Gujarat High Court
Rameshbhai Revabahi Raval vs The Director Of Municipalities on 28 February, 2025
NEUTRAL CITATION
C/SCA/17640/2024 ORDER DATED: 28/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17640 of 2024
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RAMESHBHAI REVABAHI RAVAL & ORS.
Versus
THE DIRECTOR OF MUNICIPALITIES & ANR.
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Appearance:
MR SANDIP M PATEL(5649) for the Petitioner(s) No. 1,10,2,3,4,5,6,7,8,9
MR ROHAN RAVAL, AGP for the Respondent(s) No. 1
MR BHAVESH P TRIVEDI(2731) for the Respondent(s) No. 2
MR RR TRIVEDI(941) for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 28/02/2025
ORAL ORDER
1. This petition is filed challenging the notices dated 26- 30/07.2024 issued to respective petitioners seeking removal of construction on the subject land. The land in question here is a pond land having ownership of the State Government. The notices refer to removal of encroachment done by the petitioners on the Government land within 7 days failing which appropriate action has been indicated.
2. Heard learned advocate Mr. Sandip Patel for the petitioners. Learned advocate for the petitioners submitted that the petitioners herein are residents of Jetpur Navagadh Municipality and residing on the subject land since last 2 decades. All the petitioners are from weaker section of the society and therefore, sympathetic approach is necessary. Further, the petitioners are residing with their family on the Page 1 of 14 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:49 IST 2025 NEUTRAL CITATION C/SCA/17640/2024 ORDER DATED: 28/02/2025 undefined subject land which they had constructed after taking loan from the Bank. Therefore, dispossession from their residences would render them shelter-less.
2.1 Learned advocate for the petitioners submitted that the petitioners are ready to vacate the premises, if any other alternative residential accommodations are provided to them by the Municipality. On the aspect of development of pond land under the Government Project, learned advocate for the petitioners submitted that though the petitioners were served with notices, all of their residences do not fall within the pond land and only one or two houses are falling within the pond land which is required for the development project and therefore action taken by issuance of notices to all the petitioners is erroneous.
2.2 Learned advocate for the petitioners further submitted that for their grievance, the petitioners had filed representations to the Chief Officer, Jetpur Municipality as well as Mamlatdar. In the said representation they had raised their grievances that they are residing on the subject premises since last 2 decades with their families and water, electricity and other necessary connections have been provided for their livelihood. Learned advocate for the petitioners therefore submitted that the notices may be quashed and set aside or in the alternative the respondent No. 2 - Municipality may be directed to provide alternative accommodation to the petitioners.
3. Learned Assistant Government Pleader Mr. Rohan Raval Page 2 of 14 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:49 IST 2025 NEUTRAL CITATION C/SCA/17640/2024 ORDER DATED: 28/02/2025 undefined for respondent No. 1. submitted that the land in question is the Government land and the same was handed over to respondent No. 2 - Municipality for development of beautification and development of pond. Thus, ownership of land in question with the State Government and the property in question was developed on the water body is also not in dispute. Further, as per notification of the State Government, no construction is permissible on a water body and therefore the construction made on the subject land is required to be demolished. Learned AGP further submitted that pursuant to directives of the State Government, the land is required to be developed for the rejuvenation and beautification of the pond and therefore also notices are appropriately issued.
4. Learned advocate Mr. Bhavesh Trivedi appeared on behalf of respondent No. 2 - Municipality and submitted that the petitioners herein are encroachers of the Government land. The ownership of land in question with the State Government is not in dispute. Further, the construction was done on a water body and no construction is permissible on the water body. The state Government pursuant to the sanctioning of project for rejuvenation and beautification of the pond land, directed respondent No. 2 - Municipality to develop the said pond under the Amrut Yojna Project. This aspect is evident from the Government sanction letter dated 05.09.2023 by Regional Commissioner, Municipality to respondent No. 2 (Page No. 75). Accordingly, the Mamlatdar Jethpur directed Chief Officer, Jetpur Nagarpalika under communication dated 27.10.2023 to develop the said land under Amrut Yojna Project. The said communication refers to sanctioning of the amount by the Page 3 of 14 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:49 IST 2025 NEUTRAL CITATION C/SCA/17640/2024 ORDER DATED: 28/02/2025 undefined State Government and development of project thereunder. Pursuant to the said project Phase 1 is over and Phase 2 is yet to be completed, however, on account of encroachment made by the petitioners, the project could not get completed.
