Delhi High Court
Shri Roshan Lal vs D.D.A (Delhi Development ... on 8 March, 2022
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 08 March 2022
+ W.P.(C) 12/2019 & CM APPLs. 39/2019, 32967/2020
SHRI ROSHAN LAL ..... Petitioner
Through: Mr.Kamlesh Kumar Mishra, Adv.
versus
D.D.A (DELHI DEVELOPMENT AUTHORITY) ..... Respondent
Through: Ms.Prabhsahay Kaur, Adv.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
YASHWANT VARMA, J. (ORAL)
1. The petitioner challenges the order of 19 September 2014 passed by
the Appellate Authority in proceedings initiated under the provisions of the
Public Premises (Eviction of Unauthorised Occupants) Act, 19711. The
Appellate Authority has affirmed the order of eviction as framed by the
Estate Officer in terms of the provisions made under Section 5 of the Act.
It has essentially found that the petitioner here claimed an interest in the
public premises by virtue of being a member of the Delhi Peasant
Multipurpose Society Limited2. Admittedly the lease that was executed
by the Delhi Development Authority3 in favour of the Society had come to
an end by efflux of time. The Authority thereafter proceeded to direct it to
1 Act
2 Society
3 Authority
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
hand back possession of the leased land. Since its numerous members
including the petitioner failed to vacate the subject premises, proceedings
under the Act came to be initiated and which ultimately culminated in the
passing of eviction orders by the Estate Officer. It is in the aforesaid
background that the Appellate Authority came to hold that since the
petitioner claimed a right to occupy and cultivate the land constituting the
subject premises only through the Society, no right stands vested in him to
continue to occupy the public premises.
2. It becomes apposite to note that the writ petition has been styled as
having been instituted by "Shree Roshal Lal (deceased) through his brother
Raj Kumar". Admittedly, the proceedings under the Act were initiated
against the deceased cultivator. He is stated to have died on 06 May 2018.
It is the case of the petitioner that he has been occupying the land in
question where the widow of the erstwhile cultivator also resides. It is in the
aforesaid background and on an assertion that the petitioner was also a
member of the Society that the present writ petition has been preferred. It
becomes necessary to note that the institution of the present writ petition on
behalf of a dead individual cannot possibly be countenanced. However,
since the petitioner claims to be an agriculturist of meagre means and the
present matter was duly entertained way back in 2019, the Court does not
choose to non-suit him on this technical ground. The Court thus proceeds
on the basis that the writ petition is being pursued by the brother of the
original cultivator asserting a right to possess the land in his own right.
3. When the writ petition was initially entertained, a learned Judge
taking note of the orders passed in the W.P.(C) Nos. 2 and 3 of 2019 had
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
provided that till 08 January 2019, status quo in respect of the petitioner‟s
land would be maintained. The said order reads thus:-
"2. For the reasons stated in the orders dated 2nd January, 2019, passed in
W.P.(C) Nos.2 & 3of 2019, it is directed that until 8th January, 2019,
status quo shall be maintained in respect of the petitioner‟s land, as
existing at the time of passing this order, i.e. 4:20 PM on 4th January,
2019."
4. In order to appreciate the challenge addressed in this petition, it
would be necessary to notice the following salient facts.
5. The petitioner claims to be a member of the Society and states that
the land in question had been in the cultivatory possession of his
predecessors in interest since pre-Independence. It is his case that the land
was being tilled by his forefathers from time immemorial and in any case
prior to the promulgation of the Delhi Land Reforms Act, 19544. The
petitioner claims to have been in continuous possession of the land for
decades and of having paid rent to the Society periodically. The Authority
claims title over the land by virtue of being the successor to the Delhi
Improvement Trust5 in whose favour a lease had come to be executed by
the Secretary of State for India on 31 March 1937. The Trust is stated to
have allotted 13,344 bighas falling in seven villages for a period of five
years to the Society. The lease is stated to have been extended firstly in
1956 and again in 1961. It was ultimately determined on 31 July 1967 and
06 October 1967. Since vacant possession of the land was not handed over
to the Authority, proceedings under the Act came to be initiated in 2004.
Orders of eviction were thereafter passed and as in the present case were
4 1954 Act
5 Trust
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
also affirmed by the District Judge in appeal. Insofar as the present petition
is concerned it may be noted that the Estate Officer passed an order of
eviction on 22 June 2015. That order as in all other similar cases was
affirmed in appeal.
