Shri Mange Ram & Ors. vs Union Of India & Ors.
2008 Latest Caselaw 1590 Del

*                IN THE HIGH COURT OF DELHI

+                    WP(C) No.6425/1998


     SHRI MANGE RAM & ORS.                    ........ Petitioner
          through: Mr.V.P.Singh, Sr. Advocate with
                   Mr.Virendra Singh, Adv.


                           VERSUS


     UNION OF INDIA & ORS.                     ........ Respondent
                   through:     Mr.Sanjay Poddar, Adv. for
                                respondent No.4

                                Mr.Sanjay Kumar Pathak, Adv. for
                                respondents No.2 and 3

                                Mr.Gaurav Sarin, Adv. for
                                respondent No.5


                        RESERVED ON:
                         01.9.2008

                     DATE OF DECISION:
%                       09.9.2008

     CORAM:

     Hon'ble Mr.Justice Pradeep Nandrajog
     Hon'ble Mr.Justice Sunil Gaur

1.   Whether reporters of local papers may be allowed
     to see the judgment?

2.   To be referred to the Reporter or not?

3.   Whether judgment should be reported in Digest?




WP(C) No.6425/1998                                     Page No.1 of 15
 :    PRADEEP NANDRAJOG, J.

1. The petitioners seek quashing of the notification dated

23.1.1965 issued under Section 4 of the Land Acquisition Act

1894; quashing of the declaration dated 26.12.1968 issued under

Section 6 of the LA Act, 1894; quashing of the award dated

19.9.1996 relating to land comprised in Khasra Nos.690/2 (0-18),

692/2 (2-15), 694/1 (0-18), 695 (4-16), 700/2 (2-8) total area

being 11 bigha and 15 biswa in the Revenue estate of Village

Mahipalpur.

2. Pleadings in the writ petition running into 47 pages are

prolix. Further pleadings by way of additional affidavits filed from

time to time to bring on record subsequent events are also prolix.

In a nutshell, the cause on which the relief is predicated is that

over the years a large number of unauthorized colonies have

come up on agricultural lands in Delhi in total violation of the

prescribed land use, but the Government of India took a decision

to regularize 1071 colonies and that from time to time the list of

unauthorized colonies expanded; the last known figure of

unauthorized colonies to be regularized is 1432. That L-Block,

Mahipalpur Extension is one such colony proposed to be

regularized. That the land in question is part of L-Block

Mahipalpur Extension. Thus, the actual claim is that,

notwithstanding the lands being acquired, the respondents be

restrained from taking over possession of the acquired lands till

issue of regularization of unauthorized colonies is finally settled.

3. With reference to a notification dated 24.10.1984,

being notification No.F.33/Engg.TP(DP)/11424/94, petitioners

drew attention of this Court to the fact that 557 unauthorized

colonies i.e. colonies which came up without sanction and in

contravention of the prescribed land use were regularized in the

year 1984. Therefrom, the case projected was, that from time to

time, unauthorized colonies are being regularized and the

Government cannot discriminate by resorting to pick and choose

certain lands which are acquired but have come under

unauthorized colonization and leave out some. The petitioners

also sought sustenance from the directions issued by the Division

Bench of this Court requiring Government to frame a policy of

regularization and act thereunder. Petitioners further seek

sustenance by placing reliance on orders passed by this Court

from time to time directing that till the issue of regularization was

finalized, lands which were acquired but had come under illegal

colonization would not be taken possession of till final decisions

are taken whether to accept the grounds realities i.e. regularize

the unauthorized colonies. The petitioners also seek sustenance

from the fact that under a policy decision taken by the

Government, it has been decided to regularize all unauthorized

colonies where more than 50% of the plots have been

constructed upon and that L-Block, Mahipalpur Extension is one

such colony where more than 50% of the the plots have been

constructed upon and hence is entitled to be regularized.

