Delhi High Court
Saraswati & Ors. vs Union Of India & Ors. on 24 December, 2021
Signature Not Verified
Digitally Signed By:Devanshu
Signing Date:24.12.2021
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$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24th December, 2021
+ W.P.(C) 15100/2021 & CM APPLs. 47603-04/2021
SARASWATI & ORS. ..... Petitioners
Through: Mr. Haneef Mohammad, Mr. Sasi
Bhushan and Md. Maroof, Advocates.
(M:9818238292)
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Vijay Joshi, Sr. Panel Counsel for
R-1. (M:9873677817)
Mr. Sameer Vashisht, ASC (Civil),
GNCTD with Ms. Sanjana Nangia,
Advocate for R-2 & 3.
Ms. Mini Pushkarna, Standing
Counsel for DUSIB with Ms.
Khushboo Nahar and Ms. Latika
Malhotra, Advocates.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done in physical Court. Hybrid mode is
permitted in cases where permission is being sought from the Court.
2. This petition has been taken up on transfer in the typed supplementary
list.
3. The present petition has been filed on behalf of three Petitioners
namely - Mrs. Sarawati, Mr. Vinod Kumar Sharma and Mr. Gyan Singh
Sharma, seeking the following reliefs:
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"a) Direct Respondent Authorities (including the
Ministry of Railways, Government of NCT of
Delhi, DUSIB) to rehabilitate the Petitioners
prior to eviction/demolition of the Dharmshalas;
b) Direct Respondent Authorities (including the
Ministry of Railways, Government of NCT of
Delhi, DUSIB) to follow the Delhi Slum & JJ
Rehabilitation and Relocation Policy, 2015 and
the Protocol (for removal of Jhuggis) in letter and
spirit;
c) Pass any other or such further order as be
deemed fit in facts and circumstances of the
present case."
4. This petition finds its genesis in the order dated 27th September, 2021,
passed by this Court in FAO 36/2021 titled Neeta Bhardwaj and ors. v.
Kamlesh Sharma and connected matters, in respect of various unauthorised
occupants and illegal encroachers in the premises of the Kalkaji Mandir.
5. While hearing the bunch of appeals, petitions and suits related to the
Kalkaji Mandir, vide order dated 27th September, 2021, considering the
deplorable condition of the Kalkaji Mandir premises, this Court had passed,
inter alia, the following directions:
(i) Justice (Retd.) J.R. Midha was appointed as the Interim
Administrator of the Kalkaji Mandir for the purposes of overall
management, upgradation and re-development of the Mandir.
(ii) All the encroachers and illegal occupants were directed to
vacate the dharamshalas and other spaces, which were in their
and their family's occupation. Most of the unauthorised
occupants were not paying tehbazari and in any event, were
conducting their businesses in the form of shops/stalls/kiosks in
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the Mandir premises.
(iii) While giving directions for removal of illegal encroachers and
unauthorised occupants, the ld. Administrator was requested to,
on a case to case basis, direct alternate accommodation with
DUSIB/SDMC, in case of those entitled for rehabilitation in
accordance with law.
6. This order was passed on 27th September, 2021, and was well within
the knowledge of the Petitioners.
7. The Petitioners herein were residing in the dharamshalas, clearly in
illegal occupation. All the three Petitioners had thereafter, appeared before
this Court on 9th December, 2021, through their Counsel - Mr. Sasi Bhushan
and had submitted undertakings to the following effect
"I, _______undertake that, I am ready to vacate the
above noted Dharmshala premises as directed by this
Hon'ble Court subject to providing alternative
accommodation by SDMC or DUSIB or JJ slum
department, Delhi on rehabilitation scheme. That I
have no shelter for myself and my family (consisting
of ____) in Delhi or in__. Since last 2 years due
COVID19 I have no sources of earning to arrange
any rented accommodation in Delhi, presently my
condition is miserable and I am also unable to
earn the bread and butter for my family. I have
been running a small shop of Phool & Prasad shop
since last 22 years, due to sudden closer of the said
shop, my right to livelihood under Article 19(1)(g)
also badly affected. Hence you honor may allot
alternative area/premises on rehabilitation scheme
under relevant provisions of Street vendors
(Protections of livelihood and regulation of street
vending)Act, 2014 or any other Act for the time being
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in force. I also under take to pay the license
fee/allotment charges, if any fixed by this Hon'ble
Court or any Authority."