6. It further transpires from the record that various other writ petitions
by members of the Society asserting similar rights came to be preferred
before this Court seeking a restraint against the respondents from
dispossessing cultivators and occupants who had been members of the
Society from the land in question. The challenge mounted on identical lines
formed part of a batch of writ petitions led by Sunil Kumar and another
vs. Delhi Development Authority6. The Court upon considering the
challenge as raised proceeded to hold thus:-
"30. The admitted and undisputed facts are that the leases were created in
favour of the Societies for its members and, therefore, the appellants and
writ petitioners can claim their right of occupation in respect of the land
in their possession and occupation, only through the Societies and,
therefore, the appellants and writ petitioners in Group 'A' cases are bound
by the order of this Court in RFA No.250/1971 which was disposed of by
this Court in terms of undertaking of DDA to take action only as per the
provisions of the PP Act. It is pertinent that the Society agreed to the
undertaking of DDA and did not press its appeal. It cannot now turn
around and challenge the action of DDA under the PP Act while earlier
they did not oppose the undertaking of DDA to resort to the provisions of
the PP Act for getting them evicted from the land in their occupation.
Alternatively, since the appellants/ writ petitioners withdrew their RFA,
and the original judgment was against them, they are bound by the same.
However, since the appellants and writ petitioners have raised this plea,
we propose to deal with it on merits as well.
32. From reading the provision of Section 4(5)(d) of the Punjab Tenancy
Act, it is apparent that this Act is not applicable to the leases executed by
the Government relating to Government unoccupied lands, where the
same has been allotted for the purpose of sub-letting it. It is an
6 LPA 479 of 2013
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
undisputed fact that the land in dispute was unoccupied land, leased out
to the Societies for use of its members and the Societies were precluded
from sub-letting it.
40. The argument of the appellants and writ petitioners, that since the
Societies had sub-leased the property to its members, therefore, they were
the tenants of the Societies and their tenancy rights were protected under
the State law governing the tenancy rights, has no merit. From the facts
on record, it is apparent that the land was allotted to the Societies for its
members. If the rights of the Societies in question were not protected by
the said two Punjab Acts, the sub-lessees thereunder could obviously not
claim a higher or greater protection. The appellants/ writ petitioners
derived their rights only from the two Societies, and thus, their rights are
subject to the limitations which bound the said Societies. Pertinently, the
appellants and writ petitioners have even failed to produce any evidences
on record at the appropriate forum to prove that they were paying rent to
the Societies, or that they were the tenants of the Societies. Our attention
is not drawn to any document which was proved on record to sustain their
contention that individual tenancy rights were created in favour of the
appellants and writ petitioners by the DDA. The appellants and writ
petitioners have failed in their attempt to prove that they were tenants on
the land in question.
46. Section 2(e) of the PP Act defines the 'public premises' which reads
as under:
"2. Definitions. - In this Act, unless the context otherwise requires
(e) "public premises" means-
(1) XXX XXX XXX
(2) XXX XXX XXX
(3) in relation to the [National Capital Territory of Delhi], -
(i) XXX XXX XXX
(ii) any premises belonging to the Delhi Development Authority,
whether such premises are in the possession of, or leased out by,
the said Authority;"
47. Admittedly, the land in question was Government property from the
very beginning i.e. even at the time when the lease was created. The PP
Act became operative with effect from 16.09.1958. It empowers the
owner of the "public premises" to get the "unauthorized occupants" of the
public premises evicted through the special mechanism devised under the
PP Act. Section 2(g) of the PP Act defines "unauthorized occupation" as
under: -
"2(g) "unauthorised occupation", in relation to any public
premises, means the occupation by any person of the public
premises without authority for such occupation, and includes the
continuance in occupation by any person of the public premises
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
after the authority (whether by way of grant or any other mode of
transfer) under which he was allowed to occupy the premises has
expired or has been determined for any reason whatsoever."
