Gurupada Khatua And Others vs Onkar Singh Mina And Others
2021 Latest Caselaw 3836 Cal

                       In the High Court at Calcutta
                        Civil Revisional Jurisdiction
                               Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                            CPAN 347 of 2020
                                   IN
                             WPA 74 of 2020
                          IA No: CAN 1 of 2020
                       (Old No: CAN 3450 of 2020)
                             CAN 2 of 2021

                       Gurupada Khatua and others
                                   Vs.
                       Onkar Singh Mina and others



For the petitioners/applicants      :     Mr. Yamin Ali,
                                          Mr. Nirmalendu Bera,
                                          Mr. Gora Chand Samanta

For the State-respondents           :     Mr. Anirban Ray,

Mr. Sk. Md. Galib, Ms. Subhra Nag

Hearing concluded on : 12.07.2021

Judgment on : 19.07.2021

Sabyasachi Bhattacharyya, J:-

1. CAN 2 of 2021 has been filed by the State-respondent for recall of an

order dated February 11, 2020 passed by this Court in WPA 74 of

2020. In the said order, a direction was given on the respondent no.2

in the writ petition to immediately take steps for disbursal of the

requisite amount to implement the scheme under the "Gitanjali

Housing Scheme" to the concerned Zilla Parishad for implementation

of the same in respect of the petitioners and other persons placed in a

similar situation. The respondent no.2 therein was directed to take

steps immediately to ensure that such amount reached the concerned

Zilla Parishad latest by two months from that date. Respondent no.4

was directed to implement the Scheme in respect of the petitioners at

the earliest after receiving such amount from the end of the

respondent no.3.

2. Liberty was also given to the writ petitioners to approach this Court

further in the event either of the directions was not complied

forthwith.

3. Although the State was represented when the writ petition was

disposed of on February 11, 2020, learned counsel for the State/recall

applicant submits that since no affidavits were invited in the matter,

counsel did not have sufficient opportunity to take appropriate

instruction in the matter. It is contended that "Gitanjali Housing

Scheme" was already scrapped and disbursal of amounts under such

head had been stopped, even prior to the order dated February 11,

2020.

4. Despite such handicap, it is contended by the State that the

respondents in the writ petition tried their level best to accommodate

the writ petitioners in any other housing scheme prevalent at the

relevant juncture. However, since all the State housing schemes had

reached an advanced stage in view of applications under the said

schemes having been accepted and already processed, the writ

petitioners could not be accommodated in any of the then available

schemes.

5. Learned counsel appearing for the writ petitioners/opposite parties

in the recall application submits that this Court had directed the writ

petitioners to be accommodated under the "Gitanjali Housing Scheme"

considering the suffering of the petitioners, who are victims of the

Cyclone "Aila". Hence, it was the duty of the State and its officers to

carry out the order dated February 11, 2020. It is pointed out that

CPAN 347 of 2020 has also been filed by the writ petitioners,

contending that the respondents in the writ petition, including the

present applicants, wilfully and deliberately violated the solemn order

of this Court dated February 11, 2020.

6. Upon hearing both sides and considering the materials-on-record, it is

seen that the respondents in the writ petition bearing WPA 74 of

2020, did their best to comply with the order dated February 11,

2020. Several communications between the various departments of

the State as well as other competent officers have been disclosed and

annexed to the recall application, which clearly indicate that no leaf

remained unturned in a bid to include the writ petitioners within the

purview of other existent housing schemes. However, for the reasons

discussed above, the writ petitioners could not be accommodated in

any such scheme.

7. It is rightly contended by learned counsel for the present applicant

that, on the date of passing of the order under recall, that is, February

11, 2020, the "Gitanjali Housing Scheme" no longer existed and there

was no opportunity to allocate funds afresh for the said non-existent

scheme.

8. However, it was observed in the order dated February 11, 2020 that

the premise of the direction given therein was the immense suffering

of the writ petitioners, who come from the weaker sections of the

society and have suffered the pangs of being rendered homeless due to

the Cyclone "Aila".

9. Although it is rightly contended that the writ petitioners could not be

accommodated in any of the existent housing schemes, on which

sufficient materials have been produced along with the recall

application, the right of the writ petitioners to have a roof over their

head and the privacy of a home, however small, to accommodate their

families and belongings to save the writ petitioners from the

vicissitudes of Nature, particularly in pandemic times, is an integral

part of the right to life, enshrined under Article 21 of the Constitution

of India. The writ petitioners have a right to be treated at par with

other victims of the same Cyclone and the more financially well-to-do

members of the society to lead a proper life, which is a fundamental

right under Article 14 of the Constitution and includes the right to

have a shelter to call 'home'. The conferment of the right is not merely

by virtue of Article 21, read with Article 14 of the Constitution of

India, but is an inherent right of a citizen of any civilised nation.

Hence, it is the duty of the State, which is in charge of the

administration of the concerned State as well as of the well-being of all

its citizens, irrespective of financial status and/or other distinguishing

criteria. Thus, the spirit of the order dated February 11, 2020, which

was to grant relief to the victims of the Cyclone, has not yet been

satisfied.

10. Although it is well-settled that courts cannot enter into the domain of

the Executive by imposing their own views on how the Executive will

run the administration, yet, such non-interference is subject to the

rider that the basic fundamental rights of all the citizens are

protected, not merely by lip-service but in reality.

11. The allocation of funds of aparticular scheme or the floating of new

schemes is totally within the domain of the State and the Court does

not have any intention of entering into the nitty-gritties thereof.

12. However, in order to ensure that the rights guaranteed to the writ

petitioners under Articles 14 and 21 of the Constitution of India are

protected properly, it is the duty of the State-respondent to cater to

the needs of the unfortunate 'Aila' victims.

13. Hence, although the order dated February 11, 2020, cannot be

implemented to the letter in view of the circumstances as discussed

above, the spirit of the same can easily be carried out by the State,

which is in charge of the public coffers and has to ensure that

sufficient alternative accommodation and rehabilitation of the writ

petitioners and other 'Aila' victims are provided for.

14. Accordingly, CAN 2 of 2021 is disposed of by modifying the order

dated February 11, 2020 to the extent that the respondents in the writ

petition, including the applicants in the present recall application,

shall take steps on an urgent basis to rehabilitate the writ petitioners

and other legitimate claimants of such rehabilitation due to the

devastation caused by the Cyclone "Aila". Accordingly, the review

applicants shall ensure, either by floating a new scheme or by

allocating further funds for the remainder of the "Aila" victims,

including the writ petitioners, to be accommodated and/or

compensated sufficiently for the loss caused by the devastation

caused by the natural disaster, "Aila" to whom the benefits of the then

existing housing scheme could not be extended. Such rehabilitation

process should be initiated immediately and must be completed

within four months from this date, upon ensuring that such relief is

granted to eligible candidates, who are actual victims of the "Aila"

Cyclone. Necessary funds shall be allocated by the State, under

whichever head the State deems fit, for the above purpose.

15. In view of the aforesaid findings, CPAN 347 of 2020 is consequentially

dismissed, since no wilful and deliberate contumacious act of the

alleged contemnors could be established by the writ petitioners.

16. The parties shall act on the written communication by the learned

advocates, accompanied by server copies of this order, without

insisting upon prior production of a certified copy. There will be no

order as to costs, in either the recall application or the contempt

application.

17. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )