Delhi High Court
Yamuna Bank Kishan Bachao Morcha vs State Of Nct Of Delhi & Ors. on 1 February, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 01st FEBRUARY, 2022
IN THE MATTER OF:
+ W.P.(CRL) 2035/2020
YAMUNA BANK KISHAN BACHAO MORCHA ..... Petitioner
Through Mr. Rajeev Lochan, Advocate
versus
STATE OF NCT OF DELHI & ORS ...... Respondents
Through Ms. Nandita Rao, ASC for the State
Ms. Prabhsahay Kaur, Standing
Counsel for DDA/ R-4 to R-7
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SUBRAMONIUM PRASAD, J.
1. This writ petition has been filed with the following prayers:-
" (a) issue a writ, order or direction in the nature of
mandamus commanding
the Respondent No 2 to take action against the
Respondent no.3 to 9 ; and/or;
(b) Issue a writ, order to restrain to respondent no. 4 to
7 to take over the lands of farmers until investigation
completed.
(c) Issue a writ, order to Compensation to farmers
from the account of DDA to the farmer to damaging
their full grown crops.
(d) Any other relief which this Hon'ble Court deems fit
and proper may kindly be passed in favour of the
Petitioner and against the respondents."
2. It is stated that the petitioner is a society consisting of farmers who
are inhabitants on the banks of river Yamuna for over the last 100 years and
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cultivating about 15,000 bighas of land. The writ petition mentions that the
members of the petitioner Society have proof of 'lagaan' being paid by their
forefathers since 1932 till 2012. It is stated that the farmers were growing
Radish, Brinjal, Potato, Onion, etc., on the said land. It is stated that the
members of the Petitioner Society could not be deprived of the land without
following the procedure as laid down under law.
3. It is stated that the members of the Petitioner Society have been
paying money to the Delhi Peasants Co-Operative Multipurpose Society
Limited. It is stated that though the DDA claimed that they have cancelled
the lease deed of the Delhi Peasants Co-Operative Multipurpose Society
Limited in 1967 but it kept on collecting 'lagaan' till 2016 which is a
criminal and fraudulent act.
4. It is stated that the Patwari and other policemen are torturing and
harassing the farmers and are extorting money and extending threat to them.
5. It is stated that the farmers have received several letters from the
DDA claiming that the members of the petitioner Society are unauthorised
occupants and that DDA is the owner of the property.
6. It is stated that on 08.11.2020 the officials of DDA gathered at the
Bela Estate with JCB machines accompanied by the Police Force with two
Battalions of CRPF and BSF for evicting the members of the
petitioner/society with an intent to grab the land.
7. Though notice has not been issued in this petition, counters have been
filed by the DDA. It is stated that the National Green Tribunal had held that
Yamuna Plains are to be protected and no encroachment of any kind is
permitted therein. It is stated that DDA has been entrusted with an
affirmative duty to protect the river Yamuna, its morphology and its flood
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plains and it was in a bid to fulfil this mandate and keep the Yamuna
floodplains encroachment free, the DDA undertakes regular demolition and
removal actions.
8. It is stated that in 2013 writs have been filed restraining the authorities
from dispossessing the farmers who were occupying the banks at river
Yamuna without following the procedures established under law. The land
in question in the said writ petition had been leased out to two different
Societies namely Jhil Khuranjia Milk Producers Co-operative Society Ltd.
and Delhi Peasants Co-operative Multipurpose Society Ltd. Material on
record shows that the members of the petitioner Society were paying certain
amount to the Delhi Peasants Co-operative Multipurpose Society Ltd. The
said writ petitions were dismissed. LPAs were filed against the order of
dismissal. This Court vide judgment dated 31.01.2018 dismissed the batch of
LPAs. While dealing with the land which was allotted to the Delhi Peasants
Co-operative Multipurpose Society Ltd, it was found that in 1949 the Delhi
Peasants Co-operative Multipurpose Society Ltd. was allotted agricultural
land measuring 13,344 bighas on leasehold basis for a period of 5 years by
the Delhi Improvement Trust (hereinafter referred to as 'DIT'). The said
lease was extended from time to time. It was found that DDA, who is the
successor of DIT, sought cancellation of the lease deed and asked the Delhi
Peasants Co-operative Multipurpose Society Ltd. to handover the possession
of the land. Notices under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 (hereinafter referred to as 'the PP Act') were issued by
the Estate Officer to the individual cultivators and the eviction orders were
passed in the year 1991-1992. After several proceedings, the eviction
proceedings were started by the DDA in the year 2004 and eviction orders
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were passed on 01.08.2007 for vacation of the land. The matter was
remanded back to the Estate Officer and final orders were passed by the
Estate Officer. The said orders were unsuccessfully challenged in appeal.
