Delhi High Court
Samarpal & Ors vs Uoi & Ors on 4 July, 2022
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 2nd June, 2022
Pronounced on: 4th July, 2022
+ W.P.(C) 4785/2008 & CM APPL. 9216/2008
SAMARPAL & ORS ..... Petitioners
Through: Mr. N.S. Dalal, Ms. Rachana
Dalal and Mr. Alok Kumar, Advs.
versus
UOI & ORS ..... Respondents
Through: Mr. Parvinder Chauhan and
Mr. Sushil Dixit, Adv. for DUSIB
Ms. Geetanjali Mohan, Adv. for R-2
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
04 .07.2022
1. The homeless, who people the pavements, the footpaths, and
those inaccessible nooks and crannies of the city from where the
teeming multitude prefer to avert their eyes, live on the fringes of
existence. Indeed, they do not live, but merely exist; for life, with its
myriad complexions and contours, envisaged by Article 21 of our
Constitution, is unknown to them. Even a bare attempt at imagining
how they live is, for us, peering out from our gilt-edged cocoons,
cathartic. And so we prefer not to do so; as a result, these denizens of
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the dark continue to eke out their existence, not day by day, but often
hour by hour, if not minute by minute.
2. Articles 381 and 392 of the Constitution of India obligate the
State to secure a social order in which the sacred preambular goal of
justice, social, economic and political, informs all institutions of
national life and, towards this end, to strive to minimise inequalities in
income, and to endeavour to eliminate inequalities and status,
facilities and opportunities. In particular, Article 39 requires the State
to direct its policy towards securing (i) that citizens have the right to
an adequate means to livelihood (vide clause (a)), (ii) that ownership
and control of material resources of the community are so distributed
as best to subserve the common good (vide clause (b)) and (iii) that
the operation of the economic system does not result in concentration
of wealth and means of production to the common detriment (vide
clause (c)). Alleviation of the plight of the poor and homeless is
subsumed in each of these directive principles which, though they are
1
38. State to secure a social order for the promotion of welfare of the people. -
(1) The State shall strive to promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic and political, shall inform all
the institutions of the national life.
(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to
eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst
groups of people residing in different areas or engaged in different vocations.
2
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 to
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 in the concentration of wealth
and means of production to the common detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the tender age of children
are not abused and that citizens are not forced by economic necessity to enter avocations unsuited
to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against exploitation
and against moral and material abandonment.
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not enforceable by Court, are nonetheless fundamental in the
governance of the country, and mandatorily required to be borne in
mind by the State while making laws (vide Article 37 3). One may
legitimately extrapolate the mandate of Article 37 to requiring the
State to bear, in mind, the directive principles not only while making
laws, but also while implementing laws. 4 Every statutory instrument,
be it plenary or subordinate, is required to be so interpreted as to
render it constitutional, rather than unconstitutional. 5 Juxtaposed,
these principles require all statutes, and instruments of state policy, to
be interpreted in a manner which would harmonize with the directive
principles of state policy, contained in Chapter IIIA of the
Constitution of India.
3. When the poor and deprived knock at the doors of the Court,
the Court is required to be sensitive and sensitised in equal measure.
The Court is required to remain alive to the fact that such litigants do
not have access to exhaustive legal resources. The onus that the law
places on the petitioner who petitions the Court, to positively establish
every ingredient necessary to entitle him to relief has, in the case of
the impecunious with meagre resources at hand, to be tempered with
the conviction that, if the litigant is entitled to relief, relief should not
be denied to him on technical considerations. As one of the three co-
equal wings of the government, albeit functioning independent of, and
uninfluenced by, the other two, the judiciary is required to remain as
3
37. Application of the principles contained in this Part. - The provisions contained in this Part shall
not be enforceable by any court, but the principles therein lay down our nevertheless fundamental in the
governance of the country and it shall be the duty of the State to apply these principles in making laws.
4
Refer Minerva Mills v.UOI, AIR 1980 SC 1789
5
Refer Express Newspapers Ltd. v. UOI, AIR 1958 SC 578; M. Pentiah v. Veermallappa, AIR 1961
SC 1107; Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769 ; State of Bihar v. Bihar
Distillery Ltd., (1997) 2 SCC 453; Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228
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sensitive to the call of Articles 38 and 39 as the legislature, or the
executive. Law, with all its legalese, is worth tinsel, if the
underprivileged cannot get justice. At the end of the day, our
preambular goal is not law, but justice. Law is but the instrument, the
via media, as it were, to attain the ultimate goal of justice, and law
which cannot aspire to justice is, therefore, not worth administering.
Facts
4. The petitioners are five in number. Be it noted, at the very
outset, that the petition has not been filed in a representative capacity,
and that the relief sought in the petition is restricted to the five
petitioners before the Court. For no fault of the petitioners, this
petition has lingered in this Court for 13 years since it was filed.
Issuance of omnibus directions, at this distance of time, in respect of
persons who may not have chosen to approach the Court, would be
neither practical nor practicable.
5. This judgment would also, therefore, apply in its operation to
the five petitioners in this petition, and to no one else.
6. The petitioners claim to have been residing in the Shahid Basti
jhuggi (slum) cluster, near the New Delhi Railway Station, since the
1980s, which falls in the Nabi Karim electoral constituency. They
claim that their names were entered in the Electoral Register and that
they were also exercising voting rights. They also claim to be in
possession of ration cards and/or other documents which would
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establish their claim that, since the 1980s, they had been residing in
the Shahid Basti slum colony.
