AIN O Salish Kendra (ASK) and others Vs. Government of Bangladesh and others

In the Supreme Court of Bangladesh
High Court Division

Writ Petition No. 3034 off 1999

AIN O Salish Kendra (ASK) and others Vs. Government of Bangladesh and others

Coram
Mohammad Fazlul Karim and Md. Ali Asgar Khan, JJ.

Appearances
For Appellant/Petitioner/Plaintiff: Dr. Kamal Hossain, Advocate
For Respondents/Defendant: Mahmudul Islam, Attorney General

Decided on 23.08.1999

JUDGMENT

Mohammad Fazlul Karim, J.

1. This application under Article 102 of the Constitution of the People’s Republic of Bangladesh at the instance of the petitioners is directed against the demolition of basties of Dhaka City and eviction of the inhabitants thereof by the respondents without arranging any alternative accommodation and without any prior notice as required by Law. The petitioners in their application stated, inter alia, that the petitioners 1, 2 and 3 being committed to protection and promotion of human rights and the Rule of Law and conscious of their constitutional obligation under the Constitution and the Law to maintain discipline to perform public duties and the petitioners No. 4 and 5 being the evictees residents of slums moved this application for and on behalf the inhabitants of the basties of Dhaka City including many single woman and minor children who have developed the areas, raised structures and dwelling huts on the lands within the areas of the basties over a considerable period of time and the people of basties have contributed immense work in railway lines and other a follow land in the vicinity. The petitioners and the residents of different basties came to know that the government has reportedly taken step for eviction of the poor basti people by demolishing their houses but no notice/leaflets have been distributed or served among the people of basties but all on a sudden the government has taken step for wholesale eviction of basties by bulldozing the homes and huts. So long the existence of basties were within the knowledge of the government departments including the department of Public Works, Ministry of Home Affairs, Ministry of Women Affairs and NGO Bureau and the non-government organization who were engaged in maintaining the basties. The said whole-sale eviction of slum dwellers is not only contrary to Law of the land but against the recommendations issued by the U.N. Conference on Human Settlements in 1976 and the resolution of the United Nations there under to prevent the discrimination and protection of minorities and affording evictions constituting a gross violation of human rights which also includes adequate housing. Such forcible eviction of the people who have been rendered homeless by natural calamity and flood had to take shelter in the capital city and they have fundamental rights to live and livelihood inasmuch as the said dwellers have been engaged as rickshaw pullers, garments workers, house maids and some are engaged in good numbers of jobs including that of industrial labor thereby contributing to the national economy. They ought not to have been made shelterless by way of wholesale eviction which also destroy their dignity as the State is committed to treat them with dignity. The petitioner has further asserted that some interested quarters are acting in violation to State/government policy and in contravention of existing procedures in their own interest to seize the land presently occupied by slum dwellers and contrary to the public utterance of the Prime Minister in, the matter of slum dwellers of Bashantek. The petitioner has further submitted that the wholesale eviction is also contrary to the government’s declaration of 1993 housing policy which has been, repeatedly assured to be protected and promoted by the Hon’ble Prime Minister. The petitioner has further asserted that unless a creative programmed is taken and slum-dwellers are evicted phase by phase the wholesale eviction would not only deny dignity of inhabitants but would also amount to discriminations as has not been equally treated as the slum dwellers of Bhasantak. The petitioner accordingly prayed for restoration to their homes and huts from where they have been evicted upon declaration of the wholesale eviction to have been done without lawful authority, more so, without providing any alternative accommodation. The petitioner by way of supplemental affidavit has further annexed the report published in November, 1996 by Urban Poverty Reduction Project of the Ministry of Local Government and Rural Development and the Asian Development Bank wherein the number of basties in Dhaka City were shown in all around at 3007 and total number of families at 2,23,724 touching the populations about 11,33,663 stating further that the said report was placed in the United Nations Conference on Human Settlements (Habitat-II) held in Istambul from 3-14th June, 1996 and accordingly sought for Amendment of the prayer as to why the eviction of basti people in different parts of Dhaka City after demolition of all existing basties including in particular those set out in the Annexure-G to the supplementary affidavit should not be carried out without following fair and reasonable procedures in accordance with Law, including alternative provisions, shall not be declared to have been made without lawful authority and to be of no legal effect as being unconstitutional and vocative of the fundamental rights of the basti people guaranteed by the Constitution in Articles 27, 31 and 32 thereof.

