“It's A Human Issue”

The Supreme Court on Thursday stayed an order of the Uttarakhand High Court, where it had allowed the use of force to evict 4,000 families living on what the Railways claims is its land in Uttarakhand's Haldwani.

The High Court order had made almost 50,000 vulnerable and facing the prospect of being left homeless in the middle of the harsh North Indian winter. The Supreme Court order comes as a major relief for residents who have been holding candle marches, sit-ins and prayers to stop the eviction.

“There cannot be uprooting 50,000 people overnight... It's a human issue, some workable solution needs to be found,” the Supreme Court said, as it stopped an Uttarakhand High Court order that had cleared the eviction of the people who live in some 4,000 homes after a case that went on for years.

Referring to the suggestion by the high court of using force to evict the people, the Supreme Court said, “it may not be correct to say that paramilitary forces have to be deployed to remove people who have been living there for decades.”

The district administration, following the court's order of December 20 after a long litigation, had issued a notice in the newspapers asking people to take away their belongings by January 9.

The court also stopped any construction in the area and sought responses from the railways and the Uttarakhand government. It said the case will be heard again next month.

Stating that the issue has a human angle and the people should be rehabilitated, the SC said, as reported by Bar and Bench, “What is troubling us is how do you deal with a situation where people bought in auction and took possession after 1947 and acquired title…

“People lived for 60-70 years some rehabilitation has to be done…Even in those cases where there are no rights at all, even in them rehabilitation has to be done. But in some cases where they acquired titles.. you have to find a solution. There is a human angle to this issue.”

Supreme Court Justice Sanjay Kishan Kaul and Justice AS Oka took up the case a day after senior lawyer Prashant Bhushan made a formal request.

On December 20 last year, the HC had directed Railways to give the residents one week’s time to move out, and after that, “to use the forces to any extent determining upon need, to evict forthwith the unauthorised occupants”. To this, the apex court stated that 50,000 people can’t be uprooted in seven days.

“The moot point to be considered is 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 in the land as lessees/auction purchasers.

“We are on the way the order has been passed as there cannot be uprooting 50,000 people in 7 days. We do believe that a workable arrangement is necessary to segregate people who may have no rights in the land who will have to be removed, coupled with schemes of rehabilitation which may already exist while recognising the need of the railways,” a Bench of Justices S K Kaul and A S Oka said.

The area covers a two-km strip of land near the Haldwani railway station: Gafoor Basti, Dholak Basti and Indira Nagar, in Banbhulpura area. Besides houses, nearly half of the families claim to have a land lease.

The area even has four government schools, 11 private schools, a bank, two overhead water tanks, 10 mosques, and four temples, besides shops, built over decades. The area is home to a predominantly working-class population hailing from the Muslim community.

Speaking to The Citizen about the SC decision, lawyer Kawalpreet Kaur, who has been associated with the case, said that the rehabilitation has been the major focus point of the order.

“The Supreme Court is going to examine the matter. The court was very clear that neither can you demolish or ask so many people to just get up and leave. The court also said that the order cannot be passed without any rehabilitation of the people.

This is what the court has emphasised on as well,” she said.

The SC was hearing a petition filed after the high court’s order, which stated that the land in question is in fact Nazul land.

In a report, law scholar Gautam Bhatia broke down Uttrakhand's High Court judgement, which revealed that the main finding turns upon the status of a particular government document from 1907.

“Put simply, the interveners before the Court – who were people residing on the land (many of whom had been there for decades) traced their legal rights to this document, which according to them declared that the land in question was a specific type of land called Nazul land,” he further writes.

Nazul land refers to the land as non-agricultural that is owned by the government, which can be leased to families and in some cases, even given as freehold.

The applicants further stated that the railway has no evidence to claim this land as its own and the parties have not substantiated their claims of ownership.

Speaking on the matter, activist and executive head of Association for Protection of Civil Rights (APCR) Nadeem Khan said, “we do welcome the order of the Supreme Court, but we are still not celebrating it because the statements that came from the apex court should have come from the high court. The HC order that initially came out looked more like some personal enmity.”

Questioning the Railways for not being able to establish a concrete statement, Khan said, “the main thing to focus here is that the railways has changed its statement on the land that has been encroached, I think it is important to check the claims of the railways.”

Going back, the issue of the alleged encroachment of the Banbhoolpura land arose in 2007, when the North Eastern Railway (NER) claimed 29 acres of land near the Haldwani railway station.

To this, many experts questioned the railway claim of 29 acres of land, which increased to 78 acres in 2022. Hence, the claim of NER, which states that 78 acres of land fall under the ambit of “encroached” territory, was also being contested.

An affidavit was filed in 2007, by the NER informing the Uttarakhand high court that it had cleared 10 of the 29 acres of land from encroachers and appealed to the court to pass an order directing the state authorities to help it get back the remaining 19 acres.

In 2013, the matter reached court when a petition was originally filed about illegal sand mining in a river near the area. A resident Ravi Shankar Joshi had filed a public interest litigation in the high court asking for an investigation into the collapse of a bridge that had been constructed in 2003 on the Gaula River with an expenditure of Rs 9.4 crores.

According to reports, on the basis of this PIL, a commissioner was appointed by the court to investigate the bridge collapse, who in 2015, filed a report stating that illegal mining was taking place on the banks of the river Gaula by those living in the area.

Following this report, the high court summoned the NER, which once again claimed that 29 acres of the land had been encroached. In 2016, the high court issued an interim order calling for the removal of all encroachments within approximately 29 acres of land in the area. Two separate orders were issued to carry out anti-encroachment drives.

However, due to lack of resources, the drive could not take place. In January 2017, the high court once again directed the state government to clear the alleged encroachments.

On January 18, 2017, a Supreme Court bench stated that individual petitions in the case should be heard by the high court. It directed the affected parties to move the high court and file individual applications seeking the recall or modification of its eviction order.

The Supreme Court also directed that the matter be heard by a division bench of the high court and disposed of within three months, while all pending appeals before the district court should be dealt with ‘uninfluenced’ by the decision of the high court.

This was not followed and was raised by the applicants in the petition as well. “The railway should show records of the title owners of the landlord. The court has asked for a reply to all that,” Kaur said.

Meanwhile, blaming the BJP government for action against an area where most residents happen to be Muslim, activists and politicians had also joined the protests.

Asim, a local journalist from Haldwani who lived near the area, called the order a major sigh of relief. “The issue is complex but what we needed was a relief from the court,” he said.

Many experts have raised questions over the high court’s order. A legal member involved in the case said that the state high court failed to mention anything about rehabilitation and also ordered the paramilitary to help with the eviction. “The Supreme Court bench also found this step extreme,” they added.

Meanwhile, Bhatia in his report wrote that Uttarakhand High Court’s eviction order is legally unsustainable, as it “violates both the notice-and-hearing and the rehabilitation-and-resettlement prerequisites before a mass eviction can take place”.