Right To Shelter A Fundamental Right; State Has Constitutional Duty To Provide House Sites To Poor: Allahabad High Court

It has to be remarked with consummate ease that in a latest, landmark and extremely laudable judgment titled Rajesh Yadav Vs State of UP And 9 Others in Public Interest Litigation (PIL) No. – 775 of 2019 delivered on July 1, 2019, the Allahabad High Court has very rightly held that the right to shelter is a fundamental right and the State has a Constitutional duty to provide house sites to the poor. Justice Surya Prakash Kesarwani who authored this path breaking judgment observed so while dismissing a PIL seeking eviction of four individuals who allegedly encroached a public land. Very rightly so!

                                   To start with, the ball is set rolling in para 1 of this noteworthy judgment which first and foremost states that, “The petitioner claiming himself to be a bonafide citizen, has filed the present public interest litigation (for short PIL) for removal of encroachment and illegal possession of respondent Nos. 6 to 10 from khasra plot No. 325/350 area 0.20 decimal, khasra plot No. 325/351 area 0.08 decimal and khasra plot No. 325/348 area 0.10 decimal of village Pakhanpura, Pargana Kopachit, Garvi, Tehsil Rasara, District Ballia, which according to him were recorded in the revenue records as ‘khel ka maidan’, ‘khalihan’ and ‘khad ka gaddha’ respectively.”

                                     To recapitulate, it is then pointed out in para 2 that, “Briefly stated facts of the present case are that by order dated 14.02.1994, the Sub-Divisional Magistrate, Rasara exchanged aforesaid khasra plot No. 325/351 area 0.08 decimal, khasra plot No. 325/348 area 0.10 decimal and khasra plot No. 325/350 area 0.20 decimal, total area 0.38 decimal with plot No. 314 area 0.08 decimal, khasra plot No. 324M area 0.10 decimal and 324M area 0.20 decimal. Mutation was accordingly made in the revenue records and accordingly the above noted areas of khasra plot No. 325/348, 325/350 and 325/351, were recorded as banjar and the exchanged khasra plot No. 314 area 0.08 decimal, khasra plot No. 324M area 0.10 and khasra plot No. 324M area 0.20 were recorded in the revenue records as ‘khalihan’,  ‘khad ka gaddha’ and khel ka maidan’ respectively.”

                                     Furthermore, it is then envisaged in para 3 that, “The Land Management Committee, Pakhanpura passed a resolution dated 19.01.1994 and 10.04.1994 for allotment of the aforesaid newly recorded banjar land for residential purposes to 19 persons. The allotments were made by Sub-Divisional Officer by order dated 28.10.1995. After allotment of land for residential purposes, the respondent No. 6, 7, 8, 9 and 10 constructed their houses (huts and tinshed) and they are still residing. Undisputedly, the respondent Nos. 6 to 10 are landless agricultural labourers and are very poor persons and have no shelter except the aforesaid shelter.”

                      What’s more, it is then disclosed in para 4 that, “As per report of the lekhpal dated 29.01.1994 forwarded and affirmed by Sub-Divisional Officer, Tehsil Rasra, District Ballia, the exchange of land was made on account of the fact that khasra plot No. 325/348 area 0.10 decimal, 325/350 area 0.20 decimal, 325/351 area 0.08 decimal, total area 0.38 decimal had converted in abadi long back and consequently the proposal for exchange was made. After exchange as aforesaid, allotments to poor landless agricultural labourer in possession were made for residential purpose after following due procedure of law. Area of the land allotted to the respondent Nos. 6 to 10 is as under:

Sl.     Name of the               Khasra plot No.   Area in

No.   allottee                                                           Decimal

1. RespondentNo.6-Indradev    325/350M    0.02

2. Respondent No.7-Abhay        325/348M    0.03

3. Respondent No. 8-Durgawati 325/348M    0.03

4. Respondent No. 9-Teswari      325/350M    0.03

5. Respondent No. 10-Budhan     325/350M    0.02 ½”

                                      To be sure, para 5 then reveals that, “As per conversion table, 1 decimal area is equivalent to 48 square yard. Thus, the allotments of very small pieces of land for residential purposes to poor labourers being respondent Nos. 6 to 10 were made over which they had constructed long ago their huts by brick-walls and tin-shed and still they are residing therein.”