2. After hearing Dr. Kamal Hossain, the learned Counsel for the petitioners at length on the writ petition when the learned Attorney General appearing for the respondent No. 1 stood up for submissions, we asked him to place the government version to the writ petition by filing the affidavit-in-opposition today which the learned Attorney General has submitted by way of affidavit-in-opposition in court today with copy to the learned Counsel for the petitioner denying the assertions in the writ petition and stating, inter alia, that nobody has right to occupy, reside or stay on the lands belonging to the government and public authorities and this land are used in public interest. But over years bastis have sprung up in the City of Dhaka over the land of the government and the public authorities creating manifold problems and the Law and Order situation also. The bastis are mostly manned by persons uprooted by natural calamities, river erosion and flood in certain local area. The distressed and uprooted people have been residing in bastis and they are to pay rent to the mastaans who organize and manage the bastis and there are illegal electric, gas and water connections in the bastis and the criminals and drug traffickers offer safe place for concealing illegal arms and drugs in bastis. The reports published the news of those heinous activities of the mastaans taking shelter in the bastis. Moreover the dwellers get illegal connection of electricity and gas thereby considerable loss to the national economy including system loss. The respondents has further stated that the government and public authority asked the slum dwellers to leave the place removing their shanties and huts but some people have left these bastis and other are continuing stay there to be joined by new comers to the detriment and annoyance of the society disturbing the peace and tranquility of the area. The government, however, tries for rehabilitation of the distressed and uprooted people residing in the bastis and the government at the instance of the Krishi Bank carried on survey of 32 big bastis and enlisted the names of the head of the families residing in the bastis and found 50,000 families whereupon the Bank adopted a scheme of rehabilitation named ‘Ghore Fera’ which was inaugurated by the Prime Minister on 20th May, 1999. The scheme is decided to rehabilitate the uprooted and distressed slum dweller families providing them shelter in their respective place of residence and offering them loan for their earning and occupation accordingly to their ability. Whereby the Bank by now has rehabilitated 4,000 slum dwellers. In the process of this rehabilitation scheme the government, railway, public works department and Dhaka City Corporation have decided to dear the bastis altogether with a view to rehabilitate the bona fide slum dwellers and to do away with the heinous activities with the help of the mastaans who were engaged in possessing illegal arms, manufacturing explosives and selling drugs to the innocent shun dwellers, The government as well has undertaken about nine projects, short description of which appears from the memo dated 18.8.99 signed by the Joint Secretary, Ministry of Home Affairs annexed as Annexure-I. Whereupon government has sanctioned Tk. 5 crores to be spent in helping the evicted basti families and in that view of the matter, a high powered committee has been formed for speedy and proper disbursement of fund and the concerned Ministry of the Government and Bangladesh Bank recently held a meeting with the Commercial Banks and formed a consortium of the Banks to extend easy loan to the evicted families of the slums dwellers under the projects.

3. Dr. Kamal Hossain, learned Counsel appearing for the petitioner having taken us through writ petition and the Annexures has submitted that river erosion, natural calamity, flood and draught etc. have rendered the unfortunate victims homeless, destiny brought them to Dhaka City and made them to stand still at different places of the City and they got themselves engaged in their livelihood as a means of survival whereby the slums have developed through the ages and that apart from their earning livelihood engaged in activities as daily laborers, rickshaw pullers, garment workers, handicraft workers, maids etc., have been contributing to the national economy and the eviction of the said slum dwellers branding them as criminals in wholesale manner is illegal without any notice as required under Section 5 of East Pakistan Land and Building (Recovery of Possession) Ordinance, 1970 (Ordinance XXIV of 1970) and as eviction has been done illegally, the same is liable to be declared to have been made without any lawful authority, entailing upon the respondent’s a responsibility to restore them in their possession in the respective slums. The learned Counsel has further submitted that in view of the fundamental rights to life and personal liberty as guaranteed in Article 32 of the Constitution having been violated and that the mode of Government maintaining the dignity of human being together with the intendment as provided in Article 15providing that the humanity should be treated with dignity and that Article 19 providing for equality or opportunity depriving them of the right by the removal of slum dwellers affected by river-erosion, natural calamity, flood, draught etc. forming the concentrated population in the basti being contrary to the spirit of the Constitution and amounting to violating the fundamental rights which includes right to livelihood, these floating population should not be thrown in the street to their uncertain destiny by a Democratic Government, who is committed to adopt effective measures to remove social and economic inequality between men and women and to allow opportunity in Order to attain uniform level of economic development inasmuch as the slum dwellers also are contributing to the economy and social welfare, the eviction could not be done in the manner of bulldozing and demolishing their properties and as such the wholesale eviction of slum has been done contrary to the fundamental state policy and the rights enshrined in the Constitution.

