Haldwani Evictions: ‘50,000 People Can’t be Uprooted Overnight Without Rehab Plan’

New Delhi: Coming to the rescue of more than 50,000 people, the Supreme Court on January 5 stayed the Uttarakhand High Court’s order — directing removal of 4,365 households on 29 acres claimed by the Indian Railways in Haldwani’s Banbhulpura locality.

A division bench of justices Abhay S. Oka and Sanjay Kishan Kaul observed that thousands of people cannot be uprooted overnight without any rehabilitation plan in place even if the land belongs to the Railways.

The court said the issue is required to be dealt with sensitivity and a humane angle since the occupants had been living on the disputed land even before Independence. It also wondered how the occupants could be evicted without a rehabilitation plan in place.

“What is troubling us is how you deal with a situation where people brought (the land in question) in auction, took possession after 1947 and acquired title. You may acquire the land, but to do now. People have been living there for 60-70 years. Some rehabilitation has to be done. They (petitioners) claim leases, and some say they migrated post 1947 and these properties were auctioned. How can you (them) ask to clear (the land) in seven days?” the bench said.

It noted in the order that “a workable arrangement is necessary to segregate people who may have rights/no rights coupled with schemes of rehabilitation which already exists while recognising the need of the Railways”.

The court, however, clarified there shall be a stay on the High Court’s directions, the proceedings pending under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 will continue.

The bench also restrained petitioners from carrying out any further construction or development work on the disputed land.

The bench expressed displeasure at the HC’s direction asking for the use of paramilitary forces to dispossess the occupants.

The Uttarakhand High Court, in its order dated December 20, had said the Railway authorities in coordination with the district administration, and if needed, with any other para- military forces, after giving a week’s notice to the occupants over the “Railway land”, will immediately ask them (the occupants) to vacate the land within the aforesaid period. 

“If the occupants/encroachers fail to vacate the premises and land in dispute of the railway, after being noticed, it will be open for the railway authorities that they in joint coordination with the local police, district magistrate, senior superintendent 174 of police and other para military forces, as referred above, will initiate immediate action and take a forceful possession of the occupied land from such occupants/encroachers,” the court had ordered.

Contending that due process was followed in the matter, Additional Solicitor General Aishwarya Bhati said acquisition of the land is necessary for the development of railway facilities.

Senior advocates Siddharth Luthra, Colin Gonsalves, Salman Khurshid and Prashant Bhushan appeared for the petitioners.

COURTROOM EXCHANGE

Senior Advocate Colin Gonsalves began the submission by saying thousands of people are were affected with the High Court’s order, which said proceedings under the Public Premises Act were not valid.

Justice Oka asked for the impugned order.

Gonsalves continued his submissions. “The state says the land on which demolition is to take place belongs to the state government,” he says, adding that the possession of the land has been with the petitioners since prior independence and that they have been in possession of government leases, which were executed in their favour.

He said the High Court order noted that the Railway Act was a special legislation and that itself eradicated the applicability of the PP Act.

ASG Aishwarya Bhati, representing the State of Uttarakhand, said the survey and demarcation had already been done.

Justice Oka sought to know from the ASG if the proceeding under the PP Act was pending.

She responded in affirmation. “There are over 4,000 cases under the Act, but there is no stay anywhere. Appeals are pending,” she replied.

Advocate Prashant Bhushan drew the court’s attention to the fact that most of the orders under the PP Act were ex-parte and without being given a hearing (to the aggrieved parties).

Justice Kaul said they (petitioners) claimed leases and some said they migrated post 1947 and these properties were auctioned...development has to be allowed but people who stayed for so long has also to be rehabilitated. “How can you ask (them) to clear (the land) in seven days?” he asked.

Justice Oka intervened and said people are saying they are living there for 50 years. To which ASG Bhati responded: “This strip of land belongs to the Railway only.”

Justice Kaul asked her: “What is the stand of the state government?”

He further said: “What is troubling us is how you deal with a situation where people bought in auction and took possession after 1947 and acquired title. You may acquire the land but what to do now. People lived for 60-70 years. Some rehabilitation has to be done.”

The ASG said: “But they (the petitioners) say it is their land and they did not claim rehabilitation.”

Advocate Vipin Nair countered her by saying: “I was the original petitioner in the High Court, and we always prayed for rehabilitation.”

Justice Kaul: “There must be a culmination to the issue, and we do not encourage what is going on.

“Even in those cases where there are no rights at all, even in them rehabilitation has to be done. But in some cases where they acquired title, you have to find a solution. There is a human angle to the issue,” he said.

Seeking ascertaining of the title on the land in dispute, Justice Oka said: “Someone has to carry out demarcation.”

Advocate Bhushan reiterated, “All orders have been passed in this case ex-parte during the COVID period.”

The ASG replied to the submission, “Each of the intervention applications have been separately dealt with by the High Court. Due process of law has been followed.”

Justice Oka again said: “This is humane issue. Orders were passed during COVID period.”

