Jagjit Singh & Ors. vs Union Of India & Ors.
2010 Latest Caselaw 2882 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                Date of decision: 02.06.2010


+                     WP (C) No.2806-2934/2004

JAGJIT SINGH & ORS.                         ...PETITIONERS

             Through:   Mr. Ravinder Sethi, Sr. Advocate with
                        Mr. Rajiv Ghawana and Mr.Inder Bir
                        Singh, Advocates

                            Versus


UNION OF INDIA & ORS.                       ...RESPONDENTS

             Through:   Mr. Najmi Waziri, Standing Counsel
                        for Govt of NCT of Delhi.
                        Mr. Sanjay Poddar & Mukesh Kumar,
                        Advs. for LAC.
                        Mr. Vinay Sabharwal, Mr. O.P. Saxena
                        and Mr. Sumeet Pushkarna, Advocate
                        for the MCD &S&JJ Deptt.


and other connected matters being:

W.P. (C) Nos. 3953/2001, 2937-3000/2004, 3002-
3137/2004, 7077/2004, 7297-7320/2004, 7333-7337/2004,
8030-8047/2004,    8048/2004,    9270/2004,   12604-
12607/2004, 2398-2404/2006 & 7839/2009


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?           No

2.     To be referred to Reporter or not?            No

3.     Whether the judgment should be                No
       reported in the Digest?


SANJAY KISHAN KAUL, J. (Oral)

1. The petitioners by way of present writ petitions under

Article 226 of the Constitution of India seek to

challenge the notification dated 04.03.2003 under

Section 4 of the Land Acquisition Act, 1894 („the said

Act‟ for short) and the declaration dated 04.02.2004

under Section 6 of the said Act in respect of the lands

situated in Village Bhalswa, Jahangirpur, Delhi. The

public purpose of acquisition, as indicated in the

notification, is rehabilitation of JJ clusters.

2. It is the case of the petitioners that the persons who

had occupied public land cannot be rehabilitated at

the cost of the petitioners by acquiring their land.

3. During the course of hearing of the present writ

petitions, strong reliance was placed on behalf of the

petitioners inter alia on the judgment of the Division

Bench of this Court in Wazirpur Bartan Nirmata Sangh

v. UOI & Ors; 103 (2003) DLT 654. In terms of that

judgment, the policy of the respondents for

resettlement/rehabilitation of Jhuggi Jhopri dwellers

who squat on government land unauthorizedly and

were being allotted plots of land to move them from

the squatting site was quashed. It would be useful to

reproduce the operative portion of that order, which is

as under:

46. We are thus of the considered view that the continuing existence of such a policy serves no social purpose. Such a policy without any social criteria, is illegal and arbitrary and we hereby proceed to quash the same which requires alternative sites to be provided to slum dwellers occupying land before they can be removed from such public land. Needless to say it will be open to the respondents to devise a policy for

rehabilitation of the economically weaker sections based on a legitimate criteria but the criteria cannot be encroachment on public land.

47. The question, however, remains as to what directions are now to be issued taking into consideration that much water has flowed since the policy was originally devised in 1990.

48. We have considered the suggestions given at the Bar and have applied ourselves to the problem at hand. While quashing the policy aforementioned we consider it appropriate to give the following consequential directions:

(1) The cut-off date should be maintained as 31.1.1990 and a verification should be carried out of all the persons who have been allotted alternative sites. The needful be done within a period of 6 months from today and in any case by 30.6.2003.

(2) The persons found in occupation of the original sites would be allowed to continue to occupy the same but strictly on license basis and appropriate license deeds should be issued to them clearly stating that the rights are not transferable in any manner whatsoever.

(3) In so far as the persons who are occupying the alternative sites and who have transferred it to third parties, the plots should be got cleared from occupation of such third parties and should be allotted only to those who still remain to be allotted plots in terms of the 1990 scheme with the cut-off date remaining as 31.1.1990. Steps in this direction should also be taken up and the task should be completed within a period of one year from today and not later than 31.12.2003. Such occupants would have no right to continue to occupy since admittedly these sites were given on a license fee basis and should not have been transferred.

(4) If some persons still remain without allotment and were in occupation of any site prior to 31.1.1990, the money, if received from them should be refunded and no further plots be created to accommodate such persons.

(5) Insofar as the persons who have been allotted sites and who had encroached upon land after 31.1.1990 are concerned, the same criteria would be applied as in paras 1, 2, 3 above. However, no further allotment should be made for any such persons and the sites got vacated should be utilised for the benefit of those persons who have been occupying sites prior to cut-off date of 31.1.1990.

(6) No allotment will be converted into ownership basis as is proposed by the Government of NCT of Delhi in its policy guidelines for implementation of the scheme for relocation.