                                       Be it noted, para 6 then discloses that, “It appears that at the instance of the petitioner, a Case No. 59/2007 under Section 115P of the U.P. Z.A. and L.R. Act was registered by the Additional District Judge (F/R), Ballia and by ex parte order dated 07.09.2007, aforesaid residential leases granted to 19 persons including the respondent Nos. 6 to 10 were cancelled. Thereafter, the petitioner moved an application dated 13.01.2015 before the District Magistrate followed by application dated 24.05.2016 by his son Pankaj Yadav for removal of shelters of the respondent Nos. 6 to 10. According to the petitioner, since no action was taken, therefore, he has filed the present petition as PIL.”

                            More significantly, it is then emphatically held in para 23 that, “Thus, shelter for a human being, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities. Right to life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. Right to shelter is a fundamental right guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India. To make the right meaningful to the poor and landless agricultural labourers, particularly of the weaker section of the society, the State has to provide the facilities to build houses. It is the duty of the State to fulfill the basic human and constitutional rights to residence so as to make the right meaningful. Basic needs of man have traditionally been accepted to be three – namely food, clothing and shelter. That would take within its sweep the right to food, the right to clothing, the right to decent environment  and a reasonable accommodation to live in. But no person has a right to encroach and erect structures or otherwise on footpaths, pavement or public space or at any place reserved or earmarked for a public utility. The State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their land to make the right to life meaningful, effective and fruitful.”

                                      As things stand, it is then illustrated in para 24 that, “In the present set of facts, the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondent Nos. 6 to 10 guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India inasmuch as the residential lease of very small plots were granted to the respondents No. 6 to 10 (poor and landless agricultural labourers of backward classes) by the competent authority in the year 1995 and they raised their houses over it and are still residing therein since the year 1995 and thus, they have the protection of Section 67A of the Code, 2006. Therefore, no direction can be issued to the respondent authorities to remove the shelter (houses) of the respondent Nos. 6 to 10. In any case, if the State authorities still want to remove the respondent Nos. 6 to 10 from their residential houses over the plot in question, on the ground of abadi being earlier a public utility land before exchange, then the State authorities shall first provide suitable accommodation to the respondent Nos. 6 to 10 before removal of their houses in question.”

                             To put things in perspective, it is then pointed out in para 25 that, “From the pleadings in this PIL as briefly noted above, it is evident that the petitioner has not denied the facts stated in paragraph-10 of the counter affidavit that the representation has been moved by the petitioner’s son namely Pankaj Yadav in his personal interest and not by the villagers. It has also not been denied by the petitioner that the respondent Nos. 6 to 10 leaseholders are very poor and needy labourers and they are residing in the houses over the land in question, which were constructed about 24 years ago on the leased land granted by the competent authority. The order of cancellation of lease was passed ex parte by ADM (F/R) after more than 12 years of the grant of lease. Even in the ex parte order of cancellation, there is no allegation of any fraud or manipulation against the respondent Nos. 6 to 10 in grant of lease to them. The petitioner has merely stated that he is bona fide citizen. He has not disclosed his credential. Thus, non-denial by the petitioner the averments of paragraph-10 of the counter affidavit to the effect of personal interest of the petitioner’s son, clearly indicates abuse of process of court by the petitioner in filing the present PIL and suppression of material facts particularly those mentioned in paragraphs 4 and 5  of the counter affidavit of the State respondents. Therefore, exemplary cost is necessary to be imposed upon the petitioner for filing this frivolous petition as PIL and abusing the process of court, in view of the law laid down by Hon’ble Supreme Court in the case of Punjab State Power Corporation Ltd. Vs. Atma Singh Grewal (2014) 13 SCC 666 (para 14) and Dnyandeo Sabaji Naik Vs. Pradnya Prakash Khadekar (2017) 5 SCC 496 (paras 9 to 14).”

                                       It cannot be lost on us that it is then pointed out in para 26 that, “In Dnyandeo Sabaji Naik (supra), Hon’ble Supreme Court has observed that it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forum of the law to defeat or delay justice. Hon’ble Supreme Court commended all courts to deal with frivolous filings, firmly and impose exemplary costs.”

