28 Jul 2010

No human right violation for non-allotment of land: High Court

In a recently reported decision [Maharashtra Housing & Area Development Authority v. Maharashtra State Human Rights Commission, AIR 2010 Bom 104], the Bombay High Court has declared that no human rights of a citizen can be said to be violated for not having been allotted land by the Government even after having applied for the same. The High Court thus ruled that the Human Rights Commission had no jurisdiction to pass an order in such a matter.

Allowing the petition of the land alloting authority and setting aside the order of the Human Rights Commission, the High Court observed inter alia as under;

12. The Respondent No.2 though claiming rights under that contract did not sue in a Civil Court for enforcement of her right. She instead filed the Petition before the Human Rights Commission. She claims that her human rights are effected.
13. Human Rights as defined in Section 2(d) of the Protection of Human Rights Act, 1993 (the Act) means: 
The rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India .
The Universal Declaration of Human Rights set out the rights of all humans qua their residence and property thus:
Article 3: Everyone has the right to life, liberty and security of a person. Article 13(1): Everyone has the right to freedom of movement and residence within the borders of each state.
Article 17(1): Everyone has the right to own property alone as well as an in association with others.
Article 17(2): No one shall be arbitrarily deprived of his property.
14. The Respondent No.2 eloquently argued in person and urged that the right to obtain a residence by a women such as her, who is a spinster, upon performance of her part of the contract by payment of the consideration required for the allotment, is a human right because if the tenement is not allotted to her she would be shelterless and her right to life as well as dignity as a human being would be adversely effected. It is on this premise that the order impugned by MHADA as being without jurisdiction has been passed by the State Human Rights Commission under the Protection of Human Rights Act, 1993 directing MHADA to give her one tenement as aforesaid.
17. It may at once be mentioned that the right to the property which was earlier a Fundamental Right under Article 31 to the Constitution, was omitted therefrom by the 44th amendment to the Constitution (w.e.f.20th June 1979). 
18. The term Human rights itself denotes rights relating to the aspects enunciated in the definition. Hence it would be rights of humans relating to their life, liberty, equality and dignity as against the rights with regard to their properties. 
19. Such Human Rights relating to life, liberty, dignity and equality effectively come into play when the act of State by virtue of any legislation or delegated legislation is considered: to cite it was considered by the Supreme Court in the case of M/s. Shantistar Builders Vs. Narayan Khimalal Totame & Ors. (1990) 1 SCC 520 whilst upholding the Urban Land (Ceiling and Regulation) Act, 1976 as a Social legislation thus: 
The right to life would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation which would allow him to grow in every aspect physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fireproof accommodation. The growing realisation of the disparity between the increase in the home-less urban population and lack of corresponding rise in accommodation led to the passing of the Urban Land (Ceiling and Regulation) Act and acquisition of vacant sites for purposes of housing.
20. This would not apply to individual rights of parties even against the State which require to be effectuated upon contracts entered into between parties. 
21. Following the case of Shantistar Builders the Supreme Court upheld the notification of the Government under Section 17(1A) of the Land Acquisition Act upholding the urgency for grant of residential accommodation to persons from Scheduled Caste and Scheduled Tribes.In the case of Chameli Singh Vs. State of U.P. AIR 1996 SC1051 the Supreme Court observed that the right to life included the right to food, clothing and housing. Therefore State was enjoined to promote with special care the interest of weaker sections of the society. It was held that the right to residence and settlement was a Fundamental Right under Article 19(1)(c) of the Constitution and a facet of the right to life. Consequently,the planned development by way of massive housing scheme undertaken by the State as its economic policy was considered. The opportunity and facility to be provided by the State to build the houses was appraised. The infrastructure necessary to enable weaker sections to live and develop as a human being was cogitated. The requirement of having a property and capacity for acquiring property was essentially considered. The squalid residential environment which is a constant threat to health and life was required to be removed as provided in the UN Centre for human settlement by way of a global strategy. Judicial notice was taken of the condition in which weaker sections lived. Following the case of Pahwa Vs. Lt. Governor of Delhi (1985) 1 SCR 588 it was held that the notification issued under Section 17(4) of the Land Acquisition Act would be valid and could not interfered with because the urgency for providing houses to weaker sections was always urgent. It being a national problem and a constitutional obligation, it was observed that the provision for compensation to the persons whose land was acquired for being provided to weaker sections under Section 23(1) of the Land Acquisition Act was a factor which obligated urgent acquisition.
22. It can be seen that the enforcement of the right of residence as a part of the Fundamental or Human Rights can be enforced against the State under legislation or delegated legislation of the scheme. Though such a right exists the entire populace cannot claim to be given a flat or such other residence from the government under any contract sought to be entered into by them. A right under a contract is a civil right. It can be enforced against the other contracting party whose obligation is set out under the contract. Those rights are enforceable in civil Courts. Consequently for all those rights which arise under any contract or a specific statutory provision can be enforced thereunder in the appropriate forum only. It is for any aberration under State policy, government inaction or as a residuary provision where no statutory rights can be enforced though Civil Courts that the jurisdiction of the Human Rights Commission would come into play. On individual basis for contractual right such jurisdiction is not conferred upon Human Rights Commission.

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