* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2029/2012
HAQ THROUGH ITS MEMBER ABDUL SHAKEEL
..... Petitioner
Through: Ms. Jayshree Satpute, Adv.
versus
DDA AND ANR.
..... Respondent
Through: Mr.Sangram Patnaik, Mr. Umesh
Yadav and Mr. Swaym Siddha, Advs.
for R-1/DDA
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V.K. JAIN
ORDER
% 03.04.2013 W.P.(C) 2029/2012 & CM Nos.4365/2012 (interim relief), and 9898/2012 (providing monetary compensation) The case of the petitioner NGO working for the welfare of slum dwellers, is that about 1000 families of farmer community are living and working on the banks of Yamuna for many years and they have erected temporary thatch huts there and they move to higher ground when the fields are flooded. This is also the case of the petitioner that Delhi Development Authority has periodically demolished the temporary constructions on the aforesaid land, but has not taken any step for their rehabilitation. The petitioner has claimed the following reliefs in the present petition:
W.P.(C) 2029/2012 Page 1 of 8i. Pass an order directing respondent no.1 to provide in situ upgradation for the residents of this farmland, particularly with respect to proper sanitation and water. If in situ upgradation is not allowed, then pass an order directing respondent no.1 to provide relocation rehabilitation to the residents of this farmland.
ii. Pass an order directing respondent no.2 to conduct a door to door survey following the above mentioned procedural requirements listed in the Sudama Singh and P.K. Koul orders.
iii. Pass an order directing the respondent to explain what public interest they believe necessitates evicting these families from the homes they have been living in for 60 years, and allowing the residents to proper venue to challenge the factual and logical basis for this determination.
iv. Pass an order directing the respondents to follow
the annexed Suggested Protocol For
Rehabilitation, Eviction Or Demolition in this and future cases.
2. When this petition came up for hearing on 18.4.2012, this Court noted that there is no dispute that the lands in question are on the bank of Yamuna River and had already been acquired. It was also noted that there W.P.(C) 2029/2012 Page 2 of 8 was a plan formulated by the DDA for development of the entire area. This Court, therefore, rejected first prayer made in the writ petition for in situ upgradation and issue notice only on the alternative prayers made in the petition.
3. In its reply, the respondent no.1/DDA has inter alia stated as under:
"2. The land falling in Village Chiraga South is the government land and has been placed at the disposal of erstwhile DIT by the Nazul Agreement dated 31.3.1937, part of which was given to Multipurpose Milk Producer Society in the year 1980 for grazing and grass cutting on a temporary lease of 5 years, which already stands expired, and the various persons claiming through the said Multipurpose Milk Producers Society are unauthorisedly cultivating the land for which eviction proceedings under P.P. Act are pending before the Estate Officer. As regards to land falling in Village Chak Chilla & Nangli Rajapur, has already been acquired vide award Nos.22/92-93 and 16/92-93 respectively and physical possession has also been handed over to the answering respondent i.e. DDA by LAC/L&B Deptt on 31.10.97.
3. The farmers are doing unauthorized cultivation on the said land and few of them have put temporary jhuggi/chhapars there to keep watch on their agricultural equipments as well as their crops. The answering respondent/DDA as per the directions of the Hon'ble Division Bench of Hon'ble Delhi Court has removed a number of unauthorized constructions/ Jhuggi Jhopries from the river bed.
4. The petitioner is trying to misled this Hon'ble Court by producing the election identify cards issued at W.P.(C) 2029/2012 Page 3 of 8 some other places and representing the same as to the residents of river bed. The land under reference falls in the flood prone area of Yamuna river and get submerges in the river water in the floods, the satellite images would show that there is no habitation in the river bed. Any temporary jhuggi/chappars raised to keep watch on crops and fertilizers does not entitle the farmers to remain in possession in river bed.
5. Some of the farmers have put jhuggis/ chappars in one, two and three numbers in various fields and they are not entitled to any alternative allotment as there is no any identified J.J. Cluster and there is no habitation on the said land. The writ petition has been filed by the petitioner just to grab the DDA/ government land and to have the undue advantage from the government by encroaching government land. The writ petition filed by the petitioner merits dismissal.
Reply on Merits:
1. That the contents of para 1 are wrong and hence denied as there is no public interest involved in the present petition. On the contrary, in the name of public interest, the petitioner wants to grab the government land falling in the Yamuna River bed where no construction is permissible. The present public interest litigation is nothing but an abuse of the process of law. The land falling in the river bed between NH-24 on the Northern side, DND flyover on the Southern side, Noida Link Road on the Eastern side and Yamuna River on the Western side falls in the Village Chirag (Delhi) Chak Chilla & Nangil Rajapur. A copy of the Nazul Agreement dated 31.3.1937, awards and possession proceedings are enclosed herewith which are marked as Annexure R1 to the present affidavit. Therefore, the land in question between NH-24 and DND flyover vests with W.P.(C) 2029/2012 Page 4 of 8 government and at the disposal of DDA. The farmers are doing unauthorized cultivation in the said land. It is specifically denied that there is any habitation in the River bed, however, some of the farmers have put temporary jhuggi/chapparas to keep watch on their cultivation, crops as well as their agricultural equipments. It is pertinent to mention that Division Bench of this Hon'ble Court in CWP No.2112/2002 vide order dated 3.3.2003 has passé the order for removal of all unauthorized construction within the river bed. A copy of the said order is enclosed herewith and marked as Annexure R2 to the present reply. It is, however, relevant to point out the Hon'ble High Court has appointed a Yamuna Encroachment Removal Monitoring Committee under the Chairmanship of Hon'ble Justice Usha Mehra (Retd.). Under the supervision and guidance of the said committee, the answering respondent i.e. DDA has removed a number of unauthorized construction from the River bed. The disgruntled people in the garb of the present petition want to raise unauthorised construction in the river bed and encroach upon the government's prime land. Therefore, the answering respondent i.e. DDA is duty bound to comply with the directions issued by the Division Bench of this Hon'ble Court and to protect its land.
