible differentia
distinguishing persons or things grouped together from others left
out of the group. And such differentia must have a rational relation
to the object sought to be achieved by the law.‖
In ―State of Kerala v N.M. Thomas44", it was held by Apex
Court that Articles 14, 15 and 16 are to be read together and they
together constitute the guaranteed right of equality which requires
the State not only to abstain from discrimination but actually bring
about equality.
In ―Charan Singh v Union Of India45‖, it was observed that
―the language used in Article 15(3) is similar to that of Article 15(4).
This guarantee is an extension of specific application of the general
principles of Equality contained in Article 14". It has been held by the
Apex Court that Articles 14, 15 and 16 forming part of the same
constitutional goal of guarantees which are supplementary to each
other.
From the above proposition of law laid down by the Apex Court
in number of decisions, it is established that Articles 14, 15 and 16
forms part of the same scheme of equality enshrined under the
Constitution and any enabling provision made in favour of weaker
section under Articles 15 and 16 must be in consonance with the
principles of equality under Article 14. The limit upon the reservation
is an empathetic approach of protecting the equality principles.
It aims at the formation of an egalitarian order, free from
[1959] SCR 279
(1976) 2 SCC 310
ILR 1979 Delhi 422
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exploitation, the fundamental equality of humans and to provide
support to the weaker sections of the society and where from
there is a disparity to make them equal by providing protective
discrimination.
Article 14 guarantees equality before the law or the equal
protection of the laws. Be, it a matter of distribution of State
largesse; the Government is obligated to follow the
Constitutionalism, the state action cannot be arbitrary and
discriminatory and cannot be guided by extraneous considerations,
which is opposed to equality. There cannot be any legislation in
violation of equality, which violates the basic concept of equality
as enshrined in Part III of the Constitution. The concept of
equality cannot be pressed to commit another wrong. The concept
of equality enshrined in Article 14 of the Constitution is
a positive concept. It is not a concept of negative equality. It cannot
be used to perpetuate an illegality. Article 14 is to be understood in
the light of the Directive Principles, as observed in Indra Sawhney
v. Union of India‖ (referred supra). The classification made
cannot be unreasonable. It can be on reasonable basis. It cannot be
arbitrary but must be rational. It should be based on intelligible
differentia and must have rational nexus to the object
sought to be achieved.
In the present case, the aim of the scheme is to provide house
site to houseless poor as per clause (1) of the G.O.Ms.No.367 dated
19.08.2019, which is as follows:
―1.Objective:
To provide a House Site Patta to the Homeless poor people in
Rural/Urban areas in order to facilitate the construction of a Pucca House
under the flagship programme ―Navaratnalu - Pedalandariki Illu‖.
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The objective of the scheme is to provide house site to
homeless poor, but not to women. Therefore, the policy to allot house
site in favour of women is not inconsonance with the object of the
scheme as per clause (1) of G.O.Ms.No.367 dated 19.08.2019. Hence,
allotment of house site exclusively in the name of women is contrary
to the objective of the scheme and there is no direct nexus between
the objective in clause (1) and clause 2 (a) and (b) of G.O.Ms.No.367
dated 19.08.2019.
Sri V.S.R.Anajneyulu, learned counsel for the petitioners,
would contend that allotment of house site exclusive to women
amounts to creating 100% reservation in allotment based on the
policy, and such 100% reservation for allotment of house site
impermissible under law.
In view of this contention, it is appropriate to advert to the
judgment of the Apex Court in ―Chebrolu Leela Prasad Rao v State
of Andhra Pradesh46‖, where the State of Andhra Pradesh created
100% reservation in favour of tribles for appointment of teachers to
work in triable areas. The same was challenged before the Apex
Court and the Constitutional Bench of the Apex Court held that
the 100% reservation would amount to unreasonable and unfair and
cannot be termed except as unfair and unreasonable and is arbitrary
and violative of Article 14 of the Constitution.
Finally, the Apex Court concluded that creation of 100%
reservation is opposed to principle of equality after referring the law
laid down in various earlier judgments in ―Indra Sawhney v. Union
of India‖ (referred supra), ―M.R.Balaji v. State of Mysore47‖, ―State
(2020) SCC Online SC 383
1963 Supp 1 SCR 439
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of Kerala v. N.M.Thomas‖ (referred supra), arrived at conclusion as
follows:
―The 100 percent reservation has been provided. It cannot be said to be
a case of classification that has been made Under Article 16(1). Assuming,
for the sake of argument, it is to be a case of classification Under Article
16(1), it would have been discriminatory and grossly arbitrary without
rationale and violative of constitutional mandate.‖
Thus, 100% reservation to any class is impermissible under
law in the employment. In the instant case, 100% reservation is
provided to women for allotment of house site is contrary to the
principle laid down by the Constitutional Bench of the Apex Court in
―Chebrolu Leela Prasad Rao v State of Andhra Pradesh‖ (referred
supra).
Similarly, in ―R.Chitralekha v State of Mysore48‖, it was laid
down by the Court that a little relaxation is permissible with great
care. Reservation is an exception to the general rule. The quantum
of reservation should not be excessive and societally injurious.
Similar to Article 16(4) and 15(4), Article 15(3) is an enabling
provision that provides for special provisions to be made in favour of
women and children. The purpose behind insertion of this Article is
also for the reinstatement of the equality principle enshrined in
Article 14. Thus, the provisions under Article 15(3) similar to Article
16(4) should be balanced against the guarantee held out to every
citizen under equality enshrined in Article 15(1).
The policy of the Andhra Pradesh government impinges upon
the right of the other members of the economically weaker sections.
This housing scheme has been launched with the purpose of
providing basic amenities to the poor sections and not for upliftment
of the status of the women. There is a difference between
(1964) 6 SCR 368
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empowerment of women and upliftment of women by creating 100%
reservation to women. The scheme is not intended for empowerment
of women or for upliftment of women, thereby there is no reasonable
nexus between the object in clause (1) of G.O.Ms.No.367 dated
19.08.2019 and allotment of plot as stated in clause (2) exclusively in
favour of women. When there is no reasonable nexus for creating
such special provision to women in clause (2) of the G.O.Ms.No.367
and object of the said G.O., the very creation of 100% reservation in
favour of women for allotment of house site is in contravention of
principle of equality enshrined in Article 14 and 15 (1) of the
Constitution of India. Though, there is little relaxation to create such
provision in the scheme or any enactment by the State, 100%
reservation in allotment of house site to women household is against
the total concept of equality enshrined in Article 14 and 15 (1) of the
Constitution of India.
The Apex Court in ―Chebrolu Leela Prasad Rao v State of
Andhra Pradesh‖ (referred supra) had an occasion to discuss about
the effect of arbitrariness in the State acts or policy. The Apex Court
while referring to ―S.R. Chaudhuri v. State of Punjab49‖, ―Col. A.S.
Iyer v. V. Balasubramanya50‖ ―Ajay Hasia and Ors. v. Khalid
Mujib Sehravardi51‖ ―Maneka Gandhi v. Union of India52‖,
―Ramana Dayaram Shetty v. International Airport Authority of
India53‖, held that when the act of the State is illegal, arbitrary and
violative of provisions of Article 14 of the Constitution of India, the
Court can interfere with such decision of the State either on the
administrative or quasi judicial.
(2001) 7 SCC 126
(1980) 1 SCC 634
(1981) 1 SCC 722
(1978) 1 SCC 248
(1979) 3 SCC 489
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As discussed above, in the instant case, clause (2) of
G.O.Ms.No.367 dated 19.08.2019 is not in consonance with the
clause (1) and that there is no rationale behind clause (2) in
allotment of house site to women household alone and it is nothing
but transgression of Constitutional limitation enunciated under
Article 14 and 15 (1) of the Constitution of India though it is part of
concept of equality. Therefore, clause (2) of G.O.Ms.No.367 dated
19.08.2019 is arbitrary and violation of Article 14 and 15 (1) of the
Constitution of India.
