By Srishti Ojha
This article was published on LiveLaw.in website. Read it here.
The Supreme Court has decided to issue on Monday (15th November) its orders on challenge to rehabilitation policy including the eligibility criteria framed by the Municipal Corporation of Faridabad with respect to the demolitions at Khori Gaon.
A Bench comprising Justice AM Khanwilkar and Justice Dinesh Maheshwari on Friday heard detailed arguments on behalf of the petitioners challenging the policy and the Municipal Corporation of Faridabad.
The petitioners were represented through Senior Advance Sanjay Parikh and Advocate Srishti Agnihotri and the Corporation represented by Senior Advocate Arun Bhardwaj, Additional Advocate General for State of Haryana.
The Bench will pass its order on Monday after receiving a clarification from the Municipal Corporation of Faridabad in relation to the costs to be paid by those who will be allotted flats under the rehabilitation scheme.
While asking the AAG to get instructions on the issue, the Bench orally observed that if the premises being allotted are under a central project ( Pradhan Mantri Aawas Yojana) the charges payable should also be the same, unless some extra amount is being paid by Corporation to the Central Government”
SUBMISSIONS & COURTROOM EXCHANGE:
No Household Survey done by the MCF: Petitioners
It has been argued by the petitioners that that they had repeatedly prayed before Supreme Court that before demolition, the Municipal Corporation should collect all the documents and evidence about the residents occupying houses so that there will be sufficient proof with them for rehabilitating the affected families.
However, the State of Haryana, failed to carry out any survey of the Khori Gaon area, prior to demolition, contrary to the orders of this Court.
Policy should not be unjust and arbitrary: Petitioners
The petitioners have argued that it is the constitutional obligation of the State to provide shelter to the poor people who cannot afford it by way of a policy or by enacting a law. The constitutional courts can also take cognisance of the situation where it finds people suffering because of not having proper shelter owing to poverty and other reasons and give appropriate directions to the state.
Rehabilitation Policy and Pradhan Mantri Awas Yojana:
The petitioners have submitted that the rehabilitation policy refers to Pradhan Mantri Awas Yojana – Housing for all (Urban), under which provisions have been made to provide central assistance to implementing agencies through States and UTs for providing houses to all eligible families by 2022
During the hearing Mr Parikh submitted that there is a requirement mentioned in PM Awas Yojana, and if Houses are constructed under that Yojana they’ll be covered by the Yojana.
He added that a stricter criteria that the one followed under the Yojana cannot be applied to these people when the scheme is same.
It has been argued that these houses being allotted were constructed under PMAY and it was said that 202 people were allotted based on biometric identification.
“In this scheme they have put in these three conditions. Can you put conditions on people who will otherwise be eligible under the scheme?” Mr Parikh said.
“You are a separate class. In building construction, certain houses constructed have been set apart for your class of persons. The issue is identifying the true owner of house and if such house existed.” the Bench said.
“Some person has been displaced from Khori Gaon, doesn’t apply this scheme and apply under PM Awas yojna, that can happen no sir?” Justice Maheswari asked
“Yes” Parikh said.
“As soon as you get it there you’ve no right to get one under this scheme then sir?” Justice Maheshwari asked
“If I can get a flat through criteria under PM Awas Yojana, can I be denied on basis of the criteria. If I’m able to show my identity and residence can I be denied?” Mr Parikh remarked
We’ve understood your submission that whatever are the norms prescribed under PM Aawas Yojana, the same can be applied in Corporation Scheme. Your argument is if Module followed in central scheme can be adopted in corporation scheme. That we’ll put to other side” the Bench said.
Eligibility criteria as laid out in the impugned policy is unduly restrictive: Petitioners
The Petitioners have submitted that under the Central Government schemes as well as state government schemes, different criteria have been adopted to provide the benefits.
According to the Petitioners, the reasonable nexus for granting the benefit of rehabilitation should be: (1) identity of the head of the family; and (2) a proof of residence.
As far as identity is concerned, the Petitioners have submitted that the Aadhaar card provides the statutory basis for providing identity, because it gives the unique identification number based on biometrics.
Challenge To Cost of Flats:
The petitioners have challenged the Rehabilitation policy on basis of the payment of Rs 377500 being sought for the allotments.
The relevant condition of the policy being challenged reads as follows:
“6(a)(i) All persons fulfilling the criteria given in clause no. 3 (e) above shall be eligible for the allotment of only one EWS flat against payment of Rs. 377500/- towards the cost of flat. However the allotee will be given subsidy on the following basic parameters: …”
During the hearing, Mr Parikh informed the Court that cost of flats is mentioned as 3,77,500 and addition, Corporation will charge for electricity, water etc.
“This are recurring charges, they’ll have to be paid on basis of consumption” the Bench said.
“That I’ve no problem with. If its an additional charge that has to be clarified.” Mr Parikh said.
Suggestions By Petitioners:
The petitioners have argued that the Corporation should apply the Rehabilitation policy to a total of following 4 categories of residents:
- Residents with Any one of the existing eligibility documents.
- Residents who have an Aadhaar card that proves residence of KhoriGaon;
- Residents who have an Aadhaar Card to prove identity, but may be required to prove residence using any other modality, including a declaration or an Affidavit to that effect; and
- Residents who do not possess Aadhaar, may be permitted to use any of the documents accepted in Aadhaar/Voter ID as the proof of identity and residence, including self declaration.
Advocate Anupradha Singh for some of the petitioners submitted that the Corporation has an apprehension which is why they don’t want Aaadhar as one of the documents.
“That’s not apprehension that experience from many projects. We’ve been saying it needs to be assured that right claimants would get it.” the Bench said.