4. Mr. Mahmudul Islam, learned Attorney General appearing on behalf of respondent No. 1, Government of Bangladesh represented by the Secretary, Ministry of Home Affairs having taken us through the affidavit-in-opposition and the relevant reports has submitted that the floating population living in slum were not capable of being served with notice having no fixed address for the purpose inasmuch as Section 5 of the Ordinance (Ordinance 24 of 1970) has not contemplated a notice to these floating population having no fixed address, home and hearth. However, they were repeatedly cautioned and asked to vacate through oral and mechanical device of Micro Phone by the authority concerned much before the date of eviction but they having paid no need to it were ultimately evicted. The learned Attorney General has submitted with reference to news paper report of Ittefaque dated 9th August, 1999 stating the situation prevailing in those bastis, those being the dens and kingdoms of terrorist, drug trafficking, anti state activities and the mastaans carrying on reign of terror therein even making the lives of innocent slum dwellers of basti endangered and the Law enforcing agency also became helps s whereby the terrorists and mastaans perpetuated their criminal activities through out the city of Dhaka and hiding themselves inside the slum inasmuch as the slum become the den of phensidyle traders, had elements and jeopardizing the peaceful life of the general people of the city. The learned Attorney General has however, submitted that the Government with all sincerity and honesty has taken steps to rehabilitate the floating population who were affected by river erosion, natural calamity, flood and draught and have been living in the slum, undertaking a massive programmed of rehabilitation through various Sections of the Ministries by evolving rehabilitation programmers.

5. This application has been moved for enforcement of fundamental rights of slum dwellers as guaranteed under Articles 27, 31 and 32of the Constitution which includes their right to life, liberty, livelihood etc. together with Articles 7, 11, 15 and 19 in particular of the chapter of fundamental state policy.

6. Two of the slum dwellers are parties along with the 3 non-government organizations as the petitioners and the sole object of this petition is to protect the slum dweller’s right to life, living, shelter, livelihood and to rehabilitate them physically and socially. Their such right are in consonant with the fundamental state policy that in a democratic country in which the fundamental human rights and freedom and respect for dignity and worth of the human person shall be guaranteed and the responsibility of the State to attain through planned economic growth improving the material standard of living of the people making provision for basic necessities of life including shelter, food, medicine, education etc. to secure the social welfare and associating in a suitable manner by realization of fundamental rights to life and livelihood and to prevent eviction of dwellers of slums through a process which is not in accord with the existing legislative process.

7. Needless to say that the inhabitants of any slum are the misfortunes of the society, homeless and provisionless, may be due to river erosion, flood, draught, natural calamity etc. and became floating rural population having no profession, no provision for food, shelter and being poverty stricken migrate to the urban area in quest of those necessities for their living on the earth for breathing its fresh air. Their impoverishment lead them to float and flock together in certain areas where vacant space is available and start by constructing huts in slums engaging themselves in the jobs of Rickshaw-Pulling, day laborer and Garment workers, maids etc. The Government and the non-Government organization sometimes come to their succor in a very un-planned manner for their rehabilitation making some poor poorer and some poor idle turning them into misguided terrorits/mastaans/drug traders/traffickers and violent arms cadre. So the misfortune remains with their until their death.