Taking into consideration the hypothetical situation where a
bachelor, widower with children living below poverty line, they are
not entitled to claim the benefit of scheme ―Navaratnalu -
Pedalandariki Illu‖. Does it amount to distribution of resources
based on equality is a question to be decided. If the principle laid
down by the Apex Court in ―Akhil Bhartiya Upbhokta Congress v.
State of Madhya Pradesh‖ (referred supra), certainly it amounts to
discrimination of eligible men from women and they will remain as
houseless poor forever on account of denial of house site allotment
under the scheme ―Navaratnalu - Pedalandariki Illu‖. Similarly, if
a woman obtains divorce after allotment of house site, husband and
children would remain houseless poor. These hypothetical situations
were not visualised and taken into consideration by the State while
taking such policy decision. Thus, it directly amounts to depriving
eligible men to claim the benefit under the said scheme, which is
violative of Article 14 of the Constitution of India and contrary to the
obligation that vested on the State to distribute material resources
among the citizens equally as prescribed under Article 39 of the
Constitution of India.
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In case of transsexuals, most of them are living below the
poverty line and living by begging, without any shelter for their
protection. They are facing lot of humiliation for the treatment
extended to them. Though, it is the obligation of the State to take
necessary steps to treat transsexual on par with men and women,
the State did not take any positive action so far. Denial of allotment
of house sites to transsexuals is violative of Article 14 of the
Constitution of India since Article 15 speaks about men and women,
but not about transsexuals, for the reason that the Constitution
framers did not visualise such situation by the time of preparing
Constitution of India.
In ―National Legal Services Authority v. Union of India‖
(referred supra) the Apex Court highlighted the duty of the State to
protect the transsexuals and held as follows:
―In this country, Transgender community comprise of Hijras, enunch,
Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. In Indian community
transgender are referred as Hizra or the third gendered people. There
exists wide range of transgender-related identities, cultures, or
experience-including Hijras, Aravanis, Kothis, jogtas/Jogappas, and Shiv-
Shakthis
Though there may not be any statutory regime recognizing 'third
gender' for these TGs. However, we find enough justification to recognize
this right of theirs in natural law sphere. Further, such a justification can
be traced to the various provisions contained in Part III of the
Constitution relating to 'Fundamental Rights'. In addition to the powerful
justification accomplished in the accompanying opinion of my esteemed
Brother, additional raison d'etre for this conclusion is stated hereinafter.
We are in the age of democracy, that too substantive and liberal
democracy. Such a democracy is not based solely on the rule of people
through their representatives' namely formal democracy. It also has other
percepts like Rule of Law, human rights, independence of judiciary,
separation of powers etc.
There is a recognition to the hard realty that without protection for
human rights there can be no democracy and no justification for
democracy. In this scenario, while working within the realm of separation
of powers (which is also fundamental to the substantive democracy), the
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judicial role is not only to decide the dispute before the Court, but to
uphold the rule of law and ensure access to justice to the marginalized
section of the society. It cannot be denied that TGs belong to the
unprivileged class which is a marginalized section.
The role of the Court is to understand the central purpose and theme
of the Constitution for the welfare of the society. Our Constitution, like
the law of the society, is a living organism. It is based on a factual and
social realty that is constantly changing. Sometimes a change in the law
precedes societal change and is even intended to stimulate it. Sometimes,
a change in the law is the result in the social realty. When we discuss
about the rights of TGs in the constitutional context, we find that in order
to bring about complete paradigm shift, law has to play more pre-
dominant role. As TGs in India, are neither male nor female, treating
them as belonging to either of the aforesaid categories, is the denial of
these constitutional rights. It is the denial of social justice which in turn
has the effect of denying political and economic justice.‖
Further, the Apex Court in the said judgment held that ―Centre
and State Governments should also take steps for framing various
social welfare schemes for the betterment of Transgenders. Centre
and State Governments should take steps to create public awareness
so that Transgenders will feel that they are also part and parcel of
the social life and be not treated as untouchables. Centre and the
State Governments should also take measures to regain their respect
and place in the society which once they enjoyed in our cultural and
social life.‖
Consciously, the State did not make any provision to provide
shelter to transsexuals though they are citizens of India, entitled to
claim equal protection and protection of laws under Article 14 of the
Constitution of India. Failure to allot house site to transsexuals
ignoring them totally would amount to depriving their right of
equality guaranteed under Article 14 of the Constitution of India. If,
house sites are not being allotted to them, they will remain homeless
throughout their life as there is no possibility for them to acquire
such property with the meagre amount or means they are getting.
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On this ground also, allotment of house site only to women is
violative of Article 14 and 15 (1) of the Constitution of India.
Learned counsel for the petitioners also contended that
discriminating men, transsexuals from women is violative of
international covenants on Human Rights. Article 7 of the Universal
Declaration of Human Rights deals with equality before law. Article
17 of the Universal Declaration of Human Rights deals with right to
own property. At the same time, Article 26 of International Covenant
on Civil and Political Rights deals with ―equality before law.‖, they
are tabulated as follows:
UNIVERSAL DECLARATION INTERNATIONAL COVENANT ON
OF HUMAN RIGHTS CIVIL AND POLITICAL RIGHTS
Article 7: Article 26:
All are equal before the
law and are entitled without All persons are equal before
any discrimination to equal the law and are entitled without any
protection of the law. All are discrimination to the equal
entitled to equal protection protection of the law. In this
against any discrimination in respect, the law shall prohibit any
violation of this Declaration discrimination and guarantee to all
and against any incitement to persons equal and effective
such discrimination. protection against discrimination on
any ground such as race, colour,
Article 17: sex, language, religion, political or
Everyone has the right other opinion, national or social
to own property alone as well origin, property, birth or other
as in association with others. status.
No one shall be
arbitrarily deprived of his
property
If the present case is examined in the background of Article 7
and 17 of the Universal Declaration of Human Rights and Article 26
of International Covenant on Civil and Political Rights, where no
exception is carved out for making special provision to women like
Article 15 (3) of the Constitution of India, allotment of house sites
exclusively to women is violative of Article 7 and 17 of the Universal
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Declaration of Human Rights and Article 26 of International
Covenant on Civil and Political Rights, but the State while taking
policy decision vide G.O.Ms.No.367 Revenue (Assignment-I)
Department dated 19.08.2019 and G.O.Ms.No.488 Revenue
(Assignment-I) Department, dated 02.12.2019 did not consider the
alleged human rights of men and transsexuals, thereby clause 2 of
said G.Os can be held to be violative of Article 7 and 17 of the
Universal Declaration of Human Rights and Article 26 of
International Covenant on Civil and Political Rights.
In ―National Legal Services Authority v. Union of India‖
(referred supra), the Apex Court referred to several international
covenants.
If the those covenants are applied to the present facts of the
case, , the policy decision taken by the State, clause 2 of
G.O.Ms.No.367 Revenue (Assignment-I) Department dated
19.08.2019 and G.O.Ms.No.488 Revenue (Assignment-I)
Department, dated 02.12.2019 is a grave violation of right to
equality of citizens guaranteed under Article 14, 15 (1) of the
Constitution of India, and Article 7 and 17 of the Universal
Declaration of Human Rights and Article 26 of International
Covenant on Civil and Political Rights.
When the Court found that allotment of house site exclusively
to women is violative of Article 14, 15 (1) of the Constitution of India,
such clauses in the Government Orders issued for exclusive
allotment of house site to women are liable to be set aside.