7. In 2002-2003, the Railways, who were seeking to convert the
New Delhi Railway Station into a "world-class" railway station and,
for that purpose, to increase the number of platforms from 9 to 16,
desired to acquire the land on which the petitioners were situated. The
petitioners aver that, for this purpose and at the behest of the
Railways, they shifted to another location on the opposite side of the
tracks, situated at Lahori Gate, and set up a slum colony there. The
name of the slum colony, it is stated, remained the same, i.e. Shahid
Basti.
8. The Railways have, in an Additional Affidavit filed by them
pursuant to orders passed by this Court, acknowledged the fact that,
during the exercise of increasing the number of platforms in the New
Delhi Railway Station in 2003, they had to remove the jhuggis in the
Shahid Basti below the foot over bridge and shift them to the Lahori
Gate side. Though they contend that only 10 to 15 jhuggis were so
shifted, the petitioners, in their response to the additional affidavit,
dispute this figure and assert that their jhuggis were amongst those
which were so relocated.
9. Continuing expansion and modernisation of the New Delhi
Railway Station required the Railways to clear the area at the Lahori
Gate side as well. Accordingly, after issuing notices, to the residents
of the jhuggis situated in the area on 16th May, 2008 and 27th May,
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2008, the Railways proceeded to demolish the jhuggis on 14th June,
2008, and evict the petitioners therefrom.
10. Admittedly, the slum cluster at the Lahori Gate side, in which
the petitioners were residing when they were evicted in 2008,
prompting them to approach this Court, was set up only in 2003, after
the petitioners were evicted from the slum cluster in their occupation
on the opposite side of the tracks.
11. The petitioners‟ contention is that, under the Policy for
Relocation of Slum Dwellers of the Ministry of Urban Development
(MoUD) ("the Relocation Policy", hereinafter), the eviction of the
petitioners could not have been undertaken without a prior survey to
ascertain the jhuggi dwellers who would be eligible for relocation
under the Relocation Policy and, thereafter, allocating, to such eligible
jhuggi dwellers, alternate plots where they could reside.
12. The Railways contend, per contra, through Ms Gitanjali
Mohan, learned Counsel, that the Relocation Policy envisaged
relocation only of residents of jhuggis which had been set up on or
before 30th November 1998. The petitioners‟ jhuggi at Lahori gate
having admittedly been set up only in 2003, the Railways contend that
the petitioners could not be regarded as entitled to relocation. The
requirement of conducting a survey apply, according to the Railways,
only to eligible slum clusters, which were in existence, at the site, on
or before 30th November 1998. No fault, therefore, according to them,
could be found in the petitioners having been evicted from the Lahori
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Gate area without conducting any survey. Requisite notice, prior to
eviction, it is pointed out, was issued to the petitioners, not once, but
twice.
13. Mr. Parvinder Chauhan , learned Counsel for the Delhi Urban
Shelter Improvement Board (DUSIB), as the rechristened Slum and JJ
Department of the Government of National Capital Territory of Delhi
(GNCTD), submits that the DUSIB does not determine the entitlement
of eligibility of jhuggi dwellers to relocation. That entitlement, he
submits, has to be determined by the land owning agency; in the
present case, the Railways. If the Court were to hold that the
petitioners were eligible for relocation, it would be for the Railways to
relocate the petitioners, and the responsibility of the DUSIB would
only be to assist in the relocation.
14. At the same time, Mr. Chauhan echoes Ms Mohan‟s contention
that the petitioners were not, under the Relocation Policy, entitled to
relocation. Any order passed to the said effect by this Bench, Mr.
Chauhan reminds me, would be susceptible to appeal and, were such
appeal to be preferred, the DUSIB would also be a party in the
proceedings.
15. That, then, is the limited factual matrix.
Rival Contentions
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16. Mr. Dalal, learned Counsel for the petitioners, submits that, as
holders of documents which proved that they were residing in jhuggis,
albeit on the other side of the tracks, since the 1980s, and in view of
the admission, by the Railways, that they had been shifted, at the
Railways‟ insistence, to the Lahori Gate area in 2003, the petitioners
could not be regarded as ineligible for relocation under the Relocation
Policy. It would be unreasonable, contends Mr. Dalal, to disentitle the
petitioners to relocation merely because the jhuggi in which they
happened to be residing at the time of their eviction in 2008 was set up
only in 2003, ignoring the fact that, for more than two decades prior
thereto, they had been residing in jhuggis on the other side of the
tracks. Mr. Dalal also submits that the entire exercise of eviction of
the petitioners was in contravention of the Relocation Policy, which
envisaged a joint survey before such an exercise was undertaken, to
identify slum dwellers eligible for relocation. Without conducting any
such survey, Mr. Dalal submits that the Railways cannot seek to
contest the petitioners‟ entitlement to relocation. To a query from the
Court as to whether, at this distance of time, the petitioners are still
pressing their claim for relocation, Mr. Dalal submits that the
petitioners are still in touch with him, and continue to press their
claim. He relies on the judgement of the Division Bench of this Court
in Sudama Singh v. Government of Delhi6 .
