Dr. Ambedkar Slum Utthan ... vs Municipal Corporation Of Delhi ...
2002 Latest Caselaw 2182 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioner, which is society registered under the Societies Registration Act, has filed this writ petition for rehabilitation of its members who were evicted from Chunk Nos. 4 and 5 of Kali Masjid, Asaf Ali Road in the year 1982 under the Delhi Gate, Ajmerit Gate Scheme and were put in transit camp at Minto Road. It is averred in the writ petition that under the said Scheme the slum areas of the walled city in Delhi were to be redeveloped and as such the people inhabited in the slum areas of the walled city were requested to surrender their houses. It was promised by the concerned authorities at that time that the people who were surrendering voluntarily vacating their houses under the aforesaid Scheme will be provided permanent alternate accommodation of abut 60-70 sq. mtrs. at Kali Masjid or nearby area after redevelopment within two-three years. On this assurance these slum dwellers surrendered their properties/houses in the year 1982 which were demolished by the respondents for redevelopment. As a temporary arrangement till the time these dwellers were to be given alternate accommodation as promised, they were given transit accommodation in transit camp at Minto Road area. They are residing in these transit camps since 1982 on license basis.

2. The petitioner society further alleges in the writ petition that they were sought to be evicted in the year 2001 when notices dated 11th July, 2001 were served upon 29 members whereby they were asked to be prepared to vacate the transit accommodation in which they were residing. The petitioner society challenged the aforesaid action of the respondents by filing CWP No. 4530/2001 and sought protection from this court against the said action terming it as illegal. The said writ petition was disposed of vide order dated 16th August, 2001 by a learned Single Judge of this court in the following terms:

"Petitioners have filed this writ petition, claiming that they were shifted from their original accommodation in 1982 into a transitory one. The transitory accommodation has been in their occupation for 19 years, by a notice dated 11.7.2001, they are sought to be evicted and again sent to transitory accommodation. Mr. K.K. Bhuchar, learned counsel for respondent Nos. 1 and 2, who had appeared on the basis of an advance copy, was asked to ascertain whether there was any scheme for permanent rehabilitation of the petitioners and what they proposed to do for their relocation. An interim direction, directing petitioners be not evicted was passed. Tody Mr. Bhuchar, on instructions, submits that the eligible allottees out of the petitioners would not be dislocated and shifted to transitory accommodation whenever they are shifted, they will be shifted to a permanent location. Mr. Bhuchar states that a decision with regard to their rehabilitation has not yet been taken. Accordingly, the other prayers made in the writ petition are pre-mature.

Mr. Bhuchar at this point of time submits that the question of allotment of permanent accommodation and shifting of evictees of chunk Nos. 4 and 5, Kali Masjid, Asaf Ali Road, who are stated to be the members of the petitioners association, respondent attempted to serve the petitioner association. However, the said notice as not accepted. Mr. Budhiraja counsel for the petitioner, on instructions from Mr. Khemchand General Secretary of the Association, submits that the aforesaid evictees are members of petitioner association and they are competent to accept notice on their behalf. Mr. Bhuchar has handed over in Court the original notice, addressed to Mr. Surender Kumar, General Secretary. The evictees and members of the petitioner association will duly submit their responses within a month from today.

In view of the statement made by Mr. Bhuchar counsel for respondent Nos. 1 and 2 as recorded herein before, the writ petition stands disposed of."

3. This order thus reveals that the respondents had given an assurance to this court that the members of the petitioner society would not be dislocated and shifted to transitory accommodation and that whenever they are shifted they would be shifted to a permanent location.

4. It may not be necessary to state in detail other developments which took place thereafter. Suffice is to mention that members of the petitioner society started receiving notices of eviction. Initially four members received such notices dated 11th October, 2002 stating as under:

"Kothi Nos. 1, 3, 7 Kotla road, 5 Minto Road and 207 Rouse Avenue Road are to be vacated on an emergent basis. It is to inform you that a draw of lots is to be held on 14.10.2002 at 11.00 A.M. for Chunk-IV & V Evictees for allotment at Kali Masjid flats on permanent basis.

