[Right To Shelter] Even Encroachers Are Protected From State Action Which Violates Procedure Established By Law
Case: Suresh Tirkey v The Governor With Connected Matters
Coram: Justices Shree Chandrashekhar and Ratnaker Bhengra
Case No.: LPA No. 143 of 2022
Court Observation: “The right to shelter is a fundamental right of every citizen under the Constitution and any infraction of this right by State action must invite judicial intervention to protect the occupants of a dwelling house. Across the world, the law recognises rights of even an encroacher to be protected from State action which is not in consonance with the procedure established by law. Except in a very few exceptional kind of cases such as encroachments on public roads and pavements, the issue of illegal constructions and encroachments is not a simple one and invariably the Courts are confronted with contentious issues which cause delays in rendering decisions. But then, this is the procedure in law we have chosen for ourselves.”
“it becomes clear that the Municipal Commissioner or the Executive Officer shall have powers to remove any encroachment and obstruction over street, park etc. However, there is no procedure prescribed under the Jharkhand Municipal Act, 2011 for removing encroachment from other municipal properties . Therefore, RMC is required to follow the rules of natural justice even where there is no dispute as regards right, title and interest over the encroached lands.”
“The expression due process of law may take different colors in different situations but when such expression is used to question ejectment from settled possession the stated expression would mean that a person in settled possession cannot be ejected without a Court of law having adjudicated upon his rights qua true owner.”
“No such power for removing the encroachments over the municipal property by a simple notice has been conferred by the Legislature either to the Municipal Commissioner or the Chief Executive Officer or any other officer of the municipality, except acting in accordance with the procedure established by law.”
“In a country like India which professes high democratic values, the Constitution of India stands like a lighthouse illuminating life aspirations of the people of India that every State action must follow the procedure established by law. RMC being an instrumentality of the State under Article 12 of the Constitution of the India is governed by the rule of law in a welfare State and cannot arrogate to itself a status beyond what is provided by the Constitution.
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