Tuglakabad Jhuggi Jhompri ... vs Union Of India And Others
1996 Latest Caselaw 569 Del

ORDER

1. The present petition is filed by one Tuglakabad Jhuggi Jhompri Welfare Association for an appropriate writ, direction or order for restraining the respondents from demolishing about 2000 jhuggi jhompris which are allegedly threatened to be demolished by the respondents without first providing the dwellers alternate accommodation/plots.

2. The petitioner Association has filed this petition in the representative capacity seeking issue of necessary relief not to demolish the jhuggi jhompris in existence in Tuglakabad Jhuggi Jhompri complex near Tuglakabad Railway Station. It is stated that the dwellers have been staying in the jhuggis for the last over 15 years. They allegedly have ration cards as well as are shown in the voters list and have participated and exercised the rights of franchise in the elections at different levels held in the years 1983, 1987, 1990 as well as in 1994 and the current elections held this year. The lands on which these unauthorised constructions have taken place over the years, admittedly, belong to the Railways.

3. Respondents 3 and 4 who are the General Manager and Divisional Railway Manager have filed counter affidavit wherein it is reiterated that the entire railway line in or around the Railway Station on which the petitioners have allegedly and unauthorisedly raised jhuggi jhompris can be divided in the following three clusters:

(A) Cluster No. 1 in and around Tughlakabad Railway Station and known as "NEAR STATION".

(B) Cluster No. 2 in and around New Power Cabin, known as "NEW POWER CABINS".

(C) Cluster No. 3, near the running room and Nala and known as "NEAR NALA".

It is further stated in the affidavit that all the jhuggi jhompris raised in clusters 1 to 3 are in an area which is very sensitive from the railway point of view inasmuch as there is a power cabin existing near cluster No. 2 from where substantial number of trains are being operated and controlled. Moreover, there is a military movement in the area and heavy artillery is loaded and unloaded as well as there is huge oil petrol Depot existing in the said area and there is large and substantial storage of diesel. The dwellers have continuously, illegally and unauthorisedly occupied the railway land and despite best efforts the same could not be cleared thus causing continuous threat even to the dwellers which include older people, men, women and children. The clearing operation was, accordingly, initiated on 10th January, 1996.

4. Dr. Wadhera who has appeared for the petitioner Association has fairly conceded that the land, admittedly, belongs to the Railways and the dwellers have no right, title on the ownership of the land. He has, however, sought reliance on the document which is filed a.s Annexure II-A to the writ petition known as "National Housing Policy" as laid on the table of both the Houses of Parliament on 12th May, 1988. The said policy took into consideration the fact that a sizable proportion of the urban population had inadequate housing and many have taken recourse to take shelter in slums and squatter settlements. There is, therefore, a multi-faced problem to tackle for housing for this section of the population. The relevant details are referred to in the said document as filed with this petition. Dr. Wadhera has referred to Clauses (b), (c), (d), (g) and (h) which may be reproduced as follows to include ;

"(b) Conferring tenurial rights at reasonable rates, on slums dwellers as per approved norms in respect of land occupied by them, wherever possible.

(c) Re-locating slums dwellers and squatters, to extent possible wherever conferment of tenurial right in respect of the land occupied by them is not feasible.

(d) assembling and allocating land for making available sites and services :

(g) involving the slum dwellers in slum improvement and upgradation programmes by adopting a self help and community approach in the maintenance and improvement of their settlements;

(h) facilitating the formation of co-operative and other associations at the local level and developing managerial skill of individual and households to promote access to services and amenities provided by public agencies and local authorities."

Therefore, it is contended that the members of the petitioner's Association are entitled to an alternative- site for locating their dwelling houses so that there is no large scale dislocation. The learned counsel has also referred me to a document dated 14th February, 1996 issued by the Slum and JJ Department of Municipal Corporation of Delhi which deals with relocation of eligible JJ dwellers. The same reads as follows :

"In this context, I am to inform you that Slum and JJ Department initiates the process of relocation of eligible JJ dwellers (i.e. who have been issued token, identity card and ratio card in the year 1990 under jhuggi category issued by Food and Supply Department, Delhi Administration) on the specific request from concerned land owning agency on whose land these jhuggis exist subject to the payment of relocation charges by the land owning agency @ Rs. 29,000/- per eligible jhuggi as well as the share" money @ Rs 5000/- by the beneficiaries on the approved financial pattern of the Delhi Govt."