You are, hereby requested to be present in the draw on 14.10.2002 at 10.00 A.M."

5. It is clear from the aforesaid notice that these occupiers of transit camps were asked to evict the same on emergent basis as in view thereof they were to be given allotment at Kali Masjid on permanent basis for which draws to be held on 14th October, 2002. The petitioner society protested vide letter dated 12th October, 2002 on the ground that neither the area nor other details of the flats being considered for proposed draw at Kali Masjid were furnished nor the terms and conditions of the allotment were given. The Slum & JJ Wing of the Municipal Corporation of Delhi replied back vide letter dated 14th October, 2002 stating that a pair of flats/area of one flat being 24.64 to 36.53 sq.mtrs.approximately, is to be allotted to each of the occupants of the Kothi and the flats to be allotted were newly constructed at Kali Masjid which were block Nos. E, F & G. It was also stated that if the allottees so desired, they could inspect the same at the location. However, this did not satisfy the petitioner society and in this manner correspondence continued to be exchanged between the parties. Office bearer of the petitioner society also met the Deputy Prime Minister who allegedly gave the assurance that the petitioner society's grievance would be considered. However, as nothing concrete happened the petitioner society sent further representations and finding no response the present writ petition was filed on 30th October, 2002.

6. When this petition came up for preliminary hearing, while issuing notices to the respondent and passing status-quo order, the summary of the case was noted in order dated 31st October, 2002. It would be useful to reproduce the said order at this stage:

"The case of the petitioner-Society is that its members are occupying transitory occupation for the last 20 years and were assured equal treatment as was given to the residents of Turkman Gate, Sarai Khalil and Dujana House. After making reference to the earlier history, learned counsel for the petitioner has drawn our attention to the notice dated 14th October, 2002 which was received by the members of the petitioner-Society calling upon them to vacate the present accommodation and shift to the new accommodation offered to them in Kali Masjid (Chank No. 4 and 5 under D, A, G Scheme).

Our attention also has been drawn to the reply to the said notice sent by the petitioner-Society to the Additional Commissioner (Slum, & J.J.) more particularly to the following:

"It is pertinent to mention there that these same flats were also offered to us earlier in the year 2000 vide your allotment letter No. D.../Allot Sec/2000 dt.17/04/2000. In response our Sangathan members had submitted their reply on dt.27/06/2000 to the Addl.Commissioner Slum & J.J. and acceding to our request of pair of units to each allottees. Later the Addl. Commissioner and office bearer of our society paid visit to these proposed flats, he himself found and commented these flats are not totally worth living for us so he will never allot these flats to us. Accordingly they have allotted Kothi No. 25, Kotla Road and 207, Rouse Avenue Road to the evictees of Kothi No. 8 & 6. Kotla Road respectively.

That it is now more than twenty years that we are living in transit accommodation in Minto Road Complex. In the meantime our families have also expanded and therefore the proposal to allot two flats to each allottee which are below the specifications prescribed by the DDA/Govt.of India specification is grossly inadequate for our requirement.

We are, however, willing to accept allotment at Kali Masjid provided we are allotted to the same covered area as allotted to the evictees of Turkman Gate, Sarai Khalil and Dujana house considering the base year as 2002."

The petitioner-Society is thus seeking direction from the Court for redressal of their grievance and for staying the action of the respondents to evict them from the present accommodation.

Issue notice to the respondents to show cause as to why rule nisi be not issued returnable on 22nd November, 2002.

Mr. Atul Bhuchar accepts notice on behalf of the respondent 2. Mr. Neeraj Jain accepts notice on behalf of respondent-4. Ms. Geeta Mehrotra accepts notice on behalf of respondent-1. Mr. Pravin Kumar accepts notice on behalf of respondent-3.

