High Court of Delhi was dealing with petition seeking to direct respondent authorities to rehabilitate the Petitioners prior to eviction/demolition of the Dharmshalas and direct respondent authorities to follow the Delhi Slum & JJ Rehabilitation and Relocation Policy, 2015 and the Protocol (for removal of Jhuggis) in letter and spirit.
Brief Facts:
This petition finds its origin in the order dated 27th September, 2021, passed by the Court in Neeta Bhardwaj and ors. v. Kamlesh Sharma and connected matters, in respect of various unauthorised occupants and illegal encroachers in the premises of the Kalkaji Mandir. On 27th September, 2021 Court was hearing some petitions related to the Kalkaji Mandir and the deplorable condition of the Kalkaji Mandir Premises. All the encroachers and illegal occupants were directed to vacate the dharamshalas and other spaces, which were in their and their family’s occupation. Most of the unauthorised occupants were not paying tehbazari and in any event, were conducting their businesses in the form of shops/stalls/kiosks in the Mandir premises. The Petitioners were residing in the dharamshalas, clearly in illegal occupation. All the three Petitioners had thereafter, appeared before this Court on 9th December, 2021 and submitted that they have been running a small shop of Phool & Prasad shop since last 22 years, due to sudden closer of the said shop, their right to livelihood under Article 19(1)(g) have badly affected. Hence, they asked for an alternative area/premises on rehabilitation scheme under relevant provisions of Street vendors (Protections of livelihood and regulation of street vending) Act, 2014. In the said order dated 9th December, 2021, it was clearly mentioned that in respect of the Petitioners and their families residing in the dharamshalas, unauthorizedly, they were to vacate the said premises, however they were free to approach the DUSIB/DDA for alternate accommodation.
Petitioner’s Contention:
The counsel for the petitioner submitted that the Petitioners ought to be given alternate accommodation and ought not to be evicted from their residences, especially since they are large families with children. It was submitted that the Night shelters is only a night shelter, and the families availing the same cannot stay in these accommodations during the day time.
Respondent’s Contention:
Learned Counsel for the respondent submitted that only one telephone call was made on behalf of the Petitioners to the Deputy Director, Night Shelters, for the purposes of making some enquiry. However, thereafter, no attempts are stated to have been made by the Petitioners to obtain the Night shelters facility from DUSIB. She further submitted that even today, if the Petitioners approach the said official with a request, the Night shelters would be made available temporarily, on a 24x7 basis for the next few days. She submitted that owing to the policy of DUSIB, though the alternate temporary space which is made available is called Night shelters, children/women would are not moved from the same even during the day time.
HC’s Observations:
After hearing both the sides Court stated that there are several illegal encroachers and unauthorized occupants who have created a deplorable situation in the Kalkaji Mandir premises, in complete violation of interests of safety and security of devotees. Court found that the condition in the Mandir in respect of civic amenities, day to day safety and security of the devotees and others in the Mandir, space for access to ingress and egress, etc., is pathetic and requiring emergent remedial measures. Accordingly, the Court had passed various orders directing removal of unauthorized encroachers and the illegal occupants from the Mandir premises, both in the form of those running and unauthorizedly occupying shops, stores, kiosks as well as those residing with large families in the dharamshalas within the Mandir premises.
Court found that the dharamshalas in the Mandir premises are expected to be catering to the devotees who come from outside Delhi, and who may need temporary spaces while they visit the Mandir for darshan purposes. However, these Petitioners have been residing in the dharamshalas for several years, ranging upto 40 years. This is obviously without paying a single penny, in a Mandir, which is run by the baridaars and other stakeholders with whom litigation is currently pending before this Court. Court found that this is completely apposite to the interest and rights of the devotees who visit the Mandir premises.
Court stated that a careful balance needs to be struck between the rights of encroachers, residing within a Mandir premises, and using the spaces for commercial interests, like the Petitioners on the one hand and the rights of the lakhs of devotees who visit the Mandir. The dharamshalas within the Mandir are not meant to be occupied permanently by shopkeepers, or their families running shops/kiosks in the Mandir premises. Further, such occupation is clearly illegal, as no license fee or teh bazari was even being paid by the petitioners.
HC Held:
After evaluating submissions made by both the parties the Court held that “The writ petition is not in the context of jhuggi jhopri dwellers requiring alternate premises, as they are occupying a public land. All the three Petitioners, were not only residing, but through their families, were also running shops/kiosks/stores. These persons were running their shops/kiosks and have been conducting their businesses within the said Mandir premises, apart from occupying the dharamshalas. Thus, they cannot be compared with the jhuggi jhopri dwellers, who occupy public land. The Petitioners herein have been unauthorizedly occupying the premises in the Mandir and have also been, through their families, unauthorizedly running commercial shops/kiosks within the Mandir premises for many years now, and a comparison of their situation with the situation of poor jhuggi jhopri dwellers is not a fair comparison.”
HC dismissed the petition.
Bench: Justice Prathiba M. Singh
Case Title: Saraswati & Ors. v. Union Of India & Ors.
Case Details: W.P.(C) 15100/2021 & CM APPLs. 47603-04/2021
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