By Mehal Jain
This article was published on LiveLaw.in website. Read it here.
In connection with the Khori Gaon eviction matter, the Supreme Court on Thursday directed that until permanent accommodation is offered to the eligible persons, the Municipal Corporation of Faridabad shall be liable to pay the ex- gratia solatium amount of Rs.2000 per month until the date of issuance of possession letter by the Corporation.
The court recorded that the Municipal Corporation of Faridabad submits that the eligible persons, about 1027 in number, will be allotted premises on permanent basis by end of April 2022 in habitable condition. The bench headed by Justice A. M. Khanwilkar directed that the fact that the premises are in habitable condition will be certified by the commissioner, Municipal Corporation of Faridabad.
“As aforesaid possession letter can be issued only after the commissioner certifies that the premises allotted to the concerned allottees are in habitable condition and can be occupied immediately, the corporation must complete the work of allotment before 21st of April”, the bench added.
The bench further noted, “It was also brought to our notice that the plot on which the unauthorised structures were removed is being misused by the locals. We direct the superintendent of police, Faridabad to provide necessary assistance to the corporation to ensure that no encroachment or misutilisation of the area/plot in question takes place in the future and to remove unauthorised structures or occupants if any”
“In addition, as the corporation is already working on the plan for the redevelopment of the entire area, the secretary of the forest department may issue appropriate instructions to facilitate plantation of suitable trees of appropriate species in the area through forest department. List on 26 April 2022 for consideration of other aspects including the issues to be dealt with referred to above”, the bench said in its order
“Needless to observe that issue no. (c) (as raised by the petitioners regarding whether lands notified under Punjab Land Protection Act, 1900 are ipso facto forest lands) may have to wait till the pronouncement of judgment in companion cases, hearing whereof has been completed today”, the bench observed in its order.
It further ordered that “The commissioner shall constitute the appellate authority for deciding the representation of the appeals of applicants whose claim has been found invalid by the corporation. That is to be done within two weeks from today and the appellate authority so constituted shall ensure that the concerned appeals are decided not later than three months as far as possible”
The bench heard Senior Advocate Sanjay Parikh, for the petitioners, and Senior Advocate Arun Bhardwaj for the corporation.
Mr. Parikh: “Since houses were demolished in July 2021, they have no accommodation. They have been living on the roads under tarpaulins. They have spent the winters there and will be subjected to the vagaries of the summer over there.
Solatium of Rs.2000 per month was to be paid to them for making their own rental arrangement till the time EWS flats are made habitable, but not for a period exceeding six months. Till date, they are not habitable. The petitioners have put on record photographs showing condition of flats. Two visits took place in presence of counsel of petitioners and MCF. The flats are not habitable and they should be provided a solatium of at least Rs.2000. Because they are not habitable, the time frame which your lordships had given to them will change…When will the flats be ready, having drinking water and other facilities, when will the final draw of lots and consequential allotment take place. They have to commit before this hon’ble court that this is the outer limit and this is what will be done. Because we don’t want to be there without drinking water, drainage and other facilities…The petitioner submits that in case the court comes to conclusion that the PLP lands are not ipso facto forests, then the order passed on the false and misleading statement of the state of Haryana may have to be recalled and the determination will have to be done afresh of persons including restitution, rehabilitation in situ and compensation for violation of Constitutional rights”
Justice Khanwilkar: “So far as the last point that you have made in this note, that needs to wait till we take a view of the matter one way or the other. That cannot be gone into today immediately. What is to be done today that is essential?”
Mr. Parikh: “Kindly have a look at the photograph of 12 March 2022. They were committed to finishing hundred flats in 10 days and to give possession to all eligible persons by April 13. That was the commitment made. I was present there. Since the flats were constructed in 2012, large amount of repair work remains”
Justice Khanwilkar: “It is almost 1 year now. For maintenance and repair, it should not take so long”
Mr. Parikh: “They have paid solatium for six months, but if they have not made the flats habitable, till the flats are made habitable, they should play the solatium to these people. This outer limit of six months in view of the changed circumstances…”
Mr. Parikh: “Nobody is occupying the flat. Your lordships directed as an interim measure that you repair and then allow them to get inside. But the situation was very bad. They could not do that and there was non-compliance of that order. Nobody is in those flats. In the name of temporary shelter, they have been placed under tarpaulins”
Justice Khanwilkar: “How many people are eligible”
Mr. Bharadwaj: “We have got scrutinised around 5000 applications. Only 1027 are eligible”
Justice Khanwilkar: “How many flats you have allotted to those eligible”
Mr. Bhardwaj: “Your lordships had directed to make temporary allotments. We made that by draw of lots. Not to all 1027. It is 1027 now. The figure as it stood then, we had made allotments. Mr Parikh is correct, nobody came to occupy those flats saying that they are not habitable. So far as those 1027 applicants are concerned, bank account details of around 500 have not been furnished till date. Out of the remaining, we have paid solatium at the rate of 12,000- 2000 per month for 6 months to 370 persons”
Justice Khanwilkar: “you need to provide them provisional accommodation. That was the direction given. We also have the assurance given by the corporation. Out of this 1027, you have given provisional accommodation to how many?”
