Sudama Singh v. Government of Delhi (2010)- An analysis

Sudama Singh case[1] is an important case in relation to demolition of jhuggis in Delhi. The decision was delivered by Delhi High Court which was further affirmed by Supreme Court.

There were four sets of writ petitions before the Court in Sudama Singh. In one i.e. Writ Petition No. 8904 of 2009, the jhuggis of the New Sanjay Camp slum cluster were demolished on 5th February 2009 for the purpose of constructing an underpass on road No.13 (Okhla Estate Marg) which goes through Okhla Phases 1 and 2.

Writ Petition No. 7735 of 2007 was in relation to the demolition of the Nehru camp slum cluster which was carried out for the purpose of the work of widening the existing National Highway 24 (NH-24) from four lanes to eight lanes. The agencies demolished these clusters as they were found to be spread over those stretches which were required for the widening of the roads and, therefore, were on the ‘right of way’.

As far as Writ Petition No. 9246 of 2009 was concerned, the Petitioners belonged to the Gadia Lohar basti at Prem Nagar, New Delhi and they were part of a nomadic and scheduled tribe – often referred to as ‘Khanabadosh’ who had migrated from Rajasthan to Delhi in 1965. It was stated that on 12th January 2009, without prior notice, the MCD demolished the Gadia Lohar basti and displaced more than 200 people without giving them a chance to take their belongings to a safe place. These Petitioners sought rehabilitation.

The fourth writ petition W.P. (C) No. 7317 of 2009 was by a resident of a jhuggi cluster in Prem Nagar, Delhi who was seeking relocation to an alternative plot in terms of the rehabilitation scheme announced by the slum and Jhuggi jhopdi wing of the MCD. The GNCTD had, with the approval of the Central Government, finalized in 2000 a rehabilitation improvement scheme for jhuggi clusters. This came into effect from 1st April 2000 and had a cut-off date of 13th February 1998.

However, in Wazirpur Bartan Nirmata Sangh v. Union of India (2003) 103 DLT 654 (DB), a Division Bench of Delhi Court set aside the above scheme. In a special leave petition [SLP (C) 3166-67 of 2003] filed by the Union of India, the Supreme Court passed orders dated 19th February and 3rd March 2003 staying this Court’s abovementioned judgment. As a result, the Scheme of rehabilitation continued to operate.

Delhi High Court in Sudama Singh noted the stand of the Respondents that as far as the first two writ petitions were concerned no compensation was payable for encroachers existing on the Right of Way. In other words, it was contended that those Petitioners were outside the notified scheme of rehabilitation.

Issues before the court

The issues that fell for determination before the Court in Sudama Singh were as under:

“1. Whether the State Government’s policy for relocation and rehabilitation excludes the persons living on Right of Way, although they are otherwise eligible for relocation/rehabilitation as per the Scheme?

2. If there is any policy regarding the persons living on Right of Way then what could be the true import of such policy?

3. Whether the manner in which the alleged policy is being implemented by the respondents is arbitrary, discriminatory and in violation of Articles 14 and 21 of the Constitution and various international covenants to which India is signatory?”

Delhi High Court’s Conclusion

After discussing the provisions of the ICESCR, General Comment No. 7 and the Special Rapporteur‘s guidelines on relocation of displaced persons, the Court in Sudama Singh concluded as under:

“In our opinion, the stand of the respondents that alternative land is not required to be allotted to the inhabitants of such land which comes under the ‘Right of Way’ is completely contrary to the State‘s policy which governs relocation and rehabilitation of slum dwellers. State’s policy for resettlement nowhere exempts persons, who are otherwise eligible for benefit of the said policy, merely on the ground that the land on which they are settled is required for ‘Right of Way’. The respondents have failed to produce any such policy which provides for exclusion of the slum dwellers on the ground that they are living on ‘Right of Way’.

We find force in the submission of the petitioners that even if there is any such policy, it may be for those jhuggi dwellers, who deliberately set up their jhuggis on some existing road, footpath etc, but surely this policy cannot be applied to jhuggi dwellers who have been living on open land for several decades and it is only now discovered that they are settled on a land marked for a road under the Master Plan though when they started living on the said land there was no existing road.”

It was further observed:

“When the petitioners set up their jhuggis several decades ago there was no road. It may be that in some layout plan the land was meant for a road but when they started living there, they could not anticipate that the land will be required in future for a road or for the expansion of an existing road. As long as they were not on an existing road, they cannot be denied the benefit of rehabilitation/relocation.