Justice Kaul also said, “You cannot cut short the process...this is a humane issue. Some have claimed their land, and you have to develop the land. Someone has to examine.”

ASG Bhati raised the issue of alleged illegal mining in the Gaula river.

Advocate Gonsalves referred to a previous order passed by the Supreme Court in 2017 in which it was recorded that it was not clear whether the land in question indeed belonged to the Railways.

Justice Kaul: We do not want them (the petitioners) to be displaced and thrown out overnight.

“Someone will have to go into the assessments of the problems involved. You must make sure there is no further occupation or construction. We have to find a practical way out. It is not a mere encroachment A lot of things will weigh due to nature of rights conferred.,” he observed.

Wanting a go ahead to the removal plan, the ASG said: “It is critical for development of the state. It is critical because it is the gate to Uttarakhand.”

But Justice Kaul reiterated: “There has to be a methodology to achieve the means.”

ASG responded: “We have followed the law and pursued cases under the PP Act.”

Justice Kaul said, “It can be both ways. Some methodology has to be found out.”

The court the stayed the HC directions, saying, “There shall be a stay on the directions passed by the High Court.”

“We have not stayed proceedings (under the PP Act), and only the directions of the High Court has been stayed,” the bench clarified.

Dictating its order, the court said: “The ASG emphasised the need for Railway. Moot point will be to consider stand of the state on whether the land is of Railway or belongs partly to the state. Next is to consider title of lands acquired.”

It said there cannot be “uprooting of 50,000 people overnight”. “There has to be segregation of people who have no right on the land and the need to rehabilitation while recognising the need of railway,” the court said.

The court then issued notice to the state government and the Railways. The ASG accepted it on their behalf.

The matter was listed on February 7 for the next hearing.

WHAT HC HAD SAID IN ITS EVICTION ORDER

Holding that the land in question 29 acres (near Haldwani Railway Station) belongs to Railway and not nazul (revenue) land, the Uttarakhand High Court last month had ordered eviction of its dwellers following a week’s notice.

The 176-page order passed by the division bench of the High Court comprising Chief Justice RC Khulbe and Justice Sharad Kumar Sharma said the removal of the “encroachment” was necessitated to meet out the “urgent needs”, which was required to be done by the competent authority, who was otherwise expected to maintain a constant vigil on an act of “encroachment” over the public premises, and where a prolonged delayed process will be a “danger for public” by permitting the “encroacher”, claiming semblance of the right to “obstruct” the removal of encroachment.

“The need of immediate removal particularly is in the context of Section 147 of the Railways Act could be resorted to,” court had said.

It rejected the claim (based on the Office Memorandum of May 17, 1907 of the Municipal Department) made by the petitioners that it was a ‘nazul’ property and that they were holders of ‘nazul’ land by virtue of their respective leases.

“Under the Urdu terminology, the nazul land means a land, which is commonly called as ‘jaayajaad munjaapaata’, which means a land, which was left by the principal occupier, as an act of rebellion of Mutiny of 1857, which was later on vested with the Queen. Since no act of Mutiny of 1857, had ever taken place in the Haldwani Khas, so created in 1834, no part of the 166 land of Haldwani Khas, would be said to be ‘jaayajaad munjaapaata’, to be termed as a najul land”, said the HC, explaining the meaning of nazul land.

The court said Office Memorandum was not a government order and does not confer any right on the respondents/encroachers because the document was executed “only for the purpose of management of the property in accordance to the Nazul Rules”.

Referring to Rule 59 of the Nazul Rules which says that any nazul land lying adjoining to a railway station would require a prior sanction/approval from the Railway Authorities if it is ever ever proposed to be sold or leased.

“...no lease deed (which has been relied by the interveners) finds any such reference that a prior sanction was ever obtained from the 165 Railway Authorities…. The lease of a nazul land as claimed, which is only confined to a right of enjoyment, it could not be further dealt with by transfer or by a lease or a sale deed, which was restricted under the Office Memorandum of 17th May, 1907, and also under the Nazul Rules itself,” the court had noted.

Such “encroachers”, the High Court observed, didn’t have any right and title over the land in question in accordance with law. And therefore, they will be treated to be “unauthorized occupants”.

It stressed that a particular system, which has been consistently followed, which might have become precedence with the growth of time, need not to be irrationally followed for all times to come.

“…the same has to be rationally modulated to be applied in a practical life in order to meet the ever-increasing need of socio-economic development, and which would be inclusive too of the need of development of the Railway projects in the instant case, aimed to cater the increasing public need,” the court observed.

In a categorical observation, the bench said no private need, even though it may not be existing in the instant case, in relation to the interveners, could have precedence over and above a public need and that too, on a property, which has been otherwise vested with the railway.

The court had accused the then state government of filing a review petition against the High Court’s original eviction order “for no subsisting or valid reason owing to the certain most reckoned political shield, which was then being provided by the then Ruling party for its political gains to the unauthorised occupants, just to secure its vote bank”.