17. Mr. Chauhan‟s submissions, on behalf of the DUSIB, have
already been noted supra. He further emphasises the fact that the
Relocation Policy is not under challenge and that, therefore, the
6
168 (2010) DLT 218 (DB)
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petitioners are bound by the cut-off date of 30th November 1998,
envisaged by the Policy. He draws attention to the fact that para 25 of
the Relocation Policy makes it is incumbent on the land owning
agency to approach the DC to clear squatters who had encroached on
the lands after 30th November 1998. Mr. Chauhan submits that the
fixation of cut-off date was salutary in its purpose, as the length of
stay in the jhuggi was a measure of the penury of the resident.
18. Were the cut off date to be challenged, Mr. Chauhan submits
that he could easily justify fixation thereof.
19. Ms Mohan, appearing for the Railways, submits that there is no
ambiguity, whatsoever, in the Relocation Policy, which contemplates
relocation only of dwellers of jhuggis which were in existence prior to
30th November 1998. Once the petitioners had admitted that the
jhuggis on the Lahori Gate side, in which they were residing in 2008,
had come up only in 2003, she submits that the petition is devoid of
any sustainable course of action. She also emphasises the fact that the
Relocation Policy, and the fixation of a cut off date of 30 th November
1998, thereunder, is not under challenge and that, therefore, the
petitioners, as well as the Court, would be bound by the said cut-off
date. She submits that there are several judicial pronouncements
upholding the validity of fixation of cut-off dates in Governmental
policies, and submits that an open-ended policy, with no cut off date,
would become impossible and impracticable to manage. Ms Mohan
points out that the judgement of the Division Bench of this Court in
Sudama Singh4, on which Mr. Dalal relies, itself directs, in his
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concluding para, relocation of the eligible jhuggi dwellers, in terms of
the Relocation Policy, subject to proof of residence prior to the cut off
date. As such, the sanctity of the cut off date stands recognised even
by the Division Bench of this Court. Inasmuch as the jhuggi, from
which the petitioners were evicted, was found to be of recent (2003)
vintage (as the petitioners themselves admit), Ms Mohan submits that
no fault could be found with the Railway authorities in evicting the
petitioners without conducting any prior survey. It is only where the
jhuggi was found to have been in existence prior to 30th October,
1998, submits Ms. Mohan, that a biometric survey was required to be
conducted, in order to ascertain the identity of the jhuggi dwellers
eligible for relocation. Ms Mohan places reliance on the judgement of
this Court in Rohit Raj Chhabra v. U.O.I.7 , and emphasises para 24
of the report in that case.
20. Mr. Chauhan and Ms. Mohan submit, jointly, that, as the cut-off
date, under the Relocation Policy, was not with respect to residence in
Delhi but with respect to the date from which the jhuggi, from which
the petitioners were being evicted, had been in existence, the
documents such as the electoral card, ration card, etc., that the
petitioners sought to press into service to show that they were residing
in Delhi since the 1980s, could not come to their aid.
The Relocation Policy
7
243 (2017) DLT 427
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21. As the entire dispute revolves around the Relocation Policy, it is
necessary to reproduce the relevant clauses thereof, as under:
"GOVERNMENT OF NCT OF DELHI
URBAN DEVELOPMENT DEPARTMENT
VIKAS BHAWAN : NEW DELHI
Sub: Policy Guidelines for implementation of the scheme
for Relocation of JJ clusters
The Government of Delhi is implementing a Plan scheme for
relocation of JJ clusters in Delhi. After reviewing the major
problems in the implementation of the existing relocation
policy, it has been decided to review the policy guidelines for
effective implementation of the scheme.
The Delhi Government has approved the revised policy
guidelines for implementation of the Plan for Relocation of JJ
clusters. Accordingly, the existing policy for relocation of JJ
clusters is revised as under w.e.f. 1.4.2000.
1. Jhuggis will be relocated only from project sites where
specific requests had been received from the landowning
agencies for cleaning of the project lands. No large-scale
removal of these should be resorted to without any specific
use for the cleared site.
*****
6. Cut off date and eligibility criteria:- Cut off date for
beneficiaries would be 30.11.98. To verify eligibility, Ration
Cards issued prior to 30.11.98 will be taken into account.
The name of the allottee must also figure in the notify
Voters'List as on 30.11.98. Jhuggis who came up after
30.11.98 will be removed without any alternative allotment by
the project Executing Agency.
7. Size of plot:- Keeping in view the scarcity and high
cost of land, the plot size now approved for JJ dwellers will
be as under:-
Size of plot JJ dwellers who JJ dwellers who
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were eligible had become
before 31.1.90 eligible
between 1.2.90
and 30.11.98
Size of plot for a 20 sq m 15 sq m
single dwelling unit
with WC
Ground Coverage 100% 100%
*****
19. Terms of allotment:- The grant of freehold plot to JJ
dwellers at the relocation site has been agreed to, in principle
by the Delhi Government subject to clearance by the
Government of India. Separate instructions with regard to
nature and tenure shall be issued shortly.
*****
21. Survey of clusters:- Prior to relocation and payment of
subsidy by the land owning agency and Delhi Government, a
joint survey of the sub- cluster will be carried out by the DC
of the revenue district, jointly with the land owning agency
and Executing Agency. The figure of rupees to be relocated
should be determined on the basis of this survey, keeping in
view the eligibility criteria.
*****
24. Executing Agency for the scheme:- Slum Wing of the
MCD will be the Executing Agency for relocation of JJ
clusters from the lands belonging to MCD and Delhi
Government at its departments/agencies. In case of Central
Government Departments/Agencies like Railways, DDA, L &
D, DCB, NDMC, etc. they will be free to carry out the
relocation themselves as per the policy of the Delhi
Government, or entrust the work to the Slum Wing of MCD.