As discussed in earlier paragraphs, the decision taken by the
State to allot house sites exclusively to women is contrary to the law
declared by the High Court of Andhra Pradesh at Hyderabad in
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―P.Katama Reddy v. Revenue Divisional Officer, Anantpur‖
(referred supra) and the Apex Court in ―State of M.P. v. Nandlal
Jaiswal", ―Government of A.P. v. P.B. Vijaya Kumar‖, ―Chebrolu
Leela Prasad Rao v. State of Andhra Pradesh‖ (referred supra).
The policy decision taken by the State to provide protective
discrimination by way of special provision provided under
Article 15 (3) of the Constitution of India must be within permissible
limits i.e. 30% (thirty percent) and apart from that giving preference
to women exclusively is violative of Article 14 and 15 (1) of the
Constitution of India besides violation of International Covenants on
Human Rights by applying the principles laid down by the above
judgments, guideline No.2 of G.O.Ms.No.367 dated 19.08.2019 is
liable to be struck down as unconstitutional.
One of the contentions of learned Additional Advocate General
is that the scheme formulated by the State for allotment of house
sites to houseless poor is a prestigious programme appreciated by
everyone in the State and in case any clause in the impugned
Government Order is declared as illegal and arbitrary, it would affect
25,00,000 families besides loss to exchequer. No doubt, it will affect
members of more than 25,00,000 families besides loss to the
exchequer. But, this Court has to examine whether such laudable
scheme can be sustained with such irregular and arbitrary clause.
While interpreting various clauses in the impugned
Government Orders, the Court has to examine its effect or operation
of the Statute or policy decision of State, which is the determining
factor and not its purpose or motive. Accordingly the court should
hold a law repugnant to the guarantee given by Art. 15(1), if as a
result of the law, a person is denied any right or privilege solely
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because of his religion, sex, caste, race or place of birth. In ―Punjab
Province v. Daulat Singh54‖ while a similar provision in Section
298 of the Government of India Act, 1935 was under challenge, Privy
Council said that ―it is not a question of whether the impugned Act
is based only on one or more of grounds specified in Section 298(1),
but whether its operation may result in a prohibition "only‖ on those
grounds. The proper test as to whether there is contravention of
sub-section is to ascertain the reaction of the impugned Act, on the
personal right, conferred by the sub-section and while the scope and
object of the Act may be of assistance in determining the effect of the
operation of the Act on a proper construction of its provision, if the
effect of the Act so determined involves an infringement of such
personal right, the object of the Act, however laudable, will not
obviate the prohibition of sub-section (1)."
By applying this principle to the present facts of the case,
though the scheme is laudable for the benefit of 25,00,000 families,
the conditions in the impugned Government Orders are not only
contrary to the object, but also violative of Article 14 and 15 (1) of
the Constitution of India so also international covenants of Human
Rights on equality of women, men and Transsexual as total
allotment was to women only.
In view of my foregoing discussion, the point is held against
the respondents and in favour of the petitioners declaring that
guideline No.2 of G.O.Ms.No.367 dated 19.08.2019 is illegal,
arbitrary and violative of Article 14, 15 (1) of the Constitution of
India and defeating the object of scheme and Article 39 of the
Constitution of India besides violative of Article 7 and 17 of the
AIR 1946 PC 66
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Universal Declaration of Human Rights and Article 26 of
International Covenant on Civil and Political Rights and liable to be
set aside. Accordingly, the point is answered.
P O I N T No.5:
The petitioners raised a vague plea in the petition about right
to residence while referring to a judgment in ―Francis Coralie
Mullin v Administrator, Union Territory of Delhi‖ (referred supra)
(Vide paragraph No.14 of the affidavit). However, the respondents
denied the same while contending that it has no relevance to the
present facts of the case, and it needs no consideration. (paragraph
No.9 of the counter of respondent No.1).
Learned counsel for the petitioners, during hearing, raised
several other contentions regarding inadequacy of site proposed to
be allotted under impugned Government Orders, its impact on
health, psychological and spiritual development, economic growth
besides of violative of the Andhra Pradesh Building Rules, 2017 and
such cluster of plots would cause health hazards to the residents of
those colonies due to inadequacy of housing. On this ground also,
he sought to set aside the impugned Government Orders.
Whereas, learned Additional Advocate General would contend
that in the absence of specific pleadings, the Court is not required to
adjudicate on such issue. Mere referring to judgment in ―Francis
Coralie Mullin v Administrator, Union Territory of Delhi‖
(referred supra) is not sufficient in the absence of details as to how
the respondents violated various norms including the Andhra
Pradesh Building Rules, 2017.
Learned Additional Advocate General further contended that
there are no specific pleadings in support of the contentions urged
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in the petition. In the absence of any pleading, the Court cannot
look into such contention. In view of these rival contentions, it is
appropriate to advert to law to decide whether this Court is
competent to take cognizance of new plea raised for the first time
during argument. When it is a pure question of law, arising from the
record, can be raised for the first time, even before the Supreme
Court (Vide: ―State of U.P. v. Anupam55‖ and ―Tarini Kamal
Pandit v. Profulla Kumar Chatterjee56‖)
It is always the discretion of the Court either to allow or not to
allow a new point to be taken for the first time during argument.
(Vide: Rattan Lal v. Vardesh Chandar57‖)
At the same time, generally, parties are not allowed to take
new pleas, but certain exceptions are carved out by the Apex Court
in various judgments.
As a general rule, new plea is not allowed. But, there are
exceptions. (1) Grounds based on facts which are clearly on record
(Vide: Corporation of City of Nagpur v. Nagpur Electric Light
and Power Co. Ltd.58‖) (2) A plea going to the root of the jurisdiction
of the inferior tribunal which is based on a decision of the High
Court which was delivered subsequent to the filing of the writ
petition. (Vide: Sharma M.S.M. v. Sri Krishna Sinha59) (3) A pure
question of law or constitutionality or in cases where the State is
supporting the validity of law on a new ground. (Vide: Burrakor
Coal Co. v. Union of India60)
New points are allowed to be taken when the same go to the
AIR 1992 SC 932
AIR 1979 SC 1165
AIR 1976 SC 588
AIR 1958 Bom 498
AIR 1959 SC 395
AIR 1961 SC 954
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root of the matter or are otherwise of considerable importance or
had something to do with the interpretation of statute. Even though
the petitioner had submitted to the jurisdiction of an authority
which he had not questioned in the petition, the court allowed the
petitioner to urge the point of jurisdiction as the same went to the
root of the matter. (Vide: Arunachalam Pillai v. Southern
Roadways Ltd.61) On the question of interpretation of statute, the
point was allowed to be taken for the first time in appeal. (See:
Gandumogula Tatayya v. Jagapathiraju62).
The State intend to allot house sites to 25,00,000 families. On
an average, each family consists of 3 to 4 members. Since, the
future of 25,00,000 families consisting of approximately one crore
people is depending upon the adequacy of housing, this Court has
undertaken this entire exercise for the wellbeing and future
development of members of 25,00,000 families. Hence, I find that it
is appropriate to consider the contentions of the learned counsel for
the petitioners with reference to the law laid down by the Courts in
various judgments, in the interest of public.
The law is clear that the question purely based on record
though not specific plea is raised can be permitted to be urged for
the first time during hearing, when there is no dispute regarding
particular fact.