5. The policy of the Government has been announced at different times but the same does not have any statutory force and is not at the moment required for consideration in this writ petition. The petitioners shall, however, be at liberty to approach the Government for provision of alternative accommodation and it will be open for the Government to decide on all appropriate application made in this regard.

6. The admitted facts in the present case are that the encroached land where the jhuggi jhompris are now based belong to the Railways and some of these dwelling houses are built on areas which are adjoining the railway line in and around the Tuglakabad Railway Station as well as near the power cabin which can be a source of continuous hazard to even the dwellers. In the present petition under Article 226 of the Constitution of India where the Jbuggi Jhompris arc built on the railway land and even in and around railway tracks, no relief can be granted to the petitioners as prayed for. There may be some hardship and dislocation of the dwellers who have stayed in these places for some time but that does not by itself confer any legal rights which can be adjudicated in exercise of powers under Article 226 of the Constitution of India, particularly when the ownership of land is not dispured. It will be following a very dangerous precedent to give legal sanction to encroachers who occupy Government land on the false assurances of regularization held out by some unscrupulous persons who often mislead the poor and needy for selfish and vested interests. The matter has also to be viewed on the basis of the safety of the dwellers as the jhuggis are located in and around the railway tracks which are further exposed to high tension electricity wiring and power cabins and the continuous presence of the dwellers is indeed very hazardous. Faced with this pica as raised by the respondents, the learned counsel for the petitioners submits that the dwellers will not make any claim or claims in case accident takes place resulting in injury to them. This submission is totally misconceived and no reasoning is required to reject the same.

7. The learned counsel for the petitioners has next contended that the present petition is maintainable as eviction from the dwellings would result in deprivation of livelihood. Article 21 of the Constitution of India includes livelihood and if deprivation of livelihood is not effected by a reasonable procedure established by law, the same would be voltaic of Article 21. He has placed strong reliance on the judgment of the Supreme Court as reported in Olga Tellis v. Bombay Municipal Corporation, . Paragraphs 33 and 35 of the judgment may be reproduced as under;

"33. Article 39(a) of the Constitution which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter alia that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any Court, are nevertheless fundamental in the governance of the country. The principles contained in Articles 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by taw, can challenge the deprivation as offending the right to life conferred by Article 21."

"35. Turning to the factual situation, how far is it true to say that if the petitioners are evicted from their slum and pavement dwellings, they will be deprived of their means of livelihood? It is impossible, in the very nature of things, to gather reliable data on this subject in regard to each individual petitioner and, none has been furnished to us in that form. That the eviction of a person from a pavement or slum will inevitably lead to the deprivation of his means of livelihood, is a proposition which does not have to be established in each individual case. That is an inference which can be drawn from acceptable data. Issues of general public importance, which affect the lives of large sections of the society, defy a just determination if their consideration is limited to the evidence pertaining to specific individuals. In the resolution of such issues, there are no symbolic samples which can effectively project a true picture of the grim realities of life. The writ petitions before us undoubtedly involve a question relating to dwelling houses but, they cannot be equated with a suit for the possession of a house by one private person against another, in a case of the latter kind, evidence has to be led to establish the cause of action and justify the claim. In a mailer like the one before us, in which the future of half of the city's population is at stake, the Court must consult authentic empirical data compiled by agencies, official and non-official. It is by that process that the core of the problem can be reached and a satisfactory solution found. It would be unrealistic on our part to reject the petitions on the ground that the petitioners have not adduced evidence to show that they will be rendered jobless if they are evicted from the slums and pavements. Common sense, which is a cluster of life's experiences, is 'often more dependable than the rival facts presented by warring litigants."