8. Our Constitution both in the Directive State Policy and in the preservation of the fundamental rights provided that the State shall direct its policy towards securing that the citizens have the right to life, living and livelihood. Thus our country is pledge bound within its economic capacity and in an attempt for development to make effective provision for securing the right to life, livelihood etc. as to the fundamental State policy which is not enforceable and the fundamental rights the Indian Supreme Court held in the case of Olga Talis Vs. Bombay Municipal Corporation (1985) 3 S.C.C. 454 that “Article 37 provides that the directive principles, though not enforceable by any Court, are nevertheless fundamental in the Governance of the Country. The principles contained in Articles 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative actions, be compellable to provide adequate means of livelihood or work to the citizens. But any person, who is deprived of his right to livelihood except according to just and fair procedure established by Law, can challenge the deprivation as offending the right to live conferred by Article 21.”

9. The merits and demerits of the existence of slums in the Metropolitan City of Dhaka have not been disputed but the slum dwellers of necessity for physical rehabilitation for their living have flocked together forming slums on the land of the Government and some other semi-Government or autonomous body, mostly on the road side, way side, wall side and near the Railway lines. Their such type of living not only endangered themselves but also renders the life of the City dwellers hazardous. They no doubt are contributing to the national economy by engaging themselves as day laborers, rickshaw pullers, garment workers, handicrafts workers and as house maid etc. But for a peaceful growth of City life for a country like ours they has to be taken away from their slums and should be rehabilitated as far as possible in the spirits of our constitutional commitments attaining democracy, socialism, realizing through democratic process a socialistic society from exploitation honoring the Rule of Law, fundamental human rights and freedom securing equality and justice.

10. Although the petitioners have alleged that the only provision for eviction of the slum dwellers is the provision of Section 5 of the East Pakistan Government Land and Building (recovery of possession) Ordinance, 1970 by serving notice asking them to vacate the premises in occupation within the period of thirty days from the date of service thereof but under the prevailing circumstances of the slum dwellers the notice that has been contemplated is not possible to be served upon them due to their floating nature and having no permanent hut as they live mostly in basti and having no fixed number and address. The Government has asserted that they have notified or cautioned them prior to their dislocation by way of eviction. True that in the facts and circumstances of the present case of the slum dwellers, it was not possible to issue notice to all of them under the provision of the Section 5 of the Ordinance but may be that they are the slum dwellers and it is the humanity which a poor country like ours is most concerned with and they need to be evicted under certain specific rehabilitation programmed which should work as a guideline in the matter. There should be a survey of all the families residing in any particular slum. There should be master plan or rehabilitation scheme or plot projects to rehabilitate the slum dwellers. The slum dwellers should be given option either to go and live at their respective rural villages or to stay in urban area. If they so opt to go to the urban villages, to have rehabilitated thereby providing them with funds/loan for construction of houses and small scale income generating projects for sustenance with proper and regular monitoring the state and until they are fully rehabilitated in any profession to provide them with food if possible under the VGF project of the government. Similarly in case of slum dwellers who do not opt for going to the rural home because of their dislocation by flood and river erosion, natural calamity etc., they should be given choice either to live in slum or to go elsewhere to live on therein. In case of their choice to stay in slums they should be rehabilitated bearing in mind the vicinity of their working place and communication facilities and if they are not employed making provision for providing them by erecting huts in any localized area earmarked for rehabilitation to start with and subsequently rehabilitate in any low cost flats/houses either of nominal price and arrange for vocational training or any work or employment on the basis of the principle from each according to his ability to each according to his work by the authority concerned..

11. There may be good number of old, inferior cripple and retarded people living in the slums. They being incapable of moving/carrying their livelihood and living are dependants on others. The government should arrange for their rehabilitation by constructing huts/ infirm homes/retarded homes providing food, shelter, medical facilities and clothing’s and among those who are capable, of doing something may be given vocational training so that they could earn their own livelihood in course of time.

