Delhi High Court
Janki vs Central Public Works Department ... on 7 October, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order : 7th October, 2022
+ W.P.(C) 2822/2019 & CM APPL. 13138/2019
JANKI ..... Petitioner
Through: Mr. Naushad Alam, Advocate
alongwith petitioner
versus
CENTRAL PUBLIC WORKS DEPARTMENT AND ORS
..... Respondents
Through: Mr. Parvinder Chauhan and Mr.
Sushil Dixit, Advocates for DUSIB
Mr. Shaan Mohan and Mr. Gagan
Sharma, Advocates for R-3
Mr. Dev P. Bhardwaj, Standing
Counsel for UOI with Ms. Anubha
Bhardwaj, Ms. Ankita Gautam and
Mr. Sarthak Anand, Advocates
Mr. R.K. Dhawan, Standing
Counsel for DDA with Ms.
Vanshika Agarwal, Advocate for
R-5/DDA
+ W.P.(C) 2858/2019 & CM APPL. 13296/2019
SHANTI THAPA ..... Petitioner
Through: Mr. Naushad Alam, Advocate
alongwith petitioner
versus
CENTRAL PUBLIC WORKS DEPARTMENT AND ORS
..... Respondents
Signature Not Verified
W.P.(C) 2822/2019 & connected matters Page 1 of 22
Digitally Signed By:GAURAV
SHARMA
Signing Date:13.10.2022
18