Raju Sahu And Others vs State Of U.P. Thru. Prin. Secy. Deptt. ... on 6 March, 2024

[Cites 30, Cited by 0]

Allahabad High Court

Raju Sahu And Others vs State Of U.P. Thru. Prin. Secy. Deptt. ... on 6 March, 2024

1. This is a bunch of writ petitions filed by the slum dwellers of slum area known as Akbar Nagar-1 and 2 challenging the demolition orders issued by the Lucknow Development Authority (hereinafter referred to as 'the LDA') and for quashing the rehabilitation scheme framed by the LDA. They also pray for a direction to be issued to the respondents to prepare and implement a rehabilitation scheme in accordance with the provisions of the U.P. Slum Areas (Improvement and Clearance) Act, 1962 (hereinafter referred to as 'the Act of 1962') read with the U.P. In-Situ Slum Redevelopment Policy, 2021.

2. Leading Writ-C No.1372 of 2024 "Raju Sahu and others vs State of UP and others" was filed as one of the last cases, when hearing had started, and on the request of Sri J.N. Mathur, learned Senior Counsel for petitioners, the same was taken up as the leading case, as it contained all grounds raised by the petitioners in this bunch. It was agreed that the counter affidavit filed by the LDA in the earlier leading writ petition will be read in the present petition also. It was also agreed that the questions raised in this leading case are mainly questions of law and further counter affidavit, thus, would not be required. Parties also agreed that broadly the facts are admitted between the parties. Therefore, Writ-C No.1372 of 2024 is taken up as the leading case. Still any and all further affidavits and documents filed by the parties during course of hearing were accepted, as rights of large number of persons under Article 21 are involved. Further, this Court also permitted interlocutory applications instead of separate petitions to be filed on behalf of residents of Akbar Nagar slums looking into their weak financial position. These applicants are also treated as petitioners in the writ petitions with the same benefits as available to these petitioners.

3. We have heard Sri J.N. Mathur, learned Senior Counsel assisted by Sri Apoorva Tiwari and Ms. Aishvarya Mathur, Sri Amrit Khare, Sri Kazim Ibrahim, Sri Gaurav Mehrotra, Ms. Maria Fatima, Utsav Mishra, Ms. Pushpila Bisht, Sri Akshay Kumar Singh, Sri Mudit Agarwal, Sri Amrendra Nath Tripathi, Sri Shakeel Ahmad Jamal, Sri Amiruddin Khan, Sri Shitla Prasad Tripathi, Sri Shahid Raza, Sri Raj Kumar Singh Suryavanshi, Ms. Shweta Shukla, Sri Shadab Haider, Sri P.C. Maurya, Sri Anshuman Srivastava, Sri Mohd. Murtaza Hasan, Ms. Sadiya Khan, Sri Ruved Kamal Kidwai, Sri Pawan Kumar Dwivedi, Sri Anupam Bajpai, Ms. Shradha Mishra, Sri Gibran Akhtar Khan, Sri Inam Uddin Ahmad, Sri Akber Ahmad, Sri Harsh Vardhan Kediya, Sri Alok Kumar, Sri Pradeep Kumar Srivastava, Sri Rinku Verma, Sri Rajat Srivastava, Sri Ayush Srivastava, Ms. Nandini Verma, Ms. Surabhi Rawat, Ms. Jyoti Rajpoort, Sri Rehan Ahmad Siddiqui, Ms. Nisha Tiwari, Sri Sachida Nand, Sri Mohd. Salman, Ms. Gursimran Kaur, Sri Karan Agarwal, Sri Sheeran Mohiuddin Alavi, Sri Mohd. Mohsin and Sri Ausaf Ahmad Khan, learned counsel for the petitioners. Sri Sudeep Kumar, Sri Anuj Kudesia, Sri Ratnesh Chandra, Sri Ishan Singh Popli, learned counsel for the LDA, Sri Namit Sharma assisted by Ms. Priyanka Vikram Singh, learned counsel for the Nagar Nigam, Lucknow and Sri Shailendra Kumar Singh, learned Chief Standing Counsel assisted by Sri Pratyush Chaube appearing for the State-respondents are heard for the respondents.

