Topic: Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan

Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan
Bench: K. Ramaswamy, G.B. Pattanaik - DATE OF JUDGMENT: 11/10/1996

J U D G M E N T K. Ramaswamy J.

Leave granted.

This appeal by special leave arises from the judgment and order made on February 20, 1991 by the Gujarat    High Court in Special Civil Application No. 5351 of 1982.

The admitted facts are that 29 persons had filed the writ petition in the High Court. They are pavement-dwellers in unauthorised    occupation of footpaths of the Rakhial Road in Ahmedabad which is    a main    road. They have constructed huts thereon. When the    Corporation sought to remove their encroachments on December 10, 1982, they approached the High Court under Article 226 of the Constitution. The High Court granted interim    stay of removal of the encroachment. By the impugned judgment, the High Court directed the Municipal Corporation not to remove    their huts until suitable accommodation was provided to    them. The High    Court also further    held    that before removing    the    unauthorised encroachments the procedure of hearing, consistent with the principles of natural justice should be followed.

We requested Shri Dushyant Dave, the learned senior counsel of the Bar to assist the Court as amicus curiae and Smt. K.    Sharda Devi has been assigned as Legal Aid counsel to argue on the behalf of the respondents since they are not appearing either in person or through    counsel. By order dated September    11, 1995, this Court directed the appellant thus :

"We think    that    the Municipal Corporation should    frame a Scheme to    accommodate them    at the alternative places so that the hutmen can shift their residence to the places of    accommodation provided by the Corporation to have permanent residence. Corporation is accordingly directed to    frame a scheme and    place before this Court within two months from today"
Pursuant thereto,    a Scheme has been framed and placed before this Court. It would appear that only 10 persons out of original petitioners in the High Court whose names have been mentioned in the    supplementary affidavit are residing there;    of them Nurmahommad    Samsuddin and Hakimuddin Karimuddin have    converted their huts into commercial units run on the pavement. This road is 80 feet wide with 10 and 8 feet wide foot-paths on tow sides of the road. At present 56 persons, obviously including 10 original encroachers are in occupation of    hutments erected on the footpaths    and whereabouts of    19 original petitioners who have left    the area in    consideration of money they    have accepted,    are known. In their place,    others have occupied the huts by making payments.

Shri Dushyant Dave has also further submitted proposals as alternative    to the    Scheme. Having heard the counsel on both sides, we reserved the case for consideration. At the outset, we express our    deep appreciation for the valuable assistance rendered by Shri Dushyant Dave and also for the fair arguments advanced by Shri Arun Jaitely, learned senior counsel appearing for the Corporation.

The questions for consideration are : (1) whether the respondents are    liable to ejectment from the encroachments of pavements of the roads and    whether the principle of natural justice, viz., audi alteram partem requires to be followed and, if so, what is    its scope and content?    (2) whether the appellant is under an obligation    to provide permanent residence to the hutment dwellers and, if so, what would be the parameters in that behalf? The questions are dealt with    later.    On the first question, Sections 63(i)(19) of the Bombay Municipal Corporation Act, 1955 [as applicable to Gujrat or Section 231 of the Bombay Provincial Municipal Corporation    Act [BPMC Act] empowers the Commissioner to    remove any wall, fence, rail, post step, booth or other structure or fixture, permanent or moveable, which shall be erected    or set    up in or upon any street or upon or over any open channel, drain, well or tank, contrary to the    provisions of sub-section (1)    of Section 312 after the same came into force in the city of Ahmedabad or in the Super-bazars after the Bombay Municipal (Extensions of Limits) Act, 1950 came    into force or in the tended suburbs after the date of the coming    into force of    the Bombay Municipal Act,    1955 [for short, the "Act"]. The power to remove encroachments on street, pavement or footpath    was conferred upon the Commissioner, the highest officer of the Municipal Corporation,    who acts with high degree of responsibility and duty to implement the provisions of the Act. every citizen has    a right to pass or repass on the pavement, street, footpath as general amenity for convenient traffic. A Constitution Bench    of this Court in Sadan Singh etc. etc. v. New Delhi Municipal Committee & Anr.    etc. [(1989)] 2 SCR 1038] was confronted with and had considered the question "can there be at all a fundamental right of a citizen to occupy a particular place on the pavement where he can    squat and engage in trading business?    We have no hesitation in answering the issue against the petitioners. The petitioners    do have the fundamental right to carry on a trade or business of their choice, but not to do so on a particular place. Hawkers cannot be    allowed    to, or be permitted to, carry on    trade or business on every road in the city. If the road is not wide enough to conveniently accommodate the    traffic on it, no hawking may be permitted at all,    or may    be sanctioned    only once a week, say on Sundays when the rush    considerably thins out,". Thereby, this Court has minimised the hardship    to pedestrians    and the hawkers in doing their business by hawking on the public street and at the same time has protected the public from free passes or re-passes of the traffic on road, pavement or footpath. In Olga Tellis v. Municipal Corporation of Greater Bombay [(1965)]    3 SCC    545], another Constitution Bench had held that "we are, therefore of the opinion    that    the procedure prescribed by Section 314 of the Bombay Municipal Corporations Act for removal of the encroachment on    the footpath over which the public has right of passage cannot be regarded as unreasonable, unfair or unjust. There is no static measure of reasonableness which can be applied to all situations alike. Indeed, the    question "Is this procedure reasonable?" implies and postulates the inquiry as    to whether    the procedure prescribed is    reasonable in    the circumstances of the case."

