Calcutta High Court (Appellete Side)
Tapas Dey & Ors vs State Of West Bengal & Ors on 31 July, 2008
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P. No.27117(W) of 2007
Tapas Dey & ors.
....Petitioners
Versus
State of West Bengal & ors.
....Respondents
Mr. Kalyan Bandopadhyay Ms. Chaitali Bhattacharya ...for the petitioners Mr. Balai Chandra Roy Mr. Subrata Mukhopadhyay ...for the State Mr. Anindya Kumar Mitra Mr. Asok Banerjee Mr. Abhrajit Mitra Mr. Sanjoy Basu ...for the private respondent Before the Hon'ble Justice Dipankar Datta Heard on : 04.07.2008 Judgment on : 31.07.2008 Whether or not the State respondents are duty bound to provide the petitioners with alternative accommodation while process of rebuilding is implemented by the private respondent is the question which arises for determination in this writ petition.
The petitioners are displaced persons from Bangladesh. In pursuance of a policy decision adopted by the Central Government and the State Government regarding rehabilitation of displaced persons, the petitioners were rehabilitated by the State by allotting flats during the period 1960-1970 at B.T. Road under Bonhooghly Tenement Scheme. It is not in dispute that around 750 displaced persons have been rehabilitated by allotment of flats on a vast area covering 17.20 acres of land. It is also not in dispute that by passage of time the area where the petitioners have been residing has become a prime area having commercial viability.
The petitioners were allotted flats measuring about 250 sq.ft. They are not required to pay occupational charges to the Government. In the absence of proper maintenance of the buildings in which the flats are located and by gradual passage of time the buildings have become dilapidated and, according to the respondents, are a source of danger to public safety and security. Accordingly, a decision was taken by the Government to develop the entire land measuring about 17.2 acres which would include reconstruction of buildings to accommodate the petitioners and to lease out the remaining land for commercial purposes. Re-development of Bonhooghly Tenement Scheme is a joint venture project by the Refugee Relief and Rehabilitation Department of the Government and the respondents. The objective of the scheme is to construct 800 flats for the existing occupiers on a portion of the land and utilise the rest of the land for value addition through construction of residential flats and commercial complex. The project aims at providing flats to the existing occupiers measuring about 60 sq. mtr. (including super built up area) consisting of two bed rooms, one drawing-cum-dining room, two toilets, one kitchen and one verandah. Redevelopment of the scheme is likely to be completed in two years. Allotment of flats, in terms of the scheme, would be on the basis of lottery.
The petitioners are all belonging to lower income group earning between Rs.400/- and Rs.4,000/- per month. Some are engaged in business, some are workmen while others are either retired persons or survive on the basis of family pension.
The petitioners together with other occupants were individually called upon by the Secretary to the Government of West Bengal, Refugee Relief and Rehabilitiation Department (notice dated 6.3.07) to vacate the flats in their possession in lieu of free of cost flat in the proposed housing project within 7 days from date of receipt thereof failing which the Government would be free to assume that they are not interested in accepting the offer. Reference was made in the notice to the fact that Central Public Works Department had declared the buildings under the Bonhooghly Tenement Scheme to be unsafe for human habitation; that notice had been issued to all the occupiers to vacate the buildings and that since the buildings of the Tenement Scheme may collapse at any moment, the Government apprehends danger to the lives of the inmates.
Mr. Bandopadhyay, learned Senior Counsel appearing for the petitioners fairly submitted that the residents are not opposing the project of redevelopment but they are only anxious to have a shelter during the time the scheme of redevelopment is implemented. According to him, the scheme in so far as it fails to provide for alternative accommodation for the petitioners is unreasonable and by an executive fiat, the Government cannot dispossess them. In this connection he relied on the decisions of the Apex Court reported in AIR 1961 SC 1570 :
Bishan Das vs. State of Punjab and (2002) 4 SCC 134 : State of West Bengal vs. Vishnunarayan & Associates (P) Ltd.
He next contended that right to shelter being a fundamental right under Article 19(1) of the Constitution, it was the obligatory duty of the State respondents to provide for alternative accommodation. In this connection, reliance was placed on the decisions of the Apex Court reported in (2001) 6 SCC 496 (13) : Hinch Lal Tiwari vs. Kamala Devi for the proposition that the Government ought to maintain material resources of the community and to protect them for proper and healthy environment which would enable people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. He relied on the decision of the Apex Court reported in (1996) 2 SCC 549 : Chameli Singh vs. State of U.P. for the proposition that right to live as a human being is not ensured by meeting only the animal needs of man; it is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth and that right to live, guaranteed in any civilised society, implies the right to food, water, decent environment, education, medical care and shelter. Reference was made to the decision of the Apex Court reported in (1995) 5 SCC 524 : State of Karnataka vs Narasimhamurthy to contend that right to shelter is a fundamental right under Article 19(1) of the Constitution. He further relied on the decision of the Apex Court reported in (2004) 3 SCC 214 : Jamshed Hormusji Wadia vs. Board of Trustees, Port of Mumbai for the proposition that State's action has to be tested on the anvil of Article 14 of the Constitution even in the contractual field and any act not meeting the standard of fairness in action would be liable to interdiction by the Writ Court. The decision reported in AIR 2008 SCW 208 : New India Assurance Co. Ltd. Vs. Nusli Neville Wadia was relied on for contending that even in the capacity of acting as landlord, the State is required to prove fairness and reasonableness on its part and how its actions meet the constitutional requirements of Article 14.