The orders dismissing the appeals were challenged before this Court by
filing writ petitions. The writ petitions were dismissed by this Court vide
order dated 21.10.2016.
9. In the LPAs a contention was raised stating that members of the
Society were tenants who were in occupation and possession of lands and,
therefore, PP Act could not have been initiated against them since they are
not unauthorised occupants. The Division Bench of this Court vide order
dated 31.01.2018 held that the occupants of the land could be evicted by
resorting to PP Act. It was found that the members of the Society had
become unauthorized occupants of the land belonging to DDA. It is
pertinent to mention here that the petitioners in the said writ petition
contended that there was collusion between the Society and the DDA. It was
stated that the members of the petitioner Society were paying money to the
Delhi Peasants Co-operative Multipurpose Society Ltd.
10. The appellants therein preferred an appeal against judgment dated
31.01.2018 before the Hon'ble Supreme Court in SLP(C) Diary
No.5253/2018 titled as Shiv Shankar & Ors. v. DDA, and other appeals,
wherein the Apex Court dismissed the SLP while upholding the judgment
passed by this Court and directed the appellants to vacate the subject land by
December, 2019.
11. It is stated that further the appellants therein filed a curative petition
before the Apex Court being Curative Petition (C) 38-52/2020 titled as Sunil
Kumar & Anr. v. DDA, which was dismissed vide order dated 21.05.2020.
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It is stated that the members of the petitioner Society herein are attempting
to reopen and re-agitate issues that stands settled-up by the Apex Court.
12. It is stated that the National Green Tribunal vide judgment dated
13.01.2015 in O.A. NO.6/2012 titled as Manoj Mishra v. UOI & Ors.,
judgment dated 07.12.2017 in O.A. No.76/2016 and O.A. No.81/2016 titled
as Manoj Mishra v. UOI & Ors., judgement dated 11.09.2019 in O.A.
No.6/2012 titled as Manoj Mishra v. UOI & Ors., has directed the DDA to
ensure that the Yamuna floodplains remain encroachment free. It is stated
that the National Green Tribunal in O.A. No.6/2012 titled as Manoj Mishra
v. UOI & Ors., has directed the DDA to undertake physical demarcation of
the entire floodplains within three months and after taking re-possession,
fence the area and convert it into a bio-diversity park. Vide judgment dated
07.12.2017, the NGT reiterated that the floodplains of Yamuna should not
be permitted for construction, occupation, habitation etc. and it is the duty of
the answering respondent/DDA to maintain the natural features and ecology
of the floodplain.
13. It is stated that while dealing with a similar issue a Division Bench of
this Court by way of order dated 07.10.2020 in LPA No.276/2020 titled as
Shakeel Ahmed & Anr. v. DDA & Ors. has directed the appellants/writ
petitioners therein to approach the National Green Tribunal for any relief as
demolition and re-possession of Yamuna floodplains carried out by DDA
was mandated by the National Green Tribunal.
14. It is also pointed out that besides the judgments of the National Green
Tribunal, a Division Bench of this Court vide judgment and order dated
03.04.2013 in Haq, through its members Abdul Shakeel v. DDA & Anr.
2013 SCC Online Del 1284, had held that by removing the encroachment
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on the Yamuna floodplains, DDA is only complying with the directions of
the Court and no fault can be found with the DDA on this account.
Moreover, the Court found that there was no question of providing
rehabilitation to those in illegal occupation of land.
15. It is stated that the writ petition is not maintainable in light of the
settled law to the effect that even if the grievances of the petitioner were
taken at face value (for the sake of argument), the remedy would be to
approach the concerned Magistrate under Section 156(3) CrPC in case
proper investigation has not been carried out by the Police.