The subsidy of Delhi Government as per the approved
funding pattern, will be available to all the Executing
Agencies."
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22. Mr. Chauhan and Ms. Mohan emphasise the concluding
stipulation in para 6 of the Relocation Policy, to the effect that jhuggis
which came up after 30th November 1998, would be removed without
any alternative allotment, by the project Executing Agency. Nothing,
in their submission, survives in the petitioners‟ case after this,
especially as the Relocation Policy is not under challenge.
Additionally, Ms Mohan has pointed out that Sudama Singh4, too,
directed grant of alternative plots subject to proof of residence prior to
the cut off date. The cut off date is, therefore, they submit, sacrosanct.
Analysis
23. Sudama Singh4, authored by A.P. Shah, CJ, is regarded as
some kind of a watershed in slum rehabilitation jurisprudence. The
judgement examines, in incisive detail, the rights of slum dwellers,
referring, in the process, to the relevant clauses of the Master Plan for
Delhi (MPD) 2021, international conventions, the 2009 Urban Poverty
Report of the Ministry of Housing and Urban Poverty Alleviation,
Government of India, the Relocation Policy, and pronouncements of
the Supreme Court and the South African Constitutional Court,
relevant to the issue.
24. That said, the issue in controversy in Sudama Singh4 is
different from that which arises the present case. The defence, put up
by the Governmental authorities, to the petitioners‟ prayer for
rehabilitation in that case, was that the petitioners were occupying
areas which blocked the "right of way". Slum dwellers who blocked
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the "right of way", contended the respondents before this Court in the
said case, were not entitled to relocation, on being uprooted from the
areas in their occupation. Indeed, so insubstantial was the argument
that its outcome might justifiably be regarded as having been pre-
ordained. Predictably, this Court held that the Rehabilitation Policy,
which was aimed at protecting the rights to life and livelihood of slum
dwellers, did not engraft, within itself, any exception in respect of
slum dwellers who occupied the "right of way". Emphatically
rejecting, therefore, the stand adopted by the respondents before it,
this Court declared thus (in para 62 of the report):
"62. It is declared that:
(i) The decision of the respondents holding that the
petitioners are on the 'Right of Way' and are, therefore,
not entitled to relocation, is hereby declared as illegal
and unconstitutional.
(ii) In terms of the extant policy for relocation of
jhuggi dwellers, which is operational in view of the
orders of the Supreme Court, the cases of the
petitioners will be considered for relocation.
(iii) Within a period of four months from today,
each of those eligible among the petitioners, in terms
of the above relocation policy, will be granted an
alternative site as per MPD-2021 subject to proof of
residence prior to cut-off date. This will happen in
consultation with each of them in a 'meaningful'
manner, as indicated in this judgment.
(iv) The State agencies will ensure that basic civic
amenities, consistent with the rights to life and dignity
of each of the citizens in the jhuggies, are available at
the site of relocation."
The decision of the Division Bench of this Court in Sudama Singh4
was carried, by the GNCTD, in appeal to the Supreme Court vide SLP
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(C) 445-446/2012 which was, however, withdrawn8. Sudama Singh4,
therefore, continues to hold the field.
25. Having said that, the decision in Sudama Singh4, though path-
breaking, does not advance adjudication of the rival contentions urged
before the Court in the present case, as the Court, in Sudama Singh4,
expressly granted relief in terms of the Relocation Policy. The
respondents, in fact, seek to rely on Sudama Singh4 to contend that as
para 6 of the Relocation Policy excepts its application to jhuggis
established after 30th November 1998, and to the dwellers of such
jhuggis, the petitioners, as residents of jhuggis which came up only in
2003, are not entitled to relocation.
26. This case, therefore, throws up, for direct examination, the
scope of para 6 of the Relocation Policy. At the cost of repetition, the
para may once again be reproduced, thus:
"6. Cut off date and eligibility criteria:- Cut off date for
beneficiaries would be 30.11.98. To verify eligibility, Ration
Cards issued prior to 30.11.98 will be taken into account. The
name of the allottee must also figure in the notify Voters‟List
as on 30.11.98. Jhuggis who came up after 30.11.98 will be
removed without any alternative allotment by the project
Executing Agency."
27. If one were to read the last stipulation, in the afore-extracted
para 6 of the Relocation Policy, in isolation, unquestionably the
respondents‟ contention has merit. It appears to lay down an absolute
proscription to grant of alternative allotment to residents of jhuggis
which came up after 30th November 1998.
2013 SCC OnLine SC 1328
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28. What the Relocation Policy does not address, however, is the
fate of dwellers, such as the petitioners (as they claim), who were
found residing in jhuggis which had come up after 30th October, 1998,
but who were residing, even prior thereto, in jhuggis located
elsewhere. Can they be denied the benefit of relocation merely
because the jhuggis, in which they happened to be residing at the time
when the authorities came to evict them, were established after 30 th
October, 1998?
29. To a pointed query, in this regard, learned Counsel for the
respondents responded, in one voice, in the affirmative. Their
contention is that, for better or for worse, para 6 of the Relocation
Policy says what it does. It fixes a cut off date, and fixation of a cut
off date, even in the matter of extending, to citizens, a beneficial
executive dispensation, has been held, in several decisions, to be
legally justifiable. The cut off date, once fixed, they submit, is
sacrosanct. The cut off date, even in the terms in which it has been
fixed in para 6 of the Relocation Policy, applies to the date on which
the jhuggis, in which the persons being evicted were found to be
residing, had come into existence. There is no scope, in the
Relocation Policy, submit learned Counsel, to investigate into the
living conditions of the jhuggi dwellers prior to their taking up
residence in the jhuggis slated for demolition.