Attention of this Court was drawn by the petitioners to the fact

that pursuant to a public notice dated 1.7.2006, issued by the

Department of Urban Development, Government of NCT, Delhi,

unauthorized colonies which had come up till January 2005 were

required to form Resident Welfare Association and through the

association all plot holders were to submit a joint lay out plan of

the colony so that the Government could take follow up action for

regularization of the colony. It was submitted that the Resident

Welfare Association of L-Block, Mahipalpur Extension had

submitted the regularization plans vide registration No.0341 and

that, on 16.6.2008, in exercise of power conferred under Section

57 of the Delhi Development Act 1957, the Delhi Development

Authority with the prior approval of the Central Government had

directed that the Government of NCT, Delhi may issue provisional

regularization certificates. Lastly, it was urged that in exercise of

power conferred by Section 3 of the National Capital Territory of

Delhi Laws (Special Provisions) Act 2007 a notification has been

issued on 30.1.2008 requiring suspension of all punitive action

and maintenance of status quo in areas where unauthorized

development and unauthorized colonization has taken place.

4. Learned counsel for the respondents did not refute the

policy of regularization and the various policy decisions and

notifications relatable to regularization of unauthorized colonies,

reference whereof was made by the petitioners at the hearing.

The only argument advanced was that notwithstanding the

regularization of unauthorized colonies being under the active

consideration and finalization of modalities by the Government, if

lands were required for a public purpose, possession thereof

could be taken over by the Land Acquisition Collector and

thereafter the lands could be handed over to DDA for the

purposes of execution of a public work.

5. Failure of DDA and the Government of Delhi to

maintain sanity in the city of Delhi pertaining to land use is a

matter of public knowledge and finds mention in various

decisions. In the decision reported as AIR 1988 SC 408 Hukum

Chand & Ors. Vs. UOI the Hon'ble Supreme Court observed that

the growth of population and influx thereof into urban areas is

amongst other reasons responsible for making life competitive

with everybody becoming self centered and none bothering about

the interest of others and the community.

6. On the one hand, after taking monopoly over lands in

Delhi with the promulgation of the Delhi Development Act, 1957

the Government not only eschewed the responsibility of making

available sufficient lands for the citizens of Delhi but did not

check land grabbing and unauthorized colonization resulting in

unauthorized colonization with impunity. In contravention of the

Development Plans and prescribed land use, huge tracks of

agricultural lands were colonized day after day. The unfortunate

reality is that today more than 40% of the population of Delhi

finds shelter in these unauthorized colonies.

7. One fails to understand as to why Government and in

particular the DDA chose to resort to monopolistic practices by

releasing residential and commercial lands in driblets. One gets a

feeling that there was a mala fide intention of those at the helms

of the affairs so as to ensure that the developed land is not

placed at the disposal of the citizens of Delhi and they are

compelled to violate the law. Vote bank politics in Delhi relatable

to land use is felt at every election. Historically it is to be seen

that before every election, be it the Lok Sabha or the Legislative

Assembly of Delhi, concessions are given to not only

unauthorized colonizers but even to those who have contravened

the development norms relating to floor area ratio. The list of

unauthorized colonies which commenced with 557 in the year

1984 reached 1091 in the year 2002 and has reached the figure

of 1432 as of the year 2006.

8. Thus, whether the lands which are the subject matter

of the writ petitions stand acquired or not become a non-issue.

What has to be considered today is the effect of the policy

decision taken to regularize unauthorized colonies and the latest

notifications issued on 30.1.2008 and 16.6.2008, reference

whereto has been made by us hereinabove.

9. There are over 100 decisions of this Court directing the

respondents not to adopt the policy of pick and choose and till

the issue of regularization of a particular colony is decided, to

freeze the status quo.

10. We note only one such decision of a co-ordinate

Division Bench reported as 2004 (IV) AD (Delhi) 313 Daya Nand &

Ors. Vs. UOI & Ors. In paras 8 to 10 it was observed as under:-

"8. It is not a case of an individual or a few persons whose land is acquired and the acquisition is challenged on the ground that construction has been raised on the said land. Here is a case where on the subject land a full fledged colony has come into existence. True that it was an unauthorized colony but the fact remains that a number of such colonies have sprung up in Delhi and the Government has been addressing itself as to how these unauthorized colonies have to be dealt with. Communication dated 16 February 1977 addressed by the Ministry of Works & Housing, Government of India to the Lt.Governor of Delhi on the subject "Unauthorised colonies in Delhi- approval of" itself mentions that the Government had appointed a Committee on 26 August 1974 to make a case by case study in respect of unauthorized colonies which had come up in Delhi from time to time, particular, before 15 June 1972 with a view that the Government could take a decision in regard to the

future of such colonies. The said Committee submitted its report on 26 February 1975 which was examined by the Government and decision was taken to regularise these colonies on the terms and conditions set out therein. We are concerned with condition No.6 which reads as under :-

"Colonies which have been notified for acquisition will also be considered for regularization and wherever necessary other represential steps will be taken".

