This article is written by Yash Sharma, a law student at Vivekananda Institute of Professional Studies, Indraprastha University, New Delhi. This article deals with the right to shelter under the right to life.
The case talks about the right to shelter as a part of fundamental rights. The right of a person to a reasonably comfortable accommodation under the right to life was recognized by the court in this case. Under Article 46, the benefit and welfare of a person from the weaker section of the society were recognized as a responsibility of the state by the Court. On the same lines, the Urban Land (Ceiling & Regulation) Act, 1976 was enacted by the Parliament. The purpose of the Act was to put a ceiling limit on how much land a person can acquire. The State was given the power to take the vacant land over the ceiling limit for the purpose of providing houses for the weaker section.
In this article, the case deals with the issue of such orders made by the State to the builders for letting them use such vacant land over the ceiling limit with some conditions. The exemption complied with some conditions, it was alleged that those conditions were breached. In the Supreme Court, the same case was filed in the form of an appeal. The guidelines given by the Supreme Court in the form of judgment safeguarded the right to shelter of the weaker section in genuine need of housing.
This case is an appeal petition filed in the Supreme Court. Earlier, respondents filed the writ petition under Article 226 of the Constitution in the Bombay High Court. This petition was filed as a challenge to the permission given to builders to increase the prices of the construction on the exempted land under the Urban Land (Ceiling & Regulation) Act, 1976. The respondents made an application (Civil application No. 5748/89) for some changes in the allegations made in the writ petition. But the High Court rejected the application to make the amends. In its order the High Court held that:
“The writ petition was dismissed. The grounds for the dismissal was that due to the changes in the policies made by the government the claims in the petition become unnecessary. The resolutions and letters already issued to the government in the earlier application eliminate the need for any more changes. Hence, the petition was dismissed.”
The Court also proposed for the supervision of the scheme in the future. For this purpose, the Court has issued some direction although for the project in the issue only and not for all.
In this case, the directions given by the High Court regarding the construction project have been challenged.
The issue in the case
The issue involved the Urban Land (Ceiling & Regulation) Act and its provisions. The Act is of regulatory nature, enacted to regulate the construction of buildings on the land mentioned in the Act. The purpose of the Act is to impose a ceiling on vacant land acquisition in urban settings. The Act allows the State Government to acquire the land exceeding the ceiling limit. Another purpose of the Act is the prevention of accumulation of the urban land in few hands and their profiteering via that land. This is done with a view to achieving equitable distribution of land in urban settings, to achieve the common good mentioned under Article 39(b)&(c) part of Directive Principles.
Under the provisions of the Act, urban agglomerations are divided into 4 classes, with each class having its own ceiling limit. Under Section 10 of the Act, the vacant land over the ceiling limit may be acquired by the State and such vacant land should be used for the purpose of housing. The act, therefore, takes away any excess land from private individuals and uses them for the purpose of housing and other public uses.
Section 20 of the Act exempts certain land from the purview of the Act. The section states that if the Government is satisfied that the acquisition of such land in excess of the ceiling limit is necessary it could be exempted from the application of the Act. The State can by issuing an order exempt such vacant land from the provisions of this Act but it can add some conditions to such exemption. Section 20 also gives the Government power to withdraw such an order of exemption if satisfied that any condition of the order was breached. By doing so, the excess land shall again be subjected to the provisions of the Act.
Conditions of the order of exemption
- The land was exempted with the condition that it will be used by the said persons for the purpose of housing for the weaker section of the society. It talked about the construction of 17,000 tenements in a certain area. Any modifications made by the builder in the said details would be considered as a breach of condition.
- The selling price for the tenements shall not exceed Rs. 50/- per square meter. All the amenities should be made available in each tenement. The quality of construction shall not be any lower than what is proposed in the application. The quality of the construction shall be in compliance with the regulations of the local authorities and other statutory regulations.
- The land exempted to a person can not transfer that land to any other persons. Any mortgage or transfer of property for any reason shall be considered as a breach of the conditions.
- The State Government can withdraw the exemption via the Order, at any time if it feels satisfied that any such condition has been breached.
The main allegation of the respondents is that there has been a breach of the conditions for exemption by the builders. Respondents contended that the main objective of addressing the need of the weaker section is being neglected. A racket has been formed by the real estate dealers for the illegal and unauthorized profit against the cost of those in genuine need of houses. On the same grounds, the sanctions for the escalation of prices have been challenged. It was contended that this escalation and other breaches being ignored fails the whole purpose of the act. The original order of exemption itself in its provisions allowed escalation beyond reasonably necessary.
Lastly, the applications of the economically weaker section in a dire need of houses were overlooked. Those working with the racketeers in this whole scam have registered those persons who are not entitled to those houses. The appellant argued that the High Court did not take into account the factual details of the case and simply proceeded to frame the guidelines in the original petition. The claims of the respondent in for allotment of premises have been ignored.
Right to Shelter
Respondents have alleged that the basic needs of all the men have been clothing, food, and shelter. Thus, these three needs can not be separated from the right to life under Article 21 of the Indian Constitution. The right to food, right to clothing, and right to shelter should be made inclusive within the right to life. The right to shelter must include a decent environment to live in and reasonable accommodation. There is a difference between the need for the shelter of an animal and a man, for an animal it is mere protection of physical-self but for a man it is important for the growth in multiple spheres. For the complete mental, physical and intellectual development of a child a proper home is necessary. Although it is logical that well-built comfortable houses can not be provided but it is also the responsibility of the state to provide proper accommodations even if that house is mud-build thatched which is at least fireproof.
