Delhi High Court
Vijay Pal And Ors. vs Government Of Nct Of Delhi And Ors. on 6 January, 2017
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 236 /2016 & C.M. No.13333/2016
Judgment pronounced on :January 06, 2017
VIJAY PAL & ORS. ..... Appellants
Through: Mr. Kirti Uppal, Senior Advocate with
Mr.Birendra K. Mishra, Ms. Poonam Atey
and Mr. Siddharth, Advocates .
Versus
GOVT OF NCT OF DELHI & ORS. ....Respondents
Through: Mr. Devesh Singh, ASC with Mr. Vinod
Kumar Bhati, Advocate for respondent Nos.
1 & 2.
Mr. Nawab Singh Jaglan, Advocate for
respondent No. 3
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J.
1. The present Letters Patent appeal has been filed by the
unsuccessful petitioner against the final order and judgment dated
11.01.2016 passed in W.P.(C) No. 6517 of 2010 and also against the
order dated 11.03.2016 passed in the Review Petition.
2. The said writ petition was filed seeking a mandamus to the Govt.
of NCT of Delhi and Gaon Sabha, Holambi Kalan, Alipur to stop illegal
construction on a pond/water body in Khasra No. 96/76 of Village
Holambi Kalan and to preserve and maintain the said pond as a natural
water body.
3. The learned Single Judge dismissed the writ petition by the order
under appeal dated 11.01.2016 holding as under :
"8. I am of the view that the respondents cannot be
permitted to show any further laxity in the matter of
removal of encroachments from over water body.
Moreover, once it is admitted that the said water body
belongs to the Gaon Sabha and on Gaon Sabha land,
the respondents as per the judgment of the Supreme
Court in Jagpal Singh Vs. State of Punjab (2011) 11
SCC 396 relating to common land of the Gaon Sabha
are required to have the encroachment removed. In
fact the Supreme Court by the said judgment had
directed for drafting of scheme in each State for
implementation of the judgment and for eviction of
unauthorised occpants of Gram Sabha land and such
a scheme has been framed for Delhi also.
9. Removal of unauthorised construction over a water
body would also not be prevented by the NCT of Delhi
Laws (Special Provisions) Second Act 2011.
10. Accordingly, need is not felt to keep this petition
pending and is disposed of directing the respondents
to have the encroachment over the subject water body
in the aforesaid Khasra No.96/76 of Village Holambi
Kalan removed and to restore the siad water body to
its original state, within a period of six months from
today and the concerned Sub-Divisional Magistrate
(SDM) is made personally responsible for compliance
of this order."
4. We have heard the learned counsel for both the parties and perused
the material available on record.
5. The appellant pleaded that they are the original residents of the
village since more than 150 years and not encroachers and the forefathers
of the appellants built up residential houses on the aforesaid land
belonging in the Khasra No. 96/76 and 96/77 (2) prior to the enactment
of Delhi Land Reforms Act.
6. The learned counsel for the appellant relied upon the study
conducted by Dr. S.D. Singh, IPS CBO DPGS/Nodal officer water bodies
department, Department of Environment and Forest, GNCTD and
contented that learned Single Judge ought to have considered the
feasibility of the revival of the water body.
7. The learned counsel for the appellant further sought relief under
section 3 of the National Capital Territory Of Delhi Laws (Special
Provisions) Second Act, 2011, relevant portion of which reads as under:-
"3.(1) Notwithstanding anything contained in any
relevant law or any rules, regulations or bye-laws
made there under, the Central Government shall
before the expiry of this Act, take all possible
measures to finalise norms, policy guidelines, feasible
strategies and make orderly arrangements to deal
with the problem of encroachment or unauthorised
development in the form of encroachment by slum
dwellers and Jhuggi-Jhompri clusters, hawkers and
urban street vendors, unauthorised colonies, village
abadi area (including urban villages), and its
extension, existing farm houses involving construction
beyond permissible building limits and schools,
dispensaries, religious institutions, cultural
institutions, storages, warehouses and go downs used
for agricultural inputs or produce (including dairy
and poultry) in rural areas built on agricultural land,
as mentioned below:
(a) Orderly arrangments for relocation and
rehabilitation of slum dwellers and Jhuggi-Jhompri
clusters in the National Capital Territory of Delhi in
accordance with the provisions of the Delhi Urban
Shelter Improvement Board Act, 2010 (Delhi Act 7 of
2010) and the Master Plan for Delhi, 2021 to ensure
its development in a sustainable, planned and humane
manner;
(b) Scheme and orderly arrangements for regulation
of urban street vendors in consonance with the
national policy for urban street vendors and hawkers
as provided in the Master Plan for Delhi,2021;
(c) Orderly arrangements pursuant to guidelines and
regulations for regularisation of unauthorised
colonies, village abadi area (including urban villages)
and its extension, as 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;
(d) Policy regarding existing farm houses involving
construction beyond permissible building limits; and
(e) Policy or plan for orderly arrangement regarding
schools dispensaries, religious institutions, cultural
institutions, storages, warehouses and godowns used
for agricultural inputs or produce (including dairy
and poultry) in rural areas built on agricultural land.