16. Heard Mr. Rajeev Lochan, learned counsel for the petitioner,
Ms.Nandita Rao, learned ASC for the State, Ms. Prabhsahay Kaur, learned
Standing Counsel appearing on behalf of respondents No.4 to 7.
17. Mr. Rajeev Lochan, learned counsel for the petitioner states that
members of the petitioner Society are in occupation of the land for a number
of years, even before DDA was constituted. He states that the members of
the petitioner Society are the owners of the property and they can be evicted
from the property only by authority of law, that is, by valid acquisition. He
states that the members of the petitioner Society have been paying tax to the
DDA.
18. Mr. Rajeev Lochan, learned counsel for the petitioner raised several
questions in the writ petition which are as under:-
" a) When how DDA became the owner of all the above
said claimed land at the front of river Bank of Yamuna
which belongs to farmers land.
b) Did DDA have paid any consideration money to
farmers?
c) Under which rule of law and regulation DDA made
claim of the above mention land.
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d) In what capacity DDA has lease out this thirteen
thousand bighas of land to Delhi Peseants Co-
Operative Multipurpose Society Ltd of Yamuna bank.
e) Is DDA had any proof of the above mention all land
acquisition paper by paying any compensation to the
farmer from the 1949 to till date.
f) In what capacity DDA has cancel lease deed of the
so called society when DDA was never ever absolute
owner of the land.
g) In what capacity Delhi Peseants Co-Operative
Multipurpose Society Ltd collecting the yearly dues
lagaan from farmer and looted them for more than 70
years."
Learned counsel for the petitioner states that there is no reply from DDA on
any of these aspects. He states that the members of the petitioner Society are
legitimate and bona fide occupants of the land and cannot be removed by
using Police force. He states that the authorities are depriving the members
of the petitioner/Society of the land and have committed various offences
against them for which action ought to be taken against them.
19. Per contra, Ms. Prabhsahay Kaur, learned Standing Counsel
appearing on behalf of respondents No.4 to 7, contends that the DDA had
issued notice under the PP Act and eviction orders were passed. The eviction
orders were challenged before the learned Single Judge of this Court in
batch of petitions being W.P.(C) 8307/2016 etc. which were dismissed vide
order dated 21.10.2016. The matter was taken to the Division Bench. The
Division Bench held that the Delhi Peasants Co-Operative Multipurpose
Society Ltd. are rank trespassers and encroachers and others who are
claiming through them are also encroachers. Since they can claim their
occupation only through Delhi Peasants Co-Operative Multipurpose Society
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Ltd., the Division Bench observed as under:-
"56. Admittedly, the eviction orders of Estate Officers
under the PP Act against some of the occupants of
public premises claiming their rights through Jheel
Khuranja Cooperative Milk Producers Society Limited
were upheld by the Coordinate Bench of this Court in
Smt. Dhan Kaur (supra). Similarly, the eviction orders
passed under the PP Act by Estate Officers against
some of the occupants of public premises, claiming
their rights through Delhi Peasants Cooperative
Multipurpose Society Limited, were upheld by the
Coordinate Bench of this Court in Brij Pal (supra) in
LPA No.810/2015, decided on 17.11.2015. These two
orders of Coordinate Benches of this Court - in respect
of property allotted to Jheel Khuranja Cooperative
Milk Producers Society Limited and Delhi Peasants
Cooperative Multipurpose Society Limited relate to the
same properties which were allotted under the same
agreements to these Societies, though were in
occupation of some other members of these Societies
(other than the appellants and the writ petitioners
before us), are binding on us on the principles of
constructive res judicata and also on the principle that
the similarly placed persons should be treated alike.
The appellants and the writ petitioners before us are
similarly placed persons and the earlier findings given
in respect of similarly placed persons are also binding
on them."
20. The Division Bench, therefore, directed the members of the Delhi
Peasants Co-Operative Multipurpose Society Ltd. and all persons claiming
through them to vacate the land. The said judgment was challenged in the
Apex Court vide SLP (C) Diary No.5253/2018 titled as Shiv Shankar &
Ors. v. DDA. The Apex Court refused to entertain this Special Leave
Petition. The Apex Court on 20.03.2018 dismissed the petition and granted
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time to the petitioners till December, 2019 to vacate the possession on the
undertaking given to the Supreme Court. Against the said order, the
petitioners filed curative petitions which have also been dismissed.