4. The admitted facts between the parties are, that, Kukrail water channel originates from Village Asti, Tehsil Bakshi Ka Talab, District Lucknow and merges in Gomti river. Whether to call it a river or nala is a dispute between the parties, but, it does not impact the merits of the case. For convenience, the same is referred to as 'Kukrail Water Channel'. This water channel initially carries neat and clear water, but, slowly and steadily, including around disputed Akbar Nagar area, open drains are let loose in the same and it starts converting into an urban open sewer, and ends in River Gomti. It is also accepted to all that this water of River Gomti is supplied as drinking water to nearly entire Lucknow. Petitioners, slum dwellers, over a long period of time have unauthorizedly occupied the banks of Kukrail water channel and raised these disputed constructions. They all accept that they do not have any title to the land occupied by them and undisputedly, land belongs to the Government, accordingly, their constructions are also without any approval, thus illegal. This fact is accepted to all counsel for the petitioners. However, Sri A. A. Khan, Advocate also raised an alternative argument regarding title to land in a few of his cases. Proceedings for their eviction, by a notice under Section 27 of the U.P. Urban Planning and Development Act, 1973 (for short 'the Act of 1973'), were initiated by the Vice Chairman of the LDA. He rejected the objections filed by the petitioners and passed orders for eviction. The same were challenged by way of appeals before the Chairman, LDA, who also is Commissioner, Lucknow. The Chairman also rejected the appeals filed by the petitioners. Thus, both these orders are challenged by petitioners before this Court. In some cases, petitioners have approached this Court, without filing any appeal, against the order of Vice Chairman only. All these matters thus are clubbed together in this bunch for hearing.

5. Leading arguments for the petitioners are made by Sri J.N. Mathur, learned Senior Counsel assisted by Sri Apoorva Tiwari and Ms. Aishvarya Mathur, and other learned counsel have adopted the same. Sri Ausaf Ahmad Khan, Advocate has also made an additional alternative submission on behalf of petitioners represented by him.

6. Sri Mathur submits that proceedings could only be held under the Act of 1962, as the same is a special Act for slum areas. The procedure provided in the said Act of 1962 has to be followed by the competent authority provided therein. Sri Mathur submits that violating the same, proceedings against petitioners are held under Section 27 of the Act of 1973. He further submits that even presuming the Act of 1962 is not applicable, in such a case, proceedings could only be initiated under Section 26-A(4) of the Act of 1973 and not under Section 27 of the same. Making a distinction, Sri Mathur submits that Section 27 is with regard to demolition of illegal constructions while Section 26-A(4) is specifically for slum areas and in the present case, admittedly, the disputed constructions exist in Akbar Nagar slum.

7. Further elaborating the said argument, Sri Mathur submits that the entire proceedings held under Section 27 of the Act of 1973 are not only without jurisdiction, but also amounts to colourable exercise of power. Lastly, Sri Mathur submits that the procedural integrity in the present proceedings held under Section 27 of the Act of 1973 is also grossly violated by the authorities concerned. He submits that neither at the initial stage the Vice Chairman of the LDA nor at the appellate stage its Chairman conducted the proceedings in a fair and proper manner. They did not provide proper opportunity of hearing to the petitioners, as, the documents submitted by the respondents at both stages, without providing any copy to the petitioners, were accepted and relied upon while passing the orders by both the authorities. Hence, Sri Mathur submits that neither the procedure prescribed under the Act of 1962, which was applicable, was followed nor the procedure prescribed under Section 26-A(4) of the Act of 1973, alternatively applicable on the slums, was followed and, further, the procedure which was followed under Section 27 of the said Act too was violative of the principles of natural justice. He strongly submits that since procedural integrity of the entire proceedings is seriously violated, therefore, this Court is bound to interfere in the matter and remand the same with appropriate directions to an appropriate authority.