She then referred to one of the schemes from Delhi to suggest what can be done in the present situation.
“Its a policy matter, we can’t ask them to make it like Delhi scheme. We can’t sit here in comparison of different schemes. ” the Bench said.
“Issue is not about identity alone, it’s composite issue about identity, also that you were yourself living in that structure, no one else is seeking rehabilitation there etc.” the Bench added.
“We’re not going to open a Pandora’s box. We’ll not advert to documents in other schemes, we will only look at the central and corporation scheme. If we make observations beyond central scheme, we’ll be questioning that scheme also. You have to be reasonable while asserting your right. ” the Bench said.
Cost Are Based on Consumption Basis: AAG
Referring to arguments regarding people being charged for electricity, water, gas, AAG clarified that these charges are based on consumption basis. The electricity will depend on the electricity used and rate of electricity.
The Bench however opined that if premises being allotted are covered under a Central Project (PMAY scheme), the same charges as applied there should be applied here, unless some additional charges are being paid by Corporation. The Bench has sought a clarification in this regard from AAG by Monday.
“You’re allotting someone premises which is a premise under a central project but now whatever the charges payable under that project, same should be applied here. Unless there is something extra that you need to pay to Central Government” Justice Khanwilkar said.
“I haven’t compared the rates under both schemes.” AAG said
” Mr Parikh says its 1 lakh 96k under PM Yojna and 3lakh 70k in this scheme. Then you need to assist us on that.”
The Bench orally observed that whatever is paid under PM scheme, cost of flat and recurring charges should follow.
“These are flats on cost to cost basis, under a subsidy which is granted to them, and therefore nothing more is required” AAG said
“If cost of flat is 2 lakhs for example, how can corporation say 4 lakhs? Whatever is cost of allotting, The rate at which State is allotting flats under Central scheme, same rate will apply, same terms and conditions will apply. ” the Bench said.
” If State government is allotting flats at a certain notional amount, if Corporation has to spend some additional amount to get that flat and then allot here, that we can understand. But if Corporation is not required to spend additionally, you can’t charge more.” the Bench added
“List this matter on 15th. I’ll produce a chart, giving a breakup how 377500 has been arrived at and how we are not making any profit out of it.” AAG said.
“For monthly outgoing, like water charges, etc same pattern will follow as central scheme. It will be based on consumption but rates cannot be different, on same terms as applicable to flats under Central scheme. Take instructions on that.” the Bench said.
Aaadhar Cannot Be Taken As Proof Of Residence: AAG
Senior Advocate Arun Bhardwaj, Additional Advocate General for Haryana, appearing for Municipal Corporation submitted that when housing scheme was formulated it incorporated three conditions, it did not have Aadhaar because of the preparation of Aaadhar or basis on which its issued
He stated that Aadhaar is issued on basis of several documents, to be precise 5. One of that is a letter head by a private company and a bank. So it is issued on basis of documents which have no relevance, none of them will proof that residence of Khori Gaon
The Bench stated that it can’t be disputed that Aadhar establishes identity but in any case if establishing identity is not sufficient and proof of residence is needed to, reasons have to be given by the Corporation for not relying on Aaadhaar.
“Aadhaar will be a document to establish identity, that you can’t dispute. Identity alone is not enough, little more is required to establish you were staying in structure which was demolished. But that can’t be disregarded. If you in any case are not relying on Aaadhar you have to give reasons why you are not relying on that. Aaadhar is available but it doesn’t establish you were residing at that place in that particular structure which has been demolished”, the Bench said
” To that extent I’ll bow down to say that Aahaar can be used as identity but not as proof of residence of Khori Gaon.” AAG said
Flats Not Being Allotted To Those Eligible Under PM Yojana:
AAG submitted that the present rehabilitation scheme is a specially carved out scheme for people who were removed from unauthorised establishments.
“Whatever we found we offered it to them. We found flats in this colony and Jhabua, which Mr Parikh pointed out are under PM Awas Yojana. But those flats are being allotted not to those eligible under the PM Yojana but to those eligible under scheme formulated in special circumstances.” He said.
Eligibility Criteria Cant Be Expanded: AAG
AAG informed the Court that the rush to occupy these flats is increasing and requests for increasing date of application are being received daily.
“The number of applications is multiplying. Now we have lesser flats more applicants. If zone of eligibility consideration is expanded to include ABC documents which has no relation to proof of residence in that area..”, he said
“You can always say that document won’t be proof of residence, that can be ground for rejection of application. What’s the difficulty?” the Bench said.
On solatium amount of 2000 and period of 6 months:
Responding to petitioners’ suggestion that Solatium amount should be continued to be given, AAG submitted that the Solatium was offered at an earlier point because these people had no roof on their heads.
“That wasn’t to be a permanent monthly amount to be paid to them, it had a duration of 6 months, but had to stop if flat was allotted before that. Every State has its own funds, every Corporation has to manage its funds and resources.” He said.
AAG added that these flats cannot be extended for commercial activities. They are only for residential purposes , and commercial activities can’t be permitted.
Background:
In the first week of August, the Apex Court had asked the State of Haryana to expedite the consideration of the draft policy of rehabilitation submitted by the Municipal Corporation of Faridabad with respect to the demolitions carried out in the Khori Gaon forest land, and take a final decision preferably before August 25th.
On 7th June 2021, the Supreme Court had directed the removal of all encroachments on forest land within 6 weeks in a plea seeking a stay on the demolition of 10,000 houses that has been planned by the Municipal Corporation of Faridabad at Khori Gaon in Faridabad, Haryana.
Case Title: Municipal Corporation Faridabad v. Khori Gaon Residents Welfare Association (Regd.) Through Its President & Ors
Khori Gaon 