Tejpal Gautam And Ors vs Central Public Works Department ...
2018 Latest Caselaw 4666 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 9th August, 2018.

+              W.P.(C) 8448/2017 & CM No.34811/2017 (for stay)

       TEJPAL GAUTAM AND ORS                  ..... Petitioners
                   Through: Mr. Ashish Tiwari and Mr. Surya
                            Joshi, Advs.

                                Versus

    CENTRAL PUBLIC WORKS DEPARTMENT
    AND ANR                                   ..... Respondents
                  Through: Ms. Mansi Gupta, Adv. for Ms.
                            Manisha Agarwal, Adv. for R-1 with
                            Mr. Gurcharan, representative of
                            CPWD.
                            Mr. Parvinder Chauhan, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                          ORDER

% 09.08.2018

1. This petition under Article 226 of the Constitution of India, by as many as thirteen petitioners, claiming to be residing along with their families in different jhuggis at R.K. Puram, Delhi, impugns the notices, all stated to be dated 4th September, 2017, issued to each of them, under Section 5A(2) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (PP Act) as well as the orders, all stated to be dated 14 th September, 2017, under Section 5A(2) of the said Act, of removal of the jhuggis of the petitioners. Alternatively, direction is sought to the respondents Central Public Works Department (CPWD) and Govt. of NCT of Delhi (GNCTD) to provide

appropriate alternative accommodation to the petitioners in the vicinity of the jhuggis in their possession.

2. The petition came up first before this Court on 21st September, 2017, when without recording any reason, notice was issued and operation of the orders dated 14th September, 2017 stayed.

3. The respondent No.1 CPWD and the respondent No.2 GNCTD through Delhi Urban Shelter Improvement Board (DUSIB) have filed their counter affidavits.

4. Request for adjournment is made on behalf of the advocate for the respondent No.1 CPWD.

5. However, not finding any reason recorded in the order aforesaid for grant of stay and which has been operating against the respondents for the last nearly one year, the counsel for the petitioners has been asked to argue, to verify whether there is any need to hear the counsel for the respondent No.1 CPWD.

6. The counsel for the petitioners has argued, that the jhuggi of each of the petitioners is within the colony of R.K. Puram, though on the periphery thereof and the said jhuggis have been in existence since prior to 2015 and the petitioners are not liable to be removed therefrom and their jhuggis are not liable to be demolished, without the petitioners being rehabilitated in accordance with the policy in this regard, copy of which is filed at page 93 of the paper book.

7. On enquiry, it is informed that the petitioners do not claim any right, title or interest in the land on which their jhuggis are situated and the claim of the petitioners is only under the aforesaid policy.

8. In response to another query, as to why the appeals under Section 9 of the PP Act have not been preferred, the counsel for the petitioners states that no appeal against an order under Section 5A(2) is provided in Section 9 of the PP Act.

9. Though at one point of arguments there was also some controversy as to whether the jhuggis of the petitioners are abutting the walls of the government accommodation in the colony of R.K. Puram as pleaded in counter affidavits or far away from it, as argued by counsel for petitioners but the counsel for the petitioners drew attention to the photographs at page 296 to 310 of the paper book and from a perusal of the said photographs it is clear that the jhuggis are abutting the government accommodation in the colony. The counsel for the petitioners of course contended that the photographs are of jhuggis of others and the jhuggis of the petitioners are not abutting the walls of the government accommodation in the said colony.

10. However the aforesaid question is not relevant, inasmuch as the same is not determinative either way.

11. As far as the policy, to which attention is drawn, the same is of DUSIB of GNCTD and is titled "Delhi Slum & JJ Rehabilitation and Relocation Policy, 2015".