8. Sri Ausaf Ahmad Khan, Advocate, while adopting submissions of Sri Mathur, also raised a desperate alternate submission that the land in dispute belongs to an old Abadi of a revenue village and thus, petitioners have title on the said land. We do not find any force in this alternative submission and out-rightly reject the same. Only document submitted by Mr. Khan in support of his argument is a Khatauni of 1332 fasli (year 1925) of Mohal Mahanagar Mauja Mahanagar Rahim Nagar, Pargana, Tehsil and District Lucknow. Now, both, Rahim Nagar and Akbar Nagar are two separate distinct localities in Lucknow. Further, a perusal of the only Khatauni filed by Mr. Khan shows that Gata no.747 area 0-14-0 (14 biswa) is recorded as Abadi including road and houses etc., and thereafter, Gata no.746, area 2-15-0 (2 Bigha 15 Biswa) is recorded as Road. A village map is also filed, which shows a road having certain Khasra numbers. Even the name of the road is not given in the map. Admittedly, Akbar Nagar 1 and 2 occupy much larger area than the Abadi area shown in the Khatauni of 1332 fasli. Further, there is no manner in which petitioners could show that it is the same old Abadi, which was there in the year 1925. No document of last 100 years to prove the title is filed. If the properties belong to an Abadi land for the last 100 years, there would certainly be mutation orders or ownership documents of the said land, including appropriate sale deeds/transfer deeds/succession documents executed from time to time. It is not possible that not even a single document is available with the petitioners with regard to their title. Further, no other person, except for the petitioners represented by Sri Ausaf Ahmad Khan, has raised this argument. Thus, since no documents of title are filed, we reject this alternative submission made by Mr. Khan.

9. Opposing the petitioners, Sri Sudeep Kumar along with Sri Anuj Kudesia, Advocate led the submissions for respondents. They submit that admittedly this slum, know as Akbar Nagar-1 and 2, is existing on the banks of Kukrail water channel, that merges in River Gomti, which supplies drinking water to nearly entire Lucknow. The population of Lucknow at present is approximately fifty lacs with additional few lacks of floating population visiting every day. All the drains of this slum, containing all its waste including faecal matter, are let loose in this Kukrail water channel, which flows to river Gomti, main supply source of drinking water to people of Lucknow. Respondents submit that clean drinking water is held to be a fundamental right under Article 21 of the Constitution of India and, thus, since fundamental rights of a large number of residents of Lucknow are involved, hence, it is incumbent that Kukrail water channel be kept clean, and thus, around 1158 constructions raised by the petitioners are required to be removed. They further submit that the LDA has already proposed a policy for rehabilitation, by providing appropriate alternative accommodation and, thus, rights of all these persons under Article 21 of the Constitution of India, of an alternative place to live, are duly protected. In support, they also rely upon the judgment and order dated 26.09.2020 passed in Paryavaran Suraksha Samiti and Another versus Union of India and Others, 2020 SCC OnLine NGT 1337.

10. Thus, respondents conclude by emphasizing, that, since it is not merely a case where the fundamental rights under Article 21 of the petitioners for a place to live is involved, but, also vis-a-vis them, the right to clean drinking water, also a fundamental right under Article 21, of every resident and visitor of Lucknow is involved. These effected residents are not even representing before this Court or any authority, except, through the respondent State authorities. Therefore, they submit, that, the present matter cannot be decided merely on procedural technicalities. Once a dispute between fundamental rights of two separate groups is involved, this Court alone has power to decide the same. Hence, conclude respondents, that this Court should consider the matter on merits and decide the rights of the effected people finally and conclusively, instead of remanding the same.

11. We have considered the submissions made by the parties. National Green Tribunal in Paryavaran Suraksha Samiti (supra) has referred to the report of OC dated 16.9.2020 and issued directions, relevant part of which reads:

"22. In O.A. 673/2018, a separate report has been filed by the Oversight Committee constituted by this Tribunal for the State of UP making following recommendations:

.....

General Recommendations:

23. Encroachment along drains : At many places in the State there are encroachments in the flood plains of drains. For example more than 300- 400 encroacher households are living in the flood plain of Kukrail drain in Lucknow city. In the absence of any regular toilet facilities, their faecal matter/grey water is washed away directly in the river Gomti, which also supplies drinking water to Lucknow city. The State government needs to take steps for removing such encroachments on priority by rehabilitating these households under the "Housing for All" programme.

32. Monitoring Mechanism: The Committee finds that a number of problems are coordination problems among various departments. Such issues can easily be resolved if there is a regular monthly meeting at the CS level, which unfortunately is not happening. The Committee requests the CS to hold a monthly monitoring meeting as laid down in the monitoring framework submitted by the State Govt. before NGT."

12. The National Green Tribunal further observed:

"Going Forward

24. We have duly considered the CPCB, CMC and OC reports as above and noted the gaps and recommendations. We accept the recommendations of the Committees already quoted above that the States should furnish quality information and comply with the directions of this Tribunal in terms of orders dated 06.12.2019 and 29.06.2020. The violation of mandate of 100% treatment of sewage may be visited with the assessment and recovery of compensation and violation of timelines for setting up of pollution control devices may also be likewise strictly enforced with the compensation regime in place. There is also need for fully utilizing and augmenting the existing infrastructure as already noted above.