21. Ms. Prabhsahay Kaur, learned Standing Counsel appearing on behalf
of respondents No.4 to 7, states that there are orders of the National Green
Tribunal where directions have been given to evict the encroachers on the
Yamuna floodplains. She states that the National Green Tribunal had
directed that the agricultural activities also must not be carried out on the
floodplains of Yamuna. She states that the entire floodplains of Yamuna is
about 52 to 56 kilometres covering an area of 1267 hectares coming over
3130 acres but the petitioner has not given any specific area. The petitioner
has only given receipts for an area called as Bela estate. She states that the
instant writ petition is only an abuse of the process of law and the members
of the petitioner Society, who were claiming land and had given an
undertaking to the Supreme Court that they will vacate the premises, cannot
be permitted to continue with the present proceedings. She further states that
the prayers sought for cannot be granted.
22. At the outset it is to be mentioned that all the questions raised by the
petitioner in the instant writ petition have been conclusively answered by
this Court while deciding the batch of LPAs which have been dismissed by
this Court vide order dated 31.01.2018. The receipts filed by the petitioner
shows that the cultivators therein form a part of the land called as the Bela
Estate. Material on record indicates that there was an agreement entered into
between the Secretary of the State and Delhi Improvement Trust (DIT) on
31.03.1937 by which the Bela Estate, which has been shown as Nazul land,
had been given to DIT on lease. DDA is the successor of DIT and on
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termination of the lease, the members of the petitioner Society have become
encroachers and are, therefore, identically situated to the petitioners in LPA
479/2013, LPA 481/2013, LPA 482/2013, LPA 482/2013, etc., which were
filed before this Court in 2013 and are, therefore, fully covered by that
judgment. The said judgment states as to how DDA can be the owner of the
land and how the members of the Delhi Peasants Co-Operative
Multipurpose Society Ltd to which the petitioners are paying money have
become encroachers. The petitioner is only seeking to re-agitate the same
issues which have been decided by this Court in a batch of LPAs being LPA
479/2013, LPA 481/2013, LPA 482/2013, LPA 482/2013, etc., way back in
2013.
23. The instant petition is a mischievous petition. A perusal of the writ
petition shows that the petitioners have cleverly not mentioned the place
where they are carrying out their activities. Other than making a bald
assertion that they are in possession of the area for the last 100 years, there
is no document on record to establish the possession. The petitioners have
shown certain receipts which are being given to the Delhi Peasants Co-
Operative Multipurpose Society Ltd. This shows that the petitioners are only
claiming through the Delhi Peasants Co-Operative Multipurpose Society Ltd
and the judgment dated 31.01.2018 of the Division Bench of this Court has
already held as to how the petitioners in that batch of LPAs have become
encroachers. There is no receipt which has been given by the DDA. At best,
the members of the petitioner/society can claim that they were in occupation
of the land only through the Delhi Peasants Co-Operative Multipurpose
Society Ltd. The petitioners, therefore, are bound by the judgment passed by
the Division Bench of this Court in LPA 479/2013 and other connected
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matters which has been affirmed by the Apex Court. The petitioner has,
therefore, violated the undertaking given to the Apex Court.
24. The petitioners have filed Annexure P-2, which is a notice under
Section 4 (2) (b) (i) of the Public Premises (Eviction of Unauthorized
Occupants) Act wherein the noticee has been shown as an occupant and had
been asked to remove. The Annexure demonstrates that the members of the
Delhi Peasants Co-Operative Multipurpose Society Ltd. are purely
unauthorized occupants of the area who had been directed to be removed by
this Court and the National Green Tribunal. This Court has also gone
through the various orders passed by the National Green Tribunal directing
the DDA to evict the unauthorized occupants. By order dated 11.09.2019
NGT had directed that a bio-diversity park must be established in that area
in order to cleanse river Yamuna. It is also stated that the society has filed a
civil suit being Civil Suit No.77/2021 on the file on Additional District
Judge, Tis Hazari Courts, wherein the petitioner sought prayer for injunction
restraining DDA from evicting its members. The said suit is pending.