                                         As a corollary, it is then laid down in para 27 that, “The principles laid down in the case of Dnyandeo Sabaji Naik (supra), have been reiterated by Hon’ble Supreme Court in the case of Haryana State Co-op. L&C Co-op. Society Ltd., (2018) 14 SCC 248 (Paras 16 and 17) while dismissing the appeal of the Haryana State Coop. L&C Federation Ltd. (supra) with exemplary cost of Rs. 5 lacs.” Also, it is then observed in para 28 that, “In the case of Punjab State Power Corporation Ltd. (supra), Hon’ble Supreme Court emphasised that imposition of exemplary costs should be in real terms and not merely symbolic.”

                        Conclusions

                                 Most importantly, it is now time to dwell upon the conclusions drawn by the Allahabad High Court in this noteworthy and commendable judgment. Para 29 sets the pitch by first and foremost pointing out that, “The conclusions reached by me and the principles of law laid down by Hon’ble Supreme Court discussed above are briefly summarised as under:

(i)                         Right to shelter is a fundamental right, which springs from the right to residence assured in Art. 19(1)(e) and right to life under Art. 21 of the Constitution. It is a constitutional duty of the State to provide house sites to the poor.

(ii)                      Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. To bring the Dalits and Tribes into the mainstream of national life, providing these facilities and opportunities to them is the duty of the State as fundamental to their basic human and constitutional rights. There could be not individual liberty without a minimum of property. The objective of ‘facilitating adequate shelter of all’ also implies that direct Government support should mainly be allocated to the most needy population groups.

(iii)                   Socio-economic justice, equality of status and of opportunity and dignity of person to foster the fraternity among all the sections of the society in an integrated Bharat is the arch of the Constitution set down in its Preamble. Articles 39 and 38 enjoins the State to provide facilities and opportunities. Article 38 and 46 of the Constitution enjoin the State to promote welfare of the people by securing social and economic justice to the weaker sections of the society to minimise inequalities in income and endeavor to eliminate inequalities in status. Basic needs of man have traditionally been accepted to be three namely- food, clothing and shelter. The right to life is guaranteed in any civilised society. It is the duty of the State to construct houses at reasonable cost and make them easily accessible to the poor.

(iv)                   No person has a right to encroach and erect structures or otherwise on footpath, pavement or public streets or any other place reserved or earmarked for a public purpose. The State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter to make the right to life meaningful, effective and fruitful.

(v)                      In the present set of facts, the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondent Nos. 6 to 10 guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India inasmuch as the residential lease of very small plots were granted to the respondents No. 6 to 10 (poor and landless agricultural labourers of backward classes) by the competent authority in the year 1995 and they raised their houses over it and are still residing therein since the year 1995 and thus, they have the protection of Section 67A of the Code, 2006. Therefore, no direction can be issued to the respondent authorities to remove the shelter (houses) of the respondent Nos. 6 to 10.

(vi)                   In any case, if the State authorities still want to remove the respondent Nos. 6 to 10 from their residential houses over the plot in question, on the ground of abadi being earlier a public utility land before exchange, then the State-authorities shall first provide suitable accommodation to the respondent Nos. 6 to 10 before removal of their house in question.

(vii)                Exemplary cost is necessary to be imposed upon the petitioner for filing this frivolous petition as PIL and abusing the process of court.”

                                              Going forward, it is then held in para 30 that, “For all the reasons afore-stated, this petition is dismissed with cost of Rs. 10,000/- which the petitioner shall deposit with the High Court Legal Services Committee within six weeks from today.” Finally, it is then held in the last para 31 that, “It is expected that the Government shall take appropriate steps in the light of the observations made in para-29 {(i), (ii), (iii) and (iv)} above.”

                            All said and done, it is a very progressive and extremely laudable judgment which bats openly in favour of the fundamental right of poor to have a shelter of his own! Not stopping here, the Allahabad High Court has also held the petitioner guilty for attempting to infringe the fundamental right of the individual and therefore dismissed the petition by imposing costs of Rs. 10,000/-. It has also very rightly and eloquently quoted several landmark judgments of the Supreme Court to substantiate its valid stand that the right to shelter is a fundamental right and the State has a Constitutional duty to provide house sites to the poor! Very rightly so! There can be no denying it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A-82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

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