In the present case, the petitioners vaguely raised a plea in
paragraph No.14 of the affidavit filed in support of the petition, but
did not amplify the principle laid down therein obviously for the
reasons best known to them. Thus, there is a vague plea, but not
specifically pointing out the violations of human rights, effect of
AIR 1960 SC 1191
AIR 1967 SC 647
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allotment of Ac.0.01 cent in Municipalities and Ac.0.01 ½ cent in
Panchayat area, on the psychological, spiritual, economic
development of members of the family and how it effects the privacy
and health of individuals is raised for the first time, on account of
allotment of house site of Ac.0.01 cent in Municipal areas and
Ac.0.01 ½ cent only in Panchayat area. Since, it is an undisputed
fact, when such point is raised, the Court cannot ignore such vague
plea as it will have serious impact on the members of 25,00,000
families and their family members regarding their development in
future, that apart, it is nothing but violation of fundamental right
guaranteed under Article 21 of the Constitution of India besides
violative of International covenants on Human rights regarding
adequate housing. Keeping in view the principles laid down by the
Apex Court in various judgments, I find that it is appropriate to
examine the issue in detail though the plea is vague for the reason
that it is a matter of serious violation of fundamental right
guaranteed under Article 21 of the Constitution of India and various
articles of international covenants regarding adequate housing. At
the same time, World Health Organisation also issued certain
guidelines with reference to health and housing.
It is an undisputed fact that as per Guideline No.2 of
G.O.Ms.No.367 Revenue (Assignment-I) Department dated
19.08.2019, the State proposed to allot Ac.0.01 cent in Municipal
Area and Ac.0.01 ½ cent in Grampanchayat, which I extracted in
the earlier paragraph of the order. Therefore, allotment of limited
extent of house site of Ac.0.01 cent in Municipal Area and Ac.0.01 ½
cent in Panchayat area is not in dispute.
The right to shelter was recognised by the Apex Court as
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human right and it forms part of various international convents of
Human rights. Right to adequate housing is also recognised as a
Human Right. Article 11 of International Covenant on Economic
Social and Cultural Rights deals with adequate standard of living,
which reads thus:
―1. The States Parties to the present Covenant recognize the right of
everyone to an adequate standard of living for himself and his family,
including adequate food, clothing and housing, and to the continuous
improvement of living conditions. The States Parties will take appropriate
steps to ensure the realization of this right, recognizing to this effect the
essential importance of international co-operation based on free consent.
Similarly, Article 25 of the Universal Declaration of Human
Rights recognised right to a standard of living, which is as follows;
―Everyone has the right to a standard of living adequate for the health
and well-being of himself and of his family, including food, clothing,
housing and medical care and necessary social services, and the right to
security in the event of unemployment, sickness, disability, widowhood,
old age or other lack of livelihood in circumstances beyond his control.
Motherhood and childhood are entitled to special care and assistance.
All children, whether born in or out of wedlock, shall enjoy the same
social protection.‖
Article 17 of International Covenant on Civil and Political
Rights recognised right to privacy, which is as follows:
1. No one shall be subjected to arbitrary or unlawful interference with
his privacy, family, home or correspondence, nor to unlawful attacks on
his honour and reputation.
2. Everyone has the right to the protection of the law against such
interference or attacks.
Keeping in view the different articles in International
covenants on Human Rights, I would like to advert to the law laid
down by the Apex Court and various High Courts. The justiciability
of the human right to adequate housing has been limited in India
due to the absence of strong and rights-based laws and policies
related to housing. Although India has ratified several international
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human rights instruments, which mandate the guarantee and
protection of the human right to adequate housing, it has not
independently recognized or defined the right within its legislative or
constitutional framework. The courts have often been inconsistent
and even contradictory in their interpretation and treatment of the
right to adequate housing, not necessarily recognizing it as an
independent human right or providing human rights-based
remedies. Various perspective pronouncements of the Apex Court
and other High Court elaborated several aspects of the right to
adequate housing, deriving primarily from the right to life and
personal liberty. The ‗right to life' is a Fundamental Right
guaranteed under Article 21 of the Constitution of India, which
states that, ―No person shall be deprived of his life or personal
liberty except according to procedure established by law.‖
The human right to adequate housing is recognized in
international law, as opposed to the right to shelter, and provides
wider legal protection and entitlements. However, in the majority of
cases related to housing rights, Indian courts have referred to the
‗right to shelter' instead of the ‗right to adequate housing.
While adjudicating the right to housing, courts have
frequently emphasized the ‗indivisibility of human rights' as well as
recognized other concomitant rights such as the human rights to
water and food. In ―Ajay Maken v. Union of India63‖, the High
Court of Delhi held that ―the right to housing is a bundle of rights
not limited to a bare shelter over one's head. It includes the right to
livelihood, right to health, right to education and right to food,
including right to clean drinking water, sewerage and transport
260 (2019) DLT 581
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facilities.‖
For example, Courts have also implicitly recognized, as an
essential component of housing, the fundamental right to food and
water in ―Pani Haq Samiti v. Brihan Mumbai Municipal Corporation
(Public Interest Litigation No.10 of 2012), the right to clean drinking
water and sanitation in ―Fashion Proprietor Aswani Kumar Maity
v. West Bengal State Electricity Distribution Co.64‖ and
―R.Krishnasamy Gounder v. The State of Tamil Nadu65‖ and,
the right to privacy in ―Bibhuti Bhusan Chakraborty v. Deputy
Registrar66‖.
Courts have also established the right to electricity as an
independent right linked to the right to housing in the case of
―Abhimanyu Mazumdar v. Superintending Engineer67‖.
Thus, in catena of perspective pronouncements, various
Courts considered the right of housing and effect of inadequacy of
housing.
The Supreme Court of India, on several occasions, has held
that the right to adequate housing is a human right emanating from
the fundamental right to life protected by Article 21 of the
Constitution of India. In several important judgments, the Apex
court has clearly clarified the relationship between the right to
housing and the right to life, as guaranteed by Article 21.
In its earliest conception of the right to shelter, the Supreme
Court in ―Francis Coralie Mullin v Administrator, Union
Territory of Delhi‖ (referred supra), held as follows:
―8. We think that the right to life includes the right to live with human
AIR 2009 Cal. 87
2008 (8) MLJ 1037
AIR 1997 Cal. 374
AIR 2011 Cal. 64
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dignity and all that goes along with it, namely, the bare necessaries of life
such as adequate nutrition, clothing and shelter over the head and facilities
for reading, writing and expressing oneself in diverse forms, freely moving
about and mixing and commingling with fellow beings.‖
Subsequently, in ―Olga Tellis v. Bombay Municipal
Corporation‖ (referred supra) the Supreme Court considered forced
evictions as a violation of the rights to life and livelihood, arrived at
conclusion that ―an equally important facet of that right is the right
to livelihood because, no person can live without the means of living,
that is, the means of livelihood. If the right to livelihood is not
treated as a part of the constitutional right to life, the easiest way of
depriving a person his right to life would be to deprive him of his
means of livelihood to the point of abrogation. Such deprivation
would not only denude the life of its effective content and
meaningfulness but it would make life impossible to live. And yet,
such deprivation would not have to be in accordance with the
procedure established by law, if the right to livelihood is not
regarded as a part of the right to life. That, which alone makes it
possible to live, leave aside what makes life livable, must be deemed
to be an integral component of the right to life. Deprive a person of
his right to livelihood and you shall have deprived him of his life.
Indeed, that explains the massive migration of the rural population
to big cities. They migrate because they have no means of livelihood
in the villages. The eviction of the Petitioners from their dwellings
would result in the deprivation of their livelihood.‖
Similarly, in ―Consumer Education and Research Centre v.
Union of India68‖, the Supreme Court held that the ‗right to shelter'
would mean and include the right to livelihood, a better standard of
living, hygienic conditions in the work place, and leisure.
(1995) 3 SCC 42
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In ―U.P. Avas Evam Vikas Parishad v. Friends Coop.