There is no dispute about the well settled position of law as reiterated in the above said judgment of the Constitution Bench of the Supreme Court. The Court was dealing with the case of pavements and slum dwellers of Bombay city wherein challenge was made under Article 32 to the decision of the respondents regarding forcible eviction of the slum dwellers under Section 314 of the Bombay Municipal Corporation Act on the ground of violation of their rights under Articles 19 and 21. The judgment was rendered in the facts of the cases before the Supreme Court and it will be of no assistance to the facts which arise in the present case. The dwellers herein have unauthorisedly occupied railway land which can safely be held to be reserved or earmarked for public purpose as trains run in and around the said land and high tension cables arc installed for electric operations, as required for the functioning of the railways. The Supreme Court in the case of Olga Tcllis (supra) has clearly held that encroachment of public place by erecting structures or hutments on pavements and in places near highways cannot be claimed by way of right howsoever compelling the necessity may be. These findings will aptly apply to the facts as arise in the present case. The judgment, accordingly, can be of no assistance to the contentions as raised by learned counsel for the petitioners. The areas around Railway tracks are often required to be used for the smooth running of the trains which will in learn serve the convenience of general public. This will fall in the same category as footpaths or pavements which are preserved as public properties to serve the public good. The respondents in their counter-affidavit have reiterated that the area in which the clusters of Jhuggis have come up arc very sensitive from the railway point of view and there is a power cabin existing near cluster No. 2 from where substantial number of trains running from Northern Railways are being run and controlled. There is also a military movement and heavy artillery is loaded and unloaded in the said area. There is huge oil petrol depot existing in ihe area and substantial oil and diesel are stored over there. In view of the averments in the counter-affidavit it can safely be held that the members of petitioner's Association have unauthorisedly and illegally occupied and encroached upon the public properties which are intended to serve the national interest as well as the convenience of general public. The comparative analogy can be drawn to the findings of the Supreme Court in the case of Olga Tcllis with regard to the footpaths and pavements which are held public properties and intended to serve the convenience of general public. Paragraph 43 of the judgment reads as follows :

"43. In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing and repassing are competing claims and that, the former should be preferred to the latter. No one has the right to make use of a public property for a private purpose without the requisite authorisation and, therefore, it is erroneous to contend that the pavement dwellers have the right to encroach upon pavements by constructing dwellings thereon. Public streets, of which pavements form a part, are primarily dedicated for the purpose of passage and, even the pedestrians have but the limited right of using pavements for the purpose of passing and repassing. So long as a person does not transgress the limited purpose for which pavements are made, his use thereof is legitimate and lawful. But, if a person puts any public property to a use for which it is not intended and is not authorised so to use it, he becomes a trespasser. The common example which is cited in some of the English cases (see, for example, Hickman v. Maisey) is that if a person, while using a highway for passage, sits down for a time to rest himself by the side of the road, he does not commit a trespass. But, if a person puts up a dwelling on the pavement, whatever may be the economic compulsions behind such an act, his user of the pavement would become unauthorised. As stated in Hickman it is not easy to draw an exact line between the legitimate user of a highway as a highway and the user which goes beyond the right conferred upon the public by its dedication. But, as in many other cases, it is not difficult to put cases well on one side of the line. Putting up a dwelling on the pavement in a case which is clearly on one side of the line showing that it is an act of trespass. Section 61 of the Bombay Municipal Corporation Act lays down the obligatory duties of the Corporation, under clause (d) of which, it is its duty to take measure for abatement of all nuisances. The existing of dwellings on the pavements is unquestionably a source of nuisance to the public, at least for the reason that they are denied the use of pavements for passing and repassing. They are compelled, by reason of the occupation of pavements by dwellers, to use highways and public streets as passages. The affidavit filed on behalf of the Corporation shows that the fall-out of pedestrians in large numbers on highways and streets constitutes a grave traffic hazard. Surely, pedestrians deserve consideration in the matter of their physical safety, which cannot be sacrificed in order to accommodate persons who use public properties for a private purpose, unauthorizedly. Under clause (O) of S. 61 of the B.M.C. Act, the Corporation is under an obligation to remove obstructions upon public streets and other public places. The counter-affidavit of the Corporation shows that the existence of hutments on pavements is a serious impediment in repairing the roads, pavements, drains and streets. Section 63(k), which is discretionary, empowers the Corporation to take measures to promote public safety, health or convenience not specifically provided otherwise. Since it is not possible to provide any public convenience to the pavement dwellers on or near the pavements, they answer the nature's call on the pavements or on the streets adjoining them. These facts provide the background to the provision for removal of encroachments on pavements and footpaths."

8. In view of the settled position of law and for the aforesaid reasons, there is no merit in the present petition. Reference to the assurances and to the so-called National Housing Policy as made by the petitioners, does not specifically deal with the case of the dwellers who have unauthorisedly and illegally encroached upon the railway land and in any case, no statutory and constitutional rights can be established on that basis. The petition is, therefore, dismissed. To obviate the sufferings of the dwellers and to minimise the hardship involved in their eviction, I direct that the respondents shall not remove the Jhuggis and other unauthorised structures until 31st August, 1996. There will be no order as to costs.

9. Petition dismissed.