9. It is, thus, clear that it was in the contemplation of the Government that some of the colonies, respect of which decision is taken to regularize them, are the ones which have been notified for acquisition. It was decided to take necessary steps for the purpose of such regularization. Perhaps for this reason, no steps were taken to take possession of the land, although Notification under Section 4 in this case was issued on 11 December 1981, with the result that these colonies, which came into existence in earlier 70s, are in existence for last more than 30 years.

10. It is pertinent to note that the land was sought to be acquired for the purpose of 'Planned Development of Delhi'. It appears that it was to be handed over to the DDA for some housing project and on the land in question houses already exist. No return is filed either by the Government or the DDA controverting these averments of the petitioners. Therefore, we have no option but to proceed on the basis that possession is still with the petitioners and there is no Notification under Section 22(1) of the Delhi Development Act, 1957 placing land at the disposal of DDA."

11. Directions issued in para 11 read as under:-

"11. In view of the factual scenario projected above, we are of the opinion that the ends of justice would be met if the writ petitions are disposed of with the following directions:

(I) While sustaining Notifications under Sections 4 and 6 of the Act, it is directed

that the petitioners shall make appropriate representation to the competent authority under Section 48 of the Act for denotification of the land. On making such application within two weeks from the date of receipt of copy of this order, the respondents shall consider the same within six months from the date of making such representation.

(II) If the decision is taken to denotify the land, the Government shall be free to impose the conditions as are set out in communication dated 16 February 1987 on which regularization is to be done, i.e. with regard to lay out plan, provision for road and other community facilities, payment of development charges etc.

(III) Till such a decision is taken, the possession of the petitioners shall not be disturbed."

12. We note that after the afore-noted decision of the

Division Bench of this Court was pronounced much water has

flown by. The policy of regularization has been notified. Norms

for regularization have been framed. Residents of unauthorized

colonies have formed Resident Welfare Associations and have

submitted the plans for regularization. The plans are under

consideration. On 16.6.2008 a notification has been issued under

Section 57 of the Delhi Development Act, 1957, inter alia,

notifying as under:-

"4.6.1. Soon after the requirements of Clause 4 of the Regulations as fulfilled by the residents of the colony, the GNCTD may issue a provisional regularization certificate to that unauthorized colony.

The local body/DDA and GNCTD would complete the prescribed formalities before formal regularization of the unauthorized colony as prescribed under Clause 5 of the Regulations within a period of 12 months from the date of issue of the Provisional Certificate, Lt. Governor, Delhi may relax the time limit in respect of individual colonies as provided in Clause 5.11 of the Regulations.

4.6.2. However, this certificate cannot be issued to unauthorized colony/habitations inhabited by affluent sections.

4.6.3. However, the final boundary of these colonies would be fixed by the GNCTD only after completing all requisite formalities including those in Clause 3 of the Regulations."

13. On 30.1.2008, in exercise of power conferred by

Section 3 of the National Capital Territory of Delhi Laws (Special

Provisions) Act, 2007, a notification has been issued which inter

alia directs as under:-

" (1) (i) Notwithstanding any judgment, decree, or order of Court, steps shall be taken by the local authority, including desealing, to maintain status quo as on 1st day of January, 2006 in respect of encroachment or unauthorized development referred to in Section 3 of the said Act except in respect of unauthorized colonies, village abadi area and its extension.

(ii) Notwithstanding any judgment, decree, or order of Court, steps shall be taken by the local authority, including desealing, to maintain status quo in the unauthorized colonies village abadi area and its extension, which existed on the 31st day of March, 2002 as on the 8th day of February, 2007.

(2) All notices issued by any local authority for initiating action against encroachment or unauthorized development referred to in Section 3 of

the Act shall be suspended and no punitive action shall be taken till the 31st day of December, 2008.

(3) During the period up to 31st December, 2008 w.e.f. 5th day of December, 2007, action as per relevant laws shall continue to be taken by the local authorities in respect of the categories of encroachment or unauthorized development, as specified in Section 4 of the said Act and a monthly report of the action taken shall be sent to the Secretary, Ministry of Urban Development, New Delhi by the end of the first week of the succeeding month."

14. It is not in dispute that the Residents Welfare

Association of L-Block, Mahipalpur Extension has submitted the

requisite lay out plan for regularization of its colony. It is also not

in dispute that the Government of NCT, Delhi and the Central

Government are processing the lay out plans submitted by the

Welfare Associations of 1432 colonies which have come up as

unauthorized colonies in Delhi. It is also not in dispute that as per

the notifications issued from time to time, status quo is being

maintained.

15. Thus, prima facie, the petitioners would be entitled to

relief at par which was granted by the Division Bench of this Court

in Dayanand's case. (supra).

16. The submission made by learned counsel for the

respondents that the policy of regularization excludes such lands

which are required for an urgent public purpose needs to be

noted and dealt with.

17. It is not in dispute that the original public purpose for

which lands were sought to be acquired in Delhi has been totally

frustrated because of unauthorized colonization on said lands and

a decision has been taken by the Government to regularize the

unauthorized colonies which satisfy the norms for regularization.

Thus, the original public purpose of the acquisition has lost all

relevance. The competing claim for regularization under the

policy decisions taken by the Government has frustrated the

purpose of the acquisition. But, within the field of regularization

of unauthorized colonies, there still remains the field of a public

purpose, namely, requirements of land to provide public facilities

in the unauthorized colonies and for laying roads and highways to

connect the unauthorized colonies with adjoining colonies or as

thoroughfare through the unauthorized colonies. Certainly, these

lands can be acquired and taken possession of, because these

lands would in any case be required to be taken over and utilized

for a public purpose in harmony and in tune with the

regularization norms of the unauthorized colony. But, the

respondent has then to show to the Court, with material, that

independent of the original public purpose for which the lands

were acquired, notwithstanding the issue of regularization of

unauthorized colonies pending scrutiny as per the policy of

regularization, the land is still required for a public purpose as per

the current development scheme which, in harmony with the

policy of regularization would still require the land to be taken

possession of and put to a public use.

18. No such material was placed before us or shown to us.

19. Before concluding we note that there is a dispute

raised by the respondent qua the possession of the subject lands.

It is urged that possession was taken over.

20. However, we note that the possession was not taken

over, evidenced by the fact that when the writ petition was filed

status quo was directed to be maintained. DDA filed CM

No.18252/2007 alleging that the petitioners have violated the

status quo by raising the constructions on the land.

21. A Local Commissioner was appointed by this Court on

4.1.2008 who reported that the petitioners were in possession of

the subject lands. Certain constructions at site were reported.

22. Before issuing final directions in the writ petition, we

record that we are not going into the issue whether the

petitioners violated the status quo or not for the reason from the

photographs filed and even the report of the Local Commissioner

it is difficult to ascertain whether the constructions were recent

constructions or are constructions relatable to the time when

unauthorized colonization took place.

23. Further, we note that the photographs and the report

of the Local Commissioner evidence very little construction on the

subject land and major part thereof is lying vacant.

24. We thus draw attention of the authorities concerned to

be conscious of the fact that the subject lands are by and large

not built upon and that the policy of regularization requires more

than 50% of the plots in a colony to be built upon.

25. Be that as it may, these factors are to be taken into

account while taking the decision on the regularization of L-Block,

Mahipalpur Extension.

26. In harmony with the decision in Daya Nand's case

(supra) and noting subsequent developments we dispose of the

writ petition directing that till issue of regularization of L-Block,

Mahipalpur Extension is finalized and final decision taken whether

or not to regularize L-Block, Mahipalpur Extension, the

respondents would not disturb the possession of the petitioners

who are also directed to maintain status-quo and not effect any

constructions on the subject lands. Needless to state, if the final

decision taken by the Government is to regularize L-Block,

Mahipalpur Extension, and within the said colony, to regularize

the plotted development made by the petitioners, that would be

the end of the matter and in said eventuality possession of the

subject lands would not be taken over. In case of L-Block,

Mahipalpur Extension being not regularized or the subject lands

excluded from the regularization of the said colony, it would be

open to the respondents to take possession of the subject lands.

27. No costs.

PRADEEP NANDRAJOG, J.

SUNIL GAUR, J.

September 09, 2008 vg