30. Qua the petitioners, learned Counsel submit that the jhuggis in
which they were found to be residing on 14th June, 2008, when the
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Railway authorities visited the site, having been found to have come
up after 30th October, 1998, the scope of enquiry ended there. The
petitioners were, by the very fact that the jhuggis in which they were
residing were of recent vintage, ipso facto disentitled to relocation;
ergo, submit learned Counsel, no occasion arose for conducting any
survey or for any further enquiry into the matter. All that remained
was to evict the petitioners. The petitioners‟ contention that, since the
1980s, they had been residing in jhuggis elsewhere, according to
learned Counsel for the respondents, is irrelevant, as what matters is
the date on which the jhuggis, in which the petitioners were found to
be residing at the time when they were being sought to be uprooted,
had come up.
31. By way of an aside, I may note that Mr. Dalal had also queried
as to how the respondents came to know that the jhuggis in which the
petitioners were found residing on 14th June, 2008, had come up after
30th October, 1998, without conducting any survey. I do not intend to
devote time to this issue, as the petitioners admit that the jhuggis at the
Lahori Gate side of the tracks had, indeed, come up only in 2003.
32. Returning, thus, to the issue at hand, the Court is required to
assess the merit of the respondents‟ contention that, if the jhuggis
which were proposed to be removed had come up after 30 th October,
1998, the question of whether the residents of such jhuggis had, prior
to the said jhuggis being set up, been residing in jhuggis elsewhere, is
irrelevant, in determining their entitlement to relocation.
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33. While it is true that para 6 of the Relocation Policy does not
grant any beneficial amnesty to jhuggi dwellers who were residing in
jhuggis elsewhere prior to the cut off date of 30th June, 1998, equally,
however, it does not state, either expressly or by necessary
implication, that such pre-30th October, 1998 residence, in jhuggis
located elsewhere, is irrelevant in determining the entitlement of the
jhuggi dwellers to relocation. In fact, the Relocation Policy does not
address the plight of persons who, though the jhuggis in which they
were residing at the time of visit by the authorities had come up after
30th October, 1998 were, in fact, residing in jhuggis elsewhere prior to
the said cut-off date.
34. The directions in Sudama Singh4 do not assist much, in this
regard. Direction (iii) mandates relocation of those of the petitioners
before this Court in the said case, who were eligible for relocation
under the Relocation Policy, "subject to proof of residence prior to cut
off date". Reading this stipulation as "subject to proof of residence in
the jhuggi from which they are being sought to be evicted, prior to the
cut off date" would, in my view, amount to rewriting Sudama Singh4.
That, however, is how learned Counsel for the respondents would seek
to read Sudama Singh4. In my view, that is impermissible. The
latitude available with a Court, in interpreting a precedent, can never
extend so far as to enable it to rewrite the precedent.
35. The issue of how the Relocation Policy would apply to a jhuggi
dweller, being sought to be evicted from Jhuggi A, on the ground that
Jhuggi A was set up after 30th October, 1998, if the said jhuggi
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dweller was residing in Jhuggi B even before 30th October, 1998 and
till he shifted to Jhuggi A, thus, still looms large.
36. Ms Mohan, appearing for the Railways, submitted that fixing of
cut-off dates, for application of beneficial policies, is permissible in
administrative law, and has been upheld in several decisions. To my
mind, this argument really begs the issue at hand. The fixing of 30 th
November 1998, as a cut off date for the purpose of availability of the
benefit of the Relocation Scheme, cannot be regarded as
constitutionally infirm. To his credit, Mr. Dalal, too, did not challenge
the Relocation Policy on the ground that it ought not to have fixed a
cut off date of 30th November 1998. That, however, is not the issue.
The issue is whether the cut off date can be so operated as to deny the
benefit of the Relocation Policy to jhuggi dwellers who have been
staying in jhuggis, in Delhi, prior to 30th November 1998, but may
have shifted to the jhuggi from which they were being proposed to be
evicted only after 30th November 1998. In other words, would the cut
off date of 30th November 1998, apply to the physical existence of the
jhuggi which is being sought to be removed, or to the status of the
jhuggi dwellers as jhuggi dwellers? As such, it is not so much the
fixation of the cut off date of 30th November 1998, as the manner in
which that cut off date is to be implemented, which arises for
consideration.
37. Sudama Singh4 takes note of the judgement of the Supreme
Court in Bangalore Medical Trust v. B.S. Muddappa 9, to hold that a
(1991) 4 SCC 54
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plan, prepared in terms of the statute, concerning the planned
development of the city, attains a statutory character and is
enforceable as such. The Relocation Policy would also, in my view,
be entitled to similar status, especially as it has, from time to time,
been enforced by the Court.
38. The provisions of the Relocation Policy have, therefore, to be
accorded a purposive interpretation. In the context of statutes, the
new "golden rule" is the rule of purposive interpretation, as opposed
to the earlier golden rule of literal interpretation, as held by the
Supreme Court in Shailesh Dhairyawan v. Mohan Balkrishna
Lulla10 and Richa Mishra v. State of Chhatisgarh11.
