Narender Raikwar vs Govt Of Nct Of Delhi And Ors.
2017 Latest Caselaw 6565 Del

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                  Judgment delivered on: 20.11.2017
+       W.P.(C) 11480/2016
        NARENDER RAIKWAR                            ..... Petitioner
                          Through :     Mr Tuhin Batra, Advocate.

                          versus

    GOVT OF NCT OF DELHI AND ORS        ..... Respondents

Through : Mr Parvinder Chauhan, Advocate for DUSIB.

Ms Bharathi Raju, Advocate for R-2/UOI.

Mr Dhanesh Relan, Ms Akshita Manocha and Ms Gauri Chaturvedi, Advocates for DDA.

CORAM:-

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SANJEEV SACHDEVA

S. RAVINDRA BHAT, J. (OPEN COURT)

W.P.(C) 11480/2016 & CM Nos.45118/2016(stay), 32776/2017(delay in filing additional affidavit for 30 days)

1. The claim in these proceedings said to be in public interest is for directions to the respondents to furnish order dated 21.11.2016 {issued by the first respondent - NCT of Delhi through the Delhi Urban Shelter Improvement Board (hereafter referred to as „the Board‟ )} . In fact, a notice was issued by the second respondent, i.e. the Union of India through Central Public Works Department

(CPWD)}(hereafter referred to as 'the CPWD‟).

2. The impugned communication notifies that constructions in 5D Pursing Square, Sector-2, Udhyan Marg, Peshwa Road, Gole Market, New Delhi-110001, are unauthorized and instructs the legal authorities - including the Government of NCT of Delhi, to coordinate with the Police to remove the construction. The residents of the concerned area were also notified about this.

3. The petitioner submits that in terms of the Delhi Slum and JJ Rehabilitation and Relocation Policy, 2015, he and other residents are eligible for relocation benefits. Reliance is placed upon para 2(a) of the Policy, which reads as follows:-

"2. Keeping the above principles in mind, GNCTD announces the following policy for rehabilitation and relocation of JJ basti.

(a) Nodal Agency The Delhi Urban Shelter Improvement Board (DUSIB) shall act as the Nodal Agency for implementation of his policy as per the mandate given to it under the provisions of Delhi Urban Shelter Improvement Board Act, 2010

(i) Who is eligible for rehabilitation or relocation JJ Bastis which have come up before 01.01.2006 shall not be removed (as per NCT of Delhi Laws (Special Provisions) Second Act, 2011) without providing them alternate housing. Jhuggis which have come up in such JJ Bastis before 01-01-2015 shall not be demolished without providing alternate housing; (this is in suppression of the earlier cut-off date of 04.06.2009 as

notified in the guidelines of 2013)

(ii) No new Jhuggis to be allowed in Delhi GNCTD shall ensure that no new jhuggi comes up after 01-01-2015. If any jhuggi comes up after this date, the same shall immediately be removed without providing them any alternate housing. GNCTD will use the following methods to ensure that no new jhuggis come up.

a. GNCTD has started procuring satellite maps every three months to keep an eye on any new constructions. New illegal constructions would be removed immediately.

b. GNCTD is willing to d joint inspections with land owing agencies at regular intervals and any fresh jhuggis would be removed immediately. c. GNCTD would enrol volunteers form JJ Bastis, who will act as eyes and ears of the government and would inform government if any fresh jhuggis comes up in any area.

(iii) In-situ rehabilitation DUSIB shall provide alternate accommodation to those living in JJ Bastis, either on the same land or in the vicinity within a radius of 5 km. In case of exceptional circumstances, it can be even beyond 5 km with prior approval of the Board. The terms and conditions at which alternate accommodation will be provided and the eligibility conditions are being separately notified.

(iv) In-situ Rehabilitation of JJ Bastis on lands belonging to other Land Owning Agencies i. DUSIB is willing to take over any JJ Basti on the model of Kathputli Colony from any land owning

agency in Delhi for in-situ re-development; on the same terms & conditions on which DDA has given Kathputli Colony slum rehabilitation project to a private builder. Therefore, each land owning agency may make a list of all such bastis which they are willing to hand over to DUSIB on these terms.

ii. For the balance bastis:-

MPS 2021 envisages that for in-situ rehabilitation of JJ Bastis, a maximum of 40% land can be used as a resource and minimum of 60% of land has to be used for in-situ redevelopment to rehabilitate JJ dwellers. DUSIB will prepare a scheme of rehabilitation of any JJ Basti and use such portion of land which is required for rehabilitation of JJ Dwellers depending upon density of the said Basti and pass on the remaining portion of land to the Land Owning Agency, which will have to bear the cost of rehabilitation. The cost of rehabilitation would include the cost of construction of dwelling units and cost of land in case, additional land belonging to DUSIB is used for rehabilitation.