12. The said policy, in Part A thereof, in Clause 2(a)(i) titled "Who is eligible for Rehabilitation or Relocation" provides as under:

"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 01-1-2015 shall not be demolished without providing alternate housing; (this is in supersession of the earlier cut-off date of 04.06.2009 as notified in the guidelines of 2013)"

and in Part B thereof under Clause 1(ii) provides the eligibility criteria for allotment of alternative dwelling units to rehabilitate and relocate JJ dwellers inter alia as under:

"(ii) The Jhuggi Jhopri basti in which the JJ dwellers are residing must be in existence prior to 01-01-2006. However, the cut-off date of residing in the jhuggi for becoming eligible for rehabilitation shall be 01-01-2015 (this is in supersession of the earlier cut-off date of 04.06.2009 as notified in the guidelines of 2013)"

13. On enquiry, as to what is the definition/criteria of "JJ bastis" mentioned in Part A under Clause 2(a)(i), the counsel for the petitioners has drawn attention to the Delhi Urban Shelter Improvement Board Act, 2010 Section 2(g) wherein defines 'Jhuggi Jhopri Basti' as meaning any group of jhuggis which the Board i.e. DUSIB may, by Notification declare as a jhuggi jhopri basti in accordance with the factors prescribed therein.

14. The counsel for the petitioners, on enquiry, admits that there is no Notification with respect to the jhuggis of the petitioners, if at all in a basti.

15. It has thus been enquired from the counsel for the petitioners, that once the jhuggis of the petitioners or the basti if any where the said jhuggis are situated, has not been notified, on what basis the petitioners can claim a right of rehabilitation.

16. The counsel for the petitioners, instead of replying to the aforesaid, states that the petitioners are being targeted, inasmuch as dwellers of some of the other jhuggis in the vicinity have not been issued notices and no orders have been passed against them.

17. However, the law does not recognise any concept of negative equality. Once, the petitioners are admittedly not having any right to challenge the action of the respondents of removal of jhuggis in occupation of the petitioners, the petitioners cannot be permitted to perpetuate the illegality by contending that the respondents have not taken any action against others. It cannot be lost sight of that removal of such jhuggis/unauthorised occupants is not free from difficulties and if the respondents in their wisdom have decided to for the first time being proceed against the petitioners only and not against others, the action against the petitioners cannot be faulted with.

18. The counsel for the respondent No.2 DUSIB has in addition, pointed out (i) that the land which the petitioners are occupying is of the Government of India and the policy relied upon does not apply to such land, per Section 10 of the DUSIB Act; (ii) that though the petitioners have filed photocopies of a number of documents to show their possession since prior to 1 st January, 2015, being the cut-off date in terms of Clause 2(a)(i) of Part A supra of the policy but except for one or two documents, all the other documents are of after the said date; (iii) that for Clause 2(a)(i) of Part A to apply, what has to

be proved is that the basti was in existence before 1st January, 2006 and the date of 1st January, 2015, is only with respect to occupation of such jhuggis which may have come up in such bastis; (iv) there is no averment in the petition, of the existence of any basti where the jhuggis of the petitioners are situated, prior to 1st January, 2006 and the petitioners thus, even if the policy were to apply, have no right under the policy.

19. Though the counsel for the petitioners has also raised sympathy grounds and the sympathy in favour of the homeless is indeed justified, but such sympathy cannot be permitted to allow the colonies which have been developed by Government of India or by the GNCTD or by private developers, to be turned into slums, by allowing the jhuggis jhopris to come up in the open spaces in the said colony. Rather, from the photographs, it appears that the subject jhuggis are touching the wall of the government accommodation which may have been allotted to government officials and whose residence along with their family members in the said accommodation may not be possible as long as the jhuggis exists. This Court, when approached cannot consider the plight of the petitioners alone and has to necessarily consider the overall situation and considering which it is felt that showing any sympathy to the petitioners will be to the prejudice of other citizens of the country including government employees who for years wait for their turn for allotment of government accommodation. Such government employees cannot be deprived of such benefit of their employment, by making the accommodation allotted to them unusable for the reason of allowing petitioners and others to surround the said accommodation with their unauthorised jhuggis.

20. There is thus no merit in the petition.

21. Dismissed.

RAJIV SAHAI ENDLAW, J.

AUGUST 09, 2018 bs