Delhi High Court
Mrs. Meeta Chakraborty And Ors vs Govt. Of Nct Of Delhi And Ors on 23 July, 2013
Author: Manmohan
#22
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4919/2011 & CM APPL. 9981/2011, 10474-10475/2011
MRS. MEETA CHAKRABORTY
AND ORS ..... Petitioners
Through Mr. Anuj Castileno with Ms. Mrunal
Buva, Advocates
versus
GOVT. OF NCT OF DELHI AND ORS ..... Respondents
Through Ms. Shobhna Takiar, Advocate for
R-2/DDA.
Mr. Parvinder Chauhan with
Mr. Akhil Kumar, Advocates for R-3.
% Date of Decision: 23rd July, 2013
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. Present writ petition has been filed under Article 226 of the
Constitution of India seeking a direction restraining the respondents from
demolishing C-38A, C-224, C-2/52A as well as other houses in Block B, C,
C-2 and E, New Ashok Nagar, New Delhi - 110 096. Petitioners have also
prayed for regularisation of the site.
2. Mr. Anuj Castileno, learned counsel for petitioners submits that
structures constructed by the petitioners have been regularised by the
Government of NCT of Delhi, Urban Development Department vide Order
dated 4th September, 2012. The relevant portion of the said Order reads as
under:-
―Pursuant to the issue of the revised Guidelines 2007 for the
regularization of unauthorized colonies in Delhi by the Ministry
of Urban Development Department on 05.10.2007 and the
notification of the Regulations for regularization of unauthorized
colonies in Delhi dated 24.03.2008 by the Delhi Development
Authority under section 57 of the Delhi Development Act, 1957,
with the previous approval of the Central Government, the
Government of NCT of Delhi (GNCTD) had invited applications
from the Residents Societies of the unauthorized colonies in the
format prescribed in the aforesaid Regulations. After extensive
scrutiny of these applications in accordance with the prescribed
manner, the Government has been able to identify 895
unauthorized colonies located without any forest and ridge areas
and protected areas under the provision of the Ancient
Monuments and Archaeological Sites and Remains Act, 1958 and
also not posing any hindrance to the provisions of infrastructural
facilities under the posing any hindrance to the provisions of
infrastructural facilities under the Master Plan 2021, as eligible
for regularization under the said Regulations 2008 and the
boundaries of each identified colony have been finalized under
Clause 5.3 of the Regulations 2008 as amended on 06.06.2012.
These identified unauthorized colonies are given in annexures-I
and II to this order as follows:-................‖
3. Learned counsel for the petitioners points out that the List of Colonies
attached as Annexure-II to the said order mentions New Ashok Nagar at
Serial No. 14, 16 and 45. He further states that the boundary wall of New
Ashok Nagar has already been fixed and structures of petitioners fall within
the boundary fixed by the NCT.
4. Learned counsel for petitioners further submits that by virtue of the
National Capital Territory of Delhi Laws (Special Provisions) Second Act,
2011 (for short 'Act, 2011'), petitioners' structures are protected and cannot
be demolished. In this connection he relies upon Section 3(2) of the Act,
2011 which reads as under:-
―3. Enforcement to be kept in abeyance
xxxx xxxx xxxx xxxx
(2) Subject to the provisions contained in sub-section (1) and
notwithstanding any judgment, decree or order of any court,
status quo-
(i) as on the 1st day of January, 2006 in respect of
encroachment or unauthorised development;
(ii) in respect of unauthorised colonies, village abadi area
(including urban villages) and its extension, which existed
on the 31st day of March, 2002 and where construction
took place even beyond that date and up to the 8th day of
February, 2007, mentioned in sub-section (1);
(iii) in respect of special areas as per the Building Regulations
for Special Area, Unauthorised Regularised Colonies and
Village Abadis, 2010; and
(iv) in respect of all other areas within the National Capital
Territory of Delhi as on the 8th day of February, 2007.
shall be maintained.‖
5. He lastly states that DDA had just prior to filing of the present writ
petition carried out demolitions without giving any show cause notice.
6. On the other hand, Mr. Parvinder Chauhan, learned counsel for
respondent no. 3-Delhi Urban Shelter Improvement Board states that the
answering respondent has no role to play in the present petition as the
structures in question are not jhuggi-jhopris.
7. Ms. Shobhna Takiar, learned counsel for respondent no. 2-DDA states
that petitioners are encroachers on Government land and most of them are
residents of Defence Colony and Jangpura, New Delhi. She denies that the
petitioners have been residing in the said area since 28 years. According to
her, the petition has been filed with wrong facts in a bid to mislead this
Court. She points out that the amended petition refers to the name of the
petitioner as not Meeta Chakraborty but HAQ--an NGO which has no locus
standing to file it unless and until it is a public interest litigation.
