# Raju Sahu & Ors v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2024) 3 ILRA 1835
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-06
- **Case number:** Writ-C No. 1372 of 2024
- **Bench:** Vivek Chaudhary, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raju-sahu-ors-v-state-of-u-p-ors-opp-parties-54548
- **Pages:** 13

## Headnote

C.S.C.,
Anupam
Dwivedi,
Namit
Sharma,
Ratnesh Chandra

Civil Law - Constitution of India,1950Article 226-U.P. Slum Areas (Improvement
and Clearance)Act,1962 & U.P. In-Situ
Slum Redevelopment Policy 2021-U.P.
Urban
Planning
and
Development
act,1973-Slum dwellers in Akbar Nagar
residing on government land along the
Kukrail water channel, challenged eviction
and demolition orders issued by the
Lucknow
development
Authority-They
sought quashing of these orders and
requested a proper rehabilitation schemes
1836 INDIAN LAW REPORTS ALLAHABAD SERIES
under
the
Act,1962-The
court
acknowledged that slum dwellers lack
legal
title
to
the
land
and
their
constructions are unauthorized-The LDA
initiated eviction proceedings u/s 27 of
the Act,1973 which the petitioners argued
was inapplicable to slum areas-The court
identified
a
conflict
between
two
fundamental rights under Article 21, the
right to shelter of the slum dwellers and
the right to clean drinking water of the
city's
residents-the
court
decided
to
address the matter on merits rather than
remanding it for further proceedings,
recognizing the urgency of the issueBalancing these competing interest, the
court calls for an expedited resolution
through
appropriate
rehabilitation
measures while ensuring environmental
and public health safeguards.(Para 1 to
24)

The writ petition is disposed of. .(E-6)

List of cases cited:

## Text

_Characters 0–39,879 of 44,043. This is a partial read: ask again with offset=39879 for what follows._

3 All. Raju Sahu & Ors. Vs. State of U.P. & Ors.
1835
(2) This section applies also to all
(Central Acts) made after the third day of
January, 1868, and to all Regulations made
on or after the fourteenth day of January,
1887."

18. Though the period under
consideration in the present case is of 2013,
while
the
Insurance
Regulatory
and
Development
Authority
of
India
Notification
was
issued
only
on22.06.2017 and consequently same
may not be applicable to the facts of the
present case as admittedly provisions of the
said notification are not retrospective. Even
Clause 1(i) of Section 10 of the said
notification provides that free look period
of 15 days from the date of receipt of the
policy document has to be interpreted and
as per General Clauses Act which applies to
the Central Act or the regulations made
after commencement of the said Act, and
the first day of the series of days has to be
excluded, accordingly, the first day i.e.
19.09.2013 has to be excluded.

19. Accordingly, there is no doubt
that the notification issued by the Insurance
Regulatory and Development Authority of
India has to be interpreted as per the
provisions of Section 9 of the General
Clauses Act which establishes fundamental
foundation for interpretation of legislation.
The 15 day period as provided in Clause 10
of the Notification dated 22.06.2017 is
subjected to Section 9 of the General
Clauses Act and consequently the first day
in the series of the days has to be excluded,
as provided in Section 9 of the General
Clauses
Act.
Undisputedly,
statutory
provision shall prevail over the regulations
framed by the Central Government.

20. In the light of above, the
Permanent Lok Adalat rightly determined
the period of free look from 19.09.2023 to
04.10.2013 being of 15 days and not 16
days as canvassed by the petitioner. No
other ground has been urged by the
petitioner.

21. Accordingly, this Court does
not find any merit in the contentions raised
by learned counsel for the petitioner. The
writ petition being devoid of merits is
dismissed.
----------
(2024) 3 ILRA 1835
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.03.2024

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-C No. 1372 of 2024
Along with other connected cases

Raju Sahu & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioners:
Amrit Khare, Aishvarya Mathur, Apoorva Tewari,
Kazim Ibrahim, P.C. Maurya

Counsel for the Opp. Parties:
C.S.C.,
Anupam
Dwivedi,
Namit
Sharma,
Ratnesh Chandra

Civil Law - Constitution of India,1950Article 226-U.P. Slum Areas (Improvement
and Clearance)Act,1962 & U.P. In-Situ
Slum Redevelopment Policy 2021-U.P.
Urban
Planning
and
Development
act,1973-Slum dwellers in Akbar Nagar
residing on government land along the
Kukrail water channel, challenged eviction
and demolition orders issued by the
Lucknow
development
Authority-They
sought quashing of these orders and
requested a proper rehabilitation schemes
1836 INDIAN LAW REPORTS ALLAHABAD SERIES
under
the
Act,1962-The
court
acknowledged that slum dwellers lack
legal
title
to
the
land
and
their
constructions are unauthorized-The LDA
initiated eviction proceedings u/s 27 of
the Act,1973 which the petitioners argued
was inapplicable to slum areas-The court
identified
a
conflict
between
two
fundamental rights under Article 21, the
right to shelter of the slum dwellers and
the right to clean drinking water of the
city's
residents-the
court
decided
to
address the matter on merits rather than
remanding it for further proceedings,
recognizing the urgency of the issueBalancing these competing interest, the
court calls for an expedited resolution
through
appropriate
rehabilitation
measures while ensuring environmental
and public health safeguards.(Para 1 to
24)