48. On determination of the lease of a Government property, all of those
who are occupying it become unauthorized occupants. The Supreme
Court in Ashoka Marketing (supra), explained the meaning of
unauthorized occupation used in PP Act and held as under:-
"30. The definition of the expression 'unauthorised occupation'
contained in Section 2(g) of the Public Premises Act is in two parts. In
the first part the said expression has been defined to mean the
occupation by any person of the Public premises without authority for
such occupation. It implies occupation by a person who has entered
into occupation of any public premises without lawful authority as
well as occupation which was permissive at the inception but has
ceased to be so. The second part of the definition is inclusive in
nature and it expressly covers continuance in occupation by any
person of the public premises after the authority (whether by way of
grant or any other mode of transfer) under which he was allowed to
occupy the premises has expired or has been determined for any
reason whatsoever. This part covers a case where a person had
entered into occupation legally under valid authority but who
continues in occupation after the authority under which he was put
in occupation has expired or has been determined. The words
"whether by way of grant or any other mode of transfer" in this part of
the definition are wide in amplitude and would cover a lease because
lease is a mode of transfer under the Transfer of Property Act. The
definition of unauthorised occupation contained in Section 2(g) of
the Public Premises Act would, therefore, cover a case where a
person has entered into occupation of the public premises legally as
a tenant under a lease but whose tenancy has expired or has been
determined in accordance with law." (emphasis supplied)
50. Thus, on determination of the lease by efflux of time, or otherwise,
the appellants and writ petitioners became unauthorized occupants
occupying the Government land. The Supreme Court Ashoka Marketing
case (supra) even went to the extent of holding that PP Act has overriding
effect in respect of Government land rover State laws dealing with
tenancy rights, such as the DRC Act.
52. There is no dispute to the fact that the lease in favour of the Societies
stood determined in the year 1967. The claim of the appellant's and the
writ petitioner's that they were tenants of the Societies, and were paying
rent to them was also rejected. The appellants and writ petitioners have
also failed to bring to the notice of this Court any evidence to prove their
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
contention that they were tenants under the Societies. The facts show that
the lease was created in favour of the Societies for the use of its members
only and, therefore, on determination of the lease, the Societies as well as
the persons claiming through the Societies became unauthorized
occupants of land.
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.
57. Thus, we find no illegality or infirmity in the impugned orders. The
appeals and the writ petitions have no merit and are hereby dismissed
along with the pending applications with no order as to costs."
7. The challenge to the aforesaid judgment of this Court came to be
negatived by the Supreme Court in terms of the orders passed on Special
Leave Petition Number 5253/2018, which reads as follows: -
"Permission to file the Special Leave Petitions is granted.
Heard the learned Counsel appearing for the parties.
We see no reason to interfere with the impugned orders passed by
the High Court.
Accordingly, the Special Leave Petitions are dismissed.
Pending applications filed in the matters stand disposed of.
However, considering the fact that initially the petitioners were in
authorised occupation after the leases have expired, and further
considering that they are performing agricultural operations in the said
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
properties, we give them time till December, 2019 to vacate possession,
on the usual undertaking being given before the Registry of this Court
within a period of four weeks from today."
8. As is manifest from a reading of the aforesaid order, while the
Supreme Court refused to grant leave, it accorded protection to the
individual members of the Society till December 2019. It was further
provided that all the petitioners would have to submit an appropriate
undertaking in this respect before the Supreme Court. By a subsequent
order passed in Miscellaneous Application Nos. 2567-2569/2019 moved in
S.L.P. 33490-33492/2016, the Supreme Court while dealing with the prayer
of members of the Society for being accorded further time to hand over
vacant possession, extended the same upto 31 March 2020. That order reads
as follows: -
"Time to vacate the suit land(s) is extended upto 31.03.2020. It is made
clear that no further extension shall be granted under any circumstance.
The miscellaneous applications are disposed of accordingly."
9. In order to complete the narration of facts, it would also be pertinent
to note that the Review as well as Curative Petitions preferred against the
judgment in Sunil Kumar have since come to be dismissed. Resultantly,
the judgment in Sunil Kumar subject to the liberty accorded by the
Supreme Court to vacate the land by 31 March 2020 has for all purposes
attained finality. A reading of the present writ petition as framed establishes
that the petitioner had merely sought protection in terms identical to that
made by the Supreme Court. This is evident from the averments taken in
paragraphs 12 to 15 of the writ petition which read as follows: -
"12. That Hon'ble Supreme Court has dismissed the SLPs vide order dated
20.03.2018 In SLP(C) no.5253/2018 titled Shiv Shankar & Others versus
Delhi Development Authority & Another but has, subject to the petitioners
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
therein filing an affidavit of undertaking to, on or before December, 2019,
vacate and hand over peaceful vacant possession of the property in their
respective possession and with respect to which orders of eviction have
been passed, granted time to those petitioners to vacate the premises by
then.
