The Division Bench of the Delhi High Court in the case of Mohd Isreal & Ors. vs Delhi Development Authority & Anr. consisting of Justices Manmohan and Manmeet Pritam Singh Arora reiterated that a private license is considered non-heritable and personal to the person to whom it is granted.
Facts:
This petition was filed by 7 slum residents in Shahi Qabarastan in Khasra No. 163, Ward No. 1, Mehrauli, Delhi ('subject land' or 'graveyard'). It stated that Prince Mirza Arif Bakht Anjum Jah ('Prince') allowed the Petitioners to live on the subject land by executing a license deed on 31.01.2013 in favour of Petitioner no. 2's now deceased father, appointing him as a caretaker. This appeal challenged the demolition order issued by Respondent no. 1, Delhi Development Authority (‘DDA'), ordering encroachers to vacate Government land in Khasra No. 163 within 10 days, failing which Respondent would remove the encroachers and recover demolition costs from them.
Contentions Made:
Petitioner: It was contended that the Prince allegedly allowed villagers to live in and maintain the graves. It was alsocontended that DDA doesn't own the site, so the scheduled demolition is illegitimate. Moreover, they were daily wage employees living with their family and would be homeless during the winter if Respondent no.1 demolished their home. Even if the land belonged to DDA, the petitioners' homes could not be demolished without rehabilitation under the Delhi Slum & JJ Rehabilitation and Relocation Policy, 2015 ('Policy of 2015') of the Delhi Urban Shelter Improvement Board ('DUSIB').
Observations of the Court:
The Bench noted that the petitioners had no claim via the license deed. The deed was reportedly executed in favour of Petitioner No. 2's late father. Clause 8 of the license deed prohibited the licensee from sub-letting, assigning, or otherwise parting with possession of the inhabited area or elsewhere in the graveyard. So, as per the license document, petitioners had no right to stay in the graveyard.
In addition to the licensing deed, the Petitioners relied on an injunction decision made by a Civil Judge in Delhi in a Civil Suit between the Plaintiff and DDA and Delhi Waqf Board. Shahzadi Roshan Jahan Begum Temoori ('Shahzadi') sued DDA and Delhi Waqf Board. The Bench couldn't see the connection between the graveyard, which is disputed in this writ, and Shahzadi's injunction order because the licensing deed did not refer to his title rights. Moreover, neither the civil suit nor its proceedings were cited in the writ petition.
Relying on Shashank Shekhar v. Surinder Kumar Jain it opined that no interest was created in favour of the father of Petitioner No. 2 under the license and none was pleaded in this petition. It stated that:
“Assuming that Prince is the owner of the private graveyard, a license is not heritable and upon the demise of the licensee i.e., the father of Petitioner No. 2, the license being a personal privilege also came to an end.”
Petitioner No. 2 therefore could not claim any rights to continue to reside in the graveyard under the license deed. Since demolition work would be done exclusively according to the 2021 delineation report and only encroachers were removed, the instruction of encroachment clearance was without prejudice to rival graveyard ownership claims.
It couldn't assess the petitioners' eligibility for rehabilitation under the 2015 Policy, Draft Protocol of 2016. If and when petitioners approached the Competent Authority, their rights under the 2015 Policy would be established in conformity with the law.
Judgment:
Petitioners were given till 15.01.2023 to vacate the jhuggis keeping their claim of hardship in view. This court didn't investigate Petitioner's argument that the area was Prince's private graveyard. It solely reviewed petitioners' claims to stay in the graveyard. This petition was dismissed accordingly.
Case: Mohd Isreal & Ors. vs Delhi Development Authority & Anr.
Coram: Justice Manmohan, Justice Manmeet Pritam Singh Arora
Case No: W.P.(C) 17520/2022 & CM APPL. 55902/2022, decided on 26th December 2022
Advocates for Petitioner: Mr. Fidel Sebastian and Ms. Anupradha Singh
Advocates for Respondent: Ms. Shobhana Takiar, Standing Counsel, DDA with Mr. Kuljeet Singh and Ms. Latika Malhotra, Advocates. Mr. Mohd. Irsad (ASC, GNCTD) with Mr. Rakesh Kumar Sinha, Ms. Divita Dutta & Mr. Kumud Ranjan Mishra, Advocates for R – 2.
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