Xxxx
6. That the contents of para 6 of the present petition are wrong and hence denied. As already mentioned in reply to para 1 above, no construction/ habitation is permissible in the River bed. The unauthorized constructions/ encroachments have already been demolished under the orders of the Hon'ble Delhi High Court. However, some of the persons have been time and again attempting to encroach upon the government land and the answering respondent i.e. W.P.(C) 2029/2012 Page 5 of 8 DDA from time to time keeps on removing the same.
10. That the contents of para 10 are wrong and denied as stated. The land under reference falls in the flood prone are of Yamuna river and get submerges in the river water at the time of flood. It is further submitted that the perusal of satellite images would show that there is no habitation in the river bed. A copy down loaded from the satellite images as well as the actual photographs are enclosed herewith and marked as Annexure R3 to the present reply. Any temporary jhuggi/chhappar raised to keep the watch on crops and fertilizers/pesticides and other related items does not entitle them to remain in possession of river bed.
42. That the contents of para 42 are wrong and denied. Firstly, it is specifically denied that there is any community living in the area, secondly there is no school functioning in the river bed. The right to run the school in the river bed has already been negated by this Hon'ble Court in WP(C) No.5076/11.
4. This is not the case of the petitioner that the persons alleged to be farming and living on land in question are owners of the said land or have any legal right thereto. It is evident from a perusal of the reply filed by DDA that the land in question is a government land having been duly acquired and is a part of Yamuna bed. Vide order dated 3.3.2003 passed in W.P(C) No.2112/2002, a Division Bench of this Court, inter alia, directed as under:
"What is required to be done in the present situation in this never ending drama of illegal encroachment in this capital city of our Republic? River Yamuna which is a major source of water has been polluted like never before. Yamuna Bed and both the sides of the river have W.P.(C) 2029/2012 Page 6 of 8 been encroached by unscrupulous persons with the connivance of the authorities. Yamuna Bed as well as its embankment has to be cleared from such encroachments. Rivers are perennial source of life and throughout the civilized world, rivers, its water and its surroundings have not only been preserved, beautified but special efforts have been made to see that the river flow is free from pollution and environmental degradation. The Yamuna River has been polluted not only on account of dumping of waste, including industrial waste, medical waste as well as discharge of unhygienic material but the Yamuna Bed and its embankment have been unauthrisedly and illegally encroached by construction of pucca house, jhuggies and places for religious worship, which cannot be permitted any more. As a matter of fact, under the garb of reallocation, encroachers are paid premium for further encroachment. Delhi with its present population of twenty million people can take no more. In view of the encroachment and construction of jhuggies/ pucca structure in the Yamuna Bed and its embankment with no drainage facility, sewerage water and other filth is discharged to Yamuna water. The citizens of Delhi are silent spectators to this state of affairs. No efforts have been made by the authorities to remove such unauthorized habitation from Yamuna Bed and its embankment.
We, therefore, direct all the authorities concerned, i.e. DDA, MCD, PWD, DJB as well as the Central Government to forthwith remove all the unauthorized structures, jhuggies, places of worship and/or any other structure which are unauthorizedly put to Yamuna Bed and its embankment, within two months from today."
Therefore, by removing the encroachment of the land in question, the DDA was only complying with the above referred directions issued by this W.P.(C) 2029/2012 Page 7 of 8 Court and no fault can be found with the action taken by it.
5. Another important aspect in this regard is that according to the DDA, there is no habitation at all on the land in question and, therefore, there can be no question of rehabilitation of any person occupying the said land. We have perused the aerial images filed by DDA along with its reply as well as the photographs available on the file. It is quite clear from a perusal of these documents that the land in question is not being used for human habitation and is being used only for farming purposes. Few thatch huts appear in the photographs field with the petition, but they appear to be the huts put up for the purpose of safeguarding the crops and not for human habitation. That being the position, there can be no question of the respondents providing for rehabilitation of the persons who are in illegal occupation of the said land. Once the land in question is acquired, no one has a legal right to continue farming on the said land and any such activity by the encroachers would be per se illegal. We, therefore, find no merit in the writ petition and the same is hereby dismissed.
CHIEF JUSTICE V.K. JAIN, J APRIL 03, 2013 rd W.P.(C) 2029/2012 Page 8 of 8