TAPAS DEY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) WHETHER or not the State respondents are duty bound to provide the petitioners with alternative accommodation while process of rebuilding is implemented by the private respondent is the question which arises for determination in this writ petition. The petitioners are displaced persons from Bangladesh. In pursuance of a policy decision adopted by the Central Government and the State Government regarding rehabilitation of displaced persons, the petitioners were rehabilitated by the State by allotting flats during the period 1960-1970 at B. T. Road under bonhooghly Tenement Scheme. It is not in dispute that around 750 displaced persons have been rehabilitated by allotment of flats on a vast area covering 17. 20 acres of land. It is also not in dispute that by passage of time the area where the petitioners have been residing has become a prime area having commercial viability. The petitioners were allotted flats measuring about 250 sq. ft. They are not required to pay occupational charges to the Government. In the absence of proper maintenance of the buildings in which the flats are located and by gradual passage of time the buildings have become dilapidated and, according to the respondents, are a source of danger to public safety and security. Accordingly, a decision was taken by the Government to develop the entire land measuring about 17. 2 acres which would include reconstruction of buildings to accommodate the petitioners and to lease out the remaining land for commercial purposes. Re-development of Bonhooghly Tenement Scheme is a joint venture project by the Refugee Relief and Rehabilitation Department of the Government and the respondents. The objective of the scheme is to construct 800 flats for the existing occupiers on a portion of the land and utilise the rest of the land for value addition through construction of residential flats and commercial complex. The project aims at providing flats to the existing occupiers measuring about 60 sq. mtr. (including super built up area) consisting of two bed rooms, one drawing-cum-dining room, two toilets, one kitchen and one verandah. Redevelopment of the scheme is likely to be completed in two years. Allotment of flats, in terms of the scheme, would be on the basis of lottery.

(2.) THE petitioners are all belonging to lower income group earning between rs. 400/- and Rs. 4,000/- per month. Some are engaged in business, some are workmen while others are either retired persons or survive on the basis of family pension. The petitioners together with other occupants were individually called upon by the Secretary to the Government of West Bengal, Refugee Relief and rehabilitiation Department (notice dated 6. 3. 07) to vacate the flats in their possession in lieu of free of cost flat in the proposed housing project within 7 days from date of receipt thereof failing which the Government would be free to assume that they are not interested in accepting the offer. Reference was made in the notice to the fact that Central Public Works Department had declared the buildings under the Bonhooghly Tenement Scheme to be unsafe for human habitation; that notice had been issued to all the occupiers to vacate the buildings and that since the buildings of the Tenement Scheme may collapse at any moment, the Government apprehends danger to the lives of the inmates.

(3.) MR. Bandopadhyay, learned Senior Counsel appearing for the petitioners fairly submitted that the residents are not opposing the project of redevelopment but they are only anxious to have a shelter during the time the scheme of redevelopment is implemented. According to him, the scheme in so far as it fails to provide for alternative accommodation for the petitioners is unreasonable and by an executive fiat, the Government cannot dispossess them. In this connection he relied on the decisions of the Apex Court reported in AIR 1961 SC 1570 : bishan Das vs. State of Punjab and (2002) 4 SCC 134 : State of West Bengal vs. Vishnunarayan and Associates (P) Ltd. He next contended that right to shelter being a fundamental right under article 19 (1) of the Constitution, it was the obligatory duty of the State respondents to provide for alternative accommodation. In this connection, reliance was placed on the decisions of the Apex Court reported in (2001) 6 SCC 496 (13) : Hinch Lal Tiwari vs. Kamala Devi for the proposition that the government ought to maintain material resources of the community and to protect them for proper and healthy environment which would enable people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. He relied on the decision of the Apex Court reported in ( for the proposition that right to live as a human being is not ensured by meeting only the animal needs of man; it is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth and that right to live, guaranteed in any civilised society, implies the right to food, water, decent environment, education, medical care and shelter. Reference was made to the decision of the apex Court reported in (1995) 5 SCC 524 : State of Karnataka vs narasimhamurthy to contend that right to shelter is a fundamental right under article 19 (1) of the Constitution. He further relied on the decision of the Apex court reported in (2004) 3 SCC 214 : Jamshed Hormusji Wadia vs. Board of trustees, Port of Mumbai for the proposition that State's action has to be tested on the anvil of Article 14 of the Constitution even in the contractual field and any act not meeting the standard of fairness in action would be liable to interdiction by the Writ Court. The decision reported in was relied on for contending that even in the capacity of acting as landlord, the State is required to prove fairness and reasonableness on its part and how its actions meet the constitutional requirements of Article 14.