(7) No alternative sites are to be provided in future for removal of persons who are squatting on public land.

(8) Encroachers and squatters on public land should be removed expeditiously without any pre-requisite requirement of providing them alternative sites before such encroachment is removed or cleared.

(9) The land owning agencies should collect data and verify the position about the land vested in them for planned Development of Delhi and keep a periodic check to ensure that no further encroachment takes place on the public land and that the encroachments already existing are removed expeditiously.

(10) The Commissioner of Police would render all assistance as and when required by the public authorities to clear the encroachment on public land.

(11) The public authorities should make their officers responsible for such protection of public land accountable for any encroachment which takes place on public land since undoubtedly the same takes place in connivance with such public authorities. The local police authorities should also be made responsible to ensure that encroachment does not take place on public land.

49. We part with this judgment with the hope and desire that it would help to make Delhi a more livable place and ease the problems of the residents of this town who undoubtedly suffer and are harassed as a

consequence of this encroachment on public land."

4. The Union of India and the Govt. of NCT of Delhi were

both aggrieved by the said judgment and preferred

special leave to appeal.

5. Leave has been granted in both the matters and is

pending consideration before the Supreme Court.

There are some interim orders also passed which need

to be referred to.

6. In Special Leave to Appeal (Civil ) No.3166-3167/2003

filed by Union of India, interim directions were passed

on 19.02.2003 in the following terms:

"In the meantime, it will be open to the Union of India to proceed with the impugned policy. However, no allotment of land shall be made in pursuance thereof till further orders."

7. On 03.03.2003, the interim orders were modified in

the following terms:

"Interim stay shall continue except that the Authority may allot land. However, such allotment would clearly specify that the allotment would be subject to the result of the petitions."

8. In Special Leave to Appeal (Civil) No.6313-6314/2003

filed by Govt of NCT of Delhi, similar orders were

passed on 21.04.2003.

9. Leave was granted on 02/22.03.2007 and interim

orders were directed to continue with hearing

expedited and liberty to mention.

10. The result of the aforesaid proceedings thus is

that there is no stay of the operation of the impugned

judgment but Union of India has been permitted to

proceed with the impugned policy and make allotment

of land subject to the result of the petitions.

11. The original petitioners filed contempt

proceedings for violations of the directions contained

in Wazirpur Bartan Nirmata Sangh v. UOI & Ors‟s case

(supra) and in terms of the order dated 18.12.2008 in

IA No.1 of 2008 in Civil Appeal No.1691/2007 Govt. of

NCT of Delhi v. Okhla Factory Owner‟s Association

and Ors., the contempt proceedings were stayed.

12. In view of the aforesaid orders, we were

examining the question about the consequences of

such interim orders and to what extent could reliance

be placed on the judgment in Wazirpur Bartan Nirmata

Sangh v. UOI & Ors‟s case (supra) as the operation of

the impugned judgment had not been stayed nor the

impugned judgment had been set aside. A further

development which took place was the decision of a

coordinate Bench of this Court in WP(C) No.8904/2009

Sudama Singh & Ors v. Govt. of Delhi and Anr. and

other connected matters on 11.02.2010. The Division

Bench was seized of the issue of removing certain JJ

clusters which had come up on the „right of way‟

which was sought to be removed. The Division Bench

noted the judgment of this Court in Wazirpur Bartan

Nirmata Sangh v. UOI & Ors‟s case (supra) and

proceeded on the basis that the Supreme Court had

stayed the order of the High Court and thus the policy

was still operative. The conclusions of the Division

Bench are contained in para 62 of the judgment,

which are as under:

62. It is declared that :

(i) The decision of the respondents holding that the petitioners are on the „Right of Way‟ and are, therefore, not entitled to relocation, is hereby declared as illegal and unconstitutional.

(ii) In terms of the extant policy for relocation of jhuggi dwellers, which is operational in view of the orders of the Supreme Court, the cases of the petitioners will be considered for relocation.

(iii) Within a period of four months from today, each of those eligible among the petitioners, in terms of the above relocation policy, will be granted an alternative site as per MPD-2021 subject to proof of residence prior to cut-off date. This will happen in consultation with each of them in a „meaningful‟ manner, as indicated in this judgment.

(iv) The State agencies will ensure that basic civic amenities, consistent with the rights to life and dignity of each of the citizens in the jhuggies, are available at the site of relocation."

13. When the aforesaid judgment was brought to our

notice, a submission was made before us that a

coordinate Bench of this Court could not have differed

with the earlier judgment when the earlier judgment

had not been set aside by the Supreme Court. Not

only that there was not even a blanket stay of the

operation of the earlier judgment but allotment of land

in terms of the policy was permitted subject to the

final outcome of the petitions. We also wanted to

know the current stand of the Govt. of NCT of Delhi

and thus called upon them to place before us the

same.