Housing Society Ltd.69‖ the Supreme Court further established that
―the right to shelter is a fundamental right, which springs from the
right to residence under Article 19 (1)(e) and the right to life under
Article 21.‖
In ―State of Karnataka v. Narasimhamurthy70‖ the Hon'ble
Supreme Court affirmed the positive obligation of the state to fulfil
the right to shelter/housing, held that ―right to shelter is a
fundamental right under Article 19(1) of the Constitution. To make
the right meaningful to the poor, the State has to provide facilities
and opportunity to build house. Acquisition of the land to provide
house sites to the poor houseless is a public purpose as it is a
constitutional duty of the State to provide house sites to the poor.
The Hon'ble Apex Court in an important pronouncement,
―Chameli Singh v. State of Uttar Pradesh71‖ the Court elaborated
the components of the right to adequate housing, held that ―in any
organised society, right to live as a human being is not ensured by
meeting only the animal needs of man. It is secured only when he is
assured of all facilities to develop himself and is freed from
restrictions which inhibit his growth. All human rights are designed
to achieve this object. Right to live guaranteed in any civilised
society implies the right to food, water, decent environment,
education, medical care and shelter. These are basic human rights
known to any civilised society. All civil, political, social and cultural
rights enshrined in the Universal Declaration of Human Rights and
Convention or under the Constitution of India cannot be exercised
AIR 1996 SC 114
AIR 1996 SC 90
(1996) 2 SCC 549
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without these basic human rights. 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 structure, clean 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 shelter, therefore,
does not mean a mere right to a roof over one's head but right to all
the infrastructure necessary to enable them to live and develop as a
human being. Right to shelter when used as an essential requisite to
the right to live should be deemed to have been guaranteed as a
fundamental right. As is enjoined in the Directive Principles, the
State should be deemed to be under at obligation to secure it for its
citizens, of course subject to its economic budgeting. In a democratic
society as a member of the organised civic community one should
have permanent shelter so as to physically, mentally and
intellectually equip oneself to improve his excellence as a useful
citizen as enjoined in the Fundamental Duties and to be a useful
citizen and equal participant in democracy. The ultimate object of
making a man equipped with a right to dignity of person and
equality of status is to enable him to develop himself into a cultured
being. Want of decent residence, therefore, frustrates the very object
of the constitutional animation of right to equality, economic justice,
fundamental right to residence, dignity of person and right to live
itself.‖
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Earlier in ―P.G. Gupta v. State of Gujarat72‖, the Supreme
Court considered the mandate of human right to shelter and read it
into Article 19(1)(e) and Article 21 of the Constitution, the Universal
Declaration of Human Rights and the Convention of Civil, Economic
and Cultural Rights, held that it is the duty of the State to construct
houses at reasonable cost and make them easily accessible to the
poor. The aforesaid principles have been expressly embodied and in-
built in our Constitution to secure socio-economic democracy so
that everyone has a right to life, liberty and security of the person.
Article 22 of the Declaration of Human Rights envisages that
everyone has a right to social security and is entitled to its
realisation as the economic, social and cultural rights are
indispensable for his dignity and free development of his personality.
It would, therefore, be clear that though 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, the State has the Constitutional duty to provide adequate
facilities and opportunities by distributing its wealth and resources
for settlement in life and erection of shelter over their heads to make
the right to life meaningful, effective and fruitful. Right to livelihood
is meaningful because no one can live without means of this living,
that is the means of livelihood. The deprivation of the right to life in
that context would not only denude life of effective content and
meaningfulness but it would make life miserable and impossible to
live. It would, therefore, be the duty of the State to provide right to
shelter to the poor and indigent weaker sections of the society in
fulfilment of the Constitutional objectives.
1995 (1) SCALE 653
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The Supreme Court has also established the right to property
as a human right, in the context of adverse possession. In
―Tukaram Kana Joshi v. Maharashtra Industrial Development
Corporation73‖ the Apex Court declared that:
9. The right to property is now considered to be, not only a
constitutional or a statutory right, but also a human right. Though, it is
not a basic feature of the Constitution or a fundamental right. Human
rights are considered to be in realm of individual rights, such as the right
to health, the right to livelihood, the right to shelter and employment etc.
Now however, human rights are gaining an even greater multi-faceted
dimension. The right to property is considered, very much to be a part of
such new dimension.
[emphasis added].
Similarly, in ―P.T. Munichikkanna Reddy v. Revamma74‖
the Court held that:
―40. There is another aspect of the matter, which cannot be lost sight
of. The right of property is now considered to be not only a constitutional
or statutory right but also a human right [emphasis added].
41. Declaration of the Rights of Man and of the Citizen, 1789
enunciates right to property under Article 17: Since the right to property
is inviolable and sacred, no one may be deprived thereof, unless public
necessity, legally ascertained, obviously requires it and just and prior
indemnity has been paid.
42. Moreover, the Universal Declaration of Human Rights, 1948 under
Section 17(i) and 17(ii) also recognizes right to property:
17 (i) Everyone has the right to own property alone as well as in
association with others.
(ii) No one shall be arbitrarily deprived of his property.
43. Human rights have been historically considered in the realm of
individual rights such as, right to health, right to livelihood, right to
shelter and employment, etc. but now human rights are gaining a
multifaceted dimension. Right to property is also considered very much a
part of the new dimension. Therefore, even claim of adverse possession
has to be read in that context.‖
The Hon'ble Supreme Court has unequivocally held that the
human right to adequate housing as an integral aspect of the ‗right
to life' guaranteed under Article 21 of the Constitution of India.
(2013) 1 SCC 353
(2007) 6 SCC 59
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Moreover, the Supreme Court has expounded the various facets of
adequate housing not limited merely to shelter, and also emphasized
the positive duties of the State towards fulfilling the right.
The High Court of Andhra Pradesh at Hyderabad in ―Mala
Pentamma v. Nizamabad Municipality75‖, the High Court
considered the right to housing, right to life, indivisibility of Human
Rights, forced eviction, due process, compensation etc.
The Court recognized that the Respondents therein claimed to
have taken up the cause of the general public in attempting to build
sanitation facilities. However, it gave priority to the right to
shelter/housing of the Petitioners and read it as an integral part of
Article 21 of the Constitution of India. The Court stated that:
10. It is not in dispute that the respondents have taken up the cause
for general public, but that by itself does not authorize the first
respondent to deprive the petitioners of their shelter. Right to shelter, is a
fundamental right, traceable to Article 21 of the Constitution of India and
any action infringing of such a right, is amenable to writ jurisdiction
under Article 226 of the Constitution of India
[emphasis added].
The components of this right were further elaborated as
involving just and humane work conditions, adequate facilities,
pollution free water and air, and full enjoyment of life. The Court
affirmed that:
As stated earlier, 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, a fundamental right which is an inalienable human
right. The Apex Court in a decision ―Samatha v. State of Andhra Pradesh
(AIR 1997 SC 3297)‖, held that right to live with human dignity enshrined
in Article 21 derives its life breath from the Directive Principles of State
Policy and that opportunities and facilities should be provided to the
children to develop in a healthy manner and in conditions of freedom and
dignity. It is further observed that adequate facilities, just and human
conditions of work, etc. are the minimum requirements which must exist
in order to enable a person to live with human dignity and the State has
2005 (6) ALD 488
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to take every action. That apart, right to life includes the right to
enjoyment of pollution free water and air for full enjoyment of life. Right
to life enshrined in Article 21 means something more than mere survival
of animal existence. The right to live with human dignity with minimum
sustenance and shelter and all those rights and aspects of life which
would go to make a man's life complete and worth living would form part
of the right to life. Right to health and social justice was held to be
fundamental right to workers. It was further clarified that any action
infringing such a right is amenable to writ jurisdiction under Article 226
of the Constitution of India.