13. That in the similar manner these petitioners do not want to pursue these
petitions and withdraw these petitions and will remain bound by the
eviction orders subject matter of each of the petitions, but seek time to
vacate as granted by the Supreme Court;
14. that the petitioner herein is willing to file affidavits of undertakings in
this regard, undertaking to, on or before 31st December, 2019 vacate and
hand over vacant peaceful physical possession of the entire premises in
their possession/occupation and/or with respect to which eviction order has
been passed, to the respondent DDA and not to deal with the said premises
in any other manner whatsoever and not to alienate, encumber or part with
possession thereof to anyone else;
15. The petitioner herein wishes to state that they be treated along with the
similarly situated farmers as in the other cases and their petition be also
disposed of In terms of the first two sets of farmers."
10. It is thus evident that the petitioner essentially sought protection in
accordance with the orders of the Supreme Court noted above and thus
could have asserted a right to be permitted to occupy the land upto 31
March 2020 only. However, despite the unequivocal stand taken by the
petitioner and which consequently bound him to hand over vacant
possession latest by 31 March 2020, the interim protection accorded when
the writ petition was originally entertained on 04 January 2019 has
continued to operate and the petitioner has remained in occupation of the
land in question till date.
11. The Authority in terms of its reply which has been tendered in these
proceedings has while adverting to the litigation which ensued additionally
made the following significant disclosures. It asserts that the land over
which the petitioner claims cultivatory rights was entrusted to the Trust in
terms of a Nazul agreement executed in its favour on 31 March 1937. As
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
was noted above, the respondent Authority is the successor of that Trust. It
is also not disputed inter partes that the lease agreement as executed in
favour of the Society came to an end by efflux of time on 14 June 1966 and
that it was thereafter called upon to hand over possession. It is further
submitted that since the members of the Society failed to vacate the subject
land, proceedings under the Act came to be instituted. The Authority asserts
that no right inheres in the petitioner to retain possession of the subject land
once the rights of the Society over the same came to an end.
12. The Authority further apprises the Court that the land in question
falls in the Yamuna Riverbed Zone „O‟. It has referred to the various
orders passed by the Supreme Court and the High Court commanding
authorities to remove all illegal and unauthorised encroachments from Zone
„O‟ of the Yamuna Riverbed. The record reflects that the task of
rejuvenating the Yamuna river and its surroundings embankments also
formed subject matter of consideration of the National Green Tribunal. It is
disclosed that as per the Seven Phase Plan approved by the Tribunal, the
Authority has completed the work of development between the Old
Railway Bridge to ITO Bridge on the western side of Yamuna situate in
Bela Inderpat revenue estates. It is stated that a plan to develop the Asita
Park has also been duly approved and is to be implemented upon the land in
question. It is pointed out that the interim order passed in this writ petition
has seriously hampered and impaired the completion of a project duly
sanctioned and approved by the Tribunal and one which is of vital public
importance.
13. Mr. Mishra, learned counsel appearing for the petitioner, has
submitted that his forefathers have been in possession of the property in
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
question since prior to the promulgation of the 1954 Act and that
consequently the right of the petitioner to possess and cultivate the land
cannot be interfered with nor can the petitioner be treated to be an
encroacher over the land or an unauthorised occupant. Mr. Mishra has
referred to the material placed along with the writ petition to contend that
the petitioner had been regularly paying rent to the Society and would be
liable to be recognised as a bhumidhar of the land in his own right by virtue
of having been in occupation thereof from prior to the promulgation of the
1954 Act. Learned counsel has also referred to the provisions made in The
National Capital Territory of Delhi Laws (Special Provisions) Act
20077 to contend that the aforesaid enactment clearly injuncts and restrains
the respondents from taking any coercive action even in cases where public
land may have been unauthorisedly occupied. According to Mr. Mishra,
the provisions of the 2007 Act protect the right of the petitioner to retain
possession and the action of the respondents is wholly arbitrary and illegal.
14. Controverting the aforesaid submissions, Ms. Kaur, learned counsel
appearing for the Authority, would contend that the instant writ petition is
clearly in abuse of the process of Court. According to Ms. Kaur,
undisputedly the challenge raised in the present petition stands conclusively
settled in light of the judgment rendered by the Court in Sunil Kumar.
