In the year 1950, Haldwani, which is located in the state of Uttarakhand, was established. A significant portion of the land was given to the Railways, which has been occupied by people during the past few decades. The allegedly encroached-upon railway land is located in the Haldwani neighbourhood and covers an area of up to 800 feet width around a 2200-meter-long railway line.
The High Court of Uttarakhand recently ruled in Ravi Shankar Joshi v. Union of India, popularly known as the Haldwani eviction case, that the Gaftoor Basti area of Haldwani belonged to the Indian Railways and that the people who had been living there for years had been occupying it illegally. Further, the High court mandated that these individuals be removed within a week and even authorized the use of force if considered necessary. This court ruling is likely to have an impact on more than 4000 families who are currently residing in the area. Residents of Haldwani’s Gaftoor Bast recently petitioned the Supreme Court of India to overturn the Uttarakhand High Court’s ruling.
SUMMARY OF THE CASE
This dispute over the encroachment on this railway land has a long controversial history. In 2013 a social activist filed a PIL in the Uttarakhand High Court, regarding the illegal mining carried out in the Gaula river near the railway station. During the proceeding of this case, it was found that the illegal mining was carried out by the same people who had encroached upon the land of the Indian Railways and had illegally established their settlements. As a result, to address the issue of encroachment on the Railway’s land, the Uttarakhand High Court independently increased the scope of the Public Interest Litigation (PIL) that was brought before it.
According to this case, the court sought a reply from the railways regarding the authenticity of their claims regarding the disputed land ownership. In response to the query of the court, the railways reproduced a notification of 1959, a revenue record of 1971, and a land survey of 2017 to prove that the land belonged to them and not the residents who were claiming it to be theirs.
From the side of the encroachers, a 1907 government document was produced before the court which declared the land to be a “nazul land” (government land used for non-agricultural but public purposes). Moreover, some of the residents claimed that their ancestors had purchased plots from the Custodian Department of the Government of India, which was entrusted with the properties of those who left India after the partition. However, the Uttarakhand High Court rejected all these claims of the respondent based on the reasoning that the 1907 document was a mere ‘Office Memorandum’ and therefore invalid to determine the classification of land, therefore every transaction, sale, a lease that flowed from the document is now deemed invalid.
The high court rejected the claims of the respondents and instead relied on a 1959 notification of the vesting of land with the Railways. Based on this notification, the High court of Uttarakhand ruled in the favour of the Railways and ordered the removal of the people residing in the area within a week. However, the Supreme court of India has ordered a stay on the ruling of the High court and referred the matter to a later date.
HOW DOES THE HIGH COURT RULING AFFECT THE RIGHT TO HOUSING?
In Olga Tellis v. Bombay Municipal Corporation, the Supreme Court passed a significant ruling which imposed a duty upon the state to protect the constitutional rights to life, livelihood, and home when carrying out an eviction, despite the lack of a formal legal title. This was held in response to a realization that what is typically referred to as “encroachments” are the outcome of the State’s inability to uphold its constitutional duties to guarantee the citizenry’s fundamental socio-economic rights (such as housing). Further, it was provided that the absence of a legal title could not be used as a ground to remove the persons off, the property when it comes to evictions, particularly ones that would cause individuals to become homeless. Moreover, when it comes to the evictions of the people, the people have a right to notice and hear and also a right to rehabilitation, which has been further confirmed by the Supreme court in Ajay Maken v. Union of India, where it was held that it was the duty of the state to survey the people who were affected as a result of the eviction process, to determine their eligibility for the rehabilitation under various state and central policies in force at the time. It was further held that any failure on the part of the state would lead to the violation of the citizen’s constitutional rights.
In the present case, it is prima facie clear that the High Court has not adopted the procedure prescribed by the Supreme Court in its earlier judgement, and goes on to declare the eviction of the people based on the finding that they do not have a legal title to the land.
Apart from the right to rehabilitation, the person also has a right to notice and hear, which provides that the administration must meaningfully interact with the inhabitants regarding the alternative accommodations it is offering to them. Meaningful participation entails a successful consultation in which the locals’ voices are heard and their concerns are taken into consideration and factors such as paucity of time do not lead to the predetermination of the outcomes. However, in the present case, the High Court completely disregarded and misunderstood the concept of meaningful engagement and considered the procedural requirements to be fulfilled by allowing the residents to make legal submissions before the court.
Therefore, the order of the Uttarakhand High Court is not lawful as it disregards the requirements for notice, hearing, rehabilitation, and resettlement before a mass eviction can occur.
A remarkable issue in the judgement which also needs to be discussed is that of discrepancies or inconsistencies which can be seen in the application of procedure by the Uttarakhand High Court. The present case is based on the Public Interest Litigation which is filed by an individual to evict people through court orders. It is to be noted that the PILs are maintainable only when it has been adequately demonstrated that the fundamental rights of an individual are being violated. In the present case, there was no reason to believe that the fundamental rights of the petitioner had been violated by the people of Haldwani. Thus, the PIL was not maintainable in the first place. However, the court allowed for the application of the PIL on the ground of public interest. This was a clear contradiction to the generally proscribed procedure.
The present case shows that there is still a need to clarify the law on evictions and the right to housing under the Indian Constitution. This case can be taken as an opportunity for the supreme court to set out clear and well-defined rules and principles regarding the right to housing, rehabilitation and resettlement.
Author(s) Name: Aniket Yadav (National Law University, Delhi)