Harijan Kalyan Samiti Regd. & Ors. vs Govt. Of Nct Of Delhi & Ors.
2010 Latest Caselaw 1084 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   W.P.(C) No. 5200 of 2008

                                              Reserved on: February 11, 2010
                                              Decision on: February 24, 2010

        HARIJAN KALYAN SAMITI REGD. & ORS.           ..... Petitioners
                     Through: Mr. Vikram Nandrajog, Advocate.

                        versus

        GOVT. OF NCT OF DELHI & ORS.                  ..... Respondents
                      Through: Ms. Priyanka Kumar, Advocate for UOI.
                      Mr.V.K. Tandon, Advocate for GNCTD.
                      Mr. P. N. Bhardwaj, Advocate for Applicant
                      Ms. Sadhna Tyagi in CM No.14517 of 2009.

                                        AND

                                   W.P.(C) No. 5201 of 2008

        HARDEV NAGAR RESIDENTS WELFARE ASSOCIATION
        REGD. & ORS.                                 ..... Petitioners
                     Through: Mr. Vikram Nandrajog, Advocate.

                        versus

        GOVT. OF NCT OF DELHI & ORS.                  ..... Respondents
                      Through: Ms. Priyanka Kumar, Advocate for UOI.
                      Mr.V.K. Tandon, Advocate for GNCTD.
                      Mr. P. N. Bhardwaj, Advocate for Applicant
                      Ms. Sadhna Tyagi in CM No.14469 of 2009.


        CORAM: JUSTICE S. MURALIDHAR

                1. Whether reporters of the local news papers
                   be allowed to see the order?                       No
                2. To be referred to the Reporter or not?             Yes
                3. Whether the order should be reported in the Digest? Yes

                                   JUDGMENT

W.P.(C) Nos. 5200 & 5201 of 2008 & CM Nos. 9914 & 9915 of 2008 (for stay) & CM Nos. 14469 & 14517 of 2009 (for impleadment)

1. The prayer in Writ Petition (Civil) No. 5200 of 2008 filed by the Harijan

Kalyan Samiti (Regd.) and 17 other individuals who are residents of the

W.P.(C) Nos. 5200 & 5201 of 2008 page 1 of 11 Harijan Basti of Jharoda Majra in Burari is for quashing a notice dated 17th

July 2008 issued by the Secretary, Ministry of Urban Development

(Unauthorised Colony Cell), Government of National Capital Territory of

Delhi (GNCTD) directing the removal of all encroachments on the land of

the supplementary drain in Jharoda Majra by 23rd July 2008 failing which

the encroachments would be demolished on 23rd July 2008.

2. Writ Petition (Civil) No. 5201 of 2008 is by the Hardev Nagar Welfare

Association (Regd.) and 13 other individuals who are residents of Hardev

Nagar Jharoda Majra, Burari seeking an identical relief.

3. The impugned notice dated 17th July 2008 was issued pursuant to the

order dated 4th July 2008 of this Court in Writ Petition (Crl.) No. 703 of

1998 titled "Sadhna Tyagi v. Flood Control Department" and the

subsequent directions issued on 15th July 2008 by the Divisional

Commissioner. The background to the impugned order is that land forming

part of Khasra Nos. 30/22, 31/16/2, 30/21 and 31/25 situated in village

Jharoda Majra, Burari, Delhi was acquired under the Land Acquisition Act

1894 vide Award No. 40/79-80 and vested in the Irrigation and Flood

Control Department („IFCD‟) of the GNCTD. Paper possession was also

handed over to the IFCD.