4.1 Learned advocate further submitted that at this stage only the construction on pond land required for the project is to be demolished/removed. Further, since respondent No. 2 is not the owner of the subject land the prayer made with regard to alternative accommodation is not within the domain of Municipality. Moreover, at present there is no scheme available with respondent No. 2 - Municipality to provide alternative accommodation. Learned advocate relied upon decision of this Court in the case of Vora Zakirhusain Valibhai v.s State of Gujarat reported in 2021 (0) AIJEL-HC 242674.
4.2 Learned advocate therefore, submitted that the petitioners are having no enforceable rights over the subject land and they are not entitled for any alternative accommodation. Further, the project undertaken is a public project and respondent No. 2 is not earning out of the said project. Learned advocate therefore submitted that the petition being devoid of merits, the same be rejected.
5. Considered the submissions and the documents on record. Upon revisitation of facts, it is noticed that the petitioners herein are encroachers on Government land which is pond land. As per the resolution of the State Government, no construction is permissible on water body. Therefore, the Page 4 of 14 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:49 IST 2025 NEUTRAL CITATION C/SCA/17640/2024 ORDER DATED: 28/02/2025 undefined contention of the respondents that there is no enforceable right of the petitioners over the Government land merit acceptance. Further, notices were issued to the petitioners for removal of unauthorised construction for implementation of project, given to respondent No. 2 - Municipality by the State Government. From the communication dated 27.10.2023 (Annexure-R2, Page No. 79) it is evident that amount has been sanctioned by the State Government for development of pond under the project and accordingly the project was initiated and Phase 1 is over. The subject land is required for development and completion of Phase 2. Therefore, the submission of learned advocate for respondent No. 2 that the land is required for public project appears to be correct. Moreover, in the case of Vora Zakirhusain Valibhai v.s State of Gujarat reported in 2021 (0) AIJEL-HC 242674, it is held as under:-
"25 Deciding a litigation of the present nature is quite painful. The weaker sections of the society like the writ applicants in the present case, no doubt, have the basic human and constitutional right to shelter and it becomes the paramount duty of the State to fulfill those. However, it gives no person the right to encroach and erect structures or otherwise on footpaths, pavements or public space or at any place reserved or earmarked for a public utility. This is exactly what seems to have happened in the case on hand. It may be true that the writ applicants were residing at the place in question past couple of years, but, still, as a Court of Law, we should not be oblivious of the fact that it was nothing, but encroachment over the government land over a period of time. We are not impressed with the submission canvassed on behalf of the writ applicants that the writ applicants cannot be said to be encroachers as they have a right to shelter being both a fundamental as well as a human right. The Page 5 of 14 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:49 IST 2025 NEUTRAL CITATION C/SCA/17640/2024 ORDER DATED: 28/02/2025 undefined debate as regards the rights of encroachers over public land visavis the right to shelter should come to an end. This debate should not go on for a indefinite period of time. Mere long possession, over public land by way of encroachment by itself, is not sufficient to say that the encroachers are not liable to be evicted as they have a right to shelter. The right to shelter and encroachment are two different facets. An encroacher may save himself from being forcibly evicted only if during his period of stay over the encroached public land any enforceable legal right has crystallized in his favour. Otherwise, merely by asserting the "Right to Shelter", an encroacher, over public land, cannot say that he cannot be evicted. There is no way that an encroacher can enforce the "Right to Shelter" for the purpose of protecting his unlawful possession. The right to shelter, which the writ applicants are talking about, is an obligation of the State. It is the State which has to discharge its obligation in this regard. The documents like voter card, ration card, electricity bill, etc. do not confer upon encroachers any vested legal right in their favour to hold the possession. Such document, at the most, may evidence of only one thing and that is possession. We may reiterate that the right to shelter does not mean right to retain the government land encroached upon. The right to shelter may be a fundamental right under the Constitution, but, certainly, no person has any right to retain the land encroached upon under the purported right to shelter. It is to be enforced under the provisions of the Constitution. It is extremely difficult for us to accept the South African Jurisprudence or the Kenyan Jurisprudence, as discussed above. Having realized this serious problem, the State Government issued a Government Resolution dated 3rd July 2003 laying down a policy by prescribing the eligibility criteria for the allotment of alternative land to various hutment dwellers in the various sectors of the city of Gandhinagar. It appears that a cutoff date fixed i.e 30th Page 6 of 14 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:49 IST 2025 NEUTRAL CITATION C/SCA/17640/2024 ORDER DATED: 28/02/2025 undefined November 1999. The Government Resolution dated 3rd July 2003 referred to above enumerates 15 conditions for the grant of alternative accommodation. It is the case of the respondents that the writ applicants failed to fulfill such eligibility criteria and were declared not eligible for the alternative accommodation. It is the case of the respondents that mere possession of an identity card or voter card or the registration of the name in the survey list by itself is not sufficient to avail the benefits of the Government Resolution dated 3rd July 2003. We take notice of the fact that after detailed verification around 128 hutment dwellers were identified and recognized as eligible for alternative accommodation in terms of the Government Resolution dated 3 rd July 2003. We also take notice of the fact that a Coordinate Bench of this Court in the case of Arunaben Amratbhai Rohit and others vs. State of Gujarat rendered in the Letters Patent Appeal No.630 of 2018 in Special Civil Application No.7352 of 2018 took the view that the Government Resolution dated 18th July 2013 has been issued by the Urban Development and Urban Housing Department, the same would be applicable to the areas covered under the Gujarat Slums (Improvement, Abolition and Rehabilitation) Act, 1973 only. The subject land has not been declared as "slum" in accordance with the Act, 1973. We also take notice of the fact that the subject land is situated within the radius of the Gandhinagar Railway Station. The State Government wants to develop the land for a public project. The project is being executed by the Gandhinagar Railway and Urban Development Corporation (GARUD), a joint venture company of the Government of Gujarat and the Ministry of Railways represented by the Indian Railways Station Development Corporation."