There has been a rapid increase in the number of poor people without houses in urban areas because of population rise and migration of people from rural to urban areas. Due to multiple reasons whether industrialization, urbanization, and amenities in cities a lot of people have moved to cities and these factors are also responsible for an increase in the urban population unable to find accommodation. Millions are living on the pavements of roads in cities and many are living in a situation worse than animals in jhuggis.
The Planning Commission took cognizance of the situation that the population is rising but accordingly the housing facilities are not increasing. To counter this problem the same Act was enacted for acquiring the vacant land and constructing houses on it. Sections 20 and 21 of the Act have given the power to the State Governments to exempt such vacant lands from the purview of the Act. Under Section 21 of the Act, the emphasis on the weaker section has been laid. The problem with this has been that the term ‘weaker section’ has not been defined although, in the Constitution, the term has been used in Article 46 of the Constitution. In many attempts of a number of legislative assemblies whether being Constituent Assembly or the Parliament, they have failed in defining the term ‘weaker section’.
Conventionally in India, the Scheduled Castes and the Scheduled Tribes have been regarded as weaker sections. Still, there are many people who belong to the weaker section. Keeping this in mind, in the Constitution Article 46 the welfare of all who are a part of the weaker section has been provided.
The court acknowledged the arguments advanced by the respondent for better administration of the scheme and review of the facts of the case along with the conditions made by the Government for the exemption. In the Supreme Court, the guidelines produced by the Government of Maharashtra in the Housing and Special Assistance Department were scrutinized. The guidelines were discussed in parts including the preamble and other provisions.
In the preamble, it was recognized that it is the duty of the competent authority to monitor the implementation of weaker section housing schemes sanctioned under Section 20 & 21 of the Urban Land (Ceiling & Regulation) Act, 1976. The authorities were required to make sure that the construction must complete within the given time frame mentioned in the exemption order. The construction shall be done in accordance with all the terms and conditions discussed above as the part of exemption order such as sales price, advertising of the scheme, size of the tenements, eligibility for purchase, and other conditions of local construction guidelines along with all the amenities. The Government of Maharashtra has directed all its resources towards the just and effective implementation of this scheme. For implementation, the government has tried to codify the guidelines to be followed by the builders.
Court’s comments on the provisions of the guidelines
- The allotment of each flat and transaction shall be done on a ‘one family-one flat’ basis. Any family shall include a husband, wife, and dependent children in it. Any family that already owns a flat in any urban agglomeration of Maharashtra shall not be eligible for the benefits of this housing scheme.
- The Government can nominate some families eligible for benefits of the scheme. The Government nominees shall be of weaker section. ‘One family-one flat’ rule must apply to them as well. The limit of 5% should be applied to how many tenements can be given by the Government to nominees.
- The register of applicants shall be maintained by each builder. The entries should be made chronologically as per the receipt of allotment. The register shall be maintained and updated up to the date for inspection by the authorities at any time it may feel necessary. All the necessary details of the applicants shall be recorded in that register. A copy of the register shall be sent to the authorities for the record.
- For the identification of weaker sections in this particular case, a rule was formulated called ‘means test’. As per the test for a family to be eligible for the scheme the income of the family shall not exceed more than Rs. 18,000/-. The family or its member can be summoned by the committee for verifying their annual income. The State Government can make changes to the maximum income of the family based on the value of the rupees from time to time. Guidelines gave the liberty to the State Government to formulate guidelines for the identification of the weaker section.
- Under Section 2(9) of the Urban Land (Ceiling & Regulation) Act, 1976, ‘competent authority’ has been defined. On the position of a competent authority, the court gave its opinion that the duties given to the authority are extensive and it may be hard for him to perform all his duties. For the purpose of effective implementation of orders and welfare of weaker sections under Section 20 and 21, there shall be a formation of a committee. Court also prescribed the formation of such a committee. Firstly, it shall be handled by only a competent authority along with a judicial officer not below the rank of an Additional District Judge and an engineer under the Government. The judicial officer shall function as the Chairman of the committee.
- The mandate of the committee shall give it the power to direct the builders and applicants for the implementation of the code along with the power to examine the documents relevant to the project.
- Directives to the Bombay High Court were issued that they should avail a judicial officer, not below the rank of an Additional District Judge to discharge the duties of the chairman in such committee.
- The court in its comment on the committee said that the primary purpose of their existence is to ensure that weaker sections or those in need of housing get accommodation. And the fulfilment of this goal completely depends upon their commitment and actions towards the same. Finally, the State Government shall modify its earlier exemption order in accordance with this recent judgment within 4 weeks.
In this case, the Supreme Court gave certain directions in its order. The order was made to resolve the dispute regarding the order of exemption made under the Urban Land (Ceiling & Regulation) Act, 1976. The purpose of the Act is to provide housing to the weaker section of the society as a part of their right to life as the right to shelter. The Act puts a ceiling limit on the land which a private individual can acquire, and gives the State Government power to use the vacant land for the housing of the weaker section. It was argued that the builders are breaching the conditions of the exemption order.
In response to the appeal made in the Court, the bench issued some directives as comments to the order in dispute made by the State Government. In its judgment, the court asked for constituting a committee with the purpose of supervising such projects. The main purpose of the committee is to make sure that the purpose of the Act is achieved. Thus, the judgment was extended to the Act for all the State Governments to formulate policies recognizing the right of each person of proper, safe, and reasonably comfortable accommodation.
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