It is for the Court to decide in exercise of    its constitutional    power    of judicial review whether    the deprivation of life or personal liberty in a give case is by procedure which    is reasonable,    fair and just or it is otherwise. Footpath, street or pavement are public property which are intended to serve the convenience    of general public. They are not laid for private use indeed, their use for a private purpose    frustrates the very object for which they carved out from portions of public roads. The    main reason for laying out    pavements is to ensure that    the pedestrians are    able to go about their daily affairs with a reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at    naught by allowing encroachments to be made on the pavements. The    claim of the pavement dwellers to construct huts on    the pavement or road is a permanent obstruction to free passage    of traffic and pedestrians'    safety    and security. Therefore, it would be impermissible to permit or to make use of the pavement for private purpose. They should allow passing and re-passing by the pedestrians. On one has a right    to make use of a public property for the private purpose    without the    requisite authorisation from    the competent authority. It would, therefore, be but the duty of the competent authority to remove encroachments on    the pavement or footpath of the public street obstructing free flow of traffic or passing or re-passing by the pedestrians. This view was firmly laid down by this Court in Olga Tellis case thus :

"No person    has a right to encroach by    erecting a    structure or otherwise    on    footpaths and pavements or other place    reserved or earmarked for a public purpose like (for e.g. garden or playground) and that the provision contained in Section 314    of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case".
The Constitution does not    put an    absolute embargo on the deprivation of life or personal liberty but such a deprivation must be according to the procedure, in the given circumstances, fair and reasonable. To become fair, just and reasonable, it    would not be    enough    that the procedure prescribed in law is a formality. It must be pragmatic and realistic one    to meet the    given    fact-situation. No inflexible rule    of hearing and due application of mind can be insisted upon in every or    all cases. Each case depends upon its own backdrop.    The removal of encroachment needs urgent action.    But in    this behalf what requires to be done by the    competent authority is to ensure constant vigil on encroachment of    the public places. Sooner the encroachment is removed when sighted, better would be the facilities or convenience for    passing or re-passing of the pedestrians on the pavements    or foot-paths    facilitating free flow of regulated traffic on the road or use of public places. On the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblance of right to obstruct removal of    the encroachment. If    the encroachment is    of a recent origin the need to follow the procedure of principle of natural justice could be obviated in that    no not    has a    right to encroach upon    the public property and claim the procedure of opportunity of hearing which would be a tardious and time-consuming process leading to putting a premium for high-handed and unauthorised acts of encroachment    and unlawful squatting. On the other hand, if the    Corporation allows settlement of encroachers for a long time fore reasons    best known to them, and reasons are not far    to see, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. If the encroachment is not removed within the specified time, the competent authority would be at liberty to have it removed. That would meet the fairness of procedure and principle of giving opportunity to    remove the encroachment voluntarily by the encroachers. On    their resistance, necessarily    appropriate and reasonable    force can be used to have the encroachment removed. Thus considered, we hold that the action taken by the appellant-Corporation is not violative of the principal of natural justice.

It is not in dispute that Rakhial Road is one of the important main road in the city of appellant-Corporation and it needs removal of encroachment for    free passing and re- passing of the pedestrians on the pavements/footpaths. But the question is ; whether the    respondents are entitled to alternative settlement before ejectment of them ?

Article 19(1) (e) accords right to residence    and settlement in any part    of India as a    fundamental right. Right to life has been assured as a basic human right under Article 21 of the Constitution of India. Article 25(1) of the Universal Declaration of Human Rights declares    that everyone has the right    to standard of living adequate for the health and well-being of himself    and his    family; it includes food, clothing, housing, medical care and necessary social services. Article 11(1) of the International Covenant on Economic, Social and Cultural Rights lays down that State parties to the Convenat recognise that everyone has    the right to standard of living for himself and    his family including food,    clothing, housing and    to the continuous improvement of living conditions. In Chameli Singh & Ors. v. State of U.P. & Anr. [(1996)    2 SCC 549], a Bench of three Judges of this Court had considered and held that the right to shelter is a fundamental right available    to every citizen and it was read into Article 21 of the Constitution of India as encompassing within its ambit, the right to shelter to make the right to    life more meaningful. In paragraph 8 it has been held thus :