8. While accepting the undertakings, insofar as the shops are concerned,
the following directions were issued:
"a) All the shopkeepers are acceptable to
vacate the existing spaces in their occupation.
Accordingly, without going into the contents of the
actual documents signed and placed before the
Court, all the undertakings to vacate the premises
are accepted by this Court and taken on record.
b) The ld. Administrator has placed on record
'standard undertakings' which are being sought from
all the shopkeepers for the purpose of vacation and
consideration for reallotment. The format of the same
has been publicly displayed at the Mandir premises.
This Court has perused the same, and the revised
version of the said undertaking is attached with this
order as Annexure-I. Accordingly, all the shopkeepers
shall identify their respective shops, their own
identity and give undertakings in the format as
attached with this order, to the ld. Administrator. Each
of the shopkeepers shall, in paragraph 6 of the
undertaking, mention the amount of monthly licence fee
that they are willing to pay for the alternate
premises, which is now proposed to be allotted to
them, if eligible. For the said purpose of furnishing the
undertakings, all the said shopkeepers shall appear
before the ld. Administrator from 11th December,2021-
3:00 P.M. onwards.
c) Upon the said exercise and verification being
completed on or before 14thDecember, 2021, the
shopkeepers shall be given reasonable time by the
ld. Administrator for removing their articles and
belongings from the premises, from the shops lying
sealed.
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d) Upon their articles and belongings being
removed, the Administrator shall, along with the
cooperation of the civic agencies including the
SDMC, DDA, Delhi police and all other
governmental authorities whose assistance would be
requisitioned by the ld. Administrator, remove
all the unauthorised construction/encroachment in the
area and fully clear up the area that has been occupied
by the shopkeepers. The said clearing up shall be
completed on or before 25th December 2021."
9. Insofar as the Petitioners who were, apart from running kiosks/stalls,
also residing in the dharamshalas, the following additional directions were
issued:
"11. Insofar as those persons who are residing
within the Mandir premises, including within the
Dharamshalas, i.e., the three clients of Mr. Bhushan,
ld. Counsel-Ms. Saraswati, Mr. Vinod Kumar Sharma
and Mr. Gyan Singh Sharma, and one client of Mr.
Dewan, ld. Counsel- Ms. Suman Shahi/Mr. Ram
Vilas Shahi and their respective families, are
concerned, the following directions are issued:
a) They shall vacate their residences along with
their families, positively, on or before 25th
December, 2021. It is made clear that no
extension shall be granted in respect of the same,
i.e., in respect of vacating the residences.
b) The said families, whose residences are being
vacated, are free to approach the DUSIB/DDA for any
alternate accommodation. Ms. Malhotra, ld. Counsel
appearing on behalf of Ms. Mini Pushkarna, ld.
Standing Counsel, who appears for DUSIB, submits
that रै नबसेरा (Night shelters) are available to persons
who are using the Kalkaji Mandir premises as
residences and they may approach DUSIB for the
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same. However, the use of the same would be on a
temporary basis and no permanent rights shall be
claimed by the said persons. Accordingly, the
families who have been asked to move their
residences, may contact the official of DUSIB namely
Mr. Rajender Gosain, Deputy Director-Night
Shelter, (M:9560596102), for the purpose of allotment
of रै नबसेरा (Night shelters),if needed. It is however
made clear that irrespective of the allotment of the
said shelters/ alternate accommodation, the families
in the residence sat the Mandir shall vacate the space
occupied by them, on or before 25th December, 2021."
10. In the said order dated 9th December, 2021, extracted above, it was
clearly mentioned that in respect of the Petitioners and their families
residing in the dharamshalas, unauthorizedly, they were to vacate the said
premises, however they were free to approach the DUSIB/DDA for alternate
accommodation. The name of the official, who was to deal with such
requests, was also provided in the order. However, today, i.e., one day
before the deadline to vacate the dharamshalas i.e. 25th December 2015,
expiring, the present writ petition has been filed by the Petitioners.
11. Ld. Counsel for the Petitioners submits that the Petitioners ought to be
given alternate accommodation and ought not to be evicted from their
residences, especially since they are large families with children.