25. The States/UTs may consider using HAM as a business model as well as OCOP concept, FSSM Policy, alternative models for treatment of sewage/faecal sludge, decentralized STPs and also strengthen the online monitoring system. We are also of the view that flood plain zones of all the rivers need to be mapped and demarcated and encroachments removed therefrom. The same be utilized for plantation, creation of bio-diversity parks and constructed wetlands or other recreational purposes, consistent with the environmental concern. We agree with the OC that river side mining needs to be regulated. To reduce the timelines for setting up of STPs, many States/UTs are consuming time in preparing DPRs whereas model DPRs. can be prepared and used for shortening the timelines. Similarly, SOPs need to be prepared for the timeline to be taken in setting up of STPs as well as for maintenance and operation of existing STPs particularly those not meeting the norms. Number of monitoring stations also needs to be suitably increased. We are also of the view that the State RRCs must function effectively and the Chief Secretaries must hold monthly meetings as it is found from the report of the OC for the State of UP that the Chief Secretaries may not be doing so. Huge failures of the States/UTs may show poor governance as far as environment is concerned which may need to be remedied. As found by the CMC, neither delay is explained nor accountability is fixed for the failure of the concerned officers which is not a happy situation.

V. Directions

36. Accordingly, we issue following directions:

.....

v. It must be ensured that no untreated sewage/effluent is discharged into any water body. Prompt remedial action may be taken by the State PCBs/PCCs against non-compliant ETPs/CETPs by closing down or restricting the effluents generating activity, recovering compensation and taking other coercive measures following due process of law.

vi. Directions outlined in Paras 24-26 herein may be implemented by the States/ UTs,and their compliance monitored by the Chief Secretaries at the State level, and the CMC at the National level."

13. The National Green Tribunal as far back as in the year 2020 found existence of the Akbar Nagar slums as a serious ecological issue impacting supply of clean drinking water to Lucknow city and had asked for its removal, which is pending even after four years till now. The matter requires urgent attention. Similarly, petitioners also are entitled to get their rights decided once for all to settle and proceed in life without any threat of eviction looming upon them. Thus, looking into the urgency and also the nature of dispute involved, we take up these matters on merit instead of remanding them to any authority. We find it appropriate, at this stage, to refer to the words of Supreme Court in Delhi Development Authority and others v. Joint Action Committee, Allottee of SFS Flats and others, (2008) 2 SCC 672:

"42. While acting as "State" within the meaning of Article 12 of the Constitution of India, it is imperative that DDA, while implementing its statutory power, upholds the fundamental rights of the citizens and strives hard to give effect to the directive principles of the State policy. We, however, cannot also shut our eyes to the fact that in terms of Article 37 of the Constitution of India whereas the provisions of Part III are justiciable, the provisions of Part IV are not. Only when an action of the State is taken to give effect to any of the provision of Part IV of the Constitution of India which is not otherwise ultra vires the Constitution or offends the principles embodied in Part III of the Constitution of India, the same may be upheld, having regard to the provisions contained in Part III thereof. The action of the State, therefore, must at the first instance be adjudged on the touchstone of the principles of fundamental rights and then the provisions contained in the parliamentary Act, the regulations framed thereunder as also the terms of the contract entered into by and between the parties."

14. Right to live under Article 21 is elaborated upon in a large number of judgments of the Courts. The Supreme Court has held that Article 21 includes within its sphere right to live with human dignity. It would include all aspects that make life meaningful, complete and worth living. The right to food, water, decent environment, education, medical care and shelter are some of its aspects. Thus, both, right of a proper shelter as well as right to neat and clean drinking water is covered by Article 21.

15. Some of the judgments wherein Supreme Court has considered the right to clean drinking water are:

Subhash Kumar vs. State of Bihar and others (1991) 1 SCC 598, paragraph 7 :

"Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life."

Vellore Citizens' Welfare Forum v. Union of India and others (1996) 5 SCC 647, paragraph 16:

"16. The constitutional and statutory provisions protect a person's right to fresh air, clean water and pollution-free environment, but the source of the right is the inalienable common law right of clean environment......."