12. In a recent interview the Hon’ble Prime Minister has expressed her frustration as to the recent roles of the non-government organization in the matter of any positive and suitable efforts in rehabilitating the slum dwellers. However, in their continuing effects to ameliorate the sufferings of the slum dwellers, the N.G.Os. should come forward with pilot schemes as their involvement in the rehabilitation programmed in co-operation with the government organization and with the letters approval may take part in the rehabilitation of the slum dwellers by providing them micro credit, necessary fund for construction of huts, employment work i.e., rehabilitate them professionally as well including skill training, set up schools for them, provide them sanitary facility etc. But all these have to be done in co-operation with the government getting their plan approved by the Government project wise. Otherwise, haphazard attempts would not yield any positive result in the process of rehabilitation of slum dwellers.

13. As has been stated in the affidavit-in-opposition by respondent No. 1 that a “High powered slum dwellers rehabilitation committee” has been formed whereby some important measures have been announced for assistance, both in cash and kind, for rehabilitation of slum dwellers in their respective village homes providing them travel expenses, provision for food for three months under V.G.F. programmed and micro credit facilities for income generation through various institution and agencies of the government under rehabilitation scheme and over and above, expressed the pious hope the very homeless would be provided a shelter. We appreciate the approach of the government towards steps for rehabilitation. The Government has also formed a slum dwellers rehabilitation committee undertaking a massive programmed for providing shelter and employment in the rural area and better living for the people. Slum dwellers are undoubtedly leading sub-human lives in the city slums and are mostly being exploited by a Section of people using their might and using their place of living for their nefarious activities, turning the slums into safe heaven for criminals. Our anxiety is also for those slum dwellers whose homes were bulldozed in the different slums not only making them homeless and floating people but create unemployment and spurt crimes.

14. We appreciate the government effort to eradicate mastaan, miscreants and terrorist from out of those slums but at the same time we find that in the process the innocent slum dwellers become victims of repression/oppression not only by the mastaan and terrorist but sometimes through the government agencies. We also note that in Order to ameliorate the sufferings of slum dwellers the government is running the “Adarsha Gram” for the homeless and river erosion people, “Adarsha Gram Project-1 and Project-2” by providing land for distressed people for rehabilitation and meanwhile 7560 families have been rehabilitated to the Ashrayan Project, and 48,647 families has been rehabilitated to the Adarsha Gram Project-1 and 48,000 distressed families have been rehabilitated in Adrasha Gram Project-2 and that with that end in view Bangladesh Krishi Bank carried out survey of 32 big bastis and enlisted the names of the head of the families residing in the bastis. The survey covered about 50,000 families, Krishi Bank then adopted a scheme for rehabilitation named “Ghore Fera”. The scheme seeks to help rehabilitate the uprooted and distressed families in the place of their original abode. Under the scheme, the Krishi Bank provides for transportation of these families to their respective place of residence and offered them loan, the amount of which varied depending on their need and the occupation they want to adopt.

15. This application is for enforcement of fundamental right on the slum dwellers relying upon the fundamental state policy. This application has been filed with the aim of focusing attention towards the social degeneration and assisting in finding suitable method of realization of the true concept of fundamental right to life and livelihood and to prevent eviction of slum dwellers through judicial process as there is no appropriate existing legislation for the purpose and sought for a direction that guidelines and norms should be formulated which would be followed/observed in the preservation and enforcement of their rights in the society. Our attempt in the case, apart from enforcement of fundamental right, is to protect their right to life and livelihood meaningfully in the light of the government action of eviction and their right to be rehabilitated as far as practicable. The Government has fund constraint for proper rehabilitation of all the slum dwellers in the city which according to the news paper report is about 74 in number but in the report of 1993, it appears at 3007.

16. In that view of the matter, we have ventured to give a guideline to the Government for rehabilitation of the slum dwellers in phases and the Government should undertake a Master plan or rehabilitation schemes or pilot projects for rehabilitation of the slum dwellers and undertake eviction of the slum dwellers according to the capacity of their available abode and with option to the dwellers either to go to their village home or to stay back leading an urban life, otherwise the wholesale demolition of slums may not solve the problem because the evicted persons from one slum may flock together to another place forming a slum or slums and thereby mounting problems for the government and the country. We have been told that ECNEC has also approved construction of residential apartment for the slum dwellers and lower income people. We appreciate the Government anxiety but considering the human aspect that is attached to the slum dwellers. We provided the guidelines to the Government to undertake a master plan rehabilitation scheme/pilot programmed for rehabilitation by evicting the slums phase by phase otherwise, the wholesale removal will give rise to multiple problems for the society and the State.