The writ petition is disposed of. .(E-6)

List of cases cited:

1. Paryavaran Suraksha Samiti & anr. Vs U.O.I.
& ors. (2020) SCC OnLine NGT 1337

2. Delhi Development Authority & ors. Vs Joint
Action Committee, Allottee of SFS Flats & ors.,
(2008) 2 SCC 672

3. Subhash Kumar Vs St.of Bih. & ors. (1991) 1
SCC 598

4. Vellore Citizens Welfare Forum Vs U.O.I. &
ors. (1996) 5 SCC 647

5. Delhi Water Supply & Sewage & anr. Vs St. of
Haryana & ors. (1996) 2 SCC 572

6. M.C Mehta Vs Kamal Nath & ors. (1997 ) 1
SCC 388

7. A.P. Pollution Control Board II Vs Prof. M.V.
Nayudu (Retd.) & ors. (2001) 2 SCC 62

8. Narmada Bachao Andolan Vs U.O.I. & ors.
(2000) 10 664

9. M.C. Mehta Vs U.O.I. & ors., (2004) 12 SCC
118
10. Olga Tellis & ors. Vs Bombay Municipal
Corp. & ors. (1995) 3 SCC 545

11. Ahmedabad Municipal Corp. Vs Nawab Khan
Gulab Khan & ors. (1997) 11 121

12. St.of Kar. Vs Umadevi (3) (2006) 4 SCC 1 :
SCC (L&S) 753 : 2006 SCC Online SC 407

(Delivered by Hon'ble Vivek Chaudhary, J.
& Hon'ble Om Prakash Shukla, J.)

1. This is a bunch of writ petitions
filed by the slum dwellers of slum area
known as Akbar Nagar-1 and 2 challenging
the demolition orders issued by the
Lucknow
Development
Authority
(hereinafter referred to as 'the LDA') and
for quashing the rehabilitation scheme
framed by the LDA. They also pray for a
direction to be issued to the respondents to
prepare and implement a rehabilitation
scheme in accordance with the provisions
of the U.P. Slum Areas (Improvement and
Clearance) Act, 1962 (hereinafter referred
to as 'the Act of 1962') read with the U.P.
In-Situ Slum Redevelopment Policy, 2021.
2. Leading Writ-C No.1372 of
2024 "Raju Sahu and others vs State of UP
and others" was filed as one of the last
cases, when hearing had started, and on the
request of Sri J.N. Mathur, learned Senior
Counsel for petitioners, the same was taken
up as the leading case, as it contained all
grounds raised by the petitioners in this
bunch. It was agreed that the counter
affidavit filed by the LDA in the earlier
leading writ petition will be read in the
present petition also. It was also agreed that
the questions raised in this leading case are
mainly questions of law and further counter
affidavit, thus, would not be required.
Parties also agreed that broadly the facts
are
admitted
between
the
parties.
Therefore, Writ-C No.1372 of 2024 is
taken up as the leading case. Still any and
3 All. Raju Sahu & Ors. Vs. State of U.P. & Ors.
1837
all further affidavits and documents filed by
the parties during course of hearing were
accepted, as rights of large number of
persons under Article 21 are involved.
Further,
this
Court
also
permitted
interlocutory
applications
instead
of
separate petitions to be filed on behalf of
residents of Akbar Nagar slums looking
into their weak financial position. These
applicants are also treated as petitioners in
the writ petitions with the same benefits as
available to these petitioners.

