Orissa High Court: Right To Shelter Under Article 21 Is Right To Reasonable Housing & Rehabilitation, Not A Right To Trespass Or Continue Illegal Occupation
The Orissa High Court reiterated that encroachment on public land cannot be regularized merely on the grounds of long possession.
Justice SK Panigrahi, Orissa High Court
The Orissa High Court held that the right to shelter under Article 21 of the Constitution is a right to reasonable housing and rehabilitation, not a right to trespass or continue illegal occupation.
The Court was deciding Writ Petitions filed by some persons questioning the action of the authorities in declining to settle the land in their favour in respect of Shantipalli Basti, situated at Sahid Nagar under the jurisdiction of the Bhubaneswar Municipal Corporation (BMC) and Bhubaneswar Development Authority (BDA).
A Single Bench of Justice Sanjeeb K. Panigrahi observed, “It is true that the Petitioners and their forefathers have been residing in Shantipalli Basti for several decades; however, their occupation of Government land is unauthorized. Long and continuous possession of public land, without vesting of title or formal recognition under the statutory framework, does not confer ownership or indefeasible right to remain in possession. The right to shelter under Article 21 is a right to reasonable housing and rehabilitation, not a right to trespass or continue illegal occupation.”
The Bench reiterated that encroachment on public land cannot be regularized merely on the grounds of long possession, and the State is under a constitutional obligation to reclaim and utilize public land for planned development.
Advocate Tusar Kumar Mishra represented the Petitioners, while ASC Sonak Mishra, Senior Advocates Pradipta Kumar Mohanty, and Prafulla Kumar Rath represented the Opposite Parties.
Case Background
The Petitioners asserted that their father, grandfather, and great grandfather were residing in Shantipalli Basti for several decades, and that they themselves were long-standing slum dwellers. It was contended that the Government of Odisha had launched the ‘Jaga Mission’ to recognize, upgrade, and rehabilitate slum dwellers across the State, and the Petitioners claimed entitlement to its benefits. It was stated that presently more than 400 families reside in Shantipalli Basti, all of whom have been identified as slum dwellers. A substantial number of them belong to the Scheduled Castes (SCs), Scheduled Tribes (STs), and other weaker sections. For the welfare of the inhabitants, the State Government had established a school as well as two Anganwadi Centres within or adjacent to the basti, where the children of the locality regularly attended.
The Petitioners further submitted that upon due verification of their residence and identity, the State Administration issued Ration Cards, Voter Identity Cards, and Aadhaar Cards to the inhabitants. According to the Petitioners, no notice of any kind was issued to the inhabitants by the District Administration, BMC, or BDA regarding demolition or eviction. They alleged that they were orally instructed, through loudspeaker announcements, to vacate the basti and surrender the land, purportedly to facilitate construction of an apartment project by private builders. As no action was taken by the competent authority, the Petitioners were before the High Court.
Court’s Observations
The High Court in the above context of the case, said, “… the actions undertaken by the State of Odisha, the Bhubaneswar Municipal Corporation (BMC) and the Bhubaneswar Development Authority (BDA) are firmly tethered to the statutory architecture of the Odisha Land Rights to Slum Dwellers Act, 2017, fortified by the policy contours of the Pradhan Mantri Awas Yojana (Urban) and duly sanctified by the considered determinations of the State Level Sanctioning and Monitoring Committee (SLSMC).”
The Court emphasised that Courts are not to venture into the domain of economic decision-making and where the Executive acts upon expert assessment and uniform standards, judicial review does not mutate into economic second-guessing.
“In this case, the policy determination bears every hallmark of rationality. … In terms of public interest and proportionality also, the balance tilts decisively in favour of the state. The doctrine of proportionality mandates the judicial balancing of individual hardship against collective welfare. On one side of the scale stands an ambitious, meticulously structured redevelopment project intended to uplift 1,300 families, many of whom have already received allotments and await occupation of their permanent dwellings”, it noted.
The Court remarked that on the other side, are a small number of Petitioners who, despite being offered dignified alternatives, resist vacating public land and their insistence cannot outweigh the imperative of completing a project that is emphatically in the public interest.
“Allowing individual intransigence to impede a socially transformative urban project would enable private hesitance to prevail over public interest, frustrating the constitutional mandate”, it added.
The Court was of the view that the grievance raised by the Petitioner regarding the non-service of statutory notice, in the circumstances, devoid of substance and the notice is not an incantation but it is a vehicle of fairness.
“Where the petitioners have been surveyed, identified as beneficiaries, engaged in the allotment process, and offered transit accommodation, the substantive essence of natural justice stands fully satisfied. The law does not insist upon ritualistic formalism once fairness has been substantively achieved”, it observed.
The Court further remarked that the Courts of constitutional jurisdiction are not swayed by shadows cast by procedural trivialities; they concern themselves with substance rather than semblance, with legal reality rather than forensic rhetoric.
“The sporadic use of loudspeakers whether to disseminate information or to caution residents cannot, by any stretch of legal imagination, eclipse the rich documentary record reflecting exhaustive surveys, verified beneficiary lists, formal allotments and the provision of dignified transit accommodation. Minor administrative blemishes, even if assumed to exist, cannot be elevated to a pedestal where they vitiate an otherwise structured, humane, and legally impeccable rehabilitation process conceived in the larger public interest”, it added.
Conclusion
The Court enunciated that the role of the Court is to ensure that redevelopment proceeds with fairness, not to permit fairness to be weaponized into a tool of perpetual obstruction.
“In harmonizing individual rights with collective welfare, the constitutional balance tilts undeniably in favour of permitting the State, the BMC, and the BDA to advance this lawful, compassionate, and socially transformative housing initiative, subject always to supervisory safeguards that ensure transparency, humanity, and justice”, it concluded.
The Court directed that the Petitioners shall relocate to the designated transit accommodation, equipped with minimum humane facilities, within a timeframe to be stipulated by the Court and the BMC and BDA shall extend financial facilitation, including bank-linked credit support, to beneficiaries unable to pay the contribution upfront.
“The interim order of status quo shall stand vacated, insofar as it impedes the continuation of construction, upon the petitioners’ failure to comply within the prescribed period. A Monitoring Committee, akin to that envisaged in Shantistar (supra) shall be constituted to oversee the fairness of allotments, adequacy of transit facilities, and seamless facilitation of financial support”, it also ordered.
Accordingly, the High Court disposed of the Writ Petitions.
Cause Title- Khetrabasi Behera & Ors. v. State of Odisha & Ors. (Case Number: W.P.(C) No.12057 of 2023)
Appearance:
Petitioners: Advocates Tusar Kumar Mishra, Koushik Anand Guru, and M.K. Dash.
Opposite Parties: ASC Sonak Mishra, Senior Advocates Pradipta Kumar Mohanty, Prafulla Kumar Rath, Advocates Sanjib Swain, Niranjan Panda, and Akash Acharya.