[emphasis added].
In view of the law laid down by various High Courts and the
Apex Court in various judgments, it is the duty of the Government to
provide adequate housing for psychological, spiritual development
and economic growth of the members of families of allottees. (vide:
―Chameli Singh v. State of Uttar Pradesh‖ (vide referred supra).
Turning to the present facts of the case, as per Guideline No.2
of G.O.Ms.No.367 Revenue (Assignment-I) Department dated
19.08.2019, the State proposed to allot (or allotted) Ac.0.01 cent
(48.4 square yards) in Municipal Area and Ac.0.01 ½ cents (72.6
square yards) in Grampanchayat. While preparing lay outs as per
the Municipalities Act and Panchayat Raj Act, more particularly, the
State has to provide public place for parks and other community
purpose. But, it is not known whether such public place is provided
in any of the layout or not? However, it is necessary to examine the
issue with reference to various aspects.
In Re: Andhra Pradesh Building Rules, 2017 and impact
on environment:
At this stage, it is necessary to advert to the Andhra Pradesh
Buildings Rules, 2017, which deals with various aspects regarding
construction of residential and non-residential houses. As per the
Municipalities Act and Panchayat Raj Act, a setback is to be left
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while constructing residential houses.
As per the Andhra Pradesh Buildings Rules, 2017 while
constructing building, owner has to leave set back. Chapter - VIII
deals with development codes (provisions for non-high rise
development). Rule 57 deals with permissible setbacks and height
for all types of non-high rise buildings, which reads as follows:
―57. Permissible Setbacks & Height for All Types of Non-High
Rise Buildings:
(1) The height of buildings permissible in a given site/plot
shall be subject to restrictions in the areas notified as (a) Sites in
Old /Existing Built up areas/Congested areas/Settlement/Gram
Khantam and (b) Areas Prohibited for High Rise Buildings given in
the Annexures.
(2) The minimum setbacks and permissible height as per
Table - 17 and other conditions stipulated below shall be followed.
Since the issue involved in this case is about construction of a
building in Ac.0.01 cent in Municipal areas and Ac.0.01 ½ cents in
Gram Panchayats, serial Nos.1 and 2 deals with plot size of less
than 50 and 50-100 square meters, which is extracted hereunder.
Sl. Plot Size Parking Height Building Line or Minimum Minimum
No (in Sqm) Provision (in m) Front Setback to be left setbacks
Above up Permissible (in m) on
to Up to remaining
sides (in m)
Abutting Road width
(A) (B) (C) (D) (E) (F) (G) (H) (I) (J)
1 Less than - 7 1.5 1.5 3 3 3 -
50 7 1.5 1.5 3 3 3 -
2 50 - 100 10 1.5 1.5 3 3 3 0.5
As per the guidelines in table - 17, 1.5 meters set back in
front is mandatory. If 1.5 meters set back is not relaxed, the site
allotted by the State for construction is a bare minimum, it would
not cater the need of any family.
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In any view of the matter, approved layouts are not in
consonance with the Andhra Pradesh Building Rules, 2017. Apart
from that, a similar schemes are taken up by the Central
Government, which is familiar in the Country known as ―Pradhan
Mantri Awas Yojana‖ (Housing for all Mission) and laid down certain
guidelines in January, 2021.
According to Guideline No.2.3, the minimum size of houses
constructed under the Mission under each component should
conform to the standards provided in National Building Code (NBC).
If available area of land, however, does not permit building of such
minimum size of houses as per NBC and if beneficiary consent is
available for reduced size of house, a suitable decision on area may
be taken by States/UTs with the approval of SLSMC. All houses
built or expanded under the Mission should essentially have toilet
facility.
The size of house must be in accordance with National
Building Code (NBC). It is relevant to mention size of plots
prescribed in National Building Code (NBC) of India, 2016. Clause
6.6 of National Building Code of India, 2016 deals with size of plots.
Rule 6.6.1 deals with ‗residential houses', which is relevant for the
purpose of deciding the present issue. Rule 6.6.1 is reads as follows:
6.6 Size of Plots.
6.6.1 Residential:
Each plot shall have a minimum size/frontage corresponding
to the type of development as given below:
Sl.No. Type of Plot Size Frontage
Development m2 m
(1) (2) (3) (4)
(i) Detached Above 250 Above 12
building
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(ii) Semi- 125-250 8 to 12
detached
building
(iii) Row type 50-125 4.5 to 8
building
The minimum size of the site for group housing development
shall be as given in the Master Plan and local development control
rules. Open Spaces (within a plot) is dealt with by clause 8 of
National Building Code.
Clause 8.1 is general provision. According to it, every room
intended for human habitation shall abut on an interior or exterior
open space or an open Verandah open to such interior or exterior
open space.
Clause 8.1.1. - The open spaces inside and around a building
have essentially to cater for the lighting and ventilation requirements
of the rooms abutting such open spaces, and in the case of buildings
abutting on streets in the front, rear or sides, the open spaces
provided shall be sufficient for the future widening of such streets.
The open spaces shall be separate or distinct for each building
and where a building has two or more wings, each wing shall have
separate or distinct open spaces for the purposes of lighting and
ventilation of the wings. However, separation between accessory and
main buildings more than 7 m in height shall not be less than 1.5
m; for buildings up to 7 m in height no such separation shall be
required. (Vide: clause 8.1.2).
If the guidelines laid down in National Building Code, 2016
are applied to the house proposed to be constructed in the site
allotted to the beneficiaries under ―Navaratnalu - Pedalandariki
Illu‖, it is highly difficult for anyone to raise construction in the
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limited area of 48.4 square yards in municipalities.
Chapter - 4 of Model Building Bye-laws deals with General
Building Requirements. Table 4.1 specified occupant load. According
to it, occupant load per 100 square meters of plinth or covered area
is ‗8' persons. Minimum size and width of different components of
residential premises is specified in Table 4.2., wherein minimum
requirement for plots upto 50 square meters and minimum
requirement for plots above 50 square meters is prescribed, which is
extracted hereunder for better appreciation:
Sl. Component of Min. requirement for plots Min. requirement for
No. Building upto 50 sq m. plots above 50 sq m.
1 Habitable Room Area 7.50 sq m. Area 9.50 sq m.
Width 2.10 m. Width 2.40 m.
Height 2.75 m. Height 2.75 m.
2 Kitchen Area 3.30 sq m. Area 4.50 sq m.
Width 1.50 m. Width 1.50 m.
Height 2.75 m. Height 2.75 m.
3 Pantry Area Not applicable Area 3.00 sq m.
Width Not applicable Width 1.40 m.
Height Not applicable Height 2.75 m.
4 Bathroom Area 1.20 sq m. Area 1.80 sq m.
Width 1.00 m. Width 1.20 m.
Height 2.20 m. Height 2.20 m.
5 W.C. Area 1.00 sq m. Area 1.10 sq m.
Width 0.90 m. Height 0.90 m.
Height 2.20 m. Height 2.20 m.
6 Combined Bath & Area 1.80 sq m. Area 2.80 sq m.
W.C. Width 1.00 m. Width 1.20 m.
(Toilet) Height 2.20 m. Height 2.20 m.
7 Store Area No restriction Area No restriction
Width No restriction Width No restriction
Height 2.20 m. Height 2.2 m.
8 Projections Permitted within the setbacks Permitted within the
upto 0.75 m. width setbacks upto 0.75 m. width
9 Canopy See clause 4.9.6 See clause 4.9.6
Clause 4.3 of Chapter - 4 of Model Building Bye-laws deals
with ‗group housing' and specified certain guidelines for
construction of residential group housing. If these, Model Building
Bye-laws are applied for construction of houses in the plot of
Ac.0.01 cent in Municipal areas or Ac.0.01 ½ cent in Gram
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Panchayat areas, it is highly difficult for anyone to construct a
building strictly adhering to the guidelines.