39. Ameliorative and beneficial statutes and schemes have, it is
trite, to be broadly and liberally interpreted, so as to maximise their
scope and effect. The Directive Principles of State Policy are required
to be borne in mind, and the Court must lean towards attaining a
teleological approach with a social perspective. 12 In Moti Ram v.
State of M.P.13, the Supreme Court, in the inimitable words of
Krishna Iyer, J., advised applying the Gandhian talisman, when
dealing with statutes which were ameliorative or intended at
benefiting the poor and needy:
"Whenever you are in doubt ... apply the following
test. Recall the face of the poorest and the weakest man
whom you may have seen, and ask yourself, if the step you
contemplate is going to be of any use to him."
(2016) 3 SCC 619
(2016) 4 SCC 179
B. Shah v. Presiding Officer, Labour Court, (1977) 4 SCC 384
(1978) 4 SCC 47
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Interestingly, Moti Ram11 identified, in its opening sentences, the
grievance of the petitioner before the Court in that case, thus:
" „The law, in its majestic equality, forbids the rich as
well as the poor to sleep under bridges, to beg in the streets,
and to steal bread,‟ lampooned Anatole France. The reality of
this caricature of equal justice under the law, whereby the
poor are priced out of their liberty in the justice market, is the
grievance of the petitioner."
We, in the present case, are indeed concerned with the poor, who are
forced to sleep under bridges and to beg in the streets.
40. In this regard, covenants in policy documents, containing the
terms of administrative and executive policies, cannot be subjected to
as strict an interpretation as would be accorded to plenary or
parliamentary statutory instruments. They have, therefore, to be
interpreted broadly, keeping in mind the purpose that the policy seeks
to achieve.
41. So far as the purpose that the Relocation Policy seeks to achieve
is concerned, the answer was provided by Mr. Chauhan himself, by
his submission (while seeking to justify the fixation of a cut off date)
that the length of stay in the jhuggi would be indicative of the level of
penury of the jhuggi dweller. Amelioration of the financial condition,
and quality of life, of the jhuggi dweller is, needless to say, the
avowed objective of all policies which seek to rehabilitate slum
dwellers, including the Relocation Policy. Viewed thus, it would run
against the very grain of the Relocation Policy and its aims and
objectives to prefer, for rehabilitation and relocation, a jhuggi dweller
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who has to his credit a shorter length of jhuggi stay, as compared to
one who has been a jhuggi resident for a longer period of time.
42. As already observed hereinabove, the Relocation Policy does
not contemplate a situation in which a dweller in a jhuggi, which is
being sought to be removed, has earlier been dwelling in other
jhuggis. If the length of jhuggi stay is, as Mr. Chauhan submits, to be
treated as indicative of the financial penury of the jhuggi resident, a
person who has been residing in jhuggis for a longer length of time
would, naturally and logically, be entitled to preferential treatment in
the matter of relocation, vis-à-vis a person who has been residing in
jhuggis for a lesser period of time. At the very least, the Relocation
Policy cannot be so applied so as to extend its benefits to a jhuggi
dweller who has been a jhuggi dweller for a shorter length of time,
and deny its benefits to a jhuggi dweller with a longer period of jhuggi
stay to his credit.
43. If para 6 of the Relocation Policy is to be applied in the manner
in which Mr. Chauhan and Mr. Mohan would advocate, this, however,
would be the precise outcome. Learned Counsel have been at pains to
point out that the concluding stipulation in para 6 refers only to the
time from which the jhuggi, being sought to be removed, has been in
existence. The right of the residents of the jhuggi to relocation would,
according to them, have to be tested on this ground, and on this
ground alone. Applying this test, they submit that when, on 14 th June,
2008, the Railway authorities visited the petitioners‟ jhuggi at the
Lahori Gate side, the jhuggi was found to be of only 2003 vintage.
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The jhuggi having thus come into existence after the fatal cut off date
of 30th November 1998, learned Counsel would submit that the
residents of the jhuggi could not be regarded as entitled to relocation.
That they may have, prior to shifting to the jhuggi at the Lahori Gate
side, been residing in jhuggis elsewhere, according to learned
Counsel, is immaterial, as it is not envisaged as a relevant
circumstance in the Relocation Policy, and the Policy itself is not
under challenge.
44. Such an approach would, however, be completely out of sync
with the professed objective of the Relocation Policy, which is
amelioration of the financial condition of the jhuggi dwellers. The
Lahori Gate jhuggi, admittedly, came up in 2003 or thereabouts, i.e.
approximately five years after the cut off date of 30th November 1998.
According to the petitioners, prior to shifting to the Lahori Gate side
in 2003 at the instance of the Railways, they were, since the 1980s,
residing in the Shahid Basti jhuggi on the opposite side of the tracks in
the Nabi Karim constituency. Significantly, the fact that jhuggis,
situated in the Shahid Basti, Nabi Karim, were shifted to the Lahori
Gate side at the instance of the Railways, stands acknowledged by the
Railways themselves, in para 4 of their additional affidavit, which
reads thus:
"4. In any event all these documents bear the addresses as
Shahid Basti, Nabi Karim or Ramnagar etc. whereas Railway
had removed some Jhuggis from between the tracks in order
to shift their washing line from New Delhi Railway Station to
increase the number of platforms for convenience of public.