4. The above W.P. (Crl.) No. 703 of 1998 was filed by Sadhna Tyagi in this

Court complaining that Shri Yashpal and Shri Satyapal sons of late Shri Yag

Dutt Tyagi and certain others in collusion with the officials of the Revenue

Department had started selling parcels of the said acquired land by carving W.P.(C) Nos. 5200 & 5201 of 2008 page 2 of 11 out plots. An order dated 27th May 1999 was passed by a Division Bench

this Court in the said writ petition directing Yashpal and Satyapal to

maintain status quo with regard to the land in question. The Division Bench

restrained them from selling, alienating or parting with the possession of the

land. By a further order dated 25th August 1999 the Division Bench directed

the IFCD to have the acquired land measured and demarcated. On 2nd

March 2000 the Court was informed that demarcation had been carried out

and a status report to that effect had been filed. The Court was informed that

"land which is under unauthorised occupation of the dwellers, belongs to the

Flood Department and on behalf of Flood Control Department, they will be

approaching for help the District Task Force for removal of unauthorised

occupation of that land." The Court was informed that further time was

required for taking possession of the land in accordance with law. The case

was then adjourned to 14th July 2000.

5. In the meanwhile Yashpal and Satyapal filed Writ Petition (C) No. 4083

of 2000 on 7th April 2000 in this Court seeking directions to restrain the

authorities from dispossessing them. The challenge in these petitions was to

the validity of the demarcation carried out. A further grievance was that

despite the land of the Petitioners not forming part of the land that was

demarcated, they were still sought to be dispossessed. By an order dated 5 th

October 2004, a learned Single Judge of this Court disposed of both the writ

petitions leaving it open to the Petitioners to file appropriate proceedings to

challenge the demarcation carried out pursuant to the directions of the

Division Bench in Writ Petition (Crl.) No. 703 of 1998. It was further

directed that interim orders would continue for a period of one month to W.P.(C) Nos. 5200 & 5201 of 2008 page 3 of 11 enable the petitioners therein to take recourse to legal proceedings.

6. An appeal was filed by Yashpal and Satyapal against the demarcation

before the Deputy Commissioner/Additional Collector (North). The said

appeal was dismissed on 14th July 2006. The further appeal to the Financial

Commissioner was dismissed on 15th February 2008. In a Contempt Case

(C) No. 747 of 2006 filed by Sadhna Tyagi an order dated 4th July 2008 was

passed by another learned Single Judge of this Court requiring

implementation of the earlier orders. Thereafter the impugned notice dated

17th July 2008 was issued.

7. There were certain other developments which were perhaps not brought to

the attention of this Court when the aforementioned orders were made. The

Petitioner No.1 in Writ Petition (Civil) No. 5200 of 2008 i.e. Harijan Kalyan

Samiti (Regd.) was granted registration under the Societies Registration Act,

1860 on 1st November 1994. A public notice was issued by the GNCTD

inviting applications for regularization of unauthorised colonies. The

unauthorised colonies were to be considered for regularization as per the

terms and conditions as might be approved by the Competent Authority.

The applications could be made by Residents Welfare Associations/

Residents Societies/ Resident Cooperative Societies of unauthorised colonies

which were in existence on 31st March 2002.

8. Pursuant to the above public notice both the Harijan Kalyan Samiti

W.P.(C) Nos. 5200 & 5201 of 2008 page 4 of 11 (Regd.) [Petitioner No. 1 in W.P. (C) No. 5200 of 2008] and the Hardev

Nagar Welfare Association [Petitioner No.1 in W.P. (C) No. 5201 of 2008]

made applications for regularisation. Copies of the acknowledgment receipts

dated 29th December 2004 and 17th December 2004 respectively issued by

the GNCTD, Department of Urban Development have been placed on

record. The colony in question is part of the official list brought out by the

Respondents of unauthorised colonies awaiting regularisation. It is stated

that there are more than 1430 unauthorised colonies being considered for

regularization. It is an admitted position that till date no final decision has

been taken on these applications for regularisation.

9. Another important development was that a policy decision was taken by

the Land Acquisition Branch, Land & Building Department GNCTD not to

take possession of the awarded land falling within the boundaries of certain

unauthorised colonies. This was announced through a decision of the Lt.

Governor of Delhi which was communicated by a letter dated 11th

September 2007 written by the Additional Secretary (L&B) which reads as

follows:

"Government of NCT of Delhi Land & Building Department (Land Acquisition Branch) D-Block, Vikas Bhawan: New Delhi-02

No. F11(37)/07/L&B/LA To

1) Pr. Secretary-cum-Commissioner (Rev.) 5, Sham Nath Marg, Delhi.

