INDIA: Forcibly evicted Dalit families struggling to survive in Gujarat

Dear friends,

The Asian Human Rights Commission (AHRC) has received information from Navsarjan, a human rights organisation working on Dalit rights in Gujarat, concerning the case of 27 Dalit families evicted from their homes in 2005 by the local government so that a public water plant could be built. These 27 Dalit families had come to Kheda district of Gujarat employed as government sanitary workers in 1966. After the destruction of their homes, the victim families have lived in make-shift shelters as the local government has not provided housing, basic facilities or financial compensation. Navsarjan and the AHRC express their deep concern as it will soon be the rainy season and further condemns the local government’s neglect of the Dalit community.

CASE DETAILS:

The 27 Dalit families were first employed in 1966 and given land for their residence by the Cambay municipality. On 23 February 2005, their houses were demolished by the same municipality, Kheda district, Gujarat and they were forcibly evicted without the due process of law or any compensation.

The Cambay municipality, after providing only 72 hours notification, came on the morning of February 23 to demolish the homes with heavy machinery. The municipality suppressed the families’ resistance against the demolition by force. The five members who resisted the demolition most strongly were labeled ‘anti-social elements’ by the municipality, who asked the police officer, Mr. P.A. Joshi, to detain them during the demolition. Though the police did not detain them, they did restrain them until the demolition was completed.

All of the families’ belongings were lost when their homes were destroyed. The municipality has now built a water plant on the area where the houses used to be. [photo 1. water plant]

After their homes were destroyed, the Dalit families had to sleep on the ground and live without houses and facilities for water, electricity, and sanitation etc., as the municipality did not provide them. Four days after the families were evicted, relevant officials merely visited the victim families to assign each family possession of a small piece of land, though legal ownership, that is to say the title of the land, was not given to the families. Without proper title to the land, the families did not want to invest their limited financial resources to build permanent shelters on land that might be taken away from them again.  Therefore, the Dalit families built temporary make-shift shelters on the government-allotted land. [photo 2. overall view] [photo 3. the victims’ shelters]

Since then, the 27 families have used electricity from the street line, which is only available from 7pm to 6am. There is only one water pipe which may be affected by the waste dump directly adjacent to the land on which they are residing. [photo 4. water pipe behind the waste dump] Moreover, the water is only supplied for two hours a day: 6am to 7am and 6pm to 7pm. The land on which they are living is not meant for residence, but for landfill and garbage disposal. During the rainy season their shelters flood, as the land is lower than the road on which it sits, and the whole community has to stay on the side road in a few temporary shelters. [photo 5. the land getting lower by the flood] Needless to say, there are no proper sanitation facilities, and they have to manage their cooking and bathing outside. [photo 6. small place for bathing] [photo 7. cooking outside]

Moreover, the 27 families have been steadily losing their livelihoods. Only five members are still working as sanitary workers employed by the Cambay municipality, whereas the rest have retired. Those who have retired receive a pension of INR 2,000 a month, which is not sufficient to support a family consisting of, on average, 6 to 12 members. The younger members of this community can hardly find employment other than irregular daily labour, as they belong to the Valmiki community, the traditional work of which is limited to sanitary duties. In fact, the five members who are still employed by the municipality work as manual scavengers, manually cleaning up human excreta, in contravention of The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, which abolishes this practice.

Despite their poor economic situation, only five families have Antyodaya ration cards, (food distribution cards issued to the poorest families under the Public Food Distribution System (PDS)). The families without such cards, who generally depend on their pensions and irregular daily labour, have Above Poverty Line (APL) ration cards with which they cannot access rice or wheat at low prices, so these staples are unaffordable to them. According to the community members, no officials have visited to examine their living conditions in order to issue them proper ration cards.

For the last three years the families have been demanding the District Collector and relevant Cambay municipality officials to transfer to them, titles to the land on which they are currently residing. They want to build permanent housing for themselves, but, as mentioned earlier, fear being evicted again by the government. It is reported that the Block revenue officer, village revenue officer and Cambay municipality have recommended granting them the title to the land. However, the sole official with the power to formally transfer the title, the District Collector, has still not taken any action.

BACKGROUND OF EVICTION:

In 1966, the then mayor of the Cambay municipality, Mr. Ranjitrai Shanstri, called 27 Dalit families, all from the Valmiki community, the caste most often engaged in manual scavenging, and the most marginalized Scheduled Caste in Gujarat, from different districts to move to Cambay town of Kheda district. Mayor Shanstri employed them as sanitary workers, a job profile which inherently includes the work of manual scavenging given the poor quality of sanitation in Gujarat. In addition to permanent employment, the municipality assigned them thatched mud houses on a piece of land, albeit with no official record. The families paid for water and electricity services out of their salaries.

In 1973, when the families needed to upgrade their thatched mud homes to live more securely, the municipality told them that such renovations would have to be done by the families themselves as the land belonged to the families, not the municipality.  In reliance on the municipality’s statement that the land belonged to the families, they invested all their savings to build permanent brick housing with new water, electricity, and sanitation facilities.