"In any organised society, right to live as    a human being    is not ensured by    meeting only the animal needs of man. It    is secured only when he assured of all facilities to develop    himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this    object.
Right to live guaranteed    in any civilised society implies the right to food, water, decent environment, education,    medical care and shelter. These are basic human rights known to    any civilised society. All civil, political, social and cultural    rights enshrined in    the Universal Declaration of Human Rights and Convention    or    under the Constitution of India cannot be exercised without these basic human rights. 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 an spiritually. Right to    shelter, therefore, includes adequate    living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and    water, electricity, sanitation and other civic amenities like roads etc. so as to have easy 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 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. As is enjoined in the Directive Principles, the State should be deemed to be under an obligation to secure it    for its citizens, of course subject to its    economic budgeting. In a democratic society as    a member of    the organised permanent    shelter so    as to physically, mentally    and intellectually equip oneself to improve his excellence    as a Fundamental Duties and to be a useful citizen    and    equal participant in    democracy. The ultimate object of making a man equipped with right to dignity of person and    equality of status is to enable    him to    develop    himself into residence, therefore, frustrates the very object of the constitutional animation of right to    equality, economic    justice, fundamental right    to residence, dignity of person and right to live itself.
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 an economic justice to the weaker sections of the society to minimise inequalities in income and endeavor to eliminate inequalities in status. In that case, it was held that to bring the Dalits and Tribes into the mainstream    of national life, the    State was to provide facilities and    opportunities as it is the duty of the State to fulfil the    basic human and constitutional rights to residents so as to make the right to life meaningful. In Shantistar Builders v. Narayan Khimalal Toame [(1990) 1 SSC 520], another Bench of    three judges had held    that basic needs of man have traditionally been    accepted to be three food, clothing    and shelter. The right to life is guaranteed in any    civilised society. That would    take within it sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live. The difference between the need of an animal, it is the bare protection of the body; for a human being, it has to be a suitable accommodation    which would allow him    to grow in every aspect - physical, mental and intellectual.    The surplus urban-vacant land was directed to be used to provide shelter to the poor. In Olga    Tellis    case (supra),    the Constitution Bench had considered the right to dwell on pavements or in slums    by the    indigent and the same    was accepted as a part of right to life enshrined under Article 21; their ejectment from the    place nearer to their work would be deprivation of their    right to livelihood. They will be    deprived of their livelihood    if they are evicted from their slum and pavement    dwellings. Their eviction tantamount to deprivation of their life. The right to livelihood is a traditional right to live, the easiest way of depriving a person of his    right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denudes the life of its    effective content and    meaningfulness but it would make life impossible    to live. The deprivation of right to life, therefore, must    be consistent with the procedure established by    law. In    P.G. Gupta v. state    of Gujarat [(1995)] Supp. 2 SCC 182], another Bench of three Judges had considered the mandate of human right to shelter and read it into Article 19(1)(e) and Article 21 of the Constitution and the Universal Declaration of Human Rights and the Convention of Civic, Economic and Cultural Rights and had held that it is the    duty of    the State to construct houses at reasonable cost and make them easily accessible    to the poor.    The aforesaid principles have been    expressly embodied and in built in our Constitution to secure socio-economic democracy so that    everyone has a right to life, liberty and security of the person. Article 22 of the Declaration of Human Rights envisages that everyone has a right t social security and is entitled to its realisation as the economic,    social    and cultural rights    and indispensable for his dignity and free development of    his personality. It would, therefore, be clear that though 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 over their heads to make the right to life    meaningful, effective    and fruitful. Right to live livelihood is meaningful because no one can live without means of his living, that is    the means of livelihood. The deprivation of    the right to life in that context would not only denude    right    of the effective content    and meaningfulness    but it would    make    life miserable    and impossible to life. It would, therefore, be the duty of the State to provide right    to shelter to the poor and indigent weaker    sections of the society in    fulfillment of    the Constitutional objectives.

That apart, Section 284 (I) of the Act also imposes a statutory duty    on the    Corporation to    make provision    for accommodation enjoining    upon the Commissioner, if it is satisfied that within any area or any part of the City it is expedient to provide housing accommodation for the    poor classes and that such    accommodation can be    conveniently provided without making an improvement scheme, it shall cause such areas to be defined on a plan. The Corporation is required to pass a resolution authorising the Commissioner who    shall thereupon have    power to provide such an accommodation either by erecting buildings or in any other manner on any land belonging to the Corporation or any land acquired by the Corporation for the purpose or by conversion of any building belonging to the Corporation into dwelling for poor classes or by enlarging, altering or repairing or improving any buildings, altering or repairing or improving any buildings,    which have, or an estate or interest which has been acquired by the Corporation. This duty is apart of the Constitutional mandate. Under the Urban Ceiling Act, the excess urban vacant land is earmarked to elongate the above objective.