(2) Vice Chairman Delhi Development Authority, Vikas Sadan, New Delhi.

W.P.(C) Nos. 5200 & 5201 of 2008 page 5 of 11 Sub: Taking possession of the awarded land falling within the boundaries of certain unauthorised colones.

I am directed to convey you the decision of the Hon‟ble L.G. of Delhi on the above noted subject which read as under:-

"In view of the policy decision to regularise certain unauthorised colonies, any land falling within the boundaries of such colonies as per the survey which had been carried out by Divisional Commissioner, whether built up or not, will not be now taken over by the Government."

This is for information and compliance please.

(T.C. Nakh) Addl.Secretary (L&B)

No. F11(37)/07/L&B/LA 8559-80 Dated: 11/9/2007."

10. On 19th May 2006 the Parliament enacted the Delhi Laws (Special

Provisions) Act, 2006 („Act‟). The Statement of Objects and Reasons noted

that it had become necessary in the larger public interest to make special

provisions to finalise norms, policy guidelines and feasible strategies in

respect of slums and jhuggi jhompris in Delhi, the problems related to the

unauthorised developments in respect of the mixed land use, construction

beyond the sanctioned plans and encroachment. The object of the enactment

was to put a moratorium on demolition of encroachments and slums for a

period of one year. In terms of Section 3(2) of the Act, status quo as on 1st

January 2006 was to be maintained in respect of encroachments and slums.

The Act was passed by Parliament to overcome certain decisions by this

Court and the Supreme Court in terms of which the encroachments and the

W.P.(C) Nos. 5200 & 5201 of 2008 page 6 of 11 slums were required to be removed. This is evident from Section 3 (2) which

reads thus:

"Section 3 - Enforcement to be kept in abeyance (1) Notwithstanding anything contained in any relevant law or any rules, regulations or bye-laws made thereunder, the Central Government shall within a period of one year of the coming into effect of this Act, take all possible measures to finalise norms, policy guidelines and feasible strategies to deal with the problem of unauthorised development with regard to the under-mentioned categories, namely:--

(a) mixed land use not conforming to the Master Plan;

(b) construction beyond sanctioned plans; and

(c) encroachment by slum and Jhuggi-Jhompri dwellers and hawkers and street vendors,

so that the development of Delhi takes place in a sustainable and planned manner.

(2) Subject to the provisions contained in sub-section (1) and notwithstanding any judgment, decree or order of any court, status quo as on the 1st day of January, 2006 shall be maintained in respect of the categories of unauthorised development mentioned in sub section (1).

(3) All notices issued by any local authority for initiating action against the categories of unauthorised development referred to in sub- section (1), shall be deemed to have been suspended and no punitive action shall be taken during the said period of one year.

W.P.(C) Nos. 5200 & 5201 of 2008 page 7 of 11

11. Under Section 4 of the Act the categories to which the above moratorium

would not apply were set out. Section 4 reads as under:

4. The provisions of this Act not to apply in certain cases.-During the period of operation of this Act, no relief shall be available under the provisions of section 3 in respect of the following categories of unauthorised development, namely:-

(a) any construction unauthorisedly started or continued on or after the 1st day of January, 2006;

(b) commencement of any commercial activity in residential areas in violation of the provisions of the Master Plan of Delhi 2001 on or after the 1st day of January, 2006;

(c) encroachment on public land except in those cases which are covered under clause (c) of sub-section (1) of section 3;

(d) removal of slums and Jhuggi-Jhonpri dwellers and hawkers and street vendors, in accordance with the relevant policies approved by the Central Government for clearance of land required for specific public projects."

12. Although its validity stands challenged in the Supreme Court, no stay

has been granted of its provisions. The Act has continued to operate and has

since been extended up to 31st December 2010.

13. In the present writ petition this Court on 22nd July 2008 passed an order

staying the impugned notice after taking note of the provisions of the Act.