According to learned counsel, the entire controversy was lent a quietus once
the special leave petitions as well as the review and curative petitions came
to be dismissed. Ms. Kaur submits that as per the petitioner‟s own case, all
that was originally claimed was a right to continue to occupy the land in
7 2007 Act
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
accordance with the terms set down by the Supreme Court. Learned counsel
submits that the writ petition as preferred was premised solely upon the
orders of the Supreme Court with the petitioner virtually conceding that he
could not claim a right to be in occupation of the premises beyond 31
March 2020. It is in the aforesaid backdrop that Ms. Kaur would urge this
Court to dismiss the writ petition. It was lastly submitted that the various
submissions addressed today and founded on a perceived interpretation of
the 1954 and 2007 enactments are thoroughly misconceived, stand
conclusively answered against the petitioner and deserve to be outrightly
rejected.
15. Ms. Kaur, learned counsel has also drawn the attention of the Court
to a recent judgment rendered by a learned Judge in Yamuna Bank Kishan
Bachao Morcha v. State of NCT of Delhi8 where the Court observed as
follows:-
"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 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
8 2022 SCC Online Del 372
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
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.
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
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.
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
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 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."
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 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."
16. It must at the outset be noted that the petitioner had approached the
Court essentially seeking protection in terms of the orders of the Supreme
Court and which would have thus entitled him to retain possession of the
subject land only till 31 March 2020. He had unambiguously stated in the
writ petition that he was willing to submit an undertaking on lines as
envisaged in those orders and it was to this limited extent alone that
intervention of the Court was sought. Viewed in that light, it is perhaps not
even legally permissible for him to now turn around and assert that his right
of occupation either stands perfected under the provisions of the 1954 Act
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
or seek protection of the provisions of the 2007 Act even if they were
assumed to apply. However, since Mr. Mishra has addressed submissions
on those lines with great vehemence the Court proceeds to deal with the
contentions urged hereinafter.
17. Before proceeding to do so, it becomes necessary to preface the
conclusions which follow with the following undisputed facts which are
manifest from a perusal of the record. The petitioner has abjectly failed to
place on the record any evidence which may have established a right
conferred on him or his forefathers to possess the land or claim title
thereon. The case of the petitioner also does not rest on any allotment or
grant that may have been made by a competent authority in accordance with
law. The receipts of payment of periodical rent to the Society cannot
possibly be viewed as evidence of title over the land. While the petitioner
may have cultivated the land by virtue of being a member of the Society,
once the rights of that entity over the land came to be extinguished, no right
survived in the petitioner to remain in occupation. To put it differently, the
petitioner by virtue of being a member of the Society cannot possibly claim
a right superior to that which stood conferred on that body.
18. The Court then proceeds to deal with the submissions addressed by
Mr. Mishra based on the provisions of the 2007 Act. In order to adjudge the
merits of the contentions addressed, it would be relevant to firstly take note
of some of the salient provisions of that enactment. The expression
„encroachment‟ has been defined therein as follows: -
"2. Definitions.--
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
(c) "encroachment" means unauthorised occupation of Government land
or public land by way of putting temporary, semi-permanent or
permanent structure for residential use or commercial use or any other
use;"
19. The 2007 Act proceeds to define "unauthorized development" in the
following terms:-
"2. Definitions.--
(i) "unauthorised development" means use of land or use of building or
construction of building or development of colonies, village abadi area and its
extension, carried out in contravention of the sanctioned plans or without
obtaining the sanction of plans, or in contravention of the land use as permitted
under the Master Plan or Zonal Plan or layout plan, as the case may be, and
includes any encroachment."
20. Section 3 which deals with the subject of enforcement action being
placed in abeyance until a policy for relocation and rehabilitation is framed
reads as under:-
"3. Enforcement to be kept in abeyance.-- (1) Notwithstanding
anything contained in any relevant law or any rules, regulations or bye-
laws made thereunder, the Central Government shall before the expiry of
this Act, take all possible measures to finalise norms, policy guidelines
and feasible strategies to deal with the problem of encroachment or
unauthorised development in the form of encroachment by slum dwellers
and Jhuggi-Jhompri clusters, hawkers and urban street vendors,
unauthorised colonies, village abadi area and its extension, existing farm
houses involving construction beyond permissible building limits and
schools, dispensaries, religious institutions, cultural institutions, storages,
warehouses and godowns used for agricultural inputs or produce
(including dairy and poultry) in rural areas built on agricultural land, as
mentioned below:--
(a) policy for relocation and rehabilitation of slum dwellers and
Jhuggi-Jhompri clusters in accordance with provisions of the
Master Plan of Delhi, 2021 to ensure development of Delhi in a
sustainable, planned and humane manner;
(b) strategy for regulation of urban street vendors in consonance
with the national policy for urban street vendors and hawkers as
provided in the Master Plan of Delhi, 2021;
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
(c) scheme containing guidelines for regularisation of unauthorised
colonies, village abadi area and its extension, as existed on the 31st
day of March, 2002, and where construction took place even
beyond that date and up to the 8th day of February, 2007;
(d) policy regarding existing farm houses involving construction
beyond permissible building limits; and
(e) policy regarding schools, dispensaries, religious institutions,
cultural institutions, storages, warehouses and godowns used for
agricultural inputs or produce (including dairy and poultry) in rural
areas built on agricultural land.