14. The Govt. of NCT of Delhi filed an affidavit of the

Special Secretary, Deptt. Of Urban Development,

affirmed on 28.05.2010 placing on record its policy

regarding the scheme of relocation/rehabilitation of

Slum and JJ Dwellers. It was pointed out to us that on

03.02.2010, the Govt. of NCT of Delhi had approved

the „Modified Policy Guidelines for Implementation of

Scheme for Relocation/Rehabilitation and Allotment of

7900 flats to Slum and JJ Dwellers in the First Phase".

Prior to this modification, there was a policy guideline

of 03.02.1994. It has been emphasized that the cut-

off date for entitlement to an alternate plot/flat is

31.12.1998. This court in Wazirpur Bartan Nirmata

Sangh v. UOI & Ors‟s case (supra) had put the cut-off

date as 31.01.1990 in terms of the original policy.

15. The non eligibility conditions specifically deal

with jhuggis which would come up after 31.12.1998,

owners of jhuggies who have rented out/sold out the

jhuggies and were not in possession of the jhuggies at

the time of removal, the JJ dwellers squatting on road

berms, footpaths, right of way, community areas,

safety zones of railways and as per court orders, etc.

In para 5 of the affidavit, it has been stated that

insofar as eleven directions in Wazirpur Bartan

Nirmata Sangh v. UOI & Ors‟s case (supra) (This case

is also known as Okhla Factory Owners Association v.

Govt.of NCT of Delhi), the position of the Govt. of NCT

of Delhi is that the cut-off date should be 31.12.1998,

instead of plots only flats should be now allotted to

eligible persons strictly on licence and non

transferable basis, almost all the persons who were

eligible for allotment of plots have been handed over

such plots and in case any application was pending,

the same would entitle the person only to flats, no

alternative site is to be provided to persons squatting

on public land as mentioned in Section 4 of the

National Capital Territory of Delhi Laws (Special

Provisions) Second Act, 2009 and Clause 3.3 of the

Regulations for Regularization of Unauthorized

Colonies in Delhi and the encroachment already

existing on public lands would be protected insofar as

protection is available under Section 3 of National

Capital Territory of Delhi Laws (Special Provisions)

Second Act, 2009.

16. The aforesaid exceptions are stated to have

been recognized in terms of the directions passed in

WP(C) No.7758/2007 Welfare Association (Retd.) Majlis

Park v. MCD & Ors.; decided on 27.01.2010 by a

Division Bench of this Court directing removal of slum

clusters from proposed/earmarked 80 feet wide road.

However, the Division Bench of this Court in Sudama

Singh & Ors v. Govt. of Delhi & Anr.‟s case (supra) has

taken a divergent view.

17. The stand of Govt. of NCT of Delhi thus is that

Sudama Singh & Ors v. Govt. of NCT of Delhi‟s case

(supra) not only diverges from the policy of the

respondents but is in conflict with a view expressed in

Welfare Association (Retd.) Majlis Park v. MCD & Ors.‟s

case (supra) as also Wazirpur Bartan Nirmata Sangh v.

UOI & Ors‟s case (supra).

18. The second affidavit was filed by the Govt. of

NCT of Delhi in the Court today referring the modified

policy guidelines of 2010. It has been re-affirmed that

under this policy only flats will be allotted to eligible

beneficiaries on license fee basis which will not be

transferable except in case of death of the licensee

and the licensee is not entitled to rent out or part with

possession of the flat which has to be utilized

exclusively by the members of the family of the

licencee. Such allotment will be initially for fifteen

years. A specific reference has been made to the

eleven directions issued by this Court in Wazirpur

Bartan Nirmata Sangh v. UOI & Ors‟s case (supra) by

re-affirming that the Government stands by its policy

though the implementation of the policy rests with

Slum and JJ Wing of the MCD. The Slum & JJ Wing has

been requested to take appropriate action as per law

for implementation of the policy in terms of the

meeting held on 31.05.2010.

19. A separate affidavit has been filed by Slum and

JJ Department of the MCD. It is reiterated that the

allotment of flats is on licence basis initially for a

period of 15 years without right to let out or part with

possession and the Slum & JJ Wing has the right to

cancel allotment of a flat and take over possession in

case of violation of the stipulated terms and conditions

by the allottee. 60,000 plots are stated to have been

allotted to the jhuggi dwellers at various locations

namely Dwarka, Rohini, Bakkar Wala, Bawana, Narela,

Holumbi Kala, Bhalaswa, Molar Bund and Madan Pur

Khaddar etc. Exercise has been done from time to

time to check whether the jhuggi dwellers who had

been allotted plots are staying themselves in the plots

or have transferred the same to third parties. In the

exercise carried out in this regard in 1999-2000, 641

plots were found to have changed hands whose

allotment was cancelled. A similar exercise was

carried out in the year 2002 when 4373 plots were

cancelled. In the year 2007, 10539 plots have been

cancelled. Thus, the Department has cancelled

allotment of 15553 plots and it is stated that the

exercise for resumption of possession is being

undertaken at the highest level.

