Encroachers & victims

12 Aug 2015

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The writer is an attorney-at-law.
The writer is an attorney-at-law.

IMAGINE this. A middle-class man finds himself homeless upon being unable to pay his monthly rent. With few options, he decides to carve out a small area of government land, and establishes a makeshift home there. The local authority perhaps knows of such a development, but fails in its duty to do anything about it. In such circumstances, would the authority be justified in evicting the gentleman?

Most people would answer in the affirmative. However, if you were to be somewhat more generous about the facts being shared, and emphasise that the encroacher had a family to maintain and a baby to feed, and that his encroachment was not an illegal trespass but rather a result of the encouragement of a negligent authority, the answer may not be the same.

As is the case in most scenarios, facts may appear less important than stories, and stories, although largely true, may not actually reflect the whole picture. A case in point is the eviction of slum residents in Islamabad by the Capital Development Authority.


There is little legal basis to arguments in support of Islamabad’s slum residents.


To be clear, the controversy has two facets to it: 1) the legal basis of the eviction process; and 2) the moral and ethical considerations surrounding it.

In relation to the first, although one may read the articles of the Constitution to include the right to housing, such a right, even if accepted, would certainly not extend to building one’s home on someone else’s property, and that too without his consent. This is especially true considering that such encroachments ultimately affect the rights of others to housing on such encroached lands. Furthermore, and even otherwise, it is settled that one’s right certainly cannot be exercised at the expense of the rights of the community, or another.

Reference to Article 38 of the Constitution, which seeks the provision of housing to citizens by the state, is also misguided. The said article is in the realm of a principle of policy, that is, a set of guidelines for the state, which are explicitly not enforceable in any court of law.

Additionally, although provincial legislation does exist in relation to the regularisation of slums, there appears to be no law allowing for the regularisation of katchi abadis in the federal capital. Interestingly, at one point in time, there did exist legal provisions by which mere possession for an extended period could lead to lawful title. However subsequently, in light of judicial verdicts, the said provisions were held to be repugnant to the injunctions of Islam. Hence, no legal title could be extended on the basis of mere extended adverse possession.

With reference to the National Housing Policy, 2001, the policy in fact discourages the establishment of slums. Although it is true that the policy has stated that no slum residents shall be evicted without a resettlement plan, the same appears to be applicable to only those slums which have been regularised or are in the process of being regularised. Hence, reliance on the said policy may not have been wholly warranted for the katchi abadis in question.

In short, the arguments advanced in support of the katchi abadi residents appear largely moralistic and ethical. On this front, there is weight in the plea that although many of these residents in fact were brought into Islamabad for purposes of building the roads, houses, and infrastructure that Islamabadis enjoy today, those same residents were never offered any shelter in the city. Keeping that in mind, as well as the fact that many of these residents had been living at the said quarters for over 30 years, admittedly for an extended period of time and with the consent of the authorities, the provision of shelter is certainly justified.

If the Islamabad High Court has not issued any directions for resettlement upon eviction, then specific legislation may perhaps be needed to cater for and tackle the peculiar circumstances of these katchi abadi residents. Evictions have already taken place pursuant to orders of the pertinent superior court, and in the absence of an appeal, clear legislative intent to provide legal protection to the affected individuals may be the only means to provide the basis for either resettling them on the land they were evicted from, or at a new location. Additionally, such legislation could protect them, whilst ensuring that illegal occupation of land is not condoned.

In the absence of the above, the legal basis of the calls for resettling the slum residents appear weak. And although detractors cannot deny the moral and ethical potency of the arguments being made, civil society would have little option but to come to terms with the fact that although justice may flow from the dictates of the law, in some instances, justice may dictate a course, which the law in its existing form, cannot allow.

The writer is an attorney-at-law.

basil.nabi@gmail.com

www.bnm-online.com

Published in Dawn, August 12th, 2015

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