3. We have heard Sri J.N. Mathur,
learned Senior Counsel assisted by Sri
Apoorva Tiwari and Ms. Aishvarya Mathur,
Sri Amrit Khare, Sri Kazim Ibrahim, Sri
Gaurav Mehrotra, Ms. Maria Fatima, Utsav
Mishra, Ms. Pushpila Bisht, Sri Akshay
Kumar Singh, Sri Mudit Agarwal, Sri
Amrendra Nath Tripathi, Sri Shakeel
Ahmad Jamal, Sri Amiruddin Khan, Sri
Shitla Prasad Tripathi, Sri Shahid Raza, Sri
Raj Kumar Singh Suryavanshi, Ms. Shweta
Shukla, Sri Shadab Haider, Sri P.C.
Maurya, Sri Anshuman Srivastava, Sri
Mohd. Murtaza Hasan, Ms. Sadiya Khan,
Sri Ruved Kamal Kidwai, Sri Pawan
Kumar Dwivedi, Sri Anupam Bajpai, Ms.
Shradha Mishra, Sri Gibran Akhtar Khan,
Sri Inam Uddin Ahmad, Sri Akber Ahmad,
Sri Harsh Vardhan Kediya, Sri Alok
Kumar, Sri Pradeep Kumar Srivastava, Sri
Rinku Verma, Sri Rajat Srivastava, Sri
Ayush Srivastava, Ms. Nandini Verma, Ms.
Surabhi Rawat, Ms. Jyoti Rajpoort, Sri
Rehan Ahmad Siddiqui, Ms. Nisha Tiwari,
Sri Sachida Nand, Sri Mohd. Salman, Ms.
Gursimran Kaur, Sri Karan Agarwal, Sri
Sheeran Mohiuddin Alavi, Sri Mohd.
Mohsin and Sri Ausaf Ahmad Khan,
learned counsel for the petitioners. Sri
Sudeep Kumar, Sri Anuj Kudesia, Sri
Ratnesh Chandra, Sri Ishan Singh Popli,
learned counsel for the LDA, Sri Namit
Sharma assisted by Ms. Priyanka Vikram
Singh, learned counsel for the Nagar
Nigam, Lucknow and Sri Shailendra
Kumar Singh, learned Chief Standing
Counsel assisted by Sri Pratyush Chaube
appearing for the State-respondents are
heard for the respondents.

4. The admitted facts between the
parties are, that, Kukrail water channel
originates from Village Asti, Tehsil Bakshi
Ka Talab, District Lucknow and merges in
Gomti river. Whether to call it a river or
nala is a dispute between the parties, but, it
does not impact the merits of the case. For
convenience, the same is referred to as
'Kukrail Water
Channel'. This
water
channel initially carries neat and clear
water, but, slowly and steadily, including
around disputed Akbar Nagar area, open
drains are let loose in the same and it starts
converting into an urban open sewer, and
ends in River Gomti. It is also accepted to
all that this water of River Gomti is
supplied as drinking water to nearly entire
Lucknow. Petitioners, slum dwellers, over a
long period of time have unauthorizedly
occupied the banks of Kukrail water
channel
and
raised
these
disputed
constructions. They all accept that they do
not have any title to the land occupied by
them and undisputedly, land belongs to the
Government,
accordingly,
their
constructions
are
also
without
any
approval, thus illegal. This fact is accepted
to all counsel for the petitioners. However,
Sri A. A. Khan, Advocate also raised an
alternative argument regarding title to land
in a few of his cases. Proceedings for their
eviction, by a notice under Section 27 of
the U.P. Urban Planning and Development
Act, 1973 (for short 'the Act of 1973'), were
initiated by the Vice Chairman of the LDA.
He rejected the objections filed by the
petitioners and passed orders for eviction.
1838 INDIAN LAW REPORTS ALLAHABAD SERIES
The same were challenged by way of
appeals before the Chairman, LDA, who
also is Commissioner, Lucknow. The
Chairman also rejected the appeals filed by
the petitioners. Thus, both these orders are
challenged by petitioners before this Court.
In some cases, petitioners have approached
this Court, without filing any appeal,
against the order of Vice Chairman only.
All these matters thus are clubbed together
in this bunch for hearing.

5. Leading arguments for the
petitioners are made by Sri J.N. Mathur,
learned Senior Counsel assisted by Sri
Apoorva Tiwari and Ms. Aishvarya Mathur,
and other learned counsel have adopted the
same. Sri Ausaf Ahmad Khan, Advocate
has also made an additional alternative
submission
on
behalf
of
petitioners
represented by him.

6. Sri Mathur submits that
proceedings could only be held under the
Act of 1962, as the same is a special Act for
slum areas. The procedure provided in the
said Act of 1962 has to be followed by the
competent authority provided therein. Sri
Mathur submits that violating the same,
proceedings against petitioners are held
under Section 27 of the Act of 1973. He
further submits that even presuming the Act
of 1962 is not applicable, in such a case,
proceedings could only be initiated under
Section 26-A(4) of the Act of 1973 and not
under Section 27 of the same. Making a
distinction, Sri Mathur submits that Section
27 is with regard to demolition of illegal
constructions while Section 26-A(4) is
specifically for slum areas and in the
present case, admittedly, the disputed
constructions exist in Akbar Nagar slum.

