The Andhra Pradesh High Court in its recent order has held that the Government housing scheme ‘Navaratnalu Pedalandariki Illu”, which allots house sites exclusively to women is unconstitutional and totally against the concept of equality. The court observed,
100% reservation in allotment of house site to women household is against the total concept of equality. Failure to allot house site to transsexuals ignoring them totally would amount to depriving their right of equality.
Justice M. Satyanarayana Murthy observed while directing the Government to consider the eligibility of men and transsexual for allotment of house site under the scheme said,
This Court is not against allotment of house site to women household, but it amounts to discrimination.
Background:
In December 2020, Andhra Pradesh Chief Minister YS Jagan Mohan Reddy launched the flagship programme of Navaratnalu ‘Pedalandariki Illu,’ (housing for poor) at Komaragiri layout of Pithapuram Assembly constituency in East Godavari district.
He then said that about 30.75 lakh beneficiaries had been identified across the State, of which 28.30 lakh houses will be given under 17,000 YSR Jagananna layouts and another 2.62 lakh were going to be Township and Infrastructure Development Corporation (TIDCO) flats. He then quoted,
We are not constructing just ‘houses’ for poor, we are constructing towns. The government will take up the construction of 28.30 lakh houses at a total cost of ₹50,940 crore. In the first phase 15.60 lakh houses will be taken up at a cost of ₹28,000 crore and the work on the remaining 12.70 lakh house will commence from next year.
As per clause 2 of the scheme, one House Site Patta shall be issued for an extent of 1.5 Cents to an eligible household in the name of woman beneficiary of the house. Subsequently, 129 persons had approached the High Court challenging this clause contending that it discriminated men and transsexual from women in allotment of house site.
Andhra Pradesh High Court
Agreeing with the contentions raised by the petitioner, the court observed that the scheme directly amounts to depriving eligible men to claim the benefit under the said scheme, the court said,
Taking into consideration the hypothetical situation where a bachelor, widower with children living below poverty line, they are not entitled to claim the benefit of scheme ―Navaratnalu – Pedalandariki Illu. Does it amount to distribution of resources based on equality is a question to be decided.
If the principle laid down by the Apex Court in ―Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh (referred supra), certainly it amounts to discrimination of eligible men from women and they will remain as houseless poor forever on account of denial of house site allotment under the scheme ―Navaratnalu – Pedalandariki Illu.
Similarly, if a woman obtains divorce after allotment of house site, husband and children would remain houseless poor. These hypothetical situations were not visualised and taken into consideration by the State while taking such policy decision. Thus, it directly amounts to depriving eligible men to claim the benefit under the said scheme, which is violative of Article 14 of the Constitution of India and contrary to the obligation that vested on the State to distribute material resources among the citizens equally as prescribed under Article 39 of the Constitution of India.
Elaborating on the denial of allotment of house sites to transsexuals, the high court noted that this was violative of their fundamental rights. It said,
In case of transsexuals, most of them are living below the poverty line and living by begging, without any shelter for their protection. They are facing lot of humiliation for the treatment extended to them. Though, it is the obligation of the State to take necessary steps to treat transsexual on par with men and women, the State did not take any positive action so far.
Denial of allotment of house sites to transsexuals is violative of Article 14 of the Constitution of India since Article 15 speaks about men and women, but not about transsexuals, for the reason that the Constitution framers did not visualise such situation by the time of preparing Constitution of India.
On the privacy aspect, the high court observed,
As the limited site is allotted to the eligible women household, right of privacy shall be taken into consideration since the house is meant for living with family to lead matrimonial life. The Apex Court declared right to privacy as a fundamental right. In view of the law laid down by the Supreme Court, it is the duty of the State to protect the privacy to lead marital life by a couple in a small house with grownup children and elders in the family.
Hardly, there will not be any space to move freely in the house either to the children or to the elder people, who required some assistance at the old age.
The court therefore issued the following direction to the State:
Further, the State is directed to appoint a special committee consisting of expert from Central Pollution Control Board; expert from Ministry of Housing and Urban MSM,J wp_25275_2020 108 Affairs; Health expert from Ministry of Health and Family Welfare to examine the issues discussed in the earlier paragraphs, within one (1) month from the date of receipt of copy of this Order to submit a report within one (1) month thereafter and publish the report in two local newspapers inviting objections from the public and finalise the scheme ―Navaratnalu – Pedalandariki Illu‖ for construction of houses in the house sites keeping in view the impact on environment, health hazards etc. and increase/enhance the area, if necessary by acquiring more site, allotted to the beneficiaries modifying the layouts keeping in view the report to be submitted by the Special Committee.
Till completion of such exercise, constructions shall not be proceeded in the land allotted to beneficiaries under the scheme ―Navaratnalu – Pedalandariki Illu‖
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