Vikalp Welfare Society & Ors vs Union Of India & Ors
2019 Latest Caselaw 1071 Del

    * IN THE HIGH COURT OF DELHI AT NEW DELHI
    %                            Date of decision: 18th February, 2019

+    LPA 115/2019, CM Nos. 7641-7643/2019
     VIKALP WELFARE SOCIETY & ORS
                                                               ..... Appellant
                        Through:      Mr. Rajat Aneja, Adv. with Ms. Nisha
                                      Sharma & Mr. Sambit Nanda, Advs.

                        versus

     UNION OF INDIA & ORS
                                                            ..... Respondent
                        Through:      Mr. Dev P. Bhardwaj, CGSC for
                                      UOI/R-1 & R-3 with Ms. Anubha
                                      Bhardwaj & Mr. Jatin Teotia, Advs.
                                      Mr. Hashmat Nabi, ASC with
                                      Mr. Farah Naaz, Adv. for R-2
                                      Ms. Mini Pushkarna, SC (DUSIB)
                                      with Ms. Swagata Bhuyan &
                                      Ms. Shiva Pandey, Advs.

     CORAM:
     HON'BLE THE CHIEF JUSTICE
     HON'BLE MR. JUSTICE V. KAMESWAR RAO

    V. KAMESWAR RAO, J. (ORAL)

CM No. 7641/2019 (for exemption)

Exemption allowed subject to all just exceptions. Application stands disposed of.

CM No. 7643/2019 (for taking additional documents on record)

For the reasons stated in the application, the same is allowed. Additional documents are taken on record. Application stands disposed of.

LPA 115/2019

1. The challenge in the appeal is to the order dated January 16,

2019 passed by the learned Single Judge dismissing writ petition

filed by the appellants herein. The writ petition was filed by the

appellants before the learned Single Judge praying for directions to

the respondents for initiating appropriate measures to rehabilitate

and relocate them and similarly placed slum dwellers of a slum

established on land bearing Khasra No. 484, Sunder Nagar Nursery,

Near Delhi Public School, Mathura Road, New Delhi, in terms of

the Delhi Slum Rehabilitation and Relocation Policy approved by

the Government of N.C.T. of Delhi by an Office Order dated

December 11, 2017

2. The learned Single Judge had noted that one Jamia Arabia

Nizamia Welfare Educational Society had filed a writ petition in

public interest before this Court being W.P.(C) 3927/2010 captioned

Jamia Arabia Nizamia Welfare Educational Society v. Delhi Wakf

Board and Ors., inter alia, seeking directions for removal of jhuggi

jhopris situated on the said land. It was the case of the appellants

that none of the inhabitants of the jhuggies in question were made

parties to the said writ petition. The said writ petition was disposed

of by an order dated January 12, 2011, whereby a Coordinate Bench

of this Court had, inter alia, directed the Union of India to proceed

against the persons who had unauthorisedly constructed upon and

encroached on the said land, in accordance with law. He also noted

the filing of a contempt petition being Cont. Case (Civil) No.

519/2012 titled Jamia Arabia Nizamia Welfare Educational Society

v. Union of India alleging that the order dated January 12, 2011 had

not been complied with. During the said proceedings, it was stated

that the office of L&DO would take up the matter with CPWD, for

construction of a boundary wall. The Ld. Single Judge has noted the

submission that in view of the directions issued in the said

proceedings, CPWD has commenced constructing a boundary wall.

Aggrieved by the same, the appellants had filed the writ petition.

The learned Single Judge has also noted that the appellants had

earlier approached the Division Bench for seeking a modification of

the order dated January 12, 2011 passed in W.P.(C) 3927/2010.

The said application was dismissed with the observation that in case

the appellants have any right, they would be required to file

individual petitions / claim asserting their right.

3. An issue arose before the learned Single Judge, whether the

jhuggi jhopris inhabited by the appellants were raised prior to

January 01, 2006 and as such whether they could be evicted without

being provided alternate accommodation. The said stand of the

appellants that they were in place before January 01, 2006 was

disputed by the Union of India. The appellants relied upon various

documents to show their habitation since before January 01, 2006.

These documents include Election Commission card, bank

passbooks / Adhar card etc. Reliance was also placed by the

appellants on the additional affidavit filed by respondent no.1 in the

Cont. Case (C) No. 519/2012 wherein it was affirmed that in

compliance with the directions issued by this Court, two meetings

were held in the Ministry with all stakeholders/concerned agencies

to resolve the matters regarding removal of encroachment. It was

further affirmed in the said affidavit that in the meeting, it was

informed by Chief Engineer, NDZ-V that the encroachment in the

area is very old and is reported to be 40-45 years old, with pucca

structures standing. It was contended on behalf of the appellants

that the said affidavit also clearly establishes that the jhuggi jhopri

basti existed on the said land prior to January 01, 2006.

4. The respondents had relied upon certain satellite images of

the area pertaining to the years 2004, 2006 and 2017. The learned

Single Judge was of the view that the satellite image dated October

15, 2006 clearly indicates that no jhuggi jhopri cluster existed on the

said land. He was also of the view that however, the satellite image

of March 12, 2017 indicated that there was some encroachment on

the said land. According to him, there has been a significant

increase in the jhuggies surrounding the said land. He finally,

concluded that the jhuggi jhopri basti in question did not exist on

the said land as on January 01, 2006 and accordingly, dismissed the

writ petition.