20. The result of the aforesaid is that in view of the

current stand of the respondents the challenge to the

judgment before the Supreme Court in Wazirpur

Bartan Nirmata Sangh v. UOI & Ors‟s case (supra) is

restricted really to the cut-off date of 31.01.1990 or

31.12.1998. It is also apparent that there has already

been violation of the terms and conditions of the

allotment of plots, which has resulted in cancellation

of over 15,000 plots and it would be expected that

expeditious exercise will be carried out to re-possess

them so that they can be given to genuine

beneficiaries.

21. Learned counsel for the parties have

emphasized that the judgment in Sudama Singh & Ors

v. Govt. of Delhi & Anr.‟s case (supra) runs even

contrary to a Supreme Court Judgment in Almitra

H.Patel and Anr. v. Union of India and Ors. IX (1999)

SLT 597 (= JT 2000(2) SC 341) where the Supreme

Court came down heavily on the policy of the

Government making allotment to persons who had

encroached on public land and the court observed that

"rewarding of encroachers on public land with free

alternative site is like giving reward to a pick pocket".

It has been emphasized that the Supreme Court has

not stayed the operation of the order in Wazirpur

Bartan Nirmata Sangh v. UOI & Ors‟s case (supra). The

approach of the Division Bench in Sudama Singh & Ors

v. Govt. of Delhi & Anr.‟s case (supra) ignoring the

judgment in Wazirpur Bartan Nirmata Sangh v. UOI &

Ors‟s case (supra) on the ground of their being a stay

is sought to be assailed as there was no finality to the

view of the Supreme Court in the SLPs filed against

the judgment in Wazirpur Bartan Nirmata Sangh v. UOI

& Ors‟s case (supra). It was pointed out that even

factually it was incorrect that the operation of the

judgment had been stayed and the Government was

only permitted to proceed with its policy in making

allotment of land subject to the final outcome of the

petitions.

22. Learned counsel for the petitioners seeks

support from the judgment of the Supreme Court in

Shree Chamundi Mopeds Ltd. v. Church of South India

Trust Association CSI Cinod Secretariat, Madras;

(1992) 3 SCC Page 1 where in para 10 it has been

observed as under:

"While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be

operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence.

This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending."

The aforesaid is of significance since undisputedly the

judgment in Wazirpur Bartan Nirmata Sangh v. UOI &

Ors‟s case (supra) has not been set aside and there is

not even a stay of operation of the judgment but

certain interim directions have been passed.

23. We do find merit in the contention advanced by

learned counsel for the parties that an authoritative

pronouncement is necessary in view of the apparent

conflict of judicial views in not only the two judgments

but also the third judgment pointed out by the Govt. of

NCT of Delhi. The question arises whether a

coordinate Bench of this Court could have ignored the

ratio decidendi of the prior judgment merely because

an appeal was pending against the earlier judgment

and there were certain interim orders issued without

even there being a stay of the earlier judgment.

24. Learned counsel for the parties, in fact, initially

sought to canvass before us that the subsequent

judgment in Sudama Singh & Ors v. Govt. of Delhi &

Anr.‟s case (supra) should be ignored, but then, in our

considered view, to accept the said submission would

be to fall in a trap for which the judgment in Sudama

Singh & Ors v. Govt. of Delhi & Anr.‟s case (supra) is

being assailed. We are of the view that where there is

conflict of judicial views by a coordinate Bench, the

matter ought to be settled by a larger Bench and one

coordinate Bench cannot evade the ratio decidendi of

an earlier judgment. If one may say so even the

counsel for the respondents joined in the request that

the matter needs consideration by a larger Bench.

25. We thus deem it appropriate to direct the

placing of this matter before the Hon‟ble Chief Justice

for constitution of a larger Bench to settle the

conflicting views in Wazirpur Bartan Nirmata Sangh v.

UOI & Ors‟s case (supra), Welfare Association (Retd.)

Majlis Park v. MCD & Ors.‟s case (supra) & Sudama

Singh & Ors v. Govt. of Delhi & Anr.‟s case (supra)

and also to determine as to what should be the

approach of the coordinate Bench when there are

earlier authoritative pronouncements having a

contrary ratio decidendi and the appeal is pending

before the Supreme Court without the judgment being

set aside or operation of the judgment being stayed.

SANJAY KISHAN KAUL, J.

JUNE 02, 2010 SUDERSHAN KUMAR MISRA, J. dm