(2) Subject to the provisions contained in sub-section (1) and
notwithstanding any judgment, decree or order of any court, status quo--
(i) as on the 1st day of January, 2006 in respect of encroachment
or unauthorised development; and
(ii) in respect of unauthorised colonies, village abadi area and its
extension, which existed on the 31st day of March, 2002 and
where construction took place even beyond that date and up to the
8th day of February, 2007, mentioned in sub-section (1),
shall be maintained.
(3) All notices issued by any local authority for initiating action against
encroachment or unauthorised development referred to in sub-section (1),
shall be deemed to have been suspended and no punitive action shall be
taken till the 31st day of December, 2008.
(4) Notwithstanding any other provision contained in this Act, the Central
Government may, at any time before the 31st day of December, 2008,
withdraw the exemption by notification in respect of encroachment or
unauthorised development mentioned in sub-section (2) or sub-section
(3), as the case may be."
21. It becomes relevant to note that the 2007 Act had essentially taken
note of the phenomenal increase of population pressure on the National
Capital Territory owing to migration and various other factors. The
enactment also takes note of the tremendous pressure caused by the influx
of people on existing land and infrastructure and which in turn had led to
widespread encroachments and unauthorized developments. In order to
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
holistically deal with the aforesaid issue, the 2007 Act contemplates the
formulation of rehabilitation and relocation schemes and for planned
development of the National Capital Territory region. However, it becomes
pertinent to note that the encroachments which are sought to be remedied
pertain to those existing on public land and where temporary, semi-
permanent or permanent structures for residential, commercial or any other
use may have come to exist. The unauthorized development which the
2007 Act seeks to remedy also relate to use of land or buildings,
developments of colonies, village abadi areas carried out in contravention
of sanctioned plans or in violation of the land use as permitted under the
Master Plans and the Zonal plans as may have been drawn by the authority
or Delhi Municipal Corporation. However, the 2007 Act does not even
remotely deal with unauthorized occupation of rural land. The definition of
the expressions encroachment and unauthorised development clearly
establishes that the enactment in essence seeks to remedy unauthorised
development in urban and semi urban areas. Its provisions can by no stretch
of imagination be read as according protection to the occupation of the
subject land by the petitioner. The submissions addressed on this score
consequently stand rejected.
22. The submissions addressed by learned counsel resting on the
provisions of the 1954 Act are liable to be negated for the following
reasons. The petitioner has woefully failed to prove that his forefathers
were or could be recognised to be "proprietors" of the land as contemplated
under Section 5 of the 1954 Act. It is also not his case that they were
declared bhumidhars either on the commencement of the 1954 Act or any
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
time thereafter. The submission of Mr. Mishra that the petitioner should be
treated as an asami by virtue of being a member of the Society not only
defies comprehension, it is also thoroughly misconceived. Even a
convoluted interpretation of Sections 5 and 6 would not convince this Court
to recognise either the Society, the petitioner or his forefathers as a
bhumidhar or asami. It is also not the case of the petitioner that his
possession over the land has come to be legitimized under any other
provision of the 1954 Act. As the facts noticed above would reveal and
establish, his occupation was neither permissive nor did the respondents at
any stage of the proceedings recognise him as being a lawful allotee, owner
or occupier of the subject land. In any case this Court fails to discern any
right that may inhere in the petitioner to remain in occupation of the subject
land.
23. Accordingly and for all the aforesaid reasons, the writ petition fails
and shall stand dismissed along with all pending applications.
YASHWANT VARMA, J.
MARCH 8, 2022/bh
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:15.03.2022
11:30:23