The appellant-Corporation    has stated that in    its Resolution No.    544 dated August 17, 1976 it    was resolved that no pavement dwellers/hut dwellers existing as on May 1, 1976 would be removed    by the Corporation without providing alternative accommodation. This cut off date was introduced for the    reason that they had conducted a detailed survey of slum-dwellers. They were photographed    and identity cards were given to them so that they could get the protection from removal until alternative accommodations were provided to them. Out of 81,255 hutments, 1864 are pavement dwelling units. In furtherance thereof, they evolved several schemes. Of them, three schemes    are in    operation. The first scheme relates to the open plots at Narol. As per that scheme plots of land    each admeasuring 25 square metres had under Urban Land Ceiling and Regulation Act, 1976 comprised in the total land of    an extent of 38,749 square metres in Survey No. 41, were directed    to be    allotted to the urban poor.    The Government by its resolution has decided that an urban poor family whose annual income is below Rs. 18,000/- is entitled to the allotment of said plots. They have suggested in their affidavit filed    by Rasikbhai,    Deputy Commissioner of    the appellant-Corporation that they had addressed the Collector of allotment regarding 35 plots reserved for hutments. It is further stated    that if    the 10    persons who were original petitioners in the writ petition are willing to vacate the present encroachments they are    prepared to have the Rs. 25 sq. mtr. plots in Narol Scheme allotted to them. The second alternative scheme suggested was the Vinzol Site    and Services Scheme evolved by the Gujarat Slum Clearance Board. Under the scheme, plots were available at    Vinzol    and Vivekananda Nagar respectively. At Vinzol, cost of a plot admeasuring 32    sq. mtrs, of    land is Rs. 9,468/-.    The initial payment    to be    made is    Rs. 3,941/- and thereafter monthly instalment of Rs. 107/- for 11 years in required to be paid. The accommodation provided in that scheme includes plinth area plus W.C.    In the    Slum Clearance Scheme of Vivekananda Nagar, plots admeasuring 19,52 sq. mtr. of land would be available at    a cost    of Rs.    8,910/-. The initial payment is Rs. 5,282/-    and the monthly instalment payable thereafter is of Rs. 145/- for a period of 11 years. It includes plinth area plus W.C. and Chokadi. There are around 700 to    1000    unallotted units available    and if    the respondents are    willing they would be    provided with    the accommodation in the said Scheme. Thirdly, it was stated that there are hutment dwelling units at Vinzol/Lambha Part I and Lambha Part II of Economically Weaker Sections Scheme operated by Gujarat Slum Clearance Board. Therein, at Vinzol plots admeasuring 15.50 sq. mtrs. or 14.76 sq. mtrs. of land at Lambha with facility of one room, W.C. and Chokadi are available. 142    tenements are    available at    Vinzol,    140 tenements are available at Lambha Part II. This was    the information furnished by the Gujarat Slum Clearance Board. The schemes are floated for economically weaker sections of the society and the cost of each tenement at Vinzol is Rs. 16,187/- and of tenement at Lambha Part I and Part II is Rs. 17,094/- and Rs. 18,030/- respectively. The initial payment to be made for the accommodation at Vinzol is Rs. 6604/- and in respect of tenement    at Lambha Part I is Rs. 7,476/- and for Part II it    is Rs.    72,00/-. The monthly instalment for Vinzol tenement is Rs. 131/- to be paid for 9 years 7 months and for Lambha Part I, the instalment is of Rs.141/- per month to be paid for 10 years and for Part    II it is Rs. 142/- per month to be paid for 14 years. The annual family income limit for these tenements is also Rs. 18,000/-. Those family units of Vinzol    who qualify the income criteria are eligible for allotment.

In    the statement made    on behalf of    the hutment dwellers, Shri Dushyanant Dave has stated that the aforesaid units as situated at    a far away place and    direction to vacate the pavements and occupation of the premises thereat would deprive the respondents of their livelihood. A further affidavit was filed on behalf of the Corporation wherein it is stated that all infrastructural facilities are available at the    respective places. They are fully developed areas with all basic amenities. They are at a distance of about 8 kms. from the    city. Near about those places are    many factories and    other commercial organisations where    the respondent-encroachers can find out their livelihood by working in the factories. Public transport is also available there. It was also stated that Vinzol, Vivekanand Nagar and Lambha are developed areas and, therefore, it is easy to find out work in the vicinity of those areas. About 15,000 persons are at present    living in each of the three Schemes with all basic amenities. Shri Dave has given suggestions and submitted that the    Corporation should be directed to evolve the scheme under Section 284 i of    the Act to discharge the constitutional obligations and to provide near about the place in Rakhial Road so that the    respondents would work in the neighborhood and would eke out their livelihood. To this it was stated by the appellants that the open lands available near Rakhial Road were earmarked for the school, park/public amenities and there is no vacant land in the nearby place.