Earlier there were only 9 platforms at New Delhi Railway
Station which were increased to 16 in number. This was done
from the year 2003 2008. At that time there was
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encroachment by about 10 or 15 jhuggi is only near the old
food over bridge. This encroachment had a over a period of 3
or 4 years only, after they were removed by Railway
Administration from in between the tracks thereafter Jhuggi
dwellers relocated themselves to nearby area towards Lahori
Gate where they were only 0 to 20 m away from the railway
track whereas 15 m is in fact the safety zone. In this Lahori
gate area jhuggi dwellers relocated themselves in the year
2003."
It stands acknowledged by the Railways, therefore, that the jhuggis
which came up in the Lahori Gate area in 2003 were peopled by
dwellers of jhuggis on the other side of the track, from where they
were removed by the Railways in 2003. There were, therefore, at
least some Lahori Gate jhuggi dwellers who had been jhuggi residents
even prior to their shifting to Lahori Gate at the instance of the
Railways.
45. If that be so, in my considered opinion, not extending, to such
jhuggi dwellers, who were residents of jhuggis elsewhere prior to their
shifting to the Lahori Gate side in 2003, of the benefit of the period
during which they were residing in jhuggis at other sites, while
assessing their entitlement to relocation under the Relocation Policy
would be against the very object and purpose of the Policy. If, in
other words, a resident of the Lahori Gate jhuggi had been a jhuggi
dweller, albeit on the other side of the tracks, from a period prior to
the cut off date of 30th November 1998, it would be unjust, unfair and
contrary to the avowed purpose and objective of the Relocation Policy
to deny him the benefit of relocation.
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46. Jhuggis, it must be remembered, are not structures of cement
and concrete. Jhuggi dwellers represent a shifting, nomadic,
populace. Rarely is it that jhuggi dwellers can claim to permanently
establish themselves at any particular site. They are often uprooted
from the place where the place where they dwell, and shifted, perforce
and often against their will, elsewhere. Hounded by poverty and
penury, they have no option but to comply. Slum dwellers do not stay
in slums out of choice. Their choice of residence is a last ditch effort
at securing, for themselves, what the Constitution regards as an
inalienable adjunct to the right to life under Article 21, viz. the right to
shelter and a roof over their heads. As to whether the roof provides
any shelter at all is, of course, another matter altogether.
47. Mr. Chauhan is, therefore, correct in his submission that the
length of jhuggi stay is a measure of the level of penury of the jhuggi
dweller. He errs, however, in failing to recognise the sequitur. The
longer the length of jhuggi stay that the jhuggi dweller has to his
credit, the greater must, of needs, be his entitlement to relocation
under the Relocation Policy. Viewed thus, the somewhat blinkered
interpretation that learned Counsel for the respondents seek to accord
to para 6 of the Relocation Policy, merely predicated on the
concluding stipulation in the said paragraph cannot, in my view,
sustain.
48. Rather, the paragraph is required to be read as a whole. The
opening sentence stipulates that the "cut-off date for beneficiaries"
would be 30th November 1998. This is succeeded by the stipulation
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that, "to verify eligibility, Ration Cards issued prior to 30.11.98 will
be taken into account". Additionally, the paragraph requires the name
of the allottee to figure in the notified Voters‟ List as on 30 th
November 1998. While emphasising the specification, in the
concluding sentence of the said paragraph, that jhuggis which had,
after 30th November 1998, would be removed without alternative
allotment, learned Counsel for the respondents did not advert to the
earlier stipulations in the paragraph. These indicate that the governing
consideration, even in the mind of the framers of the Relocation
Policy, was the length of jhuggi stay. If, in other words, the jhuggi
dweller could, using his Ration Card or other valid document,
establish that, prior to 30th November 1998, he was a jhuggi resident
somewhere in Delhi, he had to be regarded as a "beneficiary" under
para 6 of the Relocation Policy. That he may have shifted to the
Lahori Gate jhuggi after 1998 cannot, in my view, be a hindrance to
his entitlement.
49. By so holding, I am not, in my view, doing violence to the
express words of the Relocation Policy, for three reasons, which
already stand elucidated. The first is that the Relocation Policy, being
a policy document framed by the executive, rather than the legislature,
is not subject to the same rigours of interpretation to which legislative
documents are subject. The Policy is required to be accorded a
purposive interpretation, in sync with its objectives. The objective of
the Relocation Policy being amelioration of the financial and living
conditions of the slum dwellers, the interpretation to be placed on its
covenants has also to further this purpose. This, in turn, would require
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the factoring in, as a consideration while examining the jhuggi
dweller‟s right to relocation, of his total length of jhuggi stay, whether
in the jhuggi which is proposed to be removed or in any other jhuggi
elsewhere. The second is that, if para 6 of the Relocation Policy is
holistically read, the right to relocation, of the "beneficiary" of the
Policy, is to be discerned on the basis of the length of residence as
evinced by Ration Cards, Voter ID cards, etc. So long, therefore, as
the jhuggi dweller is able to establish, from such documents, that he
has been a jhuggi resident, whether in that jhuggi or in any other
jhuggi, prior to 30th November 1998, the benefit of the Relocation
Policy cannot be denied to him. The third is that we are dealing, in
the present case, with a situation not strictly envisaged by the
Relocation Policy, i.e., where the resident of the jhuggi which is being
proposed to be removed was, prior thereto, staying in jhuggis
elsewhere, since a point of time prior to 30 th November 1998.
Dealing, as we are, with a situation that, apparently, the Relocation
Policy does not envisage or cater to, the answer has also to be sought
res integra, founded on the principles and objectives behind the
Relocation Policy, and not by according, to the convenants of the
Policy, a hyper-semantic and unduly strict interpretation - as one may
accord, for example, to a parliamentary legislation.
