Examining The Haldwani Encroachment Matter: Why Unauthorised Occupants CANNOT Claim Right To Rehabilitation
If there are any existing rehabilitation policies, the state government can try to give benefits of the same to the occupants.
However, no right of rehabilitation can be claimed by any unauthorised occupant whatsoever.
Recently a division bench of the Supreme Court stayed the Uttarakhand High Court’s verdict authorising the decision to evict encroachers on land claimed by Railways in Haldwani.
The PIL for removal of encroachment was initially filed in 2013, and in 2016, the High Court directed removal of encroachments from the railway land within 10 weeks.
However the said order of the High Court was not effectuated and a review petition was filed by the state challenging the said order. This review petition was dismissed in 2017.
The court was categorical to note that the political shield was being provided by the then ruling party, for political gains, to the unauthorised occupants.
Now in 2022, another petition was filed on the ground that there is a delay in removing the encroachment made on the railway land. Also, in 2021, the Nainital District Administration was directed to prepare a plan for removal of encroachment.
The Railway had already started serving notices to the occupants.
On 20 December 2022, a division bench of the Uttarakhand High Court (HC) headed by Chief Justice RC Khulbe and Justice Sharad Kumar Sharma directed the Railway authorities to evict those living in Haldwani Gafoor Basti, which is adjoining to the Haldwani Railway Station.
The residents of the Gafoor Basti, relied on a 1907 Government Record to claim ownership. As per the record, the said land was declared a ‘nazul land’ or a government land which is used for non-agricultural, but public purposes.
However, the HC ruled that the said land is not a nazul land. The bench stated that Government Record relied on by the residents, to claim ownership, was only an ‘executive correspondence’ and not a notification of vesting the land as a nazul land.
It said that the said communication was made to confer a right of management of the land as per the Nazul Rules only and did not confer the status of nazul land to the property.
Moreover, taking into account the 1907 record, the court held that even if the land is considered as a nazul land, then too the government record creates a specific bar that no lease or sale would be created in relation to the land.
Also, referring to Rule 59 of the Nazul Rules, the court said that as per the Rules any nazul land which is adjoining to the Railway Station, if it is ever proposed to be sold or leased, a prior sanction is required from the railway authorities.
However, no sanction whatsoever was obtained by the residents, therefore the court observed that the residents did not have any right and title vested in accordance with law and for all practical purposes, they would be treated as unauthorised occupants.
Several of the impacted residents claimed that they have been in possession of the land for more than 50 years; however the HC said that merely being in uninterrupted possession for over 50 years will not itself mature their legal right to continue with possession of the land.
The court relied on a 1959 notification whereby the Railways was vested with the said land. It was recorded that the railway line was laid down by a Company in 1884 and the same was transferred to Government of India in 1943, following the enforcement of the Railways Act, whereby the management, control and establishment of Railways in the North Eastern Region was vested with the Government of India.
The High Court ultimately held that the land belongs to the Railways and directed the authorities to evict the unauthorised occupants, after giving them a week’s time to vacate the premises.
The Supreme Court on 5 January stayed the Uttarakhand HC decision. A bench of Justices SK Kaul and Abhay S Oka said that there cannot be uprooting of 50,000 people overnight.
It said that a workable arrangement is necessary to segregate people who may have rights coupled with rehabilitation schemes.
Therefore, the authorities would be required to rehabilitate the occupants first and then continue with the eviction process, if any.
It can be logically accepted that a seven-day period for eviction as directed by the Uttarakhand HC was not logistically feasible for the residents.
However, the Supreme Court should have in all fairness extended the said deadline, thereby allowing the residents to find alternate accommodations.
However, it has to be kept in mind that the eviction of 50,000 people was not ordered all of a sudden. The matter has been long pending since 2013 as already stated above.
It was argued in the 2013 petition that RCC Gola Bridge at Haldwani has collapsed due to illegal mining activities which was going on by the unauthorised residents of the government land.
Whereby, the HC ordered for removal of encroachment in 2016, however the same was not complied by the then ruling party.
Now coming to rights of the illegal occupants, first and foremost we must consider what rights do illegal occupants, without any title, whatsoever have under the law?.
In the landmark Olga Tellis Case, the Supreme Court has held that eviction of pavement dwellers using unreasonable force without giving them a chance to explain is unconstitutional. The same would be a violation of their right to livelihood guaranteed to everyone under Article 21 of the Constitution.
It said that Constitution does not provide an absolute embargo on the deprivation of right to life, but the same must be in accordance with the procedure established by law.
However, the Supreme Court refused to grant the dwellers an alternative site for rehabilitation and said that no one has a right to encroach on trails, sidewalks or any other place reserved for public purposes.
The primary outcome of the judgement is that when carrying out an eviction, the state should respect the Constitutional rights to life, livelihoods and housing, notwithstanding the absence of formal legal title.
This essentially means that when evictions are carried out an absence of legal title, does not mean that the resident is without any rights.
Now what are these rights? As per the Olga Telis case, firstly, the occupants have a right of notice and hearing. Second, no one can be deprived of their right to livelihood without following the procedure established of law.
Now, let us see whether these two complied in the present case.
First, right of notice and hearing. Yes, the occupants were heard at length by the High Court, and subsequently on merits they lost the case. With respect to notice, as per the law laid down by the Supreme Court, a notice should not be a mere formality and should not be unreasonable.
In the present case, it can be said that providing a mere seven-day period may be unreasonable for uprooting 50,000 people, but the Supreme Court had all rights to extend the said period.
Secondly, was the procedure of law followed? Yes, the High Court did consider the relevant legislations while deciding to evict the residents.
Coming to the issue of rehabilitation, the Supreme Court as well as the High Courts have been hesitant to grant rehabilitation rights to illegal occupants.
The courts have quite clearly observed that persons in illegal occupation of government land cannot claim rehabilitation as a matter right.
Any regularization can only be done as per the existing policies of the state and if it is found that the conditions as stipulated under the policy are not satisfied, such illegal occupants will not be entitled to rehabilitation.
The courts have favoured the state in such matters and have held that the court is duty bound to act with greater seriousness, where an encroacher is an illegal occupant of a public property, as any laxity in this regard may deprive the right of the state to immovable property, thereby giving upper hand to the unauthorised occupants.
Therefore, one can agree that as per the law laid down by the Supreme Court itself, there is no right of rehabilitation available to illegal occupants.
However, if there is any existing policy in this regard and if the illegal occupants are satisfying the conditions of rehabilitation as laid down in the policy, the benefit of the same should be given to such occupants.
As per this author’s research, the Uttarakhand Government has enacted the Uttarakhand Reforms, Regularization, Rehabilitation and Resettlement and Prevention of Encroachment of the Slums located in the Urban Local Bodies of the State Act.
However, the extent of application of the said Act appears to be difficult in the present case, as it only relates to ‘slums’ and the Gafoor Basti in Haldwani cannot be classified as slum in the first place.
In conclusion, if there are any existing rehabilitation policies, the state government can try to give benefits of the same to the occupants.
However, at the cost of repeating myself, no right of rehabilitation can be claimed by any unauthorised occupant whatsoever.
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