In 2004, the Cambay municipality tried to evict the families from their land, and subsequently four or five police officers came to threaten to arrest the families unless they vacated the land. The Dalit families resisted the eviction attempts by arguing that the land was legally theirs based on the municipality’s statements in 1973.  In response, over the course of the next year, the Cambay municipality acquired formal legal title to the land.  In this process, the fact that the 27 Dalit families had resided on this land for 36 years and invested their resources into the land in reliance on the municipality’s statements that the land was theirs was ignored.

On 14 February 2005, the municipality gave the families 72 hours written notice that they would be evicted from their land. On 22 February 2005, the families petitioned the local civil court to order a stay on the municipality’s plan for eviction.  The municipality’s submission in reply claimed that the land had always been owned by the municipality, and that these families had illegally encroached upon it. The court ruled in favor of the municipality, and the municipality went ahead with the eviction on 23 February 2005.

ADDITIONAL COMMENT:

Urban dwellers in Gujarat, in particular slum dwellers or pavement dwellers, are increasingly facing evictions by the government for public projects or “environmental” purposes. Most of such urban dwellers have moved from rural areas in search of employment and belong to the Scheduled Caste or Scheduled Tribe communities, which are the most economically and socially vulnerable in India.

In this case, the Valmiki families were evicted by the local government without alternative shelter, basic facilities, proper compensation, or adequate notice prior to the displacement, and were deprived of their right to the land on which they had lived for almost four decades and which had been given to them by the local government itself. Further, the local government damaged the families’ private belongings during the demolition of their homes.

The Cambay municipality’s forced eviction of the 27 Dalit families is likely a manifestation of the untouchability practiced by the local government and Cambay’s upper-caste residents.  According to the victims, in December 2004, the Secretary of the local ruling party body informed them that some parts of the land on which the victim families were living at the time would be used to build a water plant, without disturbing the victims’ residences. However, the next year the new Chief Officer decided to use the entire plot of land for the water plant, despite the fact that there was enough room for both the water plants and the families’ residences to occupy the land. It is alleged that the Cambay municipality wanted to evict the families from this land because they are Dalits, and the municipality and upper-caste townspeople did not want the simple presence of Dalits near the water plant to “pollute” the town’s water.

In this context, it is easy to see that the Cambay municipality’s actions against the Dalit families constituted a caste-based atrocity. Legally, its actions are punishable under Section 3(1) (xv) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which classifies the forced eviction of a Scheduled Caste from his home or village as an atrocity.  Moreover, since the perpetrator of this atrocity was the municipality, the municipality is also punishable under Section 3(2)(vii) of the same act, which increases the punishment if the atrocity was committed by a public servant.   However, this case has not been reported as a caste-based atrocity.

The Cambay municipality’s forced eviction of the 27 Dalit families without compensation also violates Indian property law.  Even though the formal title to the land is in the municipality’s name, the 27 Dalit families have a strong claim that they gained ownership over the land through the municipality’s oral representations to them in 1973. Nevertheless, even if the municipality’s argument that the title of the land was never transferred to the families is to be believed, the families arguably would have perfected their title over the land through the legal concept of adverse possession.

While the families began using the land with the permission of the municipality under Mayor Shanstri in 1966, their possession of the land became hostile to that of the title of the land by the municipality when they invested their resources to build permanent structures on the land in 1973, since the building of permanent, rather than temporary, structures on another’s land indicates the intention to use the land permanently, adverse to the title-holder’s interest in the land. (Ahmad v. Dharma School [1947]).  In addition to hostility, to perfect title by adverse possession requires continuous and open possession for more than 30 years, which clearly was the case here.

The municipality’s confirmation of formal title in 2004, or any time prior to that, in no way disturbed the families’ continuous possession of the property. (Badrilal v. Rampiari [1992]).  The families’ possession was also open and against the title of the municipality, which is the final requirement for adverse possession in order to give notice to the title-holders of the land of the possessors’ intent to permanently possess the land.  In this case, the 27 Dalit families not only built permanent housing structures, but also set up water and electricity facilities -actions which the local municipal government should clearly have had knowledge of.  If the families indeed owned the land from which they were evicted, the Cambay municipality was required to take the land from them under the proper authority of law, namely the Land Acquisition Act, which enables the government to take private land for a public purpose, but payment of compensation to the land’s owner.  The Cambay municipality failed to pay the 27 Dalit families any compensation for their loss of land and the destruction of their personal belongings.

India’s obligations under international law, as well as the Indian Constitution, also specify procedural protections which must be in place in the case of forced evictions.  In international law, there exists a right to adequate housing (see Article 25(1) of the Universal Declaration of Human Rights and Article 11(1) of the International Covenant on Economic, Social and Cultural Rights).  Inherent in this right is protection from forced evictions without fair process and alternative arrangements for shelter.  In its General Comment No. 7 (1997), the United Nations Committee on Economic, Social and Cultural Rights stated that the procedural protections which should be applied in relation to forced evictions include: (a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; and (c) information on the proposed eviction, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected. (General Comment No. 7 defines “forced eviction” as the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.)  In the present case, the families were neither consulted nor given adequate and reasonable notice prior to the eviction.