In order to have on record the condition and nature of the accommodation offered to the members of the petitioner-Society and considering the oral prayer made by learned counsel for the petitioner, we hereby appoint Mr. Sanjay Poddar, Advocate, who is present in the Court to visit the site at Kali Masjid and report in court about the condition and nature of the accommodation offered to the members of the petitioner-Society. In case of necessity Mr. Sanjay Poddar shall also seek police assistance from the local police. Mr. Sanjay Poddar shall also take photographs of the place. In order to enable Mr. Sanjay Poddar to execute this Commission, the officials of the MCD shall render appropriate assistance to Mr. Sanjay Poddar. A sum of Rs. 10,000/- will be paid by the respondent No. 2 to Shri Sanjay Poddar to enable him to execute the Commission and also bear expenses over the said work. Mr. Sanjay Poddar states that the amount be paid to Legal Services Authority. It will be for Mr. Sanjay Poddar after executing the Commission to deal with the amount as he deems fit.

List on 22nd November, 2002.

CM No. 11857/2002

Till the next date of hearing status quo as of today be continued to be maintained with regard to the accommodation in occupation of the members of the petitioner-Society."

7. As is apparent from the aforesaid order, since the grievance of the petitioner society was that the flats offered were not in habitable condition which was disputed by the respondents, Local Commissioner was appointed to visit the site at Kali Masjid and report about the condition and nature of the accommodation offered to the members of the petitioner society. The learned Local Commissioner carried out the commission and submitted his report Along with the photographs which were taken at the site. we shall refer to this report in detail the appropriate stage. It may however be noted at this stage that as per this report, the flats in question are fit for occupation subject to installation of some small items like, switch board, jali and taps in the bathroom, glass penals etc. he also opined that the standard of these flats commensurate with the status of persons sought to be shifted. The petitioner society, not happy with this report, took time to file objections to the same and objections dated 28th November, 2002 are filed. The respondent No. 1 has filed affidavit responding to these objections. The petitioner society has also filed reply to this affidavit.

8. The matter was argued in detail on 17th December, 2002. At the outset, learned counsel for petitioner conceded that the members of the petitioner society had no right to stay in transit camps and they were prepared to vacate the same provided they are given proper alternate accommodation which is fit enough to make a decent living. His submission was that accommodation offered at Kali Masjid was not habitable and pointed out following deficiencies in such an offer:

a) The area sought to be given to each evictee at Kali Masjid was inadequate and insufficient that their requirement and contrary to what was assured to members of the petitioner society. In this respect it was submitted that when slum dwellers were evicted from Turkman Gate, LIG tenements of the area of approximately 60-70 sq.yrds. were constructed and for evictees of Sarai Khalil MIG and LIG flats were constructed at Sarai Khalil. Although similar assurance was held out to the squatters at these transit accommodation at Kali Masjid, they were not offered similar flats as were offered to the evictees at Turkman Gate and Sarai Khalil and therefore hostile discrimination was meted out to members of the petitioner society which was in violation of Article 14 of the Constitution.

b) Even flats where they were sought to be shifted were not fit for habitation and it was alleged that there were number of defects in the construction of these flats. It was submitted that there were structural defects; substandard construction material was used; condition of the staircase was deplorable; there were SCI pipes in the staircase of flats of blocks G and F; sanitary work was still incomplete in blocks G and H; in one flat of block G work of fixing WC seat was incomplete; there was malba and coarse sand lying in fronts of blocks E, F and G. It was also submitted that there was a wall of private building which is at the minimal distance from the walls of flats in block F with the result there was very narrow passage and it was even difficult to move.

c) The last submissions was that although as per the statement given by the respondents in the earlier writ petition these evictees were to be shifted in a permanent dwelling, it was not known whether the flats were they were sought to be shifted were on permanent basis or temporary basis because it was represented by Sh. Kumar Anand, Director, Slum & JJ Wing of the MCD that respondents had acquired a plot of land in Dev Nagar area for permanent rehabilitation of the members of the petitioner society.