17. For security sake also the government should clear up the slums growing up beside the railway lines, way side, road side and continue to keep the space clear under any circumstances and these slum dwellers should be rehabilitated elsewhere following the guidelines. We find that the learned Counsel for the parties also have not opposed the programmed of rehabilitation but their grievance is as to the means. Government may proceed with eviction process phase by phase giving reasonable time and rehabilitate the slum dwellers in the lights of the observation made above. In view of the admitted position nothing should stand in the way of rehabilitation to secure the economic and social justice for all. As to the terrorists/mastaans/drug traffickers/drug traders taking shelter in slums, the government may arrange for combing operations when necessary and eradicate these evil from the society.

18. Before parting with the Order, we find that a large number of slum dwellers have gathered in this Court premises and from the news papers reports and as stated by Dr. Kamal Hossain that some slum dwellers also gathered in front of his house. The published news in the news papers reveal that inspite of request from the Supreme Court Administration for removal of slum dwellers from the court premises, no response has been received from the concerned authority on the plea of the Order of stay. The slum dwellers thus staying in the Supreme Court compound have neither been removed nor any action to that affect has yet been taken. Similarly no step has been taken by the authority for removal of the slum dwellers gathering in front of the house of Dr. Kamal Hossain. We painfully observe that it is very unfortunate that this institution i.e., the Supreme Court was allowed to be seized and continued to remain so inspite of intimation to the proper authority. This smacks of the civil society now being talked about. It is a negation of the high and lofty image and serene dignity of the Supreme Court. The high raised magnificent and majestic Supreme Court Building with its superbly designed dome was not supposed to be a mere edifice. It was made the highest seat and depository of supreme justice symbolizing it to be the guardian of the Constitution holding high the scale of justice essential for the maintenance and nourishment of democracy, Rule of Law, even handed justice and above all, the social equilibrium of the Country and interpreters the Constitution which is fundamental to the governance of the country. It protects the State in maintaining the sovereignty, democracy, nationalism and socialism, the declared state policy.

19. Thus Supreme Court being the guardian of the Constitution and the protector of the good social norms and civil society in a democratic country, all authorities, executive and judicial in the Republic shall Act in aid of the Supreme Court as also enshrined in Article 112 of the Constitution. Inspite of above, it is very much unfortunate that the Law enforcing agencies did not respond in time to the call of the Registrar of the Supreme Court to clear up the slum dwellers assembled in the Supreme Court premises. We have no language at our command to express our indignation that certain authority, in-spite of the request as aforesaid resorted to dilly dallying in complying with the request. The Order of the Registrar in his administrative capacity is also passed as an Order of the Supreme Court. We hope that the authority would in future shall not fail in their constitutional obligations to carrying out the Order of this Court, both judicial and administrative. Accordingly, we direct Mr. Mohammad Nasim, Hon’ble Minister of the Home Affairs, Government of the People’s Republic of Bangladesh, Building No. 8, Bangladesh Secretariat Building, Dhaka, Mr. Shafiur Rahman, Secretary, Ministry of Home Affairs, Building No. 8, Bangladesh Secretariat Building, Dhaka, Mr. A.Y.B.I. Siddique, Inspector General of Police, Police Head Quarter, Fulbaria, Dhaka and Mr. A.K.M. Shamsuddin, Police Commissioner, Dhaka Metropolitan Police, Metropolitan Police Head Quarters, Baily Road, Dhaka to clear up the slum dwellers gathering within the Supreme Court premises and in front of the premises of Dr. Kamal Hossain, the learned Counsel for the petitioners at Baily Road, Dhaka within 24 (twenty four) hours on receipt of the operative part relating to them, otherwise, the Law will take its own course. Let a copy of this Order be sent to the aforesaid authorities forthwith by a special messenger of this Court.

The application is thus disposed of without any Order as to costs. The Order of stay dated 11.8.99 is vacated.