(2) Subject to the provisions contained in sub-section
(1) and notwithstanding any judgment, decree or
order of any court, status-
(i) As on the 1st day of January, 2006 in respect of
encroachment or unauthorised development; and
(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), shall be maintained."
8. At the outset, we may point out that we are in consonance with the
observation of learned Single Judge that removal of unauthorized
encroachment over the water body would not be protected by the NCT of
Delhi Laws (Special Provisions).
9. Respondent No. 2 Gaon Sabha, Holambi Kalan through
BDO/SDM (Narela) has taken a stand in the writ petition, relevant
portion of which is recapitulated as under:-
"4. In reply to Para 4 it is submitted that the Balmiki
Communities were allotted the land in another
adjacent Kh. No. 96/77 (3-3) and has been shown as
Balmiki Mukbaja Harijan. But the Balmikies of the
village have encroached the land of the Pond in Kh.
No. 96/76 since long. As per survey conducted by the
Department mostly Balmiki families are residing in
the land encroached in Kh. No. 96/76. The total
encroachment in the said land is 5 Bigha 11 Biswa
however the remaining area bearing 5 Bigha 15
Biswa is the open land in Kh. No. 96/76.
5. Allegations made in the Para are totally wrong and
denied. It is submitted that the proceeding for
development of pond and removal of temporary
structure from the land was started in the year 2008.
The said land was demarcated by way of T.S.M. (Total
Station Machine) and after that a survey was
conducted to find out the exact situation on the site.
Than the file was again submitted to Divisional
Commissioner of direction. As per direction the file
was sent to Govt. Counsel and Court Commissioner
Sh. V.K. Tandon.
Now the matter is under process to clarify the
certain issues as sought by the consultant to
Divisional Commissioner and the Ld. Court
Commissioner.
Actually some area is heavy buildup and minor
area is temporary buildup and remaining area
measuring 5 Bugha 15 Biswa is the open land in Kh.
No. 96/76.
xxxxx
16. .....
The area of Kh. No. 96/76 is 11 Bigha 6 Biswa and
out of the said the area measuring 5 Bigha 15 Biswa
is open and remaining 5 Bigha 11 Biswa is buildup.
The said buildup area is used by Balmiki Communities
for housing purposes. As per the report of B.D.O.
(HQ) the peoples are residing over the land more than
50 to 60 years and are the original resident of the
village"
10. Admittedly, the appellants are residing on the Gaon Sabha land for
the past 50-60 years. The respondents failed to take any timely action to
prevent encroachment on the land vested in Gaon Sabha. As per the
affidavit furnished by the respondent, it is clear that the area in question
i.e. 5 Bighas and 11 Biswas is on a built up land and many families are
residing there for the past many years but it is also apparent from the
record that the Gaon Sabha land is a Johar (Pond) which was slowly
encroached upon by the villagers.
11. We have also taken note of W.P.(C) No. 2296/2013 filed by the
present appellant titled as Vijay Pal and Ors Vs. GNCTD, wherein he has
sought direction for prohibiting the department from taking demolition
action in Khasra no. 96/76, Village Halombi Kalan. The said writ petition
was disposed of on acceptance of submission made by the counsel for
GNCTD, that illegal constructions have been demolished and no further
demolition is to be carried out. The stand taken by the GNCTD in
W.P.(C) No. 2296/2013 is contrary to the stand taken by them in W.P.(C)
No. 6517/2010.
12. Be that as it may, since the land is under habitation, ousting of
families without rehabilitation is not viable, we find no infirmity in the
order passed by learned Single Judge directing the authorities for removal
of encroachment from the water bodies and restoration thereof.
13. As far as the issue of relocation/rehabilitation of petitioners are
concerned, we found from the record that the petitioners were residing on
the encroached land for the past many years and hence, we dispose of the
appeal with the following additional directions:-
(i) To draft a rehabilitation scheme within 6 months for the
unauthorised encroachers on the subject land.
(ii) The concerned authorities shall have the encroachments over
upon the pond /water body in Khasra No. 96/76 of Village
Holambi Kalan removed before the finalization of the
Rehabilitation Scheme and restore the said pond to its original
status for which the Sub Divisional Magistrate (SDM) shall be
personally responsible.
(iii) It shall be the personal responsibility of the Station House
Officer of the concerned area that once the encroachments are
removed no further encroachment takes place on the water
body in Khasra No. 96/76 of Village Holambi Kalan.
C.M.NO. 13333/2016 (Stay)
In view of order passed in appeal, Application is rendered
infructuous.
Application stands disposed of.
SANGITA DHINGRA SEHGAL, J
CHIEF JUSTICE
JANUARY 06, 2017