9. Mr. Bhuchar, learned counsel appearing for respondent No. 2, on the other hand, refuted the aforesaid contentions of learned counsel for the petitioner. He submitted at the outset, to assuage the apprehensions of the petitioner society, that the settlement of members of the petitioner society was on permanent basis. He further submitted that the contention of the petitioner society that flats were not in habitable condition was make belief and imaginary. He produced the original record relating to the construction of the aforesaid flats and test reports contained therein in order to buttress his submission that the construction carried out was with quality material and structure was not lacking in strength or otherwise. He also relied upon the report of the Local Commissioner to bring home his submission to the effect that the flats were in habitable condition and were ready for occupation. He refuted the contention of the petitioner society based on Article 14 of the Constitution by submitting that there was no question of drawing any parallel with the evictees of Turkman Gate and Sarai Khalil. Further, in any case, he made a statement that each evictee family was to be given a pair of flats, i.e. two flats adjacent to each other and thus their need was taken care of.

10. In so far as attempt of the petitioner society to draw comparison with the evictees of Turkman Gate and Sarai Khalil is concerned we are not convinced that by offering flats in question to the members of the petitioner society, any discrimination is meted out to them. It is a matter of record that the members of the petitioner society were encroachers of the public land when they had created slum at Delhi Gate. It is also a matter of record when they were shifted to transit accommodation at Minto Road complex after the slum at Delhi Gate under Ajmeri Gate Scheme was cleared. It was to be a temporary phenomenon. It was conceded at the bar that these persons had no right to continue to stay in these transit accommodation at Minto Road complex. No doubt, they stayed in the slums and thereafter in transit accommodation for number of years and as per the schemes of the Government, they are to be given alternate accommodation. This obligation the respondents have not denied nor have they shied away from fulfillling this obligation. However, the question that crops up for consideration is as to whether these persons have right to get allotment of same kind of flats which were given to the evictees of slums at Turkman Gate and Sarai Khalil. Answer to that has to be in the negative. The Government comes out with schemes of rehabilitation of such dwellers from time to time. Merely because on earlier occasions some of the slum dwellers at some other place, on their eviction from those slums, were given a particular kind of flats is by no means an assurance to all other slum dwellers that they would also be allotted same type of flats when they are evicted from the accommodation under their occupation. The concept of discrimination or Article 14 cannot be stretched to the limits sought to be contended by leaned counsel for the petitioner. No doubt, the problem is social and humane in nature. At the same time, humanitarianism must be distinguished from miscarriage of mercy. Government/Administration is required to consider various aspects, including financial considerations, while providing such alternative shelters. The petitioners, after all, have no legal or statutory right to get allotment of flats of particular standard and dimensions. What is to be examined is as to whether the faults which are sought to be offered are reasonable and fit for occupation. Therefore, this aspect only is to be examined and we now proceed to undertake this exercise.

11. As already noted above, the respondents have agreed to allot a pair of flats to each evictee family. Thus when these two flats are to be given, and the area comprised in these two flats is to be taken into consideration, we do not find that any discriminatory treatment is meted out to the members of the petitioner society inasmuch it appears to be substantially the same as was given to the evictees of the Turkman Gate and Sarai Khalil. Coming to the conditions of the flats, the Local Commissioner has submitted his report after thorough and indepth on the short inspection of the flats. The photographs which are filed by the Local Commissioner Along with the report militate against the apprehensions expressed by the learned counsel for the petitioner society and clearly depict that occupier of the flats in question would make reasonably decent living. We cannot turn blind eye on the fact that the members of the petitioner society are afterall slum dwellers who created slums by encroaching upon the public land in the first instance. We, therefore, agree with the observations of the Local Commissioner to the effect that the flats in questions commensurate with the standard of the persons sought to be shifted. By no means we are suggesting that these evictees are to be given rough or shabby treatment but when we are convinced that flats in question are of reasonable standard, we cannot be carried away by the whims and fancies of the petitioner society or their members if they have uncalled for reservations about these flats.