The denial of the benefit of the rehabilitation to the petitioners violates their right to shelter guaranteed under Article 21 of the Constitution. In these circumstances, removal of their jhuggis without ensuring their relocation would amount to gross violation of their Fundamental Rights.”

Decisions of the South African Constitutional Court

The other significant aspect of the decision in Sudama Singh is the discussion of the decisions of the South African Constitutional Court in Grootboom and Joe Slovo in the context of the technique of ‘meaningful engagement’.

The Court held as under:

“The government will be failing in its statutory and constitutional obligation if it fails to identify spaces equipped infrastructurally with the civic amenities that can ensure a decent living to those being relocated prior to initiating the moves for eviction.

56. The respondents in these cases were unable to place records to show that any systematic survey had been undertaken of the jhuggi clusters where the petitioners and others resided. There appears to be no protocol developed which will indicate the manner in which the surveys should be conducted, the kind of relevant documentation that each resident has to produce to justify entitlement to relocation, including information relating to present means of livelihood, earning, access to education for the children, access to health facilities, access to public transportation etc.”

The decision in Sudama Singh also acknowledged the ground realities of the life of jhuggi dwellers. Emphasizing that jhuggi dwellers should not be treated as ‘secondary citizens’, the Court held that:

“a. It is the State‘s constitutional and statutory obligation to ensure that if the jhuggi dweller is forcibly evicted and relocated, such jhuggi dweller is not worse off.

b. The relocation has to be a meaningful exercise, consistent with the rights to life, livelihood and dignity of jhuggi dwellers.

c. Therefore, the exercise of conducting a survey has to be undertaken with a great deal of responsibility. If it is to be meaningful, it has to be conducted either at the time when all the members of the family are likely to be found or by undertaking repeated visits over a period of time with proper prior announcement.

d. Documents of proof of residence are crucial to establishing the jhuggi dwellers ‘entitlement to resettlement, since most relocation schemes require proof of residence before a ―cut-off date’.

If these documents are either forcefully snatched away or destroyed (which they often are) then the jhuggi dweller is unable to establish entitlement to resettlement. A separate folder containing all relevant documents of the jhuggi dweller must be preserved by the agency or the agencies involved in the survey.

The COURT IN ITS CONCLUSION IN SUDAMA SINGH DECLARED that:

“64. (i) The decision of the respondents holding that the petitioners are on the ‘Right of Way’ and are, therefore, not entitled to relocation, is hereby declared as illegal and unconstitutional.

(ii) In terms of the extant policy for relocation of Jhuggi dwellers, which is operational in view of the orders of the Supreme Court, the cases of the petitioners will be considered for relocation.

(iii) Within a period of four months from today, each of those eligible among the petitioners, in terms of the above relocation policy, will be granted an alternative site as per MPD-2021 subject to proof of residence prior to cut off date. This will happen in consultation with each of them in a ―meaningful‖ manner, as indicated in this judgment.

(iv) The State agencies will ensure that basic civic amenities, consistent with the rights to life and dignity of each of the citizens in the Jhuggis, are available at the site of relocation.”

Appeal to Supreme Court

At this juncture, it should be noticed that the decision in Sudama Singh was carried in appeal to the Supreme Court by the Government of NCT of Delhi by way of an SLP (Civil) No. 445-446/2012. While notice was issued on 5th January 2012, the Supreme Court stayed the contempt proceedings which were by then initiated in Delhi high court.

At the hearing on 1st October 2012, the SLP was adjourned ‘to enable the Petitioners to explore the possibility of re-settling/rehabilitating the jhuggi dwellers to some other place.’ On 14th January 2013, the Supreme Court was informed that the matter was ―under active consideration of Council of Ministers, who were supposed to make a decision within a week.

At the hearing on 29th April, 2013, the Supreme Court passed the following order:

“Mr. Prashant Bhushan, learned counsel appearing for the respondents, has brought to our notice that in spite of the specific directions issued by this Court, still the report of the Group of Ministers has not been placed on the record showing how the displaced jhuggi dwellers are to be rehabilitated.

Learned counsel appearing for the Government of N.C.T. Of Delhi has submitted that all necessary formalities have been completed. However, certain clarification is required as to why the Government is saying that the Scheme now proposed shall be applicable only in future. Let that clarification be sought within a period of one week. List the matters on 10th May, 2013.”

Thereafter, on 31st July 2013, the Government sought leave to withdraw this Special Leave Petition and the following order was passed:

“Learned counsel for the petitioners seeks permission to withdraw the special leave petitions. Permission is granted. Consequently, the special leave petitions are dismissed as withdrawn.”.

[1] Sudama Singh v. Government of Delhi (2010) 168 DLT 218 (DB)