7. Further elaborating the said
argument, Sri Mathur submits that the
entire proceedings held under Section 27 of
the Act of 1973 are not only without
jurisdiction, but also amounts to colourable
exercise of power. Lastly, Sri Mathur
submits that the procedural integrity in the
present proceedings held under Section 27
of the Act of 1973 is also grossly violated
by the authorities concerned. He submits
that neither at the initial stage the Vice
Chairman of the LDA nor at the appellate
stage
its
Chairman
conducted
the
proceedings in a fair and proper manner.
They did not provide proper opportunity of
hearing
to
the
petitioners,
as,
the
documents submitted by the respondents at
both stages, without providing any copy to
the petitioners, were accepted and relied
upon while passing the orders by both the
authorities. Hence, Sri Mathur submits that
neither the procedure prescribed under the
Act of 1962, which was applicable, was
followed nor the procedure prescribed
under Section 26-A(4) of the Act of 1973,
alternatively applicable on the slums, was
followed and, further, the procedure which
was followed under Section 27 of the said
Act too was violative of the principles of
natural justice. He strongly submits that
since procedural integrity of the entire
proceedings is seriously violated, therefore,
this Court is bound to interfere in the
matter
and
remand
the
same
with
appropriate directions to an appropriate
authority.

8. Sri Ausaf Ahmad Khan,
Advocate, while adopting submissions of
Sri Mathur, also raised a desperate alternate
submission that the land in dispute belongs
to an old Abadi of a revenue village and
thus, petitioners have title on the said land.
We do not find any force in this alternative
submission and out-rightly reject the same.
Only document submitted by Mr. Khan in
support of his argument is a Khatauni of
3 All. Raju Sahu & Ors. Vs. State of U.P. & Ors.
1839
1332 fasli (year 1925) of Mohal Mahanagar
Mauja Mahanagar Rahim Nagar, Pargana,
Tehsil and District Lucknow. Now, both,
Rahim Nagar and Akbar Nagar are two
separate distinct localities in Lucknow.
Further, a perusal of the only Khatauni filed
by Mr. Khan shows that Gata no.747 area
0-14-0 (14 biswa) is recorded as Abadi
including road and houses etc., and
thereafter, Gata no.746, area 2-15-0 (2
Bigha 15 Biswa) is recorded as Road. A
village map is also filed, which shows a
road having certain Khasra numbers. Even
the name of the road is not given in the
map. Admittedly, Akbar Nagar 1 and 2
occupy much larger area than the Abadi
area shown in the Khatauni of 1332 fasli.
Further, there is no manner in which
petitioners could show that it is the same
old Abadi, which was there in the year
1925. No document of last 100 years to
prove the title is filed. If the properties
belong to an Abadi land for the last 100
years, there would certainly be mutation
orders or ownership documents of the said
land,
including
appropriate
sale
deeds/transfer deeds/succession documents
executed from time to time. It is not
possible that not even a single document is
available with the petitioners with regard to
their title. Further, no other person, except
for the petitioners represented by Sri Ausaf
Ahmad Khan, has raised this argument.
Thus, since no documents of title are filed,
we reject this alternative submission made
by Mr. Khan.

9. Opposing the petitioners, Sri
Sudeep Kumar along with Sri Anuj
Kudesia, Advocate led the submissions for
respondents. They submit that admittedly
this slum, know as Akbar Nagar-1 and 2, is
existing on the banks of Kukrail water
channel, that merges in River Gomti, which
supplies drinking water to nearly entire
Lucknow. The population of Lucknow at
present is approximately fifty lacs with
additional few lacks of floating population
visiting every day. All the drains of this
slum, containing all its waste including
faecal matter, are let loose in this Kukrail
water channel, which flows to river Gomti,
main supply source of drinking water to
people of Lucknow. Respondents submit
that clean drinking water is held to be a
fundamental right under Article 21 of the
Constitution of India and, thus, since
fundamental rights of a large number of
residents of Lucknow are involved, hence,
it is incumbent that Kukrail water channel
be kept clean, and thus, around 1158
constructions raised by the petitioners are
required to be removed. They further
submit that the LDA has already proposed a
policy for rehabilitation, by providing
appropriate
alternative
accommodation
and, thus, rights of all these persons under
Article 21 of the Constitution of India, of
an alternative place to live, are duly
protected. In support, they also rely upon
the judgment and order dated 26.09.2020
passed in Paryavaran Suraksha Samiti
and Another versus Union of India and
Others, 2020 SCC OnLine NGT 1337.

10. Thus, respondents conclude by
emphasizing, that, since it is not merely a
case where the fundamental rights under
Article 21 of the petitioners for a place to
live is involved, but, also vis-a-vis them,
the right to clean drinking water, also a
fundamental right under Article 21, of
every resident and visitor of Lucknow is
involved. These effected residents are not
even representing before this Court or any
authority, except, through the respondent
State authorities. Therefore, they submit,
that, the present matter cannot be decided
merely on procedural technicalities. Once a
dispute between fundamental rights of two
1840 INDIAN LAW REPORTS ALLAHABAD SERIES
separate groups is involved, this Court
alone has power to decide the same. Hence,
conclude respondents, that this Court
should consider the matter on merits and
decide the rights of the effected people
finally
and
conclusively,
instead
of
remanding the same.