Delhi Water Supply and Sewage and another vs State of Haryana and others (1996) 2 SCC 572:

"1. Water is a gift of nature. Human hand cannot be permitted to convert this bounty into a curse, an oppression. The primary use to which water is put being drinking, it would be mocking nature to force the people who live on the bank of a river to remain thirsty, whereas others incidentally placed in an advantageous position are allowed to use the water for non-drinking purposes. A river has to flow through some territory; and it would be travesty of justice if the upper-riparian States were to use its water for purposes like irrigation, denying the lower-riparian States the benefit of using the water even for quenching the thirst of its residents."

M.C. Mehta v. Kamal Nath and others (1997) 1 SCC 388:

"34. Our legal system - based on English common law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership."

"A.P. Pollution Control Board II v. Prof. M.V. Nayudu (Retd.) and others (2001) 2 SCC 62:

"3. Drinking water is of primary importance in any country. In fact, India is a party to the resolution of the UNO passed during the United Nations Water Conference in 1977 as under:

"All people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantum and of a quality equal to their basic needs."

Thus, the right to access to drinking water is fundamental to life and there is a duty on the State under Article 21 to provide clean drinking water to its citizens.

4. Adverting to the above right declared in the aforesaid Resolution, in Narmada Bachao Andolan v. Union of India [(2000) 10 SCC 664 : (2000) 7 Scale 34] (Scale at p. 124 : SCC p. 767, para 248), Kirpal, J. observed:

"248. Water is the basic need for the survival of human beings and is part of the right to life and human rights as enshrined in Article 21 of the Constitution of India...."

.....

44. Coming to the provisions of the Water Act, 1974, it is clear that in view of sub-sections 2(e), 2(k) read with Sections 17 and 18 of the Water Act, the fundamental objective of the statute is to provide clean drinking water to the citizens. Having laid down the policy prohibiting location of any industries within 10 km under GO No. 111 dated 8-3-1996, the State could not have granted exemption to the 7th respondent Industry, nor to any other industry, from any part of the main GO No. 111 dated 8-3-1996. Section 19 permitted the State to restrict the application of the Water Act, 1974 to a particular area, if need be, but it did not enable the State to grant exemption to a particular industry within the area prohibited for location of polluting industries. Exercise of such a power in favour of a particular industry must be treated as arbitrary and contrary to public interest and in violation of the right to clean water under Article 21 of the Constitution of India.

45. The above reasoning given by us does not mean that exemption can be given to all industries within a particular radius of the reservoirs unmindful of the possible danger of pollution to the lakes. In fact, exemption granted even to a single major hazardous industry may itself be sufficient to make the water in the reservoirs totally unsafe for drinking water purposes. The Government could not pass such orders of exemption having dangerous potential, unmindful of the fate of lakhs of citizens of the twin cities to whom drinking water is supplied from these lakes. Such an order of exemption carelessly passed, ignoring the "precautionary principle", could be catastrophic."

Narmada Bachao Andolan v. Union of India and others (2000) 10 SCC 664:

"248. Water is the basic need for the survival of human beings and is part of the right to life and human rights as enshrined in Article 21 of the Constitution of India and can be served only by providing source of water where there is none. The resolution of UNO in 1977 to which India is a signatory, during the United Nations Water Conference resolved unanimously inter alia as under:

"All people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantum and of a quality equal to their basic needs.""

M.C. Mehta v. Union of India and others, (2004) 12 SCC 118:

"46. Further, by the Forty-second Constitutional Amendment, Article 48-A was inserted in the Constitution in Part IV stipulating that the State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. Article 51-A, inter alia, provides that it shall be the duty of every citizen of India to protect and improve the natural environment including forest, lakes, rivers and wildlife and to have compassion for living creatures. Article 47 which provides that it shall be the duty of the State to raise the level of nutrition and the standard of living and to improve public health is also relevant in this connection. The most vital necessities, namely, air, water and soil, having regard to right to life under Article 21 cannot be permitted to be misused and polluted so as to reduce the quality of life of others. Having regard to the right of the community at large it is permissible to encourage the participation of amicus curiae, the appointment of experts and the appointments of Monitory Committees. The approach of the Court has to be liberal towards ensuring social justice and protection of human rights. In M.C. Mehta v. Union of India [(1987) 4 SCC 463] this Court held that life, public health and ecology has priority over unemployment and loss of revenue. The definition of "sustainable development" which Brundtland gave more than 3 decades back still holds good. The phrase covers the development that meets the needs of the present without compromising the ability of the future generation to meet their own needs. In Narmada Bachao Andolan v. Union of India [(2000) 10 SCC 664] this Court observed that sustainable development means the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation. In these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable person's" test. [See Chairman Barton: The Status of the Precautionary Principle in Australia (Vol. 22, 1998, Harv. Envtt. Law Review, p. 509 at p. 549-A) as referred to in para 28 in A.P. Pollution Control Board v. Prof. M.V. Nayudu [(1999) 2 SCC 718] .]