Therefore, plot size is to be changed appropriately keeping in
view the Andhra Pradesh Building Rules, 2017, National Building
Code (NBC) of India, 2016 and Model Building Bye-laws issued by
the Ministry of Housing and Urban Affairs, by the State.
If building is constructed in Ac.0.01 cent in Municipal area
and Ac.0.01 ½ cent in Gram Panchayat area in compliance of
various guidelines referred above, the impact on the environment
has to be considered. Rule 54 of the Andhra Pradesh Building Rules,
2017 deals with ―restrictions of building activity‖. Clause (4) of
Rule 54 deals with ―Environmental Impact Assessment Notification-
2006‖
―(4) Environmental Impact Assessment Notification-2006:
As per the provisions laid under the EIA Notification S.O.1533,
Dt.14.9.2006 and it's amendment dt.01.12.2009 issued by MOE&F, GOI
and Notifications issued from time to time with reference to ―Building /
Construction Projects/Area Development Projects and Townships‖
complying with the following threshold limits fall under category B and
are required to obtain prior Environmental Clearance (EC) from State
Environmental Impact 104 Assessment Authority (SEIAA), Ministry of
Environment and Forests, Government of India.‖
But, in the present case, it is not known whether any
environmental clearance was obtained as mandatead under clause
(4) of Rule 54 of the Andhra Pradesh Building Rules, 2017.
Therefore, environmental impact assessment shall be made by the
competent authority while accepting such group housing or cluster
housing under the scheme ―Navaratnalu - Pedalandariki Illu‖. If
it is not complied, it is violation of the Andhra Pradesh Building
Rules, 2017.
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In Re: Right to privacy:
As the limited site is allotted to the eligible women household,
right of privacy shall be taken into consideration since the house is
meant for living with family to lead matrimonial life. The Apex Court
declared right to privacy as a fundamental right in ―Justice K.S.
Puttaswamy v. Union of India (UOI)76‖ and ―Bibhuti Bhusan
Chakraborty v. Deputy Registrar‖ (referred supra).
In view of the law laid down by the Supreme Court, it is the
duty of the State to protect the privacy to lead marital life by a
couple in a small house with grownup children and elders in the
family. Hardly, there will not be any space to move freely in the
house either to the children or to the elder people, who required
some assistance at the old age.
In Re: Right of Child and adequate housing:
Apart from stay, provision for study to the children in the
house likely to be constructed by the allottees for their
psychological, mental and spiritual development as it is a
fundamental right guaranteed under Article 21 of the Constitution of
India. The Apex Court in ―Chameli Singh v. State of Uttar
Pradesh‖ (referred supra) dealt with such requirement.
In ―Shantistar Builders v. Narayan Khimalal Totame77‖
the Supreme Court of India also recognized the right of children to
adequate housing and observed that:
Basic needs of man have traditionally been accepted to be three - food,
clothing and shelter. The right to life is guaranteed in any civilized
society. That would take within its sweep the right to food, the right to
clothing, the right to decent environment and a reasonable
accommodation to live in. The difference between the need of an animal
and a human being for shelter has to be kept in view. For the animal it is
AIR2017SC4161
(1990) 1 SCC 520
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the bare protection of the body; for a human being it has to be a suitable
accommodation which would allow him to grow in every aspect -
physical, mental and intellectual. The Constitution aims at ensuring the
full development of every child. That would be possible only if the child is
in a proper home.
[emphasis added].
International covenants to protect children's right to housing:
International human rights treaties, declarations and resolutions that
specifically guarantee and protect children's right to housing, among others,
include:
• Convention on the Rights of the Child: Article 16 (1), 16(2), Article 27
• Declaration of the Rights of the Child 1959
• Resolution 1994/8, Children and the Right to Adequate Housing,
• Commission on Human Rights resolution 1994/93, The plight of street
children, 1993
• General Assembly resolution 50/153, The rights of the child, 1995
• General Assembly resolution 54/ 148, The girl child, 2000
• General Comment No. 5: General measures of implementation of the
Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6),
Committee on the Rights of the Child, 2003
• General Comment No. 17: Article 24 (Rights of the child), Human
Rights Committee, 1989
• World Declaration on the Survival, Protection and Development of
Children, 1990, World Summit for Children, 1990
In view of the principle laid down by the Apex Court in
―Shantistar Builders v. Narayan Khimalal Totame‖ (referred
supra), child must be grown in an appropriate home, otherwise it
amounts to violation of Human rights guaranteed under various
covenants (referred supra) for their upliftment.
In the present case, no such aspect appears to have
considered by the State and allotment of minimum size of plot of
Ac.0.01 cent equivalent to 48.4 square yards is not for the
upliftment of children to be grown up in an appropriate home.
Moreover, the obligation of the State is to provide reasonable shelter
to the houseless poor keeping in view their future, psychological,
spiritual, economical, educational and emotional development.
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Instead of providing such environment to the houseless poor living
below the poverty line, the State undermined/tombed their future
once for all since there is no possibility of their development and
growth in various aspects referred above. Moreover, the chances of
their growth and development in various aspects (referred supra) are
bleak on account of their restricted moments and stay in a compact
house constructed in a small strip of site.
In Re: Housing and Health:
Yet, another aspect to be considered by this Court is the
impact on health of the public due to living in compact house
without proper ventilation etc., since health is also a facet of Article
21 of Constitution of India besides Human Rights guaranteed under
Article 25 of the Universal Declaration of Human Rights (referred
supra) and Article 11 of the International Covenant on Economic,
Social and Cultural Rights.
When the Government allotted house site of Ac.0.01 cent to
the people living below the poverty line with an avowed object to
provide shelter to them, the State must take into consideration
health hazards, drinking water, drainage facility and fire safety
measures to be provided on account of cluster housing and density
of population in those areas. If no such amenities are provided, the
clusters will turn into urban and rural slums. The World Health
Organisation (WHO) keeping in view the impact on the health on
account of inadequate housing issued certain guidelines in 2018
with reference to housing and health highlighting key health risks.
The WHO Housing and health guidelines (HHGL) provide
evidence-based recommendations for healthy housing conditions and
interventions. Healthy housing is shelter that supports a state of
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complete physical, mental and social well-being. Healthy housing
provides a feeling of home, including a sense of belonging, security
and privacy. Healthy housing also refers to the physical structure of
the dwelling, and the extent to which it enables physical health,
including by being structurally sound, by providing shelter from the
elements and from excess moisture, and by facilitating comfortable
temperatures, adequate sanitation and illumination, sufficient space,
safe fuel or connection to electricity, and protection from pollutants,
injury hazards, mould and pests. Whether housing is healthy also
depends on factors outside its walls. It depends on the
local community, which enables social interactions that support
health and well-being. Finally, healthy housing relies on
the immediate housing environment, and the extent to which this
provides access to services, green space, and active and public
transport options, as well as protection from waste, pollution and the
effects of disaster, whether natural or man-made.
Exposures and health risks in the home environment are
critically important because of the large amount of time people spend
there. In high-income countries, around 70% of people's time is
spent inside their home. In some places, including where
unemployment levels are higher, and where more people are
employed in home-based industries, this percentage is even higher.
Children, the elderly, and those with a disability or chronic illness
are likely to spend most of their time at home, and are therefore
more exposed to health risks associated with housing. Children are
also at increased risk of the harms from some of the toxins that are
present in some housing, such as those in lead paint.