Mr. Bhardwaj: “nobody is occupying the flats…”
Justice Khanwilkar: “they are not occupying because of the inhabitable flats. The photographs which are shown to us indicate that. You cannot go and occupy the flats. There is no facility available, no proper electricity etc”
Mr. Bhardwaj: “there is an improvement today…”
Justice Khanwilkar: “it is happening for the last one year- that it is going on, it is going on. It does not take so long to make it habitable”
Mr. Bhardwaj: “in September 21 we had filed an affidavit saying that by April 30, 2022 we will give them possession. This date was mentioned by the commissioner before Mr Parikh also. Today we are on 31st March. One more month”
Justice Khanwilkar: “For those who are not eligible, there is no difficulty in that. But as regards the persons who are eligible and have not been provided provisional or permanent allotment, and the persons who have been provided provisional allotment, the accommodation is not habitable. That is the situation which seems to be on the ground. Therefore the question is, despite our orders, or rather your undertaking to the court based on which the order was passed, one year has elapsed the situation has not changed?”
Mr. Bhardwaj: “the situation has not changed to the extent that nobody has gone and occupied those flats”
Justice Khanwilkar: “They will occupy when it is habitable. No facilities are provided. Construction was done in 2012 and after 10 years you are offering premises even without proper repair, maintenance and restoration. Old flats does not matter. But the flat should be made habitable which you have not done so far. One year has elapsed’
Mr. Bhardwaj: “we will take more steps. I will try to impress what we have done so far”
Justice Khanwilkar: “those who are eligible and could not occupy the premises because the flats were inhabitable on the ground, they must be compensated. They are still staying out, and not out of choice. They are forced to go there- all of those who are eligible”
Mr. Bhardwaj: “your lordships had passed the order that they are to take possession and point out defects”
Justice Khanwilkar: “they will point out only when you give certificate that it is habitable. Which authority has certified it is habitable? We will send commissioner, court-appointed, to verify. This is arguing in circles. You have to make conditions which are conducive conditions for occupying the flats, which you have not done for one year. So the corporation must take the responsibility of this. They are staying out because of situation that you are not correcting at your end. When you certify that human habitation is possible, We will send someone then to verify. We will not just depend on his (Mr. Parikh’s) photographs”
Mr. Bhardwaj: “I agree that till somebody certifies they are habitable and all facilities are there, perhaps people may not like to go and live over there…”
Justice Khanwilkar: “Take time till April but make those premises habitable which they can immediately shift into. April is a good time because the new academic year commences and those going to school can change their addresses there”
Mr. Bhardwaj: “I will make sure, they will all be habitable before 30th April. There are 40 blocks in that area. The construction is very good. Mr Parikh also agrees. They are four storeyed flats…when we visited those blocks, we found that the field there was being used as a dumping ground by neighbours because it was vacant. That was cleared. The flats were not cleaned. They have been cleaned. They have been whitewashed. The windows and doors, which was one of the contentions because winters were there and cool breeze was coming, have now been replaced by the frame and glass has been fixed in many of the blocks. Work is going on continuously. Water problem was there in the sense that connectivity of the water…”
Justice Khanwilkar: “we don’t want the list of the problems and the solutions available. You must assure us! Your commissioner must give a certificate that all these premises are habitable. We will get somebody to inspect. The moment they are habitable, then they will shift. Then your responsibility stops and their Liability commences”
Mr. Bhardwaj: “all responsibilities will be completed till 30 April 2022. Your Lordships may send somebody on 15th of May…”
Mr. Bhardwaj: “Also, there are attempts by some people to re-occupy that space. So there was use of force. Again there is an attempt now, because some Mela is going on in the nearby Surajkund area”
Justice Khanwilkar: “that is a continuous activity by the corporation.The police force has been provided by the state?”
Justice Khanwilkar: “If you keep the debris there, there is temptation of utilising the debris again. For the same activity. Then what you will do? Again come back here? You have to remove it. It is a forest, that was your claim. You have assured us that you will undertake the exercise of afforestation of that area also”
Mr. Bhardwaj: “we have created a plant to convert the debris into bricks etc. Out of the 150 acres, yesterday the commissioner told me that debris has been removed from 10 to 15 acres. Work in that plant to convert it into bricks has started. This was stopped because that mela has started. The mela continues till 4 April. The afforestation has to be done by the forest department because they know which trees to plant. So your lordships will need to direct the forest department for plantation and giving it a shape of forest”
Mr. Bharadwaj also told the bench that around 900 provisional allotments were made.
Justice Khanwilkar: “so between 900 and 1027, there is not much difference. We will ask you to pay this compensation ex gratia till the date of allotment asking them to take possession. Your liability continues only till the date you are calling them”
Mr. Bhardwaj: “The municipal corporation is actually not well off. If the burden can be shared with the state?”
Justice Khanwilkar: “recover from the erring officials. They were responsible for this position! And the locals who have encouraged this!””
Justice Khanwilkar: “The moment we say that it is habitable and that certification is correct, their liability to shift starts. They cannot say that I will shift at my own convenience. You certify, then we will send someone for inspection and depending on that satisfaction, further instructions can be given. You certify and take responsibility that human habitation as possible…Regular maintenance work is different but the basic readiness of the premises to occupy, that itself is lacking as of now. You have to make it habitable in the sense that persons can go and start staying over there with all the basic facilities in place, like sanitary arrangements, water, light, electricity”
Mr. Bhardwaj: “At the next visit of me and my friend (Mr. Parikh), we will satisfy him that we have done the job”
Justice Khanwilkar: “If he says that then we will not nominate somebody to verify that position, if he takes that responsibility that every thing is in order”