12. In so far as quality of construction is concerned, we have perused the file produced by learned counsel for the respondent No. 2 which contains various test reports. These reports relate to test results of concrete cube for RCC work, wood used, steal reinforcement, GI pipe, water for construction, quality of bricks, cement concrete cubes etc. All these reports and certificates are given by specialised agencies certifying the quality of the aforementioned materials used in the construction of the flats. There is no reason to disbelieve the same.

13. It is possible that in respect of some flats, minimal work still remains to be completed. However that would not be a valid reason for staling shifting process. It also would not afford sufficient ground to the petitioner society to reject the proposal outrightly. We may notice that each objection of the petitioner society is dealt with by making the following assertions in the affidavit of the respondents:

"One of the main objections is regarding the measurements of the rooms of the flats and total area comprised therein. It is stated that as per requirements as prescribed by the Bureau of Indian Standards, in respect of Low Income Housing the total area of a flat should be 15.5 sq.mtrs. The total area of a flat in the cluster in question is 15.47 sq.mts. Further the size of the living room is prescribed 9 sq.mts., whereas the actual size at the site of the living room is 9.47 sq.mts. So far as the multi purpose room is concerned prescribed size is 6.5 sq.mts. whereas the actual size at the site is 6 sq.mts.

That another objection raised by the petitioners is respecting the quality of construction. In this respect suffice is to say that the construction has been raised as per the prescribed standards. Further there is a mandatory Quality Control Check on the construction and this check is carried out by an independent Department under the control of Superintending Engineer (Quality Control). In the instant case such quality check was carried out by the said Department during the execution of the Works itself, and after having carried out such quality check during the construction itself, the said quality control department has submitted a report, signifying that the construction raised is as per the prescribed standards.

That another objection is respecting the existence of a structure which would have housed an Electric Sub Station. It is stated that the said structure has been unauthorisedly erected by the Electricity Department, and this Department has already written to the concerned authorities for shifting of the same.

That another objection is respecting the size of the staircase, particularly in Block G and H. It is stated that as per the norms laid down in respect of the low income housing, and where the building to be constructed is up to three storeys, as also the staircase are to be straight, the prescribed width is .75 sq.mts. This covers the present staircase also.

Further there is an objection to the existence of certain pipes in the staircase. In this respect it is stated that once the flats are occupied and there is some difficulty felt by the persons using the said staircase, the pipes would be relaid in such a fashion that there would be no obstruction.

That so far as the objection respecting the absence of Fire Hydrants is concerned, it is stated that the same is not correct. On the main water line, only one Fire Hydrant is required to be fixed. This provisions has been made on the main water line and the Fire Hydrant has been installed.

That so far as the existence of old buildings is concerned, which allegedly block passage as projected by the petitioners, it is stated that in the instant case the requirement is to have only one inlet and outlet at the flats in question because of the exigencies of the situation as explained hereinafter. However, it is stated that efforts are being made to find relocation flats for the occupants of these old buildings. The Department assures this Hon'ble Court that efforts are on to find relocation flats and on such flats being available occupants of old building would be removed and the back boundary wall, which was erected only as a safety measure shall also be removed. In any case the objection that neither Fire Tender nor Ambulance can enter the complex is again untenable inasmuch as in a Low Housing Scheme, such vehicles only go up to the Gate of the complex.

It is stated that when the petitioners and persons placed in similar situation were evicted from Chunks No. 4 and 5, and the question of their relocation came up, the requirement of such evictees was that they should be given relocation flats in the area in question itself. Efforts are made to accommodate as many persons as possible in this very area and that is the reason for the flats being of smaller size.

It may further be added that each relocatee is being given two of the flats in question."

14. On the ipxi dixit of the petitioner society and their members, their shifting cannot be stalled more particularly when the CPWD Kothis in the Minto Road complex occupied by the members of the society are urgently required by the respondents as at that very site Metro Railway Station, City Civic Centre etc. have to be constructed.

15. The respondents shall, however, ensure that a particular flat is allotted only after it is complete in all respects.

16. In the aforesaid analysis, we do not find any merit in this writ petition which is accordingly dismissed.