12. Ld. Counsels representing DUSIB, Union of India and the GNCTD,
have appeared on advance notice. Ms. Mini Pushkarna, ld. Standing Counsel
appearing for DUSIB opposes the petition and submits that only one
telephone call was made on behalf of the Petitioners to the Deputy Director,
Night Shelters, for the purposes of making some enquiry. However,
thereafter, no attempts are stated to have been made by the Petitioners to
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obtain the रै न बसेरा (Night shelters) facility from DUSIB. She further
submits that even today, if the Petitioners approach the said official with a
request, the रै न बसेरा (Night shelters) would be made available temporarily,
on a 24x7 basis for the next few days.
13. Ld. counsel for the Petitioners, submits that the रै न बसेरा (Night
shelters) is only a night shelter, and the families availing the same cannot
stay in these accommodations during the day time. This submission is
controverted by Ms. Pushkarna, ld. Standing Counsel, who submits that
owing to the policy of DUSIB, though the alternate temporary space which
is made available is called रै न बसेरा (Night shelters), children/women would
are not moved from the same even during the day time.
14. Mr. Vashisht, ld. Counsel appearing on behalf of the GNCTD,
submits that the Petitioners have already given undertakings, which have
been accepted, and this Court has already permitted the Petitioners to
contact the ld. Administrator as well as DUSIB for alternate space.
However, they have obviously not done so and have rather preferred the
present writ petition one day prior to the deadline of vacation of
dharmashala premises.
15. On behalf of Union of India, Mr. Joshi, ld. Counsel, submits that there
is a prayer in the writ petition concerning the Ministry of Railways, which is
in fact, in no way concerned with the present Petitioners or the subject
matter of the present petition. To this, ld. Counsel for the Petitioners submit
that insofar as the Ministry of Railways is concerned, there is an inadvertent
error in the prayer (b) sought in this writ petition. Accordingly, the prayer
relating to Ministry of Railways is not being pressed. But the said prayer is
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stated to be qua the Ministry of Housing and Urban Affairs, which is the
intended department of Respondent No.1- UOI.
16. Heard ld. Counsels for the parties and perused the record.
17. While passing the orders dated 27th September 2021 and 9th December
2021, in FAO 36/2021 and connected matters, this Court was conscious of
the position that there are several illegal encroachers and unauthorized
occupants who have created a deplorable situation in the Kalkaji Mandir
premises, in complete violation of interests of safety and security of
devotees. This Court had observed as under:
"On the basis of all the submissions, reports and
proposals, it is clear that directions are required to
be issued, in order to ensure that the safety and
security of the devotees, who come in large numbers
on a daily basis, is safeguarded, and also to provide
them with proper convenience and civic amenities
xxx
99. The manner in which the shopkeepers have
constructed their shops has created obstructions in
the movement of devotees, as is evident from the
photographs which have been placed on record. For
the purpose of the safety of devotees and others in the
Mandir, it is essential that unauthorised
occupants/shopkeepers/tehbazari holders/Chabutara
holders who do not have any validlegal rights to
occupy the same, are liable to be removed in
coordination with the Delhi Police and the SDMC."
18. After perusing the various reports filed by the Local Commissioner,
Court Receivers, and various civic agencies, it was found that the condition
in the Mandir in respect of civic amenities, day to day safety and security of
the devotees and others in the Mandir, space for access to ingress and
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egress, etc., was found to be pathetic and requiring emergent remedial
measures. Accordingly, this Court had passed various orders directing
removal of unauthorized encroachers and the illegal occupants from the
Mandir premises, both in the form of those running and unauthorizedly
occupying shops, stores, kiosks as well as those residing with large families
in the dharamshalas within the Mandir premises.
19. Primarily, the dharamshalas in the Mandir premises are expected to
be catering to the devotees who come from outside Delhi, and who may
need temporary spaces while they visit the Mandir for darshan purposes.
However, on a query from the Court, the ld. Counsel for the Petitioners, on
9th December 2021, as also today, has submitted that these Petitioners have
been residing in the dharamshalas for several years, ranging upto 40 years.
This is obviously without paying a single penny, in a Mandir, which is run
by the baridaars and other stakeholders with whom litigation is currently
pending before this Court. There are more than 60-70 suits which were
transferred from various District Courts to this Court, so that the issues
could be resolved comprehensively.