11. We have considered the
submissions made by the parties. National
Green Tribunal in Paryavaran Suraksha
Samiti (supra) has referred to the report of
OC dated 16.9.2020 and issued directions,
relevant part of which reads:

"22. In O.A. 673/2018, a separate
report has been filed by the Oversight
Committee constituted by this Tribunal for
the
State
of
UP
making
following
recommendations:
.....
General Recommendations:
23. Encroachment along drains : At
many places in the State there are
encroachments in the flood plains of
drains. For example more than 300- 400
encroacher households are living in the
flood plain of Kukrail drain in Lucknow
city. In the absence of any regular toilet
facilities, their faecal matter/grey water is
washed away directly in the river Gomti,
which also supplies drinking water to
Lucknow city. The State government needs
to
take
steps
for
removing
such
encroachments on priority by rehabilitating
these households under the "Housing for
All" programme.
32. Monitoring Mechanism: The
Committee finds that a number of problems
are coordination problems among various
departments. Such issues can easily be
resolved if there is a regular monthly
meeting
at
the
CS
level,
which
unfortunately
is
not
happening.
The
Committee requests the CS to hold a
monthly monitoring meeting as laid down
in the monitoring framework submitted by
the State Govt. before NGT."

12. The National Green Tribunal
further observed:

"Going Forward
24. We have duly considered the
CPCB, CMC and OC reports as above and
noted the gaps and recommendations. We
accept
the
recommendations
of
the
Committees already quoted above that the
States should furnish quality information
and comply with the directions of this
Tribunal
in
terms
of
orders
dated
06.12.2019 and 29.06.2020. The violation
of mandate of 100% treatment of sewage
may be visited with the assessment and
recovery of compensation and violation of
timelines for setting up of pollution control
devices may also be likewise strictly
enforced with the compensation regime in
place. There is also need for fully utilizing
and augmenting the existing infrastructure
as already noted above.
25. The States/UTs may consider
using HAM as a business model as well as
OCOP concept, FSSM Policy, alternative
models for treatment of sewage/faecal
sludge, decentralized STPs and also
strengthen the online monitoring system.
We are also of the view that flood plain
zones of all the rivers need to be mapped
and
demarcated
and
encroachments
removed therefrom. The same be utilized
for plantation, creation of bio-diversity
parks and constructed wetlands or other
recreational purposes, consistent with the
environmental concern. We agree with the
OC that river side mining needs to be
regulated. To reduce the timelines for
setting up of STPs, many States/UTs are
consuming
time
in
preparing
DPRs
whereas model DPRs. can be prepared and
3 All. Raju Sahu & Ors. Vs. State of U.P. & Ors.
1841
used for shortening the timelines. Similarly,
SOPs need to be prepared for the timeline
to be taken in setting up of STPs as well as
for maintenance and operation of existing
STPs particularly those not meeting the
norms. Number of monitoring stations also
needs to be suitably increased. We are also
of the view that the State RRCs must
function
effectively
and
the
Chief
Secretaries must hold monthly meetings as
it is found from the report of the OC for the
State of UP that the Chief Secretaries may
not be doing so. Huge failures of the
States/UTs may show poor governance as
far as environment is concerned which may
need to be remedied. As found by the CMC,
neither
delay
is
explained
nor
accountability is fixed for the failure of the
concerned officers which is not a happy
situation.
V. Directions
36. Accordingly, we issue following
directions:
.....
v. It must be ensured that no
untreated sewage/effluent is discharged
into any water body. Prompt remedial
action may be taken by the State
PCBs/PCCs
against
non-compliant
ETPs/CETPs by closing down or restricting
the effluents generating activity, recovering
compensation and taking other coercive
measures following due process of law.
vi. Directions outlined in Paras 2426 herein may be implemented by the
States/ UTs,and their compliance monitored
by the Chief Secretaries at the State level,
and the CMC at the National level."

13. The National Green Tribunal
as far back as in the year 2020 found
existence of the Akbar Nagar slums as a
serious ecological issue impacting supply
of clean drinking water to Lucknow city
and had asked for its removal, which is
pending even after four years till now. The
matter requires urgent attention. Similarly,
petitioners also are entitled to get their
rights decided once for all to settle and
proceed in life without any threat of
eviction looming upon them. Thus, looking
into the urgency and also the nature of
dispute involved, we take up these matters
on merit instead of remanding them to any
authority. We find it appropriate, at this
stage, to refer to the words of Supreme
Court in Delhi Development Authority and
others v. Joint Action Committee, Allottee
of SFS Flats and others, (2008) 2 SCC
672:

"42. While acting as "State" within
the
meaning
of
Article
12
of
the
Constitution of India, it is imperative that
DDA, while implementing its statutory
power, upholds the fundamental rights of
the citizens and strives hard to give effect to
the directive principles of the State policy.
We, however, cannot also shut our eyes to
the fact that in terms of Article 37 of the
Constitution
of
India
whereas
the
provisions of Part III are justiciable, the
provisions of Part IV are not. Only when an
action of the State is taken to give effect to
any of the provision of Part IV of the
Constitution of India which is not otherwise
ultra vires the Constitution or offends the
principles embodied in Part III of the
Constitution of India, the same may be
upheld, having regard to the provisions
contained in Part III thereof. The action of
the State, therefore, must at the first
instance be adjudged on the touchstone of
the principles of fundamental rights and
then the provisions contained in the
parliamentary Act, the regulations framed
thereunder as also the terms of the
contract entered into by and between the
parties."
1842 INDIAN LAW REPORTS ALLAHABAD SERIES
14. Right to live under Article 21
is elaborated upon in a large number of
judgments of the Courts. The Supreme
Court has held that Article 21 includes
within its sphere right to live with human
dignity. It would include all aspects that
make life meaningful, complete and worth
living. The right to food, water, decent
environment, education, medical care and
shelter are some of its aspects. Thus, both,
right of a proper shelter as well as right to
neat and clean drinking water is covered by
Article 21.

15. Some of the judgments wherein
Supreme Court has considered the right to
clean drinking water are:

Subhash Kumar vs. State of Bihar
and others (1991) 1 SCC 598, paragraph 7
:
"Right to live is a fundamental
right under Article 21 of the Constitution
and it includes the right of enjoyment of
pollution-free water and air for full
enjoyment of life."
Vellore Citizens' Welfare Forum v.
Union of India and others (1996) 5 SCC
647, paragraph 16:
"16.
The
constitutional
and
statutory provisions protect a person's right
to fresh air, clean water and pollution-free
environment, but the source of the right is
the inalienable common law right of clean
environment......."
Delhi Water Supply and Sewage
and another vs State of Haryana and
others (1996) 2 SCC 572:
"1. Water is a gift of nature.
Human hand cannot be permitted to
convert this bounty into a curse, an
oppression. The primary use to which
water is put being drinking, it would be
mocking nature to force the people who live
on the bank of a river to remain thirsty,
whereas others incidentally placed in an
advantageous position are allowed to use
the water for non-drinking purposes. A
river has to flow through some territory;
and it would be travesty of justice if the
upper-riparian States were to use its water
for purposes like irrigation, denying the
lower-riparian States the benefit of using
the water even for quenching the thirst of
its residents."
M.C. Mehta v. Kamal Nath and
others (1997) 1 SCC 388:
"34. Our legal system - based on
English common law - includes the public
trust doctrine as part of its jurisprudence.
The State is the trustee of all natural
resources which are by nature meant for
public use and enjoyment. Public at large is
the beneficiary of the sea-shore, running
waters, airs, forests and ecologically
fragile lands. The State as a trustee is
under a legal duty to protect the natural
resources. These resources meant for public
use cannot be converted into private
ownership."
"A.P. Pollution Control Board II
v. Prof. M.V. Nayudu (Retd.) and others
(2001) 2 SCC 62:
"3. Drinking water is of primary
importance in any country. In fact, India is
a party to the resolution of the UNO passed
during
the
United
Nations
Water
Conference in 1977 as under:
"All people, whatever their stage of
development and their social and economic
conditions, have the right to have access to
drinking water in quantum and of a quality
equal to their basic needs."
Thus, the right to access to
drinking water is fundamental to life and
there is a duty on the State under Article 21
to provide clean drinking water to its
citizens.
4. Adverting to the above right
declared in the aforesaid Resolution, in
3 All. Raju Sahu & Ors. Vs. State of U.P. & Ors.
1843
Narmada Bachao Andolan v. Union of
India [(2000) 10 SCC 664 : (2000) 7 Scale
34] (Scale at p. 124 : SCC p. 767, para
248), Kirpal, J. observed:
"248. Water is the basic need for
the survival of human beings and is part of
the right to life and human rights as
enshrined in Article 21 of the Constitution
of India...."
.....
44. Coming to the provisions of the
Water Act, 1974, it is clear that in view of
sub-sections 2(e), 2(k) read with Sections
17 and 18 of the Water Act, the
fundamental objective of the statute is to
provide clean drinking water to the citizens.
Having laid down the policy prohibiting
location of any industries within 10 km
under GO No. 111 dated 8-3-1996, the
State could not have granted exemption to
the 7th respondent Industry, nor to any
other industry, from any part of the main
GO No. 111 dated 8-3-1996. Section 19
permitted
the
State
to
restrict
the
application of the Water Act, 1974 to a
particular area, if need be, but it did not
enable the State to grant exemption to a
particular
industry
within
the
area
prohibited
for
location
of
polluting
industries. Exercise of such a power in
favour of a particular industry must be
treated as arbitrary and contrary to public
interest and in violation of the right to
clean water under Article 21 of the
Constitution of India.
45. The above reasoning given by
us does not mean that exemption can be
given to all industries within a particular
radius of the reservoirs unmindful of the
possible danger of pollution to the lakes. In
fact, exemption granted even to a single
major hazardous industry may itself be
sufficient to make the water in the
reservoirs totally unsafe for drinking water
purposes. The Government could not pass
such orders of exemption having dangerous
potential, unmindful of the fate of lakhs of
citizens of the twin cities to whom drinking
water is supplied from these lakes. Such an
order of exemption carelessly passed,
ignoring the "precautionary principle",
could be catastrophic."
Narmada
Bachao Andolan v.
Union of India and others (2000) 10 SCC
664:
"248. Water is the basic need for
the survival of human beings and is part of
the right to life and human rights as
enshrined in Article 21 of the Constitution
of India and can be served only by
providing source of water where there is
none. The resolution of UNO in 1977 to
which India is a signatory, during the
United Nations Water Conference resolved
unanimously inter alia as under:
"All people, whatever their stage of
development and their social and economic
conditions, have the right to have access to
drinking water in quantum and of a quality
equal to their basic needs.""
M.C. Mehta v. Union of India and
others, (2004) 12 SCC 118:
"46. Further, by the Forty-second
Constitutional Amendment, Article 48-A
was inserted in the Constitution in Part IV
stipulating that the State shall endeavour to
protect and improve the environment and to
safeguard the forest and wildlife of the
country. Article 51-A, inter alia, provides
that it shall be the duty of every citizen of
India to protect and improve the natural
environment including forest, lakes, rivers
and wildlife and to have compassion for
living creatures. Article 47 which provides
that it shall be the duty of the State to raise
the level of nutrition and the standard of
living and to improve public health is also
relevant in this connection. The most vital
necessities, namely, air, water and soil,
having regard to right to life under Article
1844 INDIAN LAW REPORTS ALLAHABAD SERIES
21 cannot be permitted to be misused and
polluted so as to reduce the quality of life
of others. Having regard to the right of the
community at large it is permissible to
encourage the participation of amicus
curiae, the appointment of experts and the
appointments of Monitory Committees. The
approach of the Court has to be liberal
towards ensuring social justice and
protection of human rights. In M.C.
Mehta v. Union of India [(1987) 4 SCC
463] this Court held that life, public
health and ecology has priority over
unemployment and loss of revenue. The
definition of "sustainable development"
which Brundtland gave more than 3
decades back still holds good. The phrase
covers the development that meets the
needs
of
the
present
without
compromising the ability of the future
generation to meet their own needs. In
Narmada Bachao Andolan v. Union of
India [(2000) 10 SCC 664] this Court
observed that sustainable development
means the type or extent of development
that can take place and which can be
sustained by nature/ecology with or without
mitigation. In these matters, the required
standard now is that the risk of harm to
the environment or to human health is to
be decided in public interest, according to
a
"reasonable
person's"
test.
[See
Chairman Barton: The Status of the
Precautionary Principle in Australia (Vol.
22, 1998, Harv. Envtt. Law Review, p. 509
at p. 549-A) as referred to in para 28 in
A.P. Pollution Control Board v. Prof. M.V.
Nayudu [(1999) 2 SCC 718] .]