8. Ms. Takiar further refers to Annexure P-1 which has been relied upon
by petitioner No.1 to show that she has been residing at the premises being
C-38A, New Ashok Nagar since 1984. Though Annexure P-1 is a house tax
receipt in the name of the petitioner, it shows her address as P-292, New
Ashok Nagar and not C-38A, New Ashok Nagar. She also states that the
General Power of Attorney executed in favour of petitioner No.3 is in
respect of property bearing No.C-38, New Ashok Nagar whereas in the
petition, she has sought protection of property bearing No.C-224, New
Ashok Nagar, Delhi from demolition. She submits that aforesaid facts show
that petitioners have approached this Court with unclean hands and have
mis-represented facts.
9. Ms. Takiar states that the petitioners have no registered title
documents in their favour. She also states that no final certificate or any
regularisation document has been placed on record other than the
provisional registration certificate of Block C of New Ashok Nagar. In
support of her contention, Ms. Takiar relies upon para 5 of respondent-
DDA's counter-affidavit which reads as under:-
―5. That the details of the so called marginalized petitioners registered
with Anganwadis is being given in a tabular form for the convenience of this
Hon'ble Court as follows:-
Sl. Name of the Petitioner Address on Title Documents on Page
No. MOP/Affidavit record no.
1. Meeta Chakraborty C-38 A, Ashok Cooking Gas receipt 14
Nagar and property tax
receipt
Electricity receipt
22.9.2005 of
property no. C-38
4. Subhash Chander B-6 Unregistered and 31
undated POA of
plot of land and
not constructed
October 1997
6. Naresh Tyagi B-33 GPA of December 38
1997 of plot of
land with no
construction
7. Manoj Kumar Aggarwal B-273A Undated GPA of 42
plot of land
16.2.2000 of a
piece of land
9. Chhavi Nath Parmar B-273 Ration Card dated 49
29.5.2002
10. Anil Kumar C-270 Payment receipt of 52
November 2001
11. Geetha Rastogi D-237 Payment receipt of 53
February 2002
12. Manoj Kumar C-296 Unregistered GPA 55
of August 2003 of
piece of land
13. Mohd Shahid B-10 Possession letter 58
dated 11.3.2004
October, 2006
15. Neelam Srivastava B-20 Property receipt of 68
March 2007
18.8.2009 of
property C-II/96
31.5.2011 of
vacant plot
18. Savitri Devi C266 & 266A Payment receipt 86
dated 15.2.2011
1.3.2011 in the
name of son of the
petitioner
10. Ms. Takiar further states that the land in question is an acquired land
which was acquired by Award No. 39/82-83 for planned development of
Delhi. She states that the area occupied by the petitioners falls within the
proposed Master Plan Road of forty-five meter wide and as such the
petitioners are not entitled to any relief.
11. Ms. Takiar submits that neither the Act, 2011 nor the Regulations for
Regularization of Unauthorised Colonies in Delhi framed under Section 57
of Delhi Development Act, 1957 under which the order dated 4 th September,
2012 has been issued, offers any assistance to the petitioners. She also states
that demolition in the past had been carried out after giving show cause
notice. In this context, she refers to the following averments in the counter-
affidavit:-
―7. That in exercise of powers conferred under Section 57 of
the Delhi Development Act, 1957, with the approval of the
Central Government the respondent framed Regulation for
Regularisation of Unauthorised Colonies in Delhi which was
notified vide Notification dated 24th March 2008 and as amended
vide Notification dated 16th June 2008. In the said Regulations
criteria for Regularization of unauthorized colonies is laid down
in Regulation 3. Under clause 3.3 of Regulation 3, the types of
colonies which cannot be considered for regularization has been
mentioned. Same is being reproduced hereinbelow:
―3.1: Cut off date for regularization is 31st March, 2002.
―3.3 The following type of colonies or part thereof would not
be considered for regularization:
a ..........................
b. Unauthorized colonies / part of colonies/ habitations
which pose hindrances in the provision of infrastructure facilities
or fall in the area of right of way (ROW) of existing or proposed
railway lines, master plan roads and major / trunk water supply
and sewerage lines.
c. Unauthorized colonies / habitations where more than
50% plots are un-built on the date of formal announcement of
regularization scheme. However, plots, which have been built up
in the above and till the date of formal announcement of
regularization scheme will be taken into consideration for
deciding the eligibility of the colony for regularization.‖
Regulation 4.2.3 : There shall be no obligation on part of the
local body / DDA / GNCTD / Union of India to allot alternate
site / flats to residents who may be displaced on account of
provision of land for civic amenities/infrastructure which are not
regularized as in clause 3.3.