16. Similarly, the Supreme Court has also considered, in a large number of cases, rights of the slum dwellers in unauthorized occupation of Government land. Some of them are:

Olga Tellis and others vs. Bombay Municipal Corporation and others (1985) 3 SCC 545, paragraph-57:

"57. To summarise, we hold that no person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or earmarked for a public purpose like, for example, a garden or a playground; that the provision contained in Section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case; and that, the Kamraj Nagar Basti is situated on an accessory road leading to the Western Express Highway. We have referred to the assurances given by the State Government in its pleadings here which, we repeat, must be made good. Stated briefly, pavement dwellers who were censused or who happened to be censused in 1976 should be given, though not as a condition precedent to their removal, alternate pitches at Malavani or, at such other convenient place as the Government considers reasonable but not farther away in terms of distance; slum dwellers who were given identity cards and whose dwellings were numbered in the 1976 census must be given alternate sites for their resettlement; slums which have been in existence for a long time, say for twenty years or more, and which have been improved and developed will not be removed unless the land on which they stand or the appurtenant land, is required for a public purpose, in which case, alternate sites or accommodation will be provided to them; the "Low Income Scheme Shelter Programme" which is proposed to be undertaken with the aid of the World Bank will be pursued earnestly; and, the "Slum upgradation Programme (SUP)" under which basic amenities are to be given to slum dwellers will be implemented without delay. In order to minimise the hardship involved in any eviction, we direct that the slums, wherever situated, will not be removed until one month after the end of the current monsoon season, that is, until October 31, 1985 and, thereafter, only in accordance with this judgment. If any slum is required to be removed before that date, parties may apply to this Court. Pavement dwellers, whether censused or uncensused, will not be removed until the same date viz. October 31, 1985."

Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan and others (1997) 11 SCC 121, paragraph-31:

"31. It is true that in all cases it may not be necessary, as a condition for ejectment of the encroacher, that he should be provided with an alternative accommodation at the expense of the State which if given due credence, is likely to result in abuse of the judicial process. But no absolute principle of universal application would be laid in this behalf. Each case is required to be examined on the given set of facts and appropriate direction or remedy be evolved by the court suitable to the facts of the case. Normally, the court may not, as a rule, direct that the encroachers should be provided with an alternative accommodation before ejectment when they encroached public properties, but, as stated earlier, each case requires examination and suitable direction appropriate to the facts requires modulation. Considered from this perspective, the apprehensions of the appellant are without force."

17. The aforesaid judgments clearly demonstrate that right to have a proper shelter overhead and right to neat and clean drinking water both are held by the Supreme Court as fundamental rights covered by Article 21 of the Constitution of India. In the present case, it is clear that petitioners do have a fundamental right to proper shelter over their head fit for human living. Similarly, more than fifty lac residents of Lucknow also have a fundamental right to neat and clean drinking water.

18. Thus, the fundamental right of large number of petitioners for a habitable living place is in contest with the fundamental right of many times more larger number of residents of Lucknow, including petitioners. In the case of State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753 : 2006 SCC OnLine SC 407, Supreme Court has held:

"51. ........ In the name of individualising justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The directive principles of State policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens."