16. Similarly, the Supreme Court
has also considered, in a large number of
cases, rights of the slum dwellers in
unauthorized occupation of Government
land. Some of them are:

Olga Tellis and others vs. Bombay
Municipal Corporation and others (1985)
3 SCC 545, paragraph-57:
"57. To summarise, we hold that no
person has the right to encroach, by
erecting a structure or otherwise, on
footpaths, pavements or any other place
reserved or earmarked for a public purpose
like,
for
example,
a
garden
or
a
playground; that the provision contained in
Section 314 of the Bombay Municipal
Corporation Act is not unreasonable in the
circumstances of the case; and that, the
Kamraj Nagar Basti is situated on an
accessory road leading to the Western
Express Highway. We have referred to the
assurances given by the State Government
in its pleadings here which, we repeat, must
be made good. Stated briefly, pavement
dwellers who were censused or who
happened to be censused in 1976 should be
given, though not as a condition precedent
to their removal, alternate pitches at
Malavani or, at such other convenient place
as the Government considers reasonable
but not farther away in terms of distance;
slum dwellers who were given identity
cards and whose dwellings were numbered
in the 1976 census must be given alternate
sites for their resettlement; slums which
have been in existence for a long time, say
for twenty years or more, and which have
been improved and developed will not be
removed unless the land on which they
stand or the appurtenant land, is required
for a public purpose, in which case,
alternate sites or accommodation will be
provided to them; the "Low Income Scheme
Shelter Programme" which is proposed to
be undertaken with the aid of the World
Bank will be pursued earnestly; and, the
"Slum upgradation Programme (SUP)"
under which basic amenities are to be given
to slum dwellers will be implemented
without delay. In order to minimise the
3 All. Raju Sahu & Ors. Vs. State of U.P. & Ors.
1845
hardship involved in any eviction, we direct
that the slums, wherever situated, will not
be removed until one month after the end of
the current monsoon season, that is, until
October 31, 1985 and, thereafter, only in
accordance with this judgment. If any slum
is required to be removed before that date,
parties may apply to this Court. Pavement
dwellers, whether censused or uncensused,
will not be removed until the same date viz.
October 31, 1985."
Ahmedabad
Municipal
Corporation vs. Nawab Khan Gulab Khan
and others (1997) 11 SCC 121, paragraph31:
"31. It is true that in all cases it
may not be necessary, as a condition for
ejectment of the encroacher, that he should
be
provided
with
an
alternative
accommodation at the expense of the State
which if given due credence, is likely to
result in abuse of the judicial process. But
no
absolute
principle
of
universal
application would be laid in this behalf.
Each case is required to be examined on
the given set of facts and appropriate
direction or remedy be evolved by the court
suitable to the facts of the case. Normally,
the court may not, as a rule, direct that the
encroachers should be provided with an
alternative
accommodation
before
ejectment when they encroached public
properties, but, as stated earlier, each case
requires examination and suitable direction
appropriate
to
the
facts
requires
modulation.
Considered
from
this
perspective, the apprehensions of the
appellant are without force."

