NO 57 BLOCK BASTUHARA COMMITTEE Vs. STATE

JUDGEMENT

(1.) This petition is heard as a contested application upon notice to the respondents and is also disposed of after hearing the respective parties without issuing a Rule.

(2.) Petitioners Nos. 2 to 45 have stated in the writ petition that they are citizens of India and all of them are residing at No. 5, Mathur Babu Lane within police station Entally in the city of Calcutta. Petitioner No. 1 is No. 57 Block Basthura Committee which is an association of members who are hut dwellers along the banks of both sides of new canal of Kulti Canal which is locally known as Pachakhal. It has been stated that the banks of both sides of the said canal where the petitioners are residing as hut dwellers are included within Ward No. 57 of the Calcutta Municipal Corporation. The petitioners have stated that the said new canal starts at Palmer Bazar Pumping Station owned and maintained by the Calcutta Municipal Corporation and the said canal comes up to Kulti beyond the municipal limit of Calcutta. The Petitioners have stated that through the said canal the Municipal authorities are required to provide a safe and sufficient outfall in or outside Calcutta for effectual drainage and proper discharge of storm water and sewerage of Calcutta and it has been admitted by the petitioners that S.277(2) of the Act provides that if the outfall deteriorates by the decay of existing river channels or otherwise, The State Government may require the Corporation to take at the cost of the cost of the Municipal Fund such action as may be necessary to ensure a safe and sufficient outfall and S.287 of the said Act provides for cleaning drains and it is the requirement under the Municipal Act that the said canal should be maintained and kept so as to create the least practicable nuisance and the canal should be properly flushed form time to time, cleaned and emptied and for the purpose of such works the Municipal authorities may construct or set up reservoirs, sluices etc. as may be deemed necessary.

(3.) It is the case of the petitioners that the Municipal authorities in an attempt to excavate the said canal for the purpose of proper flushing out all the sewerage water and also the rain water have been contemplating to evict the petitioners and large number of other person who had been residing on both sides of the said canal for pretty long time. It has been stated by the petitioners that many of such persons who had been residing by the sides of the canal by raising huts or shanties had been residing thereafter becoming refugees from the then East Pakistan and some of such dwellers were victims of communal riots long back. It is the case of the petitioners that since they had no place to reside they had been forced to reside by the sides of the said canal and they have been earning their livelihood through various avocations of life in and around the place of their living in the city of Calcutta. It has been contended by the petitioners that for the purpose of cleaning the said canal and/ or for flushing the sewerage water and rain water there is no necessity of dismantling the shanties and huts raised by the petitioners and other dwellers by the sides of the canal. It has also been contended by the petitioners that in any event without assuring rehabilitation of the dwellers by the sides of the said canal including the petitioners at any nearby place, the respondents cannot demolish the shanties and/or the huts of the petitioners and other dwellers by the sides of the canal and the respondents cannot also evict them from the said place. Relying on the decision of the Supreme Court in the case of Olga Tellis v. Bombay Municipal Corporation reported in AIR 1986 SC 180, it has been contended by Mr. Bose learned Counsel for the petitioners that the right to live which has been guaranteed by Art.21 of the Constitution includes right to livelihood and since the petitioners and other dwellers in the said place will be deprived of their livelihood if they are evicted from their hutment's and shanties such eviction will be tantamount to deprivation of their lives and as such the same must be held to be unconstitutional. It has been held by the Supreme Court in the said decision that the right to live includes right to livelihood and the sweep of the right of life conferred by Art.21 is wide and far-reaching. It dose not mean that right cannot be extinguished or taken away as for example, by the imposition and execution of the death sentence, except according to procedure established by law. But that is only one aspect of the right to life, and equally important facet is the right to livelihood because no person can live without the means of living, that is the means of livelihood. If the right to livelihood is to be treated as constitutional part of the right to life, 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. The Supreme Court has also held that such deprivation will not only denude the life of its effective content and meaningfulness but it would make life impossible to live. The Supreme Court has referred to Art.39(a) which is the directive principle of the State policy. The said Article provides that the State shall, in particular direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood, Referring to Art.41, it has been observed by the Supreme Court in the said decision that Art.41 is another directive principle which provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provisions for securing the right to work in cases of unemployment and of undeserved want. The Supreme Court has referred to Art.37 which provides that Directive Principles, though not enforceable by any Court, are nevertheless fundamental in the governance of the country. The Supreme Court has held that the principles contained in Art.39(a) and Art.41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and contents of fundamental rights. But the Supreme Court has also held in the decision of Olga Tellis (AIR 1986 SC 180) that footpaths and pavements are public properties which are intended to serve the convenience of the general public and they are not laid for private use and indeed their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The Supreme Court has specifically observed that there is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrian to make use of the pavements for passing and repassing are competing claims and that the former should be preferred to the latter. it has been specifically held that no one has right to use public property for a private purpose without requisite authorisation and therefore, it is erroneous to contend that the pavement dwellers have their right to encroach upon the payments by constructing dwellings thereon. It may be noted in this connection that in the decision of Olga Tellis the encroachment was on the pavements by Constructing shanties or hutments.