19. Thus, in the given circumstances, the rights of these two groups are to be settled in the best possible manner. The Courts have repeatedly emphasized and upheld the necessity of clean environment including clean water. It is regarded as our duty towards future generations to come. No individual or group of persons can be permitted to violate the same. The NGT has duly noted the same and emphasized for action. The right of clean drinking water of the present and future generations of Lucknow, therefore, has to be protected. On the other hand, petitioners before this Court are unauthorized occupants of government land, without any right on the same. At best, all they can claim is an alternative place to live. The respondent authority has already offered a rehabilitation policy under which all the BPL persons are being offered appropriate flats made for Economically Weaker Section (EWS) on production of their ration card or other appropriate documents, proving that they belong to BPL category. Under the said policy, the flats with market value of Rs.15 lacs are being provided under 'Pradhan Mantri Awas Yojana' at the cost of Rs.4.18 lacs only to the petitioners. It is further provided in the said policy that on a registration fee of Rs.5,000, possession of the flats would be provided. The remaining amount is to be paid in equal monthly installments within a period of ten years. Thus, a person is to pay only Rs.4,000 per month for the said flat. The policy further provides that the persons not belonging to BPL category would also be offered appropriate flats for which, payment can be made in easy installments. Thus, the fundamental right of the petitioners is also protected by the respondent authorities. Similarly other persons, not belonging to BPL category, are also offered rehabilitation accommodation.

20. Sri Gaurav Mehrotra, and some other counsel for petitioners submit that since it is a sudden shifting in duress there might be persons who may have some difficulty in paying initial Rs.5,000 or Rs.4,800 every month or complete their installment in ten years. He further submits that there may be some persons, who may not be falling in the BPL category entitled for EWS flats, but they may still not be in such a financial situation to buy a better flat. He prays that the benefit of EWS flats should be made available to all those persons being rehabilitated who apply for the same.

21. We find some force in the said submission of the petitioners. It is, therefore, provided that any person being rehabilitated from Akbar Nagar slums applying for EWS accommodation, shall be provided such an accommodation. Further, we find that these persons applying for EWS flats may face some financial constraints also. We, therefore, provide that EWS flats shall be provided on initial registration deposit of Rs.1,000 instead of Rs.5,000. Further, in case persons provided EWS accommodation, for some unavoidable circumstances, are unable to pay their installments within the aforesaid period of ten years, respondent authorities shall extend the said period for further appropriate period, to a maximum of five years. In case any EWS allottee still faces difficulty even to pay the said installments, it shall be open for such a person to move an appropriate application before the Chief Minister of the State, who shall consider and grant appropriate relief to such deserving bonafide person from the Chief Minister's Beneficiary Fund or from any other appropriate funds or schemes as applicable for the benefit of poor from time to time. We also extend the benefit of rehabilitation scheme to other residents of Akbar Nagar who have not approached the Court.

22. The applications under the rehabilitation scheme shall be filed by the petitioners and other similarly situated persons within a period of two weeks from today and simultaneously, the respondents shall proceed to make allotment of flats for rehabilitation and the entire process of shifting be completed positively by 31.3.2024.

23. All the residents of Akbar Nagar 1 and 2 shall vacate the disputed premises on or before the mid night of 31.3.2024 and thereafter, it shall be open for the respondent-authorities to clear the said area.

24. With the aforesaid directions, present writ petitions as well as all interlocutory applications stand disposed of.

25. Petitioner no.6-Abdulla of Writ-C No.527 of 2024 and petitioner nos.1-Mohd. Shafeek and 5-Smt. Shahana of Writ-C No.642 of 2024, have already been separated from this bunch of writ petitions and writ petitions on their behalf have already been dismissed by this Court by its order dated 27.2.2024 passed in a bunch of writ petitions, leading one being Writ-C No.11383 of 2023 "Syed Hamidul Bari vs. State of U.P. and others".

26. Similarly, petitioner no.1-Sayed Mujeeb Ahmad of Writ-C No.1396 of 2024, petitioner no.65-Mohd. Ehtisham Khan of Writ-C No.1583 of 2024, petitioner no.3-Imran Raja of Writ-C No.1210 of 2024, petitioner No.54-Mohd. Abdul Hasan of Writ-C No.1315 of 2024, petitioner no.2/6-Mohd. Shakeel of Writ-C No.1391 of 2024, petitioner nos.4-Sumit Kumar and 6-Ravi Kumar of Writ-C No.1598 of 2024 and petitioner no.113-Smt. Umaima Khatoon of Writ-C No.1316 of 2024, have also been separated from this bunch and writ petitions on their behalf have also been dismissed by this Court in the light of order dated 27.2.2024 passed in Writ-C No.11383 of 2023 and other connected matters, by a separate order passed in their respective writ petitions.

[Om Prakash Shukla,J.]    [Vivek Chaudhary,J.]
 

 

 
Dated: March 06, 2024
 
Sachin

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Allahabad High Court