That the Master Plan of Delhi-2001 was extensively modified and
notified by the Central Govt. on 7th February 2007 with the
perspective for the year 2021 keeping in view the emerging new
dimensions in Urban Development viz a viz the social, financial
and other ground realities. The National Capital Territory of
Delhi Laws (Special Provisions Act, 2007) was enacted on 5 th
December 2007 to make special provisions or the areas of
National Capital Territory of Delhi for a period upto 31 st
December 2008 which has been continued for a period upto 31st
December 2011 to provide temporary relief and to minimize
avoidable hardships and irreparable loss to the people of the
NCT of Delhi against any action by the concerned agency.
Under Section 3 of the above referred Act enforcement has been
kept in abeyance not withstanding anything contained in any
relevant laws or any rules, regulations or bye laws made
thereunder. Simultaneously under Section 4 of the said Act,
exceptions have been given by which the provision of the Act
does not apply in certain cases. The same is being reproduced
hereinbelow:
―4 : 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 the Section 3 in respect of the
following encroachment or unauthorized development namely:
a. encroachment of public land except in those cases which are
covered under clauses a, b & c of Sub section 1 of Section 3
b. removal of slums and jhuggi jhonpri dwellers, hawkers and
urban street vendors, unauthorized colonies or part thereof,
village abadi area (including urban villages) and its extension in
accordance with the relevant policies approved by the Central
Govt. for clearance of land required for specific public projects.‖
8. That in the present petition maximum land which is the
subject matter of the petition is a vacant land as mentioned above
or have been purchased or constructed after the cut off date, i.e.
after 8th February 2007. The property/ land subject matter of the
present petition comes in the way of Master Plan Road which is
45 meter wide and in view of the provisions as mentioned herein
above not protected under the existing statute and regulations.
The Respondent DDA has demolished the fresh constructions
which have taken place in contravention of the above said
regulations. The action has been taken by the respondent by
informing the residents of the area and the local police before
demolition. The petitioners are unauthorized encroachers over
the government land and are not protected under the regulations
as mentioned above as well as The National Capital Territory of
Delhi Laws (Special Provisions Act) 2011 as mentioned above.
The Development Plan of Zone E is annexed as Annexure I
hereto which shows the proposed Master Plan road of 45 meter
width from which the unauthorized encroachment has been or
has to be removed.‖
12. In rejoinder, learned counsel for the petitioners states that because of
existing construction at site the forty-five meter wide road cannot be
constructed.
13. Having heard learned counsel for the parties, the admitted position
that emerges is that petitioners neither have any registered title documents
nor any approved plan/drawing or any sanctioned plan of any building from
any statutory authority.
14. Further, New Ashok Nagar is an unauthorised colony, which from the
prayer clause of the present writ petition is pending regularization. Though
a provisional regularization certificate has been placed on record but no final
registration certificate has been produced.
15. Admittedly, the petitioners' construction do neither fall within the
definition of Jhuggi or Jhuggi Jhopri Basti under the Delhi Urban Shelter
Improvement Act 2010 nor have they been declared in a notification by the
Board as Jhuggi Jhopri Basti.
16. In any event, from a perusal of the photographs on record at pages 23
and 24 of the paper book, it is apparent that there are no jhuggi jhopri
clusters in New Ashok Nagar. From the photographs it seems that very
palatial and large structures have been constructed on Government land.
17. In view of the diametrically opposite stand taken by the parties with
regard to the show cause notice as well as practicability of construction of
public road, this Court is of the view that the same cannot be adjudicated in
writ proceeding as they are disputed question of facts.
18. Since the averment of the respondent-DDA that land in question has
been acquired for construction of a proposed Master Plan Road of forty-five
meter wide has not been disputed, this Court is of the view that the
protection under the Act, 2011 would not be available to the petitioners.
Section 4 of the Act, 2011 reads as under:-
―4. 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
encroachment or unauthorised development, namely:--
(a) encroachment on public land except in those cases
which are covered under clauses (a), (b) and (c) of sub-
section (1) of section 3;
(b) removal of slums and Jhuggi-Jhompri dwellers,
hawkers and urban street vendors, unauthorised
colonies or part thereof, village abadi area (including
urban villages) and their extensions in accordance with
the relevant policies approved by the Central
Government for clearance of land required for specific
public projects."
(emphasis supplied)
19. The order dated 4th September, 2012 issued in pursuance to
Regulations for Regularization of Unauthorised Colonies in Delhi framed
under Section 57 of Delhi Development Act, 1957 would not be applicable
in view of its Regulation 3.3 which states that unauthorised colonies which
pose hindrance in the provision of infrastructure facilities or fall in the area
of right of way of existing or proposed master plan roads amongst others
cannot be considered for regularization.
20. Consequently, as the land in question is required for construction of
proposed Master Plan Road of forty-five meter wide which constitutes a
public project, neither Section 3(2) of the Act, 2011 nor the Order dated 4 th
September, 2012 offers any protection to the petitioners.
21. Accordingly, present writ petition and pending applications are
dismissed. Interim orders stand vacated.
MANMOHAN, J
JULY 23, 2013
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