Shri Dave    further suggested that the Corporation would relax their census of    1976 and adopt 1991 census and all those who are residing    in the    city for at least 10 years prior to January 1, 1995 should be provided with built up accommodation so that it would provide an alternative viable right to residence. If the land belonging to the Corporation is available, the same could be implemented by constructing the houses. If it is not available, lands could be acquired and houses could be constructed and accommodation provided in terms of the directions given by this Court so    that pavement dwellers would have right to    residence and    the planned construction could not affected. It was stated in the additional    affidavit of the respondents in this regard that in    1991 they had identified 5 lakhs slum dwellers or pavement dwellers out of population of 29 lakhs and for acquisition and    construction of the    houses,    the budget estimates would    be Rs. 220 crores.    The Government    has stopped    giving assistance    to the Corporation    for construction of    houses. This Court in SLP Nos. 47-51/96 titled    Maha Gujarat    Hawkers    Vyapar Mahajans etc. v. Ahmedabad Municipal Corporation had given directions to regulate hawking. The Corporation has regulated, in terms of the said order, the hawking business    on the    pavements by dwellers in the city of Ahemdabad within the specified areas and identified some as non-hawking zones in the Scheme which is operated in the city of Ahemdabad. No direction in derogation thereof would be given permitting    the pavement dwellers to convert the hutments for commercial purpose. It is also suggested that    with the co-operation of the Non Governmental Organisations and financial participation of the slum dwellers and    industrialists the Corporation    has introduced Slum Networking Project. Under the scheme, they have provided 35,000 built up individual toilets in the slum areas. Subsidy    component to the hutment dwellers has been raised to 90 percent w.e.f. April 1, 1996.

As per the scheme, the following are the benefits provided in the slum areas for the hutment dwellers :

"i) House-to-house water supply;
ii) House-to-house drainage connection;
iii) Full    pavement of    internal street;
iv) Individual toilet;
v) Provision of storm water drain;
vi) Solid waste management services;
vii) Street light, etc. Besides the physical services, a package of community development services, a package of community development services of also offered which includes :
i) Primary education;
ii) Primary health care;
iii) Income generating activities etc.
This project is estimated    to cost Rs. 326 crores. A photocopy of the said Project Report dated July 1995 and prepared by H Parikh Consulting Engineers ....
The aforesaid benefits    of the Project are proposed to be extended to    all the slums except those situated on land s which are required for public purpose by the Corporation. With a view to provide these services in    the slums and chawls situated on private lands, an amendment has also been proposed to the State Government in the BPMC Act to enable the    Corporations to provide all essential services in the slums situated on the private lands without prejudice    to the right, title and interest    of the owner of    the land and    without affecting their rights to remove such hutments by following due process of    law. This amendment is considered    necessary to    maintain health and    sanitation in the slums situated on private lands    and for improving the quality of    life of the slum dwellers till they exist on the private lands. This project having partnership    concept of slum dwellers is now in the process of implementation. Efforts are being made to    give priority    to the unserved/undeserved areas under the Project. It is    believed that through this project, a large number of slum dwellers will be in a    position to    avail    of the essential    services at the place they are    situated and improve beyond the    present means    of the Corporation to    provide rehabilitation to every slum dweller by providing alternate accommodation.
However, this is not to say that the Corporation    has permitted section 261 to    remain on the statute book only. 9754 houses have been duly    constructed    by the Corporation under the Slum Clearance Scheme for accommodation slum dwellers and allotted to them and another 2220 houses have been constructed under    the HUDCO Scheme for economically    weaker    sections and low income group people and allotted.    Besides this, the Corporations    has    also infrastructure to 315    hutment dwellers under the site and service scheme and the    flood    affected hutment    dwellers under the Integrated    Urban Development Programme.
So far 733 hutments which existed prior to May 1976    [cut of date] have been    shifted from their earlier location in the interest of public and    all of them have been given alternate    sit    by the Municipal    Corporation    which includes 709 pavement    dwelling families also. This protection is not available to    those who have come up after 1-5-1976 [cut off date]."
The Corporation has been    further subsidising 80% cost of construction    of individual latrines by slum dwellers and under this scheme over    35,000 individual toilets have been built up in the slums and chawls in past few years and this subsidy component has been further raised to 90% with effect    from Ist April, 1996. As per the    Government's resolution dated May 30,1987 State Level and District/City level officers    are nominated to monitor the working of the scheme.

In view of the above factual background, the question that arises is; whether there is compliance with    the directions issued by this Court referred to hereinbefore and whether any further modulation is need in that behalf?

