Saraswati Devi vs The State Of Bihar
2022 Latest Caselaw 3276 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.12060 of 2021
     ======================================================

1. Saraswati Devi W/o Jogendar Dom Malahi Pakdi Chowk, Kankarbagh, Lohiya Nagar, Patna- 800020.

2. Asha Devi W/o Nathun Prasad R/o Rainbow Field Jhoparpatti, Old Water Tank, Kankarbagh, Patna- 800020.

... ... Petitioners Versus

1. The State of Bihar through its Chief Secretary, Main Secretariat, Patna-

800001.

2. Urban Development and Housing Department through its Principal Secretary, Government of Bihar, Vikas Bhawan, Bailey Road, Patna- 800001.

3. Patna Metro Rail Corporation Limited through its Managing Director, Indra Bhawan, West Boring Canal Road, Patna- 800001.

4. The Department of Social Welfare, through its Principal Secretary, Government of Bihar.

5. Bihar State Housing Board through its Chairman, Vikas Bhawan, Bailey Road, Patna- 800001.

6. The Patna Municipal Corporation through its Commissioner, Maurya Lok Complex, Near Kotwali Thana, New Dak Bunglow Road, Patna- 800001.

7. Divisional Commissioner, Patna.

8. The District Magistrate, Patna.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr. Deepak Kumar Singh, Advocate Mr.Vishal Kumar Singh, Advocate For the respondent-State: Mr. Abbas Haider, SC-9 Ms. Deepika Sharma, AC to SC-9 For the PMC : Mr. Prasoon Sinha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE DR. ANSHUMAN ORAL JUDGMENT Patna High Court CWJC No.12060 of 2021 dt.27-06-2022

(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH) Date : 27-06-2022

The petitioners have made the following prayers in

the present writ petition :

"(a) Issue a writ in the nature of mandamus

directing the respondents to provide complete

rehabilitation to the petitioners, as per the Bihar

State Slum Policy, 2011 and Affordable

Housing and Slum Rehabilitation Housing

Policy, 2017 (Revised).

(b) Issue a writ in the nature of mandamus

directing the respondents to ensure provision of

alternate transit accommodation that includes

basic civic amenities, consistent with the rights

to life and dignity of each of the petitioners

and/or similarly situated people at the locality.

(c) Issue a writ in the nature of mandamus

directing the respondents to immediately

provide a shelter to safeguard the petitioners

and/or similarly situated persons in the locality

from this harsh weather and on-going second

wave of Covid-19 infection and transmission.

(d) Issue a writ in the nature of mandamus Patna High Court CWJC No.12060 of 2021 dt.27-06-2022

directing the respondents to immediately make

the community toilet accessible for the residents

that are found locked and inaccessible.

(e) Directing the respondents to provide

immediate relief to the petitioner and/or to the

residents of the said area and ensure to provide

the inhabitants with food packets, potable water,

power supply, education, livelihood, proper

health check-up facilities including ante-natal

care to pregnant women and postnatal care to

lactating mothers, immunization, access to

anganwardi centre to provide nutrition and to

provide visitation by asha members and other

services as per the ICDS scheme etc. to

facilitate the petitioners.

(f) To issue a writ in the nature of mandamus

directing the respondents to place on record the

status of petitioners' plea under affordable

housing PMAY-U Housing For All, Affordable

Housing and Slum Rehabilitation Housing

Policy, 2017 (Revised) with a date of final

allotment of the houses under the scope of the Patna High Court CWJC No.12060 of 2021 dt.27-06-2022

scheme.

(g) Issue a writ in the nature of mandamus

directing the respondents to place before this

Hon'ble Court a proper slum rehabilitation plan

that should be implemented as soon as possible.

(h) Directing the State to fulfill their

constitutional and statutory obligation that is to

ensure that if the jhuggi dweller is forcibly

evicted and relocated, such jhuggi dweller are

not worse off.

(i) Directing the respondents to appoint a

Nodal Officer as per Affordable Housing and

Slum Rehabilitation Housing Policy, 2017

(Revised) from Urban Local Bodies and District

Administration to coordinate various measures

to be taken as per provisions of these guidelines

to facilitate the petitioners.

(j) Pass any such order as this Hon'ble Court

may feel fit and proper in the facts and

circumstances of the case."

2. During the pendency of the writ petition, the

petitioners have filed an interlocutory application vide I.A. Patna High Court CWJC No.12060 of 2021 dt.27-06-2022

No.01 of 2021 with a prayer to add the following prayers in the

writ petition :

"(k) Direct the respondents authorities to

provide for transit accommodation at the

earliest available opportunity to the people of

slum areas who were evicted.

(l) Direct the respondent authorities to

arrange for the rehabilitation of the people

someplace else at the earliest available

opportunity who were evicted from the slum.

(m) Direct the respondent authorities to

provide for the unhindered supply of life saving

drugs and medical supplies as much as possible

to those people who were evicted from the slum

area at the earliest available opportunity.

(n) Direct the respondent authorities to make

available essential facilities such as toilet

facilities and pure and potable water to the

people who were evicted from the slums.