17. The aforesaid judgments
clearly demonstrate that right to have a
proper shelter overhead and right to neat
and clean drinking water both are held by
the Supreme Court as fundamental rights
covered by Article 21 of the Constitution of
India. In the present case, it is clear that
petitioners do have a fundamental right to
proper shelter over their head fit for human
living. Similarly, more than fifty lac
residents
of
Lucknow
also
have
a
fundamental right to neat and clean
drinking water.

18. Thus, the fundamental right of
large number of petitioners for a habitable
living place is in contest with the
fundamental right of many times more
larger number of residents of Lucknow,
including petitioners. In the case of State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1
: 2006 SCC (L&S) 753 : 2006 SCC
OnLine SC 407, Supreme Court has held:

"51.
........
In
the
name
of
individualising justice, it is also not
possible
to
shut
our
eyes
to
the
constitutional scheme and the right of the
numerous as against the few who are before
the court. The directive principles of State
policy have also to be reconciled with the
rights available to the citizen under Part III
of the Constitution and the obligation of the
State to one and all and not to a particular
group of citizens."

19.

Thus,
in
the
given
circumstances, the rights of these two
groups are to be settled in the best possible
manner. The Courts have repeatedly
emphasized and upheld the necessity of
clean environment including clean water. It
is regarded as our duty towards future
generations to come. No individual or
group of persons can be permitted to
violate the same. The NGT has duly noted
the same and emphasized for action. The
right of clean drinking water of the present
and
future
generations
of
Lucknow,
therefore, has to be protected. On the other
hand, petitioners before this Court are
1846 INDIAN LAW REPORTS ALLAHABAD SERIES
unauthorized occupants of government
land, without any right on the same. At
best, all they can claim is an alternative
place to live. The respondent authority has
already offered a rehabilitation policy
under which all the BPL persons are being
offered
appropriate
flats
made
for
Economically Weaker Section (EWS) on
production of their ration card or other
appropriate documents, proving that they
belong to BPL category. Under the said
policy, the flats with market value of Rs.15
lacs are being provided under 'Pradhan
Mantri Awas Yojana' at the cost of Rs.4.18
lacs only to the petitioners. It is further
provided in the said policy that on a
registration fee of Rs.5,000, possession of
the flats would be provided. The remaining
amount is to be paid in equal monthly
installments within a period of ten years.
Thus, a person is to pay only Rs.4,000 per
month for the said flat. The policy further
provides that the persons not belonging to
BPL category would also be offered
appropriate flats for which, payment can be
made in easy installments. Thus, the
fundamental right of the petitioners is also
protected by the respondent authorities.
Similarly other persons, not belonging to
BPL
category,
are
also
offered
rehabilitation accommodation.

20. Sri Gaurav Mehrotra, and some
other counsel for petitioners submit that
since it is a sudden shifting in duress there
might be persons who may have some
difficulty in paying initial Rs.5,000 or
Rs.4,800 every month or complete their
installment in ten years. He further submits
that there may be some persons, who may
not be falling in the BPL category entitled
for EWS flats, but they may still not be in
such a financial situation to buy a better
flat. He prays that the benefit of EWS flats
should be made available to all those
persons being rehabilitated who apply for
the same.

21. We find some force in the said
submission of the petitioners. It is,
therefore, provided that any person being
rehabilitated from Akbar Nagar slums
applying for EWS accommodation, shall be
provided such an accommodation. Further,
we find that these persons applying for
EWS flats may face some financial
constraints also. We, therefore, provide that
EWS flats shall be provided on initial
registration deposit of Rs.1,000 instead of
Rs.5,000.