He also relied on the decision of the Apex Court reported in AIR 1986 SC 180 : Olga Tellis vs. Bombay Municipal Corporation in support of his submission that fundamental rights cannot be waived and that it is the duty of the Writ Court to enforce the fundamental rights of the petitioners which are sought to be abridged by the respondents by their impugned actions.
He concluded by contending that any action of the State that tends to infringe the petitioners' basic fundamental rights guaranteed under Articles 19(1) and 21 of the Constitution ought to be interdicted by the Writ Court.
The writ petition was opposed by Mr. Balai Chandra Roy, learned Advocate General appearing for the State respondents as well as by Mr. Anindya Kumar Mitra, learned Senior Counsel appearing for the private respondent.
Mr. Roy contended that the scheme of redevelopment was framed in pursuance of a policy decision of the Government which is a beneficial policy, and that the buildings are in a dilapidated condition and may collapse at any point of time had not been disputed by the petitioners. In terms of the scheme, it is proposed to provide flats to the petitioners measuring about 644 sq.ft. (super built up area) in lieu of flats measuring 248 sq.ft., now in their possession, apart from a common room measuring about 6000 sq.ft. and other facilities are also proposed to be provided to the residents. He submitted that the scheme aims to provide improved habitat for the residents which in itself is a move of the State to secure their fundamental rights of having a quality life. He further submitted that the redevelopment scheme is proposed to be completed in 24 months and on behalf of the State he gave an undertaking that from the date the petitioners vacate the flats in their occupation and till such time they are put in possession of the reconstructed flats, the Government would provide to them Rs.1,000/- each month. He also submitted that there was no compulsion on the part of the petitioners' to stay at Bonhooghly and having regard to their pattern of income as indicated in the petition, Rs.1,000/- is a reasonable amount. It is his further contention that the petitioners have failed to establish that while redeveloping the land for the purpose of implementation of the scheme, the State respondents have a corresponding duty to provide them with an alternative accommodation and that the petitioners have a legal right to claim such accommodation. He relied on the decision of the Apex Court reported in (2007) 6 SCC 44 : Ram Singh Vijay Pal Singh vs. State of U.P. for the proposition that correctness or otherwise of a policy decision cannot be examined by a Court except in a very narrow compass and that the Government is entitled to take policy decision which may be necessary or called for under the prevalent peculiar circumstances. He submitted that the decisions cited on behalf of the petitioners are not relevant in the facts and circumstances of the instant case. Accordingly, it was prayed for that the writ petition be dismissed.
Mr. Mitra, learned Senior Counsel appearing for the private respondent contended that the facts of the present case are not suggestive of eviction of the petitioners by an executive fiat once and for all; in the process of rebuilding, there would be a temporary displacement of the petitioners which cannot be equated with eviction. He urged the Court to consider that not only interest of the fifty petitioners is involved but the interest of the other residents (about 700) are also required to be taken into consideration. When only fifty people have come forward to stall the project while the other 700 had not opposed the move, the petitioners are acting in defiance of a larger public interest. According to him, the petitioners have been allowed to occupy the flats of the Government in pursuance of the rehabilitation scheme and they cannot be treated as tenants under the State. Assuming that the petitioners are tenants, their temporary displacement for about 2 years cannot be said to be arbitrary, illegal or unreasonable having regard to the provisions of Section 11 of the West Bengal Premises Tenancy Act, 1997 (hereafter the WBPT Act) which empowers the Civil Court to direct a tenant to vacate the tenanted premises for such period as the Court may direct to enable the landlord to carry out repairs, renovation and/or reconstruction of such tenanted premises. Having regard to the legislative intent expressed in the WBPT Act, he contended that the petitioners cannot claim rights greater than the rights which tenants enjoy thereunder and, importantly, no tenant covered by it is entitled to claim alternative accommodation to be provided by the landlord during the period of displacement. He contended that when there was a clash between individual interest and mass interest, the individual interest has to yield and the plea of Article 21 of the Constitution would, in such circumstances, be untenable. The petitioners would not be totally deprived of their rights; on the contrary by implementation of the project the object of Article 21 of offering the petitioners the liberty to live in improved conditions would be achieved. He emphasized that Article 21 is aimed at improving the quality of life of people at large and not of individuals and the State being under an obligation to develop land owned by it for housing schemes according to its economic budget, insistence of the petitioners to provide alternative accommodation without any legal right in this behalf is misconceived.