XXXX 31 At this stage, we may quote few relevant Page 7 of 14 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:49 IST 2025 NEUTRAL CITATION C/SCA/17640/2024 ORDER DATED: 28/02/2025 undefined observations made by a Division Bench of this Court in the case of Peoples Union for Civil vs. State of Gujarat rendered in the Special Civil Application No.3426 of 1998 and allied matters decided on 5th September 2000. We quote the relevant observations:
"##. Public properties are usually not protected by means of wire fencing or compound wall or by guard/watchman, and the concerned authorities are not taking enough care to ensure that the properties, particularly open land, are not encroached. Therefore, not only that huts have been erected on such open plots, but in certain cases, even highrise buildings have been built up by encroachers. If such encroachers have encroached upon public property for whatever reason and have erected huts or unauthorised construction, can it be said that they cannot be ejected despite the fact that there is illegal and unauthorised construction and that property is required for a public purpose? The duty of the Court is to strike a balance between the two.
##. It may happen that due to negligence/inaction of public servants or due to pressure on the public servants from superior officers or other persons who are actively taking interest in other fields, no action is taken by the public servants either preventing persons from encroaching on open land or for removal of encroachments. They might have allowed in a given case on an assumption that the trespassers after getting job will find out their own accommodation. But the fact is, once a hut is constructed, it remains there and it is also known that the huts are sold and the advantage is taken subsequently in some cases by some builders also. The Apex Court, in OLGA TELLIS has observed that some slumlords are providing space on payment where a dwelling house or a hut is erected.Page 8 of 14 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:49 IST 2025
NEUTRAL CITATION C/SCA/17640/2024 ORDER DATED: 28/02/2025 undefined ##. In view of what is stated above, it is not obligatory on the part of the State/Corporation to provide alternative accommodation, and it cannot be argued for a moment that in view of the judgment of the Supreme Court, it is the right of an encroacher either to stay at the encroached place permanently or to get an alternative accommodation. Even the Apex Court has not laid down an absolute principle that in all cases of removal of encroachments, the State/Corporation must provide alternative accommodation. It depends upon facts and circumstances of each case. At the cost of repetition, we would say that the Apex Court pointed out the facts situation and particularly ratio of free hold land, population etc. and yet granted benefit to the people settled prior to 1976.
##. As pointed out in the case of NAWABKHAN, in view of consistent influx of rural people to the urban areas and consequential growth of encroachments and slums affecting ecological balance, sanitation and safety of pedestrians, Government should provide infrastructural facilities for rural areas by proper planning and execution. It may be required to be stated that the efflux is not only intraState but also interstate.
##. Huge land is available with the State Government for disposal which was acquired under the provisions contained in the Urban Land (Ceiling & Regulation) Act. If from this land some portion is reserved for providing alternative accommodation to the hutment dwellers by making a scheme, the problem can be solved.
##. One must not also forget the fact that a person who has migrated to an urban area might have his own land or building in his home town/State. This aspect is also required to be considered while giving alternative accommodation. Merely because a person is residing in a hut after migrating to an urban area, it cannot be said that such a person is a poor Page 9 of 14 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:49 IST 2025 NEUTRAL CITATION C/SCA/17640/2024 ORDER DATED: 28/02/2025 undefined person. Therefore, this aspect is also required to be kept in mind while fixing the norms for allotment. ##. It is also required to be noted that in cities, land is very scarce. Therefore the State Government should be vigilant to see that opportunities are made available to the public at different distant places (decentralisation) so as to avoid accumulation of population at a particular place. It is with this intention that industrial Estates are planned in rural areas which not only provide employment to residents of the rural area but also prevent efflux of rural public into urban areas. Therefore, when Industrial Estates are planned, it should be planned in such a way that schemes for residential houses are also provided to downtrodden persons coming to take employment in such Industrial Estates. More and more opportunities should be made available in rural areas so that people from urban areas may shift to rural areas.