5. Mr. Rajat Aneja, learned counsel for the appellants would

submit that the appellants have submitted documents like Ration

Card, Driving License, Adhar Card, Pass Books issued by Public

Sector Banks etc. of dates prior to January 01, 2006, which are

clinching evidence to show occupation of the area by the appellants

herein. The learned Single Judge has not even commented on the

veracity of the said documents. In other words, it is his case that the

order is totally a perverse order. He states that in terms of the

Policy of the Government of NCT of Delhi, which is at page 172 of

the paper book, to ascertain whether the appellants were in place

before January 01, 2006, the respondents are required to carry out a

survey. Unfortunately, even such a direction has not been given.

He has relied upon the affidavit filed by the Union of India in the

aforenoted contempt case and also the minutes of the meeting held

on September 03, 2015 wherein Officers belonging to L&DO,

Horticulture department, CPWD, DDA and DUSIB were present

and wherein after detailed discussion, the following was decided:-

"i) DUSIB should take immediate necessary action to include JJ Clusters of Sunder Nursery in the list of JJ Clusters to be rehabilitated by DUSIB.

ii) DUSIB will take initiative to conduct a joint survey of the area to identify the actual number of illegal occupants for rehabilitation. While conducting the survey, DUSIB will include L&DO and Horticulture Deptt.

iii) DUSIB will intimate the share of the contribution from L&DO being the land owning agency to the DUSIB as has been fixed for relocating the JJ dwellers from the area near Sunder Nursery.

The meeting ended with a vote of thanks to the Chair."

6. According to him, in terms of the said minutes, DUSIB was

to make a joint survey of the area to identify the actual number of

illegal occupants for rehabilitation. Unfortunately the said survey

has not be conducted for the reasons best known to the respondents.

That apart, he has also relied upon satellite images to contend that

the jhuggi jhopri clusters were in place before January 01, 2006.

7. On the other hand, Mr. Dev P. Bhardwaj, learned counsel

appearing for the respondent Nos. 1 and 3 has relied upon certain

documents, which were part of the record of the learned Single

Judge along with counter affidavit to show that the jhuggi jhopri

cluster was not in existence before January 01, 2006. According to

him, today unfortunately encroachment exists where the people are

carrying out commercial activity like manufacturing of ice-cream

and parking of vehicles etc. In fact, he has relied upon electricity

bills issued by the BSES to show that electricity is being used for e-

rickshaw charging etc. In other words, people are doing

commercial activity on the plot in question, and no relief can be

granted.

8. Ms. Mini Pushkarna also has drawn our attention to page

154 of the paper book to contend that in the writ petition filed by

Jamia Arabia Nizamia Welfare Educational Society, a reference of

which has already been given above, even this Court had noted the

aspect of encroachment on the said land and gave direction to

proceed against the persons, who have unauthorizedly constructed

and encroached upon the land in question, in accordance with law.

In view of such a direction, no further directions are called for, more

specifically the relief as prayed for by the appellants herein.

9. Having heard the learned counsel for the parties, we do not

find any infirmity in the order of the learned Single Judge. The

orders passed by the Coordinate Bench of this Court in the writ

petition filed by Jamia Arabia Nizamia Welfare Educational Society

are also very clear, a reference of which is already made above. Be

that as it may, the issue which fell for consideration before the

learned Single Judge was, whether these jhuggi jhopri basti was in

existence before January 01, 2006, which is a pre-requisite for the

application of the Policy dated December 11, 2017. The answer to

the question has been given in the negative by the learned Single

Judge by relying upon a satellite image of October 15, 2006, which

clearly indicates that no jhuggi jhopri cluster existed on the said

land at that point of time. Reliance placed by Mr. Aneja on the

minutes of the meeting dated September 03, 2015 would not be of

any help to the appellants herein. The said meeting was of the year

2015. Surely, the deliberations that have taken place in the meeting

and the minutes dated September 03, 2015 do not relate to an issue

whether the jhuggi jhopri cluster was in existence as on January 01,

2006 or before that.

10. Even otherwise, it was intended that a joint survey be

carried out for identifying the actual number of illegal occupants for

rehabilitation, it may be stated here that the deliberation was before

the Policy of December 11, 2017 was framed. Hence, the reliance

placed by Mr. Aneja on the minutes of the meeting and also the

affidavit filed in the contempt petition is totally misplaced. Suffice

it to state, the conclusion of the Ld. Single Judge is a finding of fact

based on satellite image, hence it is not a perverse finding. That

apart, we agree with the submission of Mr. Bhardwaj that none of

the appellants have annexed any document showing electricity

connected to the dwelling. Surely, when they could get election

card, Bank A/Cs, Aadhar Card etc, they could also take electricity

connection. Having not placed the same, the conclusion one must

arrive at is, they were not residing at that place. Further, there is

nothing indicated in the documents on which reliance was placed

that, the addresses pertain to the land in question.

11. In view of our above discussion, we do not see any merit in

the appeal. The same is dismissed. No costs.

CM No. 7642/2019 (for direction) Dismissed as infructuous.

V. KAMESWAR RAO, J

CHIEF JUSTICE

FEBRUARY 18, 2019/ak