Empirical study of urban and rural population in India discloses that    due to lack of civic facilities and means of livelihood    people    from rural areas constantly    keep migrating to the urban areas resulting in mushroom growth of slums and encroachment of the pavements/footpaths etc. Every Municipal    Corporation has statutory obligation    to provide free flow of traffic and pedestrians right to pass and re-pass freely and    safely; as its concomitance,    the Corporation/Municipality have statutory duty to have    the encroachments removed.    It would, therefore, be inexpedient to give    any direction    not to    remove, or to allow    the encroachment on    the pavements    or footpaths which is a constant source    of unhygienic    ecology, traffic hazards and risk prone    to lives of the pedestrians. It would, therefore, be    necessary to    permit    the Corporation to exercise the statutory powers to prevent encroachment of the pavements/footpaths and    to prevent construction thereon. As held earlier, the Corporation should always be vigilant and should not allow encroachments    of the    pavements and    foot paths. As soon as they notice any encroachments they should forthwith take    steps to have them removed and would    not allowed them to settle down for a long time. It is stated in their affidavit    that they are giving 21 days notice before taking    action for ejectment    of the encroachers.    That procedure, in our view, is a fair procedure and, therefore, the right to hearing before taking action for ejectment is not necessary in the    fact-situation. But the Commissioner should ensure that everyone is served    and if    it is    not possible for reasons to be recorded in the file, through fixture of the notice    on the hutment, duly attested by two independent panchas. This procedure would avoid the dispute that they were not give opportunity; further prolongation of the encroachment and hazard to the traffic and safety of the pedestrians.

In    the additional affidavit of the    appellant - Corporation, it raised and    addressed four important questions of constitutional dimensions. The first question raised was to prevent    the constant influx of the rural people to the urban areas and consequential growth of slums and encroachments; the second    one relates to the need for preservation of the public property    like road margin, street, place of public resorts like parks etc. to maintain ecological balance, sanitation and safety of    pedestrians; the third question relates to lack of resources in    the budgetary provisions to construct and allot houses for the poor and migrants of urban area; and the fourth one relates to interference    by the    courts protecting the encroachers. These    questions bear    vital dimensions which need careful examination and answers.

As regards    the first question, it is axiomatic    that India lives in villages. The traditional    source of employment or avocation to the rural people generally is the agriculture. It is    rather unfortunate that even after half the century from date of independence, no constructive planning has been implemented    to ameliorate the conditions of the    rural    people    by providing    regular source of livelihood or    infrastructural facilities like health, education, sanitation etc. 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. The middle class and upper middle class    people in the    rural    areas,    due tolack of educational and medical facilities, migrate to the nearby urban areas    resulting in constant increase in urban population. Once infrastructural facilities    are provided by proper planning and execution, necessarily the urge to    migrate to the urban    areas would no longer compel the rural people for    their transplantation in the urban areas. It would, therefore, be for the executive to evolve the schemes and have them implemented in letter and spirit.

Article 19(e) of    the Constitution provides to    all citizens fundamental rights to travel, settle down and reside in any part of the Bharat and    none have right to prevent their settlement. Any    attempt in that behalf would be unconstitutional.    The Preamble of the    Constitution assures integrity of the nation, fraternity among the people and dignity of the person to    make India an integrated and united Bharat in a socialist secular    democratic republic. The policy or principle should be such that everyone should have the opportunity to migrate and settle down in any part of Bharat where opportunity for employment or better living conditions are    available and, therefore, it would be unconstitutional and impermissible to    prevent the persons from migrating    and settling at places where they find their livelihood and    means of avocation. It    is to remember that the Preamble is the arch of the Constitution which accords to every citizen of India socio-economic and political justice, liberties, equality of opportunity and of status, fraternity, dignity of person    in an integrated Bharat. The fundamental right sand the directive    principles and    the Preamble being trinity of the Constitution, the right to residence and to settle in any part    of the    country is assured to every citizen. In a secular socialist democratic republic of Bharat hierarchical caste structure, antagonism towards diverse    religious belief and faith and    dialectical difference would be smoothened    and the people would be integrated with    dignity of person only when    social    and economic democracy is established under rule    of law.    The difference due    to cast, sect or religion pose grave threat to affinity, equality and fraternity. Social democracy means a way of life    with dignity of person    as a normal social intercourse with liberty, equality and fraternity.    The economic democracy implicit in itself that the inequalities in income and    inequalities in opportunities    and status should be minimised and as far as possible marginalised. The right to life enshrined under Article 21 has    been interpreted by    this Court to include    meaningful right to life and not merely animal existence as elaborated in several judgments of this Court including Hawkers case, Olga Tellies case and the latest Chameli Singh's case and host of other decisions which need no reiteration. Suffice it to state that right to life would include right to live with human dignity. As held earlier, right to residence is one of the minimal human rights as fundamental right. Due to want of facilities and opportunities, the right to residence and settlement is an illusion to the rural and urban poor. Article 38,39 and 46 mandate the State, as its minimise inequalities in    income and in opportunities and status. It positively charges the State to distribute its largess to the weaker sections of    the society envisaged in Article 46 to make    socio-economic justice    a reality, meaningful    and fruitful so as to make the life worth living with dignity of person and equality of    status and to    constantly improve excellence.