50. There is yet another, and more equity and fact-based, reason for
me to adopt this view, particularly in the facts and circumstances that
obtain in the present case. As already noted, the submission of the
petitioners that they were earlier residing in the Shahid Basti jhuggi on
the other side of the track in the Nabi Karim constituency, and had
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been shifted, at the instance of the Railways, to the Lahori Gate side
has, to an extent, been acknowledged by the Railways themselves in
their additional affidavit. Having themselves compelled the petitioner
is to shift to the Lahori Gate side in 2003 and, thereby, cease residence
in the Shahid Basti jhuggi at the Nabi Karim side, the Railways cannot
seek to capitalise on their action and deny, to the petitioners, the right
to relocation, on the ground that the jhuggi at the Lahori Gate side
came up only in 2003, thereby denying, in the process, the benefit of
their earlier residence in the Shahid Basti jhuggi at the opposite side of
the track. In other words, having themselves compelled the petitioners
to set up a new jhuggi in 2003, the Railways cannot use that date as
the basis to deny, to the petitioners, their right to relocation, even
though they were residing in jhuggis elsewhere prior to the cut off
date of 30th November 1998. This would be contrary to every known
tenet of propriety and fair play.
51. Somewhat disconcertingly, the Railways have, in their
Additional Affidavit, sought to brush aside the documents placed on
record by the petitioners to demonstrate the length of their stay in
Delhi, by stating that the genuineness of the documents could be
verified only by the authorities who had issued the documents. The
petitioners have responded and, in my opinion, justifiably, that the
responsibility of ascertaining the genuineness and veracity of the
documents produced by the petitioners as proof of residence, from the
authorities, would rest with the Railways. The petitioners, as poor
slum dwellers, could hardly be called upon to produce the authorities
who had issued their ration cards, Voter ID cards or other documents,
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so as to demonstrate their genuineness or veracity. If the Railways do
not make the effort at contacting the concerned authorities for that
purpose, the benefit of doubt would necessarily enure in favour of the
petitioners, who had produced the documents.
Conclusion
52. I am, therefore, of the considered opinion that the sole stand on
which learned Counsel for the respondents rest their case, i.e., that the
jhuggi, at the Lahori Gate side of the railway tracks, from where the
petitioners were uprooted, having come into existence only in 2003,
the petitioners were not entitled to the benefit of the Relocation Policy
by virtue of the concluding stipulation in para 6 thereof, cannot sustain
on facts or in law. If the petitioners have been residents of the Shahid
Basti jhuggi in Nabi Karim, prior to 30th November 1998, they would
be entitled to the benefit of the Relocation Policy, even if the jhuggi at
the Lahori Gate site, from which they were removed, came up only in
2003.
53. Subject, therefore, to the petitioners being able to demonstrate,
to the respondents, that they have been residents of the Shahid Basti
jhuggi in Nabi Karim from a date prior to 30th November 1998, they
would be entitled to the benefit of the Relocation Policy and would,
therefore, be entitled to alternative accommodation. Given the length
of time for which this petition has remained pending, this right would,
however, enure to the petitioners‟ benefit only if they are able,
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additionally, satisfy the respondents that they continue, till date, to be
jhuggi residents.
54. As a result, this petition is allowed to the following extent:
(i) It is declared that
(a) if the petitioners have been residents of the Shahid
Basti jhuggi in Nabi Karim near the railway tracks or the
foot over bridge at New Delhi Railway Station, from a
date prior to 30th November 1998, and have been
continuously living in jhuggis till 14th June, 2008, when
they were removed, and
(b) if they are still residing in jhuggis as on date,
they would be entitled to be relocated and granted plots in accordance
with their entitlement as per Clause 7 of the Relocation Policy.
(ii) In order to satisfy the respondents in this regard, the
petitioners would present themselves before the officer, to be
intimated by the respondent to Learned Counsel for the
petitioner within a week with all documents in their possession,
to demonstrate compliance with conditions (a) and (b) in (i)
supra.
(iii) Proof of residence would be permitted to be adduced not
only by Ration Cards or by Voter ID Cards, but also by any
other document, issued by a public or Governmental authority,
which is verifiable in nature. It would be for the Railways to
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verify the authenticity, genuineness and acceptability of the
concerned document. In case any of the petitioners is required
to produce any additional document, in the event of the
documents produced by said petitioner(s) being found to be
unsatisfactory, the Railways would apprise the concerned
petitioner(s) accordingly.
(iv) The petitioners who are found, on a perusal of the
documents and keeping in mind the observations and findings
in this judgement, to be entitled to alternative allotment, would
be allotted such alternative accommodation, as per the
petitioners‟ entitlement and in accordance with the Relocation
Policy. This shall be done as expeditiously as possible and not,
in any event, later than 6 months from the date of production of
the documents by the concerned petitioner(s) before the
Railways.
55. As the petitioners are slum dwellers, should they be aggrieved
by the decision taken by the respondents, or by any other act of the
respondents in connection with the aforesaid directions, or should they
find it necessary to seek any further directions or clarification from
this Court, they would be permitted to revitalise these proceedings by
moving an appropriate application, and would not be required to file a
fresh writ petition for the said purpose.
56. It is clarified that the aforesaid directions, and the benefit of this
judgement, apply only to the five named petitioners in this petition.
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57. There shall be no order as to costs.
C.HARI SHANKAR, J
JULY 4, 2022
HMJ
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