25. The petitioner has not been able to establish any semblance of right on
the property. Other than filing few receipts which shows that money has
been paid to the Delhi Peasants Co-Operative Multipurpose Society Ltd. in
Bela estate, which is a Nazul land, does not confer any right to the petitioner
especially when the Delhi Peasants Co-Operative Multipurpose Society Ltd.
has already failed in its attempt and the members of the petitioner/Society
have been held trespassers by the Division Bench in LPA 479/2013 and
other connected matters and the SLP, review and curable petitions arising
out of the said order have been dismissed by the Apex Court.
26. The writ petition shows that the petitioners are growing crops of
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Radish, Brinjal, Potato, etc. which is clearly prohibited by the order of the
National Green Tribunal. The National Green Tribunal by order dated
13.01.2015 has observed as under:-
"51. Unauthorised activities are being carried out on
the floodplain and at some places they have even
encroached up to the riverbed of Yamuna. Agricultural
products raised from these areas have shown to be
injurious to human health, primarily for the reasons
that the river carries very high pollutants, including
heavy-metals and acidic elements. One of the studies
brought on record which is even supported by the
United Nations, is the first to link river contamination
with adverse impacts on human health. According to
this study, around 23% of children had lead levels in
their blood above 10 micro grams - a widely accepted
guideline - whose adverse health effects have been
noted. The study said high level of lead in blood was
eight times more when exposed to the riverbank after
Wazirabad in north Delhi, compared to rural areas
upstream in Haryana, where river water contamination
was found to be less. Heavy metals such as lead are
more readily absorbed by children as compared to
adults. The resultant disasters would be impairment of
motoring skills, onset and development of hypertension
and may even result in slow cognitive development.
Water and soil samples were lifted every 2 km,
starting, from Wazirabad Barrage and covered 22 km
of the river in the capital. The presence of heavy metals
increased after Wazirabad even though every drop of
water that flows in the river .in Delhi has to be cleaned
through Sewage Treatment and Effluent Treatment
Plants. Presence of heavy metals was negligible in
Haryana. Hexavalent chromium, said to be hazardous
was found to be highest at Old Yamuna Bridge and
Indraprastha Estate Power Plant. This is the area
where maximum vegetables are grown on riverbed. At
this point there is also heavy industrial discharge into
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the river.
52. Agricultural activities must be carried on as it is
essential for our day to day living, but, agriculture
produce that will lead to greater harm to human health
must be checked and if necessary should also be,
stopped. The principle of 'Inter-generational Equity'
would require that today' younger' generation should
not be exposed' to serious health hazards and thus, it
will not only be desirable but essential that such
contaminated produce/vegetables are not offered for
consumption to the people at large. The Principle of
Comparative Hardship would clearly mandate that
where the injury is n much; greater in proportion to
the benefit that would accrue as a result of such
activity, the activity must be stopped in the larger
interest of the public and of public health."
27. In the absence of any title, the prayer for mandamus commanding the
respondents No.2 to take action against the respondents No.3 to 9 is not
maintainable. If the petitioner feels that an offence has been committed, then
the correct remedy for the petitioner is to approach the competent court by
filing an application under Section 156(3) CrPC. The Apex Court in Sakiri
Basu vs. State of UP, (2008) 2 SCC 409 and Priyanka Srivastava vs. State of
UP, (2015) 6 SCC 287 had directed that the High Court must not entertain
writ petitions seeking direction to the Police for registration of an FIR and
the complainants must be delegated to approach the competent court by
filing the application under Section 156(3) CrPC.
28. Since the records show that the members of the petitioner/society are
in unlawful occupation, the relief for compensation on the ground of DDA
damaging the crop is not maintainable. This writ petition is nothing but an
abuse of the process of law and another attempt by the members of the
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petitioner Society to cling on to the land while they have already been held
to be unauthorized occupants and encroachers. The members of the
petitioner Society have, therefore, violated the undertaking given to the
Apex Court. Since the petitioner claims that their members are farmers, this
Court is not imposing costs on the petitioner Society.
29. The writ petition is dismissed with the above observations along with
pending application(s), if any.
SUBRAMONIUM PRASAD, J
FEBRUARY 01, 2022
hsk
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