The Indian Constitution similarly implies such procedural protections in the case of forced evictions through the right to shelter found in Article 21’s right to life and Article 19(1)(e)’s right of every citizen to reside and settle in any part of the country. (P.G. Gupta v. State of Gujarat [1995])

In the landmark case of Olga Tellis v. Bombay Municipal Corporation (1985) and its progeny, the Supreme Court laid out the parameters for determining when forced evictions are proper.  In Olga Tellis and Nawab Khan Gulab Khan v. Ahmedabad Municipal Corporation (1996), the Court concluded that eviction of dwellers would be proper when they have encroached upon land that was already reserved for public use and the dwellers made private use of the public property “without the requisite authorisation from the competent authority.”

In the present case, the 27 Dalit families were not encroaching upon any land already earmarked for a public purpose. Rather, the land on which they were residing was reserved for them by the municipality in 1966; the municipality did not even decide to use the land for a public purpose until 2004 – almost 40 years after the families had already been residing on the land. Furthermore, the Dalit families were authorised to live on that land by the municipality on two separate occasions: in 1966 and 1973.

Even if the evictions were proper in this case, the Supreme Court articulated a test in Olga Tellis to determine what type of process is required prior to eviction.  According to the Court, the question to be asked in each case is whether or not the procedure is reasonable based on the circumstances of the case.  Following this test, the Court ordered certain procedures in the Nawab Khan case based on the particular circumstances of that case.  The Court generally held that in the case of those encroaching on public pavements, “if the Corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to seek, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary.”  In the present case, the municipality had expressly planned on giving only 72 hours notice to the residents prior to their forced eviction.  It was only because the families’ resistance to the municipality’s evictions efforts that 9 days passed prior to the eviction.  Moreover, using Olga Tellis’ reasonableness test, several factors distinguish the facts of the present case from those of the Nawab Khan case calling for more stringent process prior to eviction and alternative housing post-eviction.

First, while in Nawab Khan it was clear that the dwellers’ had encroached upon public land, in the present case whether or not the families could be considered ‘encroachers’ is debatable.  Second, in Nawab Khan, the dwellers’ encroached upon land that was being used by the public as a footpath, whereas in this case, the land upon which the families were residing was not land already being used for a public purpose.  Third, unlike in Nawab Khan, in the present case, the public purpose for which the municipality wanted the land could be attained without disturbing the families’ residences. Finally, fourth, the families in the present case had been residing on the land for almost four decades, and they invested their resources into improving the land in reliance on the oral representations made by the municipality in 1973.

In addition to the Olga Tellis in Shantistar Builders v Narayan  Khimalal Gotame and Others (1990) the Supreme Court of India held that “[b]asic needs of man have traditionally been accepted to the three – food, clothing and shelter. The right to life is guaranteed in any civilized society. That 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 Court iterated that shelter for a human being has to be a suitable accommodation which would allow him to grow and develop in every aspect – physical, mental and intellectual. A reasonable residence is an indispensable necessity for fulfillment of the constitutional goal in the matter of development of man and should be taken as included in ‘life’ in Article 21 of the Indian Constitution. This is the dictum was further reiterated in the Nawab Khan case.

The right to housing for Scheduled Castes in urban areas of India has also been assured by the Valmiki Ambedkar Awas Yojana (VAMBAY), a government scheme launched in 2001. Under this scheme, in which not less than 50% of the beneficiaries will be the Scheduled Castes living below poverty line in urban slum areas, the government is to provide financial assistance of minimum INR 40,000 for construction of a home with sanitary latrine and infrastructure. Such a scheme is not merely a privilege bestowed on the Scheduled Caste population by the government; it is a constitutional right of Scheduled Castes to receive such assistance based on the government’s constitutional duties to protect the individual’s right to life and ensure the welfare of the poor. The Supreme Court explained in the Nawab Khan case that “the State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their heads to make the right to life meaningful, effective and fruitful.”  Similarly, in the P.G. Gupta case, the Court held that it is duty of the State to construct houses at reasonable cost and make them easily accessible to the poor.

In addition to the above observations of the courts in India, the municipality also have a statutory obligation to compensate the 27 Dalit families for the loss they suffered by destruction to their houses according to section 51 of the Transfer of Property Act, 1882.

SUGGESTED ACTION:
Please write to the authorities named below expressing your concern about 27 Dalits suffering from lack of adequate housing and other basic facilities. Please make a note that the victims were forcibly evicted by the local government without any compensation and they demand the right to the land and housing.

The AHRC has also written separate letter to the UN Special Rapporteur on the right to adequate housing and calling for intervention in the case.

To support this case, please click here: SEND APPEAL LETTER