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Housing will become increasingly important to health due to
demographic and climate changes. The number of people aged over
60 years of age, who spend a larger proportion of their time at home,
will double by 2050. The changing weather patterns associated with
climate change also underline the importance of housing providing
protection from cold, heat and extreme weather events.
Poor housing can expose people to several health risks. For
example, structurally deficient housing, due to poor construction or
maintenance, can increase the likelihood that people slip or fall,
increasing the risk of injury. Poor accessibility to homes may expose
their disabled and elderly residents to the risk of injury, stress and
isolation. Housing that is insecure, sometimes due to affordability
issues or weak security of tenure, is stressful. Housing that is
difficult or expensive to heat can contribute to poor respiratory and
cardiovascular outcomes, while high indoor temperatures can
increase cardiovascular mortality. Indoor air pollution harms
respiratory health and may trigger allergic and irritant reactions,
such as asthma. Crowded housing increases the risk of exposure to
infectious disease and stress. Inadequate water supply and
sanitation facilities affect food safety and personal hygiene. Urban
design that discourages physical activity contributes to obesity and
related conditions, such as diabetes, and poor mental and
cardiovascular health. Unsafe building materials or building
practices, or building homes in unsafe locations, can expose people
to a range of risks, such as injury due to building collapse.
Housing in slums and informal housing pose particular risks
to health. Currently, around 1 billion people live in slum conditions
today, which often develop due to exclusion from planning processes.
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According to UN-Habitat, a ―slum household‖ is a group of
individuals under the same roof, in an urban area, lacking one or
more of the following: durable housing (housing which fails to
provide shelter from the elements); sufficient living space; security of
tenure; sanitation and infrastructure; and access to improved
(uncontaminated) water sources. Slum dwellers are therefore
exposed to many of the risks associated with housing, such as
structurally defective dwellings, inadequate housing facilities and
overcrowding, but also face particular health risks from poor
sanitation and unsafe electric connections, toxic building materials,
unvented cooking facilities, and unsafe infrastructure, including
roads. In addition, such settlements are sometimes in locations that
are more likely to expose occupants to hazards such as landslides,
floods and industrial pollution. In relation to well-being, the lack of
legal title to homes is stressful and can expose slum dwellers to the
risk of forced eviction.
Slums and informal settlements often house migrants,
refugees and internally displaced persons. More people are on the
move now than ever before.
Large numbers of people live in poor housing conditions. While
everyone can be exposed to the risks associated with unhealthy
housing, people with low incomes and vulnerable groups are more
likely to live in unsuitable or insecure housing, or to be denied
housing altogether.
The State is bound to follow the guidelines issued by World
Health Organisation while providing house sites to houseless poor for
construction of houses. But the State did not take into consideration
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the guidelines issued by World Health Organisation while allotting
minimum site of Ac.0.01 cent in Municipal areas and Ac.0.01 ½ cent
in Gram Panchayat for construction of houses by houseless poor.
Keeping in view of the above aspects, allotment of Ac.0.01 cent
site for residential purpose by the State in Municipal Area and
Ac.0.01 ½ cent in Gram Panchayat areas is inadequate for housing
and on account of cluster housing and group housing, the
environment impact and health hazards, fire safety, adequacy of
drinking water and facilities to drain out sullage water is to be
examined by the State before insisting the allottees to construct
house in the site allotted to them. No such study was taken up by
the State till date.
In view of my foregoing discussion and findings recorded
thereon, the specific findings are summed up, as follows:
(1) If the Court finds that the policy decisions of the
State are violative of any fundamental right
guaranteed under the Constitution of India or Human
rights, the Court is bound to interfere with such
policy decisions.
(2) Guideline No.3 of G.O.Ms.No.367 dated 19.08.2019,
clause (x) (xi) and (xii) of G.O.Ms.No.488 dated
02.12.2019 and clause (b) and clause (d) of
G.O.Ms.No.99 dated 31.03.2020 are declared as
illegal, arbitrary as the clauses are inconsistent with
one another, and liable to be set aside.
(3) Guideline No.2 of G.O.Ms.No.367 dated 19.08.2019
is unconstitutional, illegal, arbitrary and violative of
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Articles 14, 15 (1) of the Constitution of India and
defeating the object of Article 39 of the Constitution
of India besides violative of Articles 7 and 17 of the
Universal Declaration of Human Rights and Article
26 of International Covenant on Civil and Political
Rights, and liable to be set aside.
(4) Allotment of Ac.0.01 cent site for residential purpose
by the State in Municipal Area and Ac.0.01 ½ cent in
Gram Panchayat areas is inadequate for housing and
on account of cluster housing and group housing, the
environment impact on health hazards, fire safety,
adequacy of drinking water and facilities to drain out
sullage water is to be examined by the State before
insisting the allottees to construct house in the site
allotted to them. No such study was taken up by the
State till date.
(5) It is made clear that this Court is not against
allotment of house site to women household, but it
amounts to discrimination. Therefore, I feel that it is
appropriate to direct the respondents to consider the
eligibility of men and transsexual for allotment of
house site under the scheme ―Navaratnalu -
Pedalandariki Illu‖. At the same time, as discussed
in the earlier paragraphs with regard to effect of
health, physical, mental, spiritual, educational and
economic development with reference to Human
Rights guaranteed under Article 21 of the
Constitution of India, it is appropriate to examine the
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issue by committee of experts to increase the extent
of land allotted and to be allotted based on the report
submitted by such expert committee.
In the result, the writ petition is allowed in part while declaring
(a) Guideline No.3 of G.O.Ms.No.367 dated 19.08.2019, clause
(x) (xi) and (xii) of G.O.Ms.No.488 dated 02.12.2019 and
clause (b) and clause (d) of G.O.Ms.No.99 dated 31.03.2020
as illegal, arbitrary and they are hereby quashed,
consequently, respondents are directed to cancel the deed
of conveyance registered in favour of allottees following the
procedure laid down in law while directing to issue D-Form
patta in favour of allottees, strictly in terms of clause 3 of
G.O.Ms.No.367 dated 19.08.2019 after considering the
recommendations of expert committee vide clause (c).
(b) Guideline No.2 of G.O.Ms.No.367 dated 19.08.2019 as
illegal, arbitrary and violative of Articles 14, 15 (1) of the
Constitution of India and defeating the object of scheme
and Article 39 of the Constitution of India besides violative
of Articles 7 and 17 of the Universal Declaration of Human
Rights and Article 26 of International Covenant on Civil
and Political Rights, and they are hereby quashed,
consequently, the State is directed to allot house site to
men and transsexual also on par with women, subject to
their eligibility.
(c) Further, the State is directed to appoint a special
committee consisting of expert from Central Pollution
Control Board; expert from Ministry of Housing and Urban
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Affairs; Health expert from Ministry of Health and Family
Welfare to examine the issues discussed in the earlier
paragraphs, within one (1) month from the date of receipt
of copy of this Order to submit a report within one (1)
month thereafter and publish the report in two local
newspapers inviting objections from the public and finalise
the scheme ―Navaratnalu - Pedalandariki Illu‖ for
construction of houses in the house sites keeping in view
the impact on environment, health hazards etc. and
increase/enhance the area, if necessary by acquiring
more site, allotted to the beneficiaries modifying the
layouts keeping in view the report to be submitted by the
Special Committee. Till completion of such exercise,
constructions shall not be proceeded in the land allotted to
beneficiaries under the scheme ―Navaratnalu -
Pedalandariki Illu‖. No costs.
Consequently, miscellaneous applications pending if any, shall
also stand dismissed.
_________________________________________
JUSTICE M. SATYANARAYANA MURTHY
08.10.2021
Note: L.R. copy to be marked.
B/o
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