The Gram    Panchayats, the Zilla Parishads    and municipalities are local bodies. Parts IX and IXA of the Constitution have brought, through Articles 243 to 243ZG. the Panchayats, Zilla Parishads and municipalities as constitutional    instrumentalities to elongate    the socio- economic and political democracy under the rule of    law. Article 2436 and 243W    enjoin preparation of    plans    for economic development and social justice. The    State, i.e., the Union of India and the State Government and the local bodies constitute an integral    executive to implement    the directive principle contained in Part    IV through planed development under the rule    of law. The    appellant- Corporation, therefore, has    Constitutional    duty    and authority to implement the directives contained in Articles 38, 39    and 46 and    all cognate all the    citizens as meaningful. It    would, therefore, be the duty of    the appellant to enforce the schemes in a planned manner by annual budgets to provide right to residence to the poor.

As regards    the question of budgeting, it is true that Courts cannot give direction to implement the scheme with a particular budget as it being the executive function of the local bodies and the State to evolve their annual budget. As an integral passing annual budget, they should also earmark implementation of socio-economic justice to the poor. The State and consequently the local authorities,    are charged with the Constitutional duty to provide the weaker sections, in particular the Scheduled Castes and Scheduled Tribes with socio-economic and political injustice and to prevent their exploitation and to prevent them from injustice. The Union of India have evolved Indira Avas Yojna Scheme exclusively to provide housing accommodation to the Scheduled Castes and Scheduled Tribes and separate    annual    budgets are being allotted in that behalf by the Parliament and    the appropriate Legislatures in allied matters, In that behalf, in implementation of the housing scheme evolved for them, the budgetary allocation should exclusively be spent    for them and should not be diverted to any other projects or similar schemes    meant for others. The Planning Commission has evolved the principle of    allotment of    a specified percentage for    the overall developments of the Scheduled Castes and Scheduled Tribes. As a facet of it, the annual budget including by the Parliament. Similarly for other schemes covered    by the    State budgets. Therefore, when the State, namely,    Union of India    or the appropriate State Government or the local bodies implement these schemes for housing accommodation of the Scheduled Castes and Scheduled Tribes or any other schemes, they should, in compliance with mandates of Articles 46, 39 and 38, annually provide housing accommodation to them with in    the allocated    budget    and effectively and sincerely implement    them    using    the allocations for    the respective schemes so that the right to residence to them would become a reality and meaningful and the budget allocation should not either be diverted or used for any    other scheme meant for other weaker sections of the society. Any acts in violation thereof or diversion of allocated funds, misuse or misutilisation, would be in negation of constitutional    objectives defeating    and deflecting the    goal envisioned in the Preamble of    the Constitution. The executive forfeits the faith and trust reposed in it by Article 261 of the Constitution.

Similarly separate    budget would also be    allocated to other weaker sections    of the    society and the backward classes to further their socio-economic advancement.    As a facet thereof,    housing accommodation also would be evolved and from that respective budget allocation the amount needed for housing accommodation for them should also be earmarked separately and implemented as an on-going    process of providing facilities and opportunities including housing accommodation to the rural or urban poor and other backward classes of people.

It is common knowledge that when Government allows largess to the poor, by pressures or surreptitious means or in the    language of the appellant-Corporation "the    slum lords" exert pressures on the vulnerable sections of    the society to vacate their place of occupation and shift for settlement to other vacant lands belonging to the State or municipalities or private properties by encroachment.    The Scheduled Castes and Scheduled Tribes who are settled in the allotted Government properties/houses/plots of lands    are compelled or driven by    pressures to leave the places to settle at some other place. This would have    deleterious effect on the integration and social    cohesion and public resources are    wasted    and the constitutional objectives defeated. It would, therefore,    be of    necessity that    the policy of the    Government in    executing the    policies of providing housing accommodation either to the rural poor or the urban poor, should    be such that the lands allotted or houses constructed/plots allotted be in such a manner that all the sections of the    society, Schedules Castes, Scheduled Tribes, Backward Classes and other poor    are integrated as cohesive social    structure. The    expenditure should be met    from the respective budgetary provisions allotted to their housing    schemes    in the respective proportion be utilised. All of them would, therefore, live in one locality in an integrated social group so that social harmony, integrity, fraternity and amity would be fostered, religious and caste distinction would no longer remain a barrier for harmonised social    intercourse and integration. The facts in    this case do disclose that    out of 29 encroachers who have constructed the houses on pavements, 19 of them have    left the places, obviously due to    such pressures and interests of rest have come into existence by way of    purchase. When    such persons part with possession in any manner known to law, the alienation or    transfer is opposed to the Constitutional objectives and public policy. Therefore, such    transfers are    void ab initio conferring no right, title or interest therein. In some of the State law has already been made in that behalf declaring    such transfers as void with    power to resume the property    and allot the same to other needy    people from these scheme. Other States should also follow the suit and if necessary the Parliament may make comprehensive law in this behalf. It would take care of the third question raised by    the appellant. The    Union Law Commission    would examine    this question.