20. This position, in the opinion of this Court, is completely apposite to
the interest and rights of the devotees who visit the Mandir premises. A
careful balance needs to be struck between the rights of encroachers,
residing within a Mandir premises, and using the spaces for commercial
interests, like the Petitioners on the one hand and the rights of the lakhs of
devotees who visit the Mandir. The dharamshalas within the Mandir are not
meant to be occupied permanently by shopkeepers, or their families running
shops/kiosks in the Mandir premises. Further, such occupation is clearly
illegal, as no license fee or teh bazari was even being paid by the
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Petitioners.
21. Further, as against what is attempted to be canvassed by ld. Counsel
for the Petitioner today, as also as is visible from a perusal of the grounds in
the present writ petition, this writ petition is not in the context of jhuggi
jhopri dwellers requiring alternate premises, as they are occupying a public
land. All the three Petitioners, in the present petition, were not only residing,
but through their families, were also running shops/kiosks/stores. A perusal
of the order dated 9th December 2021, which records the undertakings given
by the shopkeepers clearly records undertakings by Mr. Sanjay Baral and
Mr. Ajay Baral, who are children of Petitioner No. 1- Mrs. Saraswati. These
persons were running their shops/kiosks and have been conducting their
businesses within the said Mandir premises, apart from occupying the
dharamshalas. Thus, they cannot be compared with the jhuggi jhopri
dwellers, who occupy public land, and in respect of whom, judgments of the
Supreme Court in Olga Tellis v. Bombay Municipal Corporation (1985) 3
SCC 545 and Sudama Singh v. Deepak Mohan Spolia and ors. (2018) 14
SCC 756, and of the ld. Division Bench of this Court in Ajay Maken v.
Union of India 260 (2019) DLT 58 have been passed. The Petitioners herein
have been unauthorizedly occupying the premises in the Mandir and have
also been, through their families, unauthorizedly running commercial
shops/kiosks within the Mandir premises for many years now, and a
comparison of their situation with the situation of poor jhuggi jhopri
dwellers is not a fair comparison.
22. Further, this Court while passing directions for vacation of premises,
both on 27th September 2021 and on 9th December 2021, in FAO 36/2021
and connected matters, was clearly conscious of the fact that some kind of
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temporary alternate accommodation may be required for them, and for this
purpose clear directions were given for them to contact the ld. Administrator
appointed by this Court, as well as the concerned officer from DUSIB. The
said orders have already been extracted above. Even today, ld. Counsel for
DUSIB has made it clear that the Petitioners and their family would be
offered रै न बसेरा (Night shelters) on a temporary basis, till they make
arrangements for their residences, for the whole day. However, yet it seems
that no substantial attempt has been made to contact either the ld.
Administrator nor DUSIB to attain the said accommodation in रै न बसेरा
(Night shelters). Further, inspite of the order dated 27th September 2021,
asking them to contact the ld. Administrator having been passed more than 2
months before the deadline of vacation, and the recent order dated 9th
December 2021, giving them opportunities to contact DUSIB for alternate
accommodation in रै न बसेरा (Night shelters) having been passed, it is today,
i.e., one day before the date of vacation stipulated in the order, that the
present writ petition has been filed.
23. Accordingly, in view of the above position, as also the previous
orders and directions passed in FAO 36/2021 and connected matters, this
Court does not find any merit in the present writ petition. The writ petition is
accordingly dismissed, with no order as to costs. All applications are
disposed of.
24. It is however, made clear that the Petitioners are still free to contact
either the Ld. Administrator, as per the earlier directions or DUSIB for
allotment of alternate accommodation, in accordance with law, and upon
being contacted, they shall be allotted रै न बसेरा (Night shelters), as soon as
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possible, either from tonight or from tomorrow night itself i.e. 25th
December, 2021. It is further made clear that irrespective of the said request
being made or not, the deadline for vacating the Mandir premises does not
deserve to be extended and the same shall expire on 25th December 2021
itself. The authorities concerned i.e. the SDMC/DDA/Delhi Police and all
other authorities shall ensure that the orders passed by this Court in FAO
36/2021 and connected matters, as also the present writ petition are given
effect to, and are implemented in order to remove all illegal encroachers
within the Kalkaji Mandir premises, as per the deadline stipulated by this
Court.
25. No further orders are called for in this petition.
PRATHIBA M. SINGH
JUDGE
DECEMBER 24, 2021/dk/Rahul/Ak