(o) Direct the respondent authorities to

provide the evicted people with enough ration

for them to sustain themselves until they are Patna High Court CWJC No.12060 of 2021 dt.27-06-2022

properly rehabilitated.

(p) Direct the respondent authorities to

ensure that the evicted people are not facing any

further hardships due to the present ongoing

Covid pandemic and are being looked after

properly in these times of Covid."

3. It would be evident from the pleadings of the

petitioners that initially, they were aggrieved by the action of the

respondents whereby they were threatening to demolish

jhuggi/jhopari situated at Malahi Pakri and Rainbow Field,

Kankarbagh slum area, Ward No.34 where Malahi Pakri Metro

Station under Patna Metro Project was proposed to be

constructed. The petitioners pleaded that no prior notice was

served to the residents and only announcements were made

twice on 07.04.2021 and 06.04.2021 respectively for removal of

encroachment upon the public land. It was the case of the

petitioners that due to this imminent threat and apprehension

around 150-200 families would be displaced and they would

have no shelter. The petitioners contended that the

demolition/displacement would infringe the constitutional rights

of the petitioners and/or similarly situated people and they

would suffer irreparable injury.

Patna High Court CWJC No.12060 of 2021 dt.27-06-2022

4. The contention of the petitioners in the writ petition

is that the officials of the Patna Municipal Corporation and

Patna Metro Rail Corporation Limited have been intimidating

and threatening the residents to vacate their houses otherwise

they would face dire consequences along with demolition drive.

The further contention of the petitioners is that the denial of the

benefit of the rehabilitation to the petitioners would violate their

right to shelter guaranteed under Article 226 of the Constitution

of India.

5. It would be evident from the pleadings made in the

interlocutory application whereby the petitioners have prayed

for addition of certain prayers that on 25.06.2021, the entire

slum area was made encroachment free.

6. It has been argued by Mr. Vishal Kumar Singh,

learned counsel for the petitioners that the action of the

respondents in the eviction of people from slum area situated at

Malahi Pakri and Rainbow Field, Kankarbagh slum area, Ward

No.34 and not allotting them transit accommodation or

rehabilitating them at some other place is violative of right to

shelter guaranteed under Article 226 of the Constitution of

India. It has been argued on behalf of the petitioners that before

evicting the petitioners and other similarly situated persons from Patna High Court CWJC No.12060 of 2021 dt.27-06-2022

the aforesaid slum area, the respondent authorities ought to have

made suitable arrangement for complete rehabilitation as per the

Bihar State Slum Policy, 2011 and Affordable Housing and

Slum Rehabilitation Housing Policy, 2017 (Revised) or under

Pradhan Mantri Awas Yojna (Urban) (PMAY-U)- Housing For

All.

7. A counter affidavit has been filed on behalf of

respondent no.2 wherein it is contended that the petitioners are

basically aggrieved with demolition and displacement from their

jhuggi/jhopari made on public land near Malahi Pakri and

Patliputra Sports Complex, Kankarbagh, Patna where currently

work of Patna Metro Project is in progress. It has further been

contended that the reliefs claimed in the writ petition are

misconceived as the petitioners under the garb of Public Interest

Litigation are trying to create hindrance in the matter of removal

of encroachments. They are causing obstruction in speedy

implementation of a very prestigious public project, namely,

Patna Metro Project. The petitioners are encroachers and illegal

occupants and have no legal right much less any fundamental

right to occupy over a valuable public land by encroaching upon

the same in the heart of Patna Town, which is now being utilized

for construction of Malahi Pakri Metro Station under the Patna Patna High Court CWJC No.12060 of 2021 dt.27-06-2022

Metro Project.

8. By way of filing a supplementary counter affidavit,

respondent no. 2 apprised the Court regarding the

initiatives/actions taken so far for the implementation of Bihar

Slum Policy, 2011 and revised policy, namely, Affordable

Housing and Slum Rehabilitation & Redevelopment Housing

Policy, 2017.

9. Mr. Abbas Haider, learned counsel appearing for

respondent-State submitted that the petitioners being

encroachers and illegal occupants over public land were liable

to be evicted under the provisions of Bihar Public Land

Encroachment Act, 1956 in order to facilitate the construction of

Malahi Pakri Metro Station under the Patna Metro Project. He

submitted that no one has a right to encroach upon public land.

10. A counter affidavit has also been filed on behalf of

respondent no. 6 in the present matter wherein steps taken by

the Patna Municipal Corporation in compliance with direction

issued by the Urban Development and Housing Department,

Government of Bihar to all urban local bodies in respect of

rehabilitation of the poor, houseless and landless persons

residing in the slum areas situated within the municipal limits of

the Patna Municipal Corporation have been highlighted. Patna High Court CWJC No.12060 of 2021 dt.27-06-2022

11. Mr. Prasoon Sinha, learned counsel appearing for

the Patna Municipal Corporation submitted that no person has

got right to encroach or erect structures on any public land and

mere continuous illegal possession cannot be sufficient to claim

that they would not be liable to be evicted unless they are

rehabilitated at a different location in the name of right to

shelter.

