‘Supreme’ relief for Banphoolpura residents of Haldwani by Apex court

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‘Supreme’ relief for Banphoolpura residents of Haldwani by Apex court

Dehradun , Jan 5

In a significant order giving relief to more than 50,000 residents of Banphoolpura area of Haldwani town of Uttarakhand, the Supreme Court stayed the order of the Nainital High Court regarding demolition of their  houses built on railway land. In the light of Nainital High court order, the railways had given eviction notices to the more than 4000 families to vacate their premises within a week. The residents claimed that they had been in occupation of the land for the past more than sixty years and had Aadhar card,ration card, voters Identity cards, schools, community centres, water and electricity lines, two over head water tanks, temples and mosques and a sewerage line provided by the state government. More than 50,000 residents were to be affected by the eviction orders.

Ruling against the High Court order to remove alleged encroachers within a week, the Supreme Court observed “there cannot be uprooting of 50,000 people in 7 days”.

An Apex court bench comprising Justices Sanjay Kishan Kaul and Abhay S Oka passed the order while issuing notice to the State of Uttarakhand and the Railways in a batch of special leave petitions filed against the judgment passed by a division bench of the High Court on December 20, 2022. The Court posted the matter to February 7, 2023, asking the State and the Railways to find a “practical solution”.

A double bench of the Nainital high court headed by Chief Justice R.C.Khulbe had ordered eviction on a Public Interest Litigation (PIL) filed by one Ravi Shankar Joshi. Justice R.C. Khulbe retired few days ago.  Interestingly, it was not railways but Ravi Shanker Joshi who had approached the court against people living in the area and being allegedly involved in illegal mining.

The Supreme court judges expressed concern that many of the occupants have been residing there for decades claiming rights on the basis of leases and auction purchases. ” There are two aspects of the issue. One, they claim leases. Two, they say people migrated after 1947 and the lands were auctioned. People stayed there for so many years. Some rehabilitation has to be given. There are establishments there. How can you say in seven days clear them off?”, Justice SK Kaul asked. “People say they have been there for fifty years”, Justice Oka observed.

” What is troubling us that, how do you deal with the scenario of people who have purchased the land in auction. You may acquire the land and utilise. Other is people have lived there for 50-60 years, some rehabilitation scheme has to be done, even assuming it is railway land”, Justice Kaul said. “There is a human angle to it”, the judge added.

Residents protesting against their eviction at banphoolpura locality of haldwani in Uttarakhand.

Justice Kaul pointed out that the High Court has passed the order without hearing the affected parties.  “Find out some solution. It is a human issue”, he said.

Supplementing Justice Oka, Justice Kaul said,  “The human issue arises from long periods of occupation. Maybe all of them cannot be painted with the same brush. Maybe there are different categories. But the individual cases have to be examined. Somebody will have to verify the documents”.

“It may not be correct to say that paramilitary forces have to be deployed to remove people who have been living there for decades”, Justice Oka said, taking exception to the High Court directions. During the hearing, the bench asked if there has been demarcation between the state land and the railway land. The bench also asked if it was true that the proceedings under the Public Premises Act are pending.

Additional Solicitor General of India Aishwarya Bhat submitted that the State and the railways are on the same page that the land belongs to railways. She also submitted that several orders for eviction have been passed under the Public Premises Act. Advocate Prashant Bhushan, for the petitioners, submitted that they were ex-parte orders passed during the Covid period. ASG Bhat further submitted that the petitioners claim the land of their own & that they have not sought rehabilitation.

Senior Advocate Dr.Colin Gonsalves, appearing for some of the petitioners, submitted that the possession of the land has been with the petitioners’ families since prior independence and that they have been in possession of the government leases which were executed in their favour. Senior Advocate Siddharth Luthra also asserted that many petitioners had government leases executed in favour of them. Senior Advocate Salman Khurshid stated that many properties were in “nazul” lands.

Taking note of these submissions, Justice Kaul told the State, “State of Uttarakhand has to find a practical solution”. ASG Bhati highlighted that the land was necessary for the development of the railway facilities. She stressed on the fact that Haldwani acts as a gateway for the Uttarakhand rail traffic.

After the hearing, the bench dictated the following order :  “We have heard the learned counsel for the parties. ASG has emphasised the need for the railways. The moot point to be considered whether the complete land is to vest in the railways or whether the State government is claiming a part of the land. Apart from that, there are issues of occupants claiming rights on the land as lessees or auction purchasers. We are on the way the order has been passed as there cannot be uprooting of 50,000 people in seven  days. 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.”

“We have put to the ASG that full rehabilitation of the persons in the area is needed. Issue notices. In the meantime there shall be stay of the directions passed in the impugned order. There should also be a restraint on any more construction/development on the land,” the judges ordered.

“It is stated that the names of local residents are entered in the municipal records of house tax register and that they have been paying house tax regularly for years. Further, there are five government schools, one hospital & two overhead water tanks in the area. It is further stated that the long settled physical possession of the petitioners and their ancestors, some even prior to the date of Indian independence, has been recognized by the State and its agencies and they have been given gas and water connections and even Aadhaar card numbers accepting their residential addresses,” the court observed.

Children of Banphoolpura protesting against their eveiction.

Meanwhile, the main opposition Congress party has expressed satisfaction and happiness at the judgement. “ The Congress party welcomes the judgement and again requests the state government to order regularisation of the area as done for numerous ‘malin bastis’ of the state particularly in the capital Dehradun ,” said Suryakant Dhasmana, senior Vice-President of the Uttarakhand Congress.

More interestingly, Uttarakhand Chief Minister Pushkar Singh Dhami had adopted a hands off approach in the case stating that the state government has no role in the matter as the matter was between railways and the alleged encroachers. With Apex Court issuing notices to the state government as well as the railways, it would be interesting to know whether the state BJP government which had been preparing for the demolition process would prove itself on its’ slogan of “ Sabka Saath,Sabka Vikas.”

The majority of the residents of Banphoolpura are Muslims and was an irritant for the RSS, BJP and its’ affiliate organisations. Some of the right wing groups had started comparing the struggle by the residents as another ‘Shaheen Bagh’ protest against CAA. Even one of their  ‘Sadhu’ had alleged that most of residents of Banphoolpura are ‘Rohinga’ Muslims.

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