(v) Relocation rare cases Any Land Owning Agency will not demolish any JJ Basti which is eligible as per para 2(i) above unless:

1. There is any Court order

2. That basti has encroached a street, road, footpath, Railway safety Zone, or a park

3. The encroached land is required by the land owning agency for specific public project as envisaged in The NCT of Delhi Laws (Special provisions) Second Act, 2011, which is extremely urgent and can‟t wait.

In these circumstances, the land owning agency shall bring the proposal before DUSIB. If DUSIB is satisfied and permits demolition, then DUSIB shall make all efforts to relocate the jhuggis in that JJ Basti, clear the land and hand it over to land owning agency within next six months after the date of DUSIB resolution. In such circumstances, the land owning agency shall pay such amount to DUSIB in advance, which meets the cost of construction of alternate dwelling units, cost of the land at Circle Rate on which those dwelling units are constructed and cost of relocation. However, the beneficiary contribution as well as the contribution made by the Government of India if any, towards the cost of construction of dwelling units, will be deducted from the aforementioned cost of rehabilitation.

(vi) Rehabilitation work to be completed in five years

-

DUSIB hopes to complete this task of rehabilitation all JJ Bastis in Delhi in the next five years, if it receives cooperation from all land owning agencies."

4. The petitioner contends that he and other residents had been in occupation of the premises continuously since a long period and certainly from 2006. The petitioner avers that he has been in continuous occupation since 1999.

5. The respondents, i.e. the Board and the CPWD resist the petition and argued that occupant's inhabitation of 5D Pursing Square, Sector-2, Udhyan Marg, Peshwa Road, Gole Market, New Delhi-110001, including the petitioner, is entirely unauthorized. It is pointed out that the petitioner and others like him were permitted to occupy those premises and put up constructions, as they were working

as daily wagers with third party agencies that were awarded Contracts. Reference is made to the concluded nature of Contracts, which were awarded and it is pointed out by the counsel for the CPWD that in the case of works at Peshwa Road, the contracts were in fact completed and that the continued occupation of these inhabitants is unauthorized.

6. It is pointed out besides that the premises which the petitioners described as jhuggies are in fact not covered and that in any event, the policy does not cover cluster, which has less than 50 households. The relevant provisions of the Act, relied upon for this purpose by the Board are Section 2(f), which defines 'jhuggies‟ and Section 2(g), which defines 'jhuggi jhopri basti‟. It is further submitted that the area is not even a notified jhuggi cluster. This is an answer to the petitioner's averments that the website of the Board lists the area as a 'jhuggi jhopri cluster‟.

7. Section 2(f) and (g) read together, set out what constitute 'jhuggi and what are the 'jhuggi jhopri bastis‟. For inclusion of any structure as "jhuggi", its inclusion in an invocation by the Board is pre-requisite. Likewise, for premises or an area to qualify for rehabilitation under the Delhi Urban Shelter Improvement Board Act, it is essential that it must be part of a Colony declared as 'jhuggi jhopri basti‟. That is possible only if not less than 50 households are involved.

8. In the present case, besides a plain averment that the petitioner is residing since 1999, there is no material to show that in fact the area

is a jhuggi, as it has not been included in the invocation. Moreover, importantly, there is nothing on record to show that at least 50 households existed as jhuggi as on 31.03.2002.

9. The material on record also suggests that the petitioner was awarded works contract by the CPWD. Those agencies have completed their work and have moved on. In these circumstances, the Court is of the opinion that the relief claimed in these proceedings cannot be granted. The Court also notes that the Writ Petitioner had moved Civil Court seeking injunction, which was dismissed for non- appearance.

10. The Writ Petition for the above reasons is dismissed.

S. RAVINDRA BHAT (JUDGE)

SANJEEV SACHDEVA (JUDGE)

NOVEMBER 20, 2017 'Sn'