12. We have heard learned counsel for the parties and

carefully perused the record.

13. We find force in the submissions made on behalf of

the respondents. From the pleadings made in the writ petition

and the interlocutory application it would be manifest that the

petitioners are primarily aggrieved by the demolition/

displacement from their jhuggi/jhopari made on public land

near Malahi Pakri and Patliputra Sports Complex, Kankarbagh,

Patna where Malahi Pakri Metro Station under the Patna Metro

Project is being constructed. It may be true that the petitioners

and other similarly situated persons may have encroached over

government land for a sufficient period of time. However, such

encroachers would have no perpetual right to continue upon the

public land even at the cost of stopping construction of a Metro

Station, which would be in the interest of the public. We are not Patna High Court CWJC No.12060 of 2021 dt.27-06-2022

at all persuaded with the submission canvassed on behalf of the

petitioners that the petitioners and other similarly situated

persons have a constitutional right to shelter and unless they

would have been rehabilitated under some scheme of the

government, they could not have been displaced from their

jhuggi/jhopari.

14. By now, it is well settled that mere long possession

over public land by way of encroachment is not sufficient to say

that encroachers are not liable to be evicted as they have a right

to shelter.

15. A statutory duty must exist before it can be

enforced through mandamus. Further, while exercising

jurisdiction under Article 226 of the Constitution of India, this

Court would be justified in issuing a writ in the nature of

mandamus where the Government or a public authority has

failed to exercise or has wrongly exercised the discretion

conferred upon it by a statute or a rule or a policy decision of

the Government or has exercised such discretion mala fide or on

irrelevant consideration. In the instant case, the petitioners have

failed to make out any case that the respondents have failed to

exercise or has wrongly exercised the discretion conferred upon

them by a statute or a rule or a policy decision of the Patna High Court CWJC No.12060 of 2021 dt.27-06-2022

Government or they have exercised such discretion mala fide or

on irrelevant consideration. An encroacher upon a public land,

who has erected structures like jhuggi/jhopari cannot claim that

he can not be evicted unless he is rehabilitated at a suitable

place.

16. We are of the considered opinion that the right to

shelter pleaded on behalf of the petitioners cannot be used for

the purpose of unlawful encroachment upon public land. In this

regard, it would be apt to refer to para-10 of the judgment of the

Hon'ble Supreme Court in Ahmedabad Municipal Corporation

vs. Nawab Khan Gulab Khan & Ors., since reported in AIR 1997

SC 152, which reads as under :

"10. The Constitution does not put an absolute embargo on the deprivation of life or personal liberty but such a deprivation must be according to the procedure, in the given circumstances, fair and reasonable. To become fair, just and reasonable, it would not be enough that the procedure prescribed in law is a formality. It must be pragmatic and realistic to meet the given fact-situation. No inflexible rule of hearing and due application of mind can be insisted upon in every or all cases. Each case depends upon its own backdrop. The removal of encroachment needs urgent action.

But in this behalf what requires to be done by Patna High Court CWJC No.12060 of 2021 dt.27-06-2022

the competent authority is to ensure constant vigil on encroachment of the public places. Sooner the encroachment is removed when sighted, better would be the facilities or convenience for passing or repassing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places. On the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblance of right to obstruct removal of the encroachment. If the encroachment is of a recent origin the need to follow the procedure of principle of natural justice could be obviated in that no one has a right to encroach upon the public property and claim the procedure of opportunity of hearing which would be a tedious and time-consuming process leading to putting a premium for high-handed and unauthorised acts of encroachment and unlawful squatting. On the other hand, if the Corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to seek, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. If the encroachment is not removed within the specified time, the competent authority would Patna High Court CWJC No.12060 of 2021 dt.27-06-2022

be at liberty to have it removed. That would meet the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers. On their resistance, necessarily appropriate and reasonable force can be used to have the encroachment removed. Thus considered, we hold that the action taken by the appellant- Corporation is not violative of the principle of natural justice."

(emphasis supplied)

17. In view of the observations made by the Hon'ble

Supreme Court in Ahmedabad Municipal Corporation vs.

Nawab Khan Gulab Khan & Ors (supra), it can safely be said

that encroachment over a public land cannot be allowed to

continue by citing the pretext of right to shelter.

18. Accordingly, the writ petition being devoid of any

merit, is dismissed.

19. However, before parting with the present application,

we make it clear that it would be open for the petitioners to submit

their respective representations before the respondent no.2 for their

rehabilitation under any scheme of the Central Government or the

State Government or right to shelter. In the case of filing such

representations, the respondent no.2 shall be required to consider

them sympathetically and find out if they fit in any policy Patna High Court CWJC No.12060 of 2021 dt.27-06-2022

of the State and pass orders as he deems fit and proper under the

facts and circumstance of the case.

(Ashwani Kumar Singh, J)

( Dr. Anshuman, J)

kanchan/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          27.06.2022
Transmission Date       NA