Encroachment of public property undoubtedly obstructs and upsets planned development, echology and    sanitation. Public property    needs to be preserved and protected. It is but the    duty of the State and local    bodies to ensure the same. This would answer the second question. As regards the fourth question, it is to reiterate that judicial review is the basic structure of the Constitution. Every citizen has a fundamental right to redress the perceived legal injury through judicial process. The encroachers are no exceptions to that    Constitutional right to judicial redressal.    The Constitutional Court, therefore, has a Constitutional duty as sentinel qui vive to enforce the right of a citizen when the he    approaches the    Court for perceived legal injury, provided he establishes that he has a right to remedy. When an encroacher approaches the Court, the Court is required to examine whether the encroacher had any right and to what extent he would be given protection and relief. In    that behalf, it is the salutary duty of the State or the local bodies or any instrumentality to assist the Court by placing necessary factual position    and legal setting    for adjudication and for granting/refusing relief appropriate to the situation. Therefore, the mere fact that the encroachers have approached    the Court would be no ground    to dismiss their cases. The contention of the appellant-Corporation that the intervention of the Court would aid impetus to the encroachers to    abuse the judicial process is untenable. As held earlier, if the appellant-Corporation or any local body or the    State acts with vigilance and prevents encroachment immediately, the need to follow the procedure enshrined as a inbuilt fair procedure would be obviated. But if    they allow the encroachers    to remain in    settled possession sufficiently for long time, which would be a    fact to be established in    an appropriate    case, necessarily suitable procedure would    be required to be adopted to meet the fact situation and    that,    therefore, it    would be for    the respondent concerned    and also for    the petitioner to establish the respective claims and it is for the Court to consider as to what would be    the appropriate procedure required to be adopted in the    given    facts    and circumstances.

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 to the facts of the case. Normally, the Court suitable to the facts of the case. Normally, the Court may not, as a rule, directs that the encroacher should be    provided with an    alternative accommodation before ejectment when they encroached public properties, but, as stated earlier,    each case required examination and    suitable direction appropriate to the facts requires modulation. Considered from this perspective, the apprehensions of the appellant is without force.

As regards    the direction    given by the High Court to provide    accommodation    as a    condition to remove    the encroachment, as held earlier, since the Municipal Corporation has    a constitutional and    tatutory duty to provide means for settlement and residence by allotting the surplus land under the Urban    Land Ceiling    Act and if necessary by acquiring the land and providing house sites or tenements, as the case    may be, according to    the scheme formulated by the Corporation, the financial    condition of the Corporation    may also be kept in view but that would not be a constraint on the Corporation to avoid    its duty of providing residence/plot to the urban weaker sections. It would, therefore, be the duty of the Corporation to evolve the schemes. In the light of the schemes now in operation, we are    of view    that opportunity should be given to the 10 named petitioner encroachers to opt for any one of the three schemes and the named    two persons who are    carrying on commercial activities should immediately stop the same. If they intend to have any commercial activity or hawking, it should be availed of as per directions already issued by this Court in the aforesaid judgment and    no further modification or    any directions    contra thereto need to be issued. Out of these 10 persons, if they are eligible within the terms of the schemes and would    satisfy    the income criterion, they would be given allotment of the sites or the tenements, as the case may be, according to their option. In case they do not opt for any of the schemes, 21 days notice would be served on them and other encroachers and they may be ejected from the present encroachments. As regards other persons who have become encroachers by the way of purchase either from the original encroachers or encroached pending writ petition/appeal in this Court, they are not entitled to the benefits given to    the 10 encroachers. As regards those who are    eligible according to the guidelines in the schemes and also fulfill the income criterion, it may be open to the Corporation to    extend    the same benefits in either of the three schemes,    if they    so desire. It is, however, made it clear that we are not giving any specific direction in    this behalf lest it would amount to encouraging the people to abuse the judicial process to    avail    of such remedy by encroaching public property.

Accordingly, the appeal is allowed. The    order of the High Court is modified as    indicated above. The    writ petitions stand disposed    of accordingly. In    the circumstances of the case, however, there will be no order as to costs.