##. With regard to employment that can be offered to residents of rural areas, the Apex Court, in NAWABKHAN's case, pointed out that "it would be for the Union of India, all the State Governments and the Planning Commission, which are Constitutional functionaries, to evolve such policies and schemes as are necessary to provide continuous means of employment in the rural area so that in the lean period, after agricultural operations, the agricultural labour or the rural poor would fall back upon those services to eke out their livelihood."
XXXXXX 34 We summarize our conclusions as under:
(i) Right to shelter is a fundamental right, which springs from the right to residence assured in Article 19(1)(e) and right to life under Article 21 of the Constitution. It Page 10 of 14 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:49 IST 2025 NEUTRAL CITATION C/SCA/17640/2024 ORDER DATED: 28/02/2025 undefined 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 no 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) Socioeconomic 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 India 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 Page 11 of 14 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:49 IST 2025 NEUTRAL CITATION C/SCA/17640/2024 ORDER DATED: 28/02/2025 undefined 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.
[(i), (ii), (iii), (iv) vide Rajesh Yadav vs. State of U.P. reported in Laws (All) 2019 (7) 57].
[v] The weaker sections of the society, no doubt, have the basic human and constitutional right to shelter. However, it gives no person the right to encroach and erect structures, or otherwise, on any public place saying that he has no other place to go. Mere long possession e ven with documents like voter card, ration card, electricity bill, etc., over any public land by way of encroachment, by itself, is not sufficient to say that the encroachers are not liable to be evicted, as they have a right to shelter. An encroacher can save himself from being forcibly evicted only if during his period of stay over the encroached land any enforceable legal right has crystallized in his favour. This legal right does not mean the mere constitutional right to shelter.
[vi] The State Government should identify and earmark certain lands acquired under the Land Ceiling Act and frame a uniform policy to allot them in accordance their with people hailing from a very poor strata of the society. We remind the State Government that when it plans an industrial zone or commercial zone, the Page 12 of 14 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:49 IST 2025 NEUTRAL CITATION C/SCA/17640/2024 ORDER DATED: 28/02/2025 undefined provisions should also be made for providing residential accommodation / housing facility to the downtrodden class or the persons taking up employment in the industries and for persons providing ancillary services.
[vii] Even under the Gujarat Town Planning and Urban Development Act, 1976, there is a provision for providing housing accommodation to the weaker sections of the society. As regards the areas covered under the Act, there is also a scheme about improvement in Chapter - XVI, which requires to be taken a serious note. It refers to improvement scheme, clearance area, redevelopment areas, provisions of housing accommodation in the poor class, land acquisition, levy of betterment charges.
[viii] The State Government should consider formulating scheme in line with the principles laid down by the Apex Court in the case of Nawabkhan (supra). In doing so, care shall be taken to ensure that the land so vacated by the slumdwellers is not reoccupied by another cluster of slum dwellers, and the alternative site is utilised by the same citizens to whom it is allotted. Otherwise, it may happen that a particular person takes possession of the alternative accommodation and never goes there or dispose it of and the same person re- occupies the vacated premises or joins another cluster or slum dwellers in the vicinity. Moreover, the State/ Municipal/Local authorities must take due care to protect open plots from preventing it to be occupied by encroachers. If due care is not taken, ejection of slumdwellers and providing alternative accommodation will be a never ending process."
6. Thus, there is no enforceable right of the petitioners on the subject land permitting them to retain the said premises till the alternative accommodation is provided. However, Page 13 of 14 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:49 IST 2025 NEUTRAL CITATION C/SCA/17640/2024 ORDER DATED: 28/02/2025 undefined considering the fact that since the petitioners are residing on the subject land since last more than 2 decades, if in future any scheme is floated either by the State Government or by Municipality, it is open for the petitioners to make applications. If such applications are made, the same shall be consider in accordance with law. In the facts of this case, it is open for the authority to consider the applications sympathetically.
7. With the above directions, the present petition is disposed of.
(MAUNA M. BHATT,J) SHRIJIT PILLAI Page 14 of 14 Uploaded by SHRIJIT PILLAI(HC01400) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:49 IST 2025