Mr. Bandopadhyay, in reply, submitted that there is no reflection in the affidavit-in-opposition of the State respondents that the redevelopment scheme is a result of any policy decision taken by the Government. According to him, it is at best an administrative decision of the department which cannot take the character of a public policy. Countering the argument that the WBPT Act provides for eviction of tenant from the tenanted premises for rebuilding by the landlord, he submitted that in such case the Court has to come to a finding that repair, reconstruction and renovation is necessary prior to passing any direction in that behalf. Since no Court has come to any finding that rebuilding and reconstruction is necessary, the petitioners cannot be asked to vacate without due process of law. According to him, the fundamental right of the petitioners cannot be suspended. He further contended that legal right of the petitioners to move the present petition emanates from the decision of the Supreme Court in Bishan Das (supra) and that public policy cannot be a camouflage for ousting the petitioners. Countering the point raised by Mr. Mitra that majority of the residents had not questioned the policy of the State, he submitted that irrespective of whether challenge is thrown by the majority or not, a writ petition would lie even at the instance of one aggrieved person whose right is sought to be affected by the impugned actions and therefore the writ petition is maintainable and the petitioners are entitled to relief, as claimed.
Having heard learned Senior Counsel for the parties, this Court holds that the claim of the petitioners for a direction on the respondents to provide alternative accommodation for them during the period re-building is in progress is not judicially enforceable since the petitioners have no legally protected right in this behalf.
Though the respondents have contended that the buildings are dilapidated and may collapse at any moment and that notices have been issued by the concerned Municipality in this behalf, the petitioners have denied and disputed such contention in their reply affidavit and have further contended that as occupiers they have not been served with any notice. Whether or not the buildings are dilapidated and whether notices have been served being disputed questions of fact and also not being relevant for deciding the issue raised herein, this Court considers it prudent not to examine the said contentions.
Decisions of the Supreme Court are legion that right to life does not merely mean animal existence but means something more, viz. the right to live with human dignity. Right to life would, therefore, include all those aspects of life which go to make a life meaningful, fulfilling, complete and worth living. In Chameli Singh (supra), right to live in a decent environment has been held to be a component of the right to life and shelter has been held to be home for a human being where he has opportunities to grow physically, mentally, intellectually and spiritually. It has further been held that right to shelter does not mean a mere roof over one's head, but would include all necessary infrastructure which would enable him to live and develop as a human being. Right to shelter would therefore include adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities.
In terms of the Directive Principles of State Policy, the State is under an obligation to secure distribution of the material resources of the community for sub-serving common good and to raise the standard of living of its people. That would include securing for its citizens shelter, subject to its economic budgeting.
The State has the right to exploit its land in a manner it chooses without, however, causing deprivation of rights of citizens. The entire land measuring about 17.20 acres belongs to the State who now intends to develop such land. In the process, buildings for occupation of settlers like the petitioners shall be re- built, provisions shall be made for accommodating other people who may be interested in residing there thereby taking care of housing problems of many and also the land shall be exploited for commercial purposes as a profit making venture. The project of re-building is expected to be completed within two years and the State proposes to pay to the settlers, who would be temporarily displaced during this period, an amount of Rs.1,000/- to each of them. Once the buildings are constructed, according to result of lottery the settlers shall be allotted flats, double the size presently occupied by them free of cost. The petitioners are expected to be provided with means of comfortable living in decent flats and surroundings together with civic amenities conducive for growth and development of individuals without incurring any expenditure towards acquisition of the same. Having regard to the larger public interest, and particularly in view of the fact that there would only be a partial displacement of the petitioners in the sense that expectedly within two years from vacation of their present accommodation they would be put in possession of ready flats free of cost almost double the present size in a habitable environment conducive to their proper physical, mental, intellectual and spiritual growth, can or should such action of the State be termed arbitrary or in violation of any of the guaranteed fundamental rights of the petitioners? The answer cannot but be in the negative. This Court is unable to hold in the absence of any enforceable duty or obligation cast by any law on the State to provide alternative accommodation that by seeking to implement the development project without providing for alternative accommodation, it intends to abrogate either their right protected under Article 19 or Article 21 of the Constitution of India.
Pertinently, the legal maxim 'salus populi est suprema lex' which means regard for the public welfare is the highest law may be called in aid. This principle is based on the implied agreement of every member of society that his own individual welfare shall in cases of necessity yield to that of community. His property, liberty and life shall under certain circumstances be placed in jeopardy or even sacrificed for the public good [see: Hira Tikkoo vs Chandigarh Administration reported in (2004) 6 SCC 765].
The social purpose of removing roadblocks in the way of progress in building programmes cannot also be overlooked. As has been held by the learned Judge of the Kerala High Court in the decision reported in 1970 K.L.T. 257 :
Kalliani vs. Madhavi & ors., "old structures in newly developing areas may be like pimples on fair faces. Replacement and renewal of obsolescent and unsightly buildings to make room for larger, modern constructions is a social necessity, providing existing tenants are not thrown into the streets".
The petitioners have rightly not chosen to question the decision taken by the Government to redevelop the land and in the process to secure its economic interest, but have confined their grievance to the issue of alternative accommodation. It has been contended on their behalf that the right to claim alternative accommodation flows from the decision in Bishan Das (supra).
In Bishan Das (supra), a dharmasala, a temple and shops on land belonging to the State had been built, with the permission of the State, by one Lala Ramji Das. After his death, members of his family continued management of the dharmasala, temple and shops. Subsequently, they were dispossessed from the properties by an executive order passed by the Sub-Divisional Officer. Such action was the subject matter of challenge in a petition under Article 32 of the Constitution before the Apex Court. It was held that the petitioners could not be held to be trespassers in respect of the dharmasala, temple and shops nor could it be held that the said properties belonged to the State. The Apex Court laid down the law that one could be removed from possession only by procedure known to law and not by an executive fiat. Lala Ramji Das having put up construction on land belonging to the State, it had not acquired any right merely by reason of such fact (the land belonging to the State). It was for the State to remove the constructions if thought proper and to resume possession thereof only after taking appropriate legal action for the purpose.
The ratio of the decision in Bishan Das (supra) was followed in Vishnunarayan (supra). It was held that possession can be resumed by the State Government only in a manner known to or recognised by law and it cannot resume possession otherwise than in due course of law. Legal steps would mean action by the State Government under any relevant law for obtaining possession and not using police power.
Reliance on the aforesaid decisions is inapposite in the context. There is no threat of dispossession of the petitioners from the flats presently occupied by them by any executive fiat. The impugned notice does not hold out any threat that on their failure to deliver vacant possession within 7 days, the petitioners would be thrown out therefrom. It also does not threaten them with dispossession using police powers or in abrogation of legal process. All that it says is that on failure to vacate the premises, the State would be entitled to assume that the petitioners are not interested in accepting the offer of a cost free flat being provided to each of them. This Court has failed to find the relevance of the ratio of these decisions to the facts of the present case. These decisions do not therefore come to the assistance of the petitioners.
The decision in Hinch Lal Tiwari (supra) speaks of quality life which is the essence of the guaranteed right under Article 21 of the Constitution. This Court has again failed to comprehend as to how in small and old flats not properly maintained for years quality life can be enjoyed by the petitioners.
The decision in Chameli Singh (supra) instead of assisting the petitioners supports the contention raised by learned Senior Counsel for the respondents.
There can be no dispute with the proposition of law laid down in Narasimhamurthy (supra) that right to shelter is a fundamental right under Article 19(1) of the Constitution. However, it was so held in the context of whether acquisition of land to provide house sites to poor homeless is a public purpose or not. Endeavour of the State to provide residential accommodation and better environment and facilities for proper development of human rights of people not only of the residents of Bonhooghly Tenement Scheme but also other people who might be interested in purchasing flats which are likely to be constructed is itself a public purpose which ought not to be stalled at the instance of some aggrieved persons who have been clamouring for alternative accommodation without having any right in respect thereof.
Since this Court has found the State's action not to be arbitrary, unreasonable or illegal while testing it on the anvil of Article 14 of the Constitution, the decisions in Jamshedji Hormusji Wadia (supra) and New India Assurance (supra) are of no assistance to the petitioners.
The decision in Olga Tellis (supra) lays down the law that a fundamental right cannot be waived by a citizen. On facts, it was held that pavement dwellers have no right to occupy pavements which belong to the public and their eviction therefrom would not be violative of their rights protected under Article 21 of the Constitution. However, in paragraph 57 thereof the Apex Court while directing the State Government to consider settlement of pavement and slum dwellers at alternative sites, as it considers reasonable, did hold that settlement in terms of the directions would not be a condition precedent to their removal. This decision also does not assist the petitioners.
Since the petitioners have no fundamental right to claim alternative accommodation, it cannot be held that they are entitled to the same to be provided by the State Government prior to any action being taken for their re- settlement in the housing project.
For reasons aforesaid, the writ petition fails. It stands dismissed, without costs.
Urgent photostat certified copy of this order, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.
(DIPANKAR DATTA, J.)