W.P.(C) Nos. 5200 & 5201 of 2008 page 8 of 11 Two applications CM Nos. 14469 and 14517 of 2009 have been filed by

Sadhna Tyagi seeking impleadment in these writ petitions. The submissions

of Shri P.N.Bhardwaj, learned counsel for the Applicant have been heard at

length. The submissions of Sri Vikram Nandrajog, learned counsel for the

petitioner and Sri V.K.Tandon, learned counsel for the GNCTD have also

been heard.

14. It is submitted that the present Petitioners cannot have the benefit of the

present Act in view of Section 4 which specifically states that where

encroachment is on public land, the benefit of the Act would not be

available. The question that arises is as to whether Section 4(c) of the Act

covers unauthorised colonies.

15. The scheme of regularization of unauthorized colonies in Delhi is

covered by a separate policy pursuant to which a public notice was issued

way back in 2002 and pursuant to which individual applications have been

made by a large number of unauthorized colonies. A perusal of the

Statement of Objects and Reasons of the Delhi Laws (Special Provisions)

Act, 2006 reveals that while the intention of the Parliament was to bring the

jhuggi jhonpri clusters and encroachments in that form on public land, or

constructions in violation of the land use conditions within the ambit of the

Act, it was not meant to cover unauthorised colonies. The decision of the

Lt.Governor in 2007 to not initiate moves to recover acquired land on which

there were unauthorized colonies awaiting regularization appears to be

independent of the Act. The scheme of regularization of unauthorized W.P.(C) Nos. 5200 & 5201 of 2008 page 9 of 11 colonies has been treated as a separate one. A list of over 1400 unauthorised

colonies whose applications for regularisation are pending has been brought

out by the Respondents. This involves a very large number of residents. If

the submission that Section 4(c) of the Act applies to unauthorised colonies

on public land were to be accepted, then even before a decision can be taken

on their regularization the entire lot of such colonies would face demolition.

Such an interpretation of Section 4 (c) is not consistent with the object and

purpose of the Act.

16. In the considered view of this Court, this argument of the Applicant in

CM Nos. 14469 and 14517 of 2009 deserves rejection.

17. Inasmuch as the application by both these set of Petitioners for

regularisation of the unauthorised colonies is still pending consideration

before the Government, the impugned notice dated 17th July 2008 cannot be

given effect to. The attention of the Court that passed the orders

aforementioned in Sadhna Tyagi v. State [Writ Petition (Crl.) No. 703 of

1998] was not drawn to the fact that in terms of the policy of the

Government regarding regularisation of the unauthorised colonies the

petitioners were protected till such time a decision was taken on their

application for regularization. That they were not parties to those

proceedings could also be a reason why these facts were not accounted for.

Therefore, the orders passed by this Court in Writ Petition (Crl.) No. 703 of

1998 or Contempt Case No. 747 of 2006 cannot take away the right of these

unauthorised colonies for regularisation in terms of the policy of the W.P.(C) Nos. 5200 & 5201 of 2008 page 10 of 11 Government. Till such time such a decision is not taken, the policy decision

of 11th September 2007 whereby it was decided that possession of such land

would not be taken will also have to be adhered to.

18. Consequently, these writ petitions are disposed of by directing that till

the decision is not taken on the applications made by the Petitioners in each

of these writ petitions for regularisation of the unauthorised colonies in

question, the Respondents are restrained from disturbing the possession of

the Petitioners. In other words, the impugned notice dated 17th July 2008

will not be given effect to as long as a decision is not taken by the Govt. of

India on the applications made by the Petitioners in each of these writ

petitions for regularisation of the unauthorised colonies. Thereafter, in the

event of the colonies not being regularized, the Respondents will take a

decision afresh on displacing the petitioners and give them sufficient

advance notice, of not less than three months, to enable them to make

alternative arrangements.

19. The petitions and the applications are disposed of accordingly.

                                                S. MURALIDHAR, J
FEBRUARY 24, 2010
dn




W.P.(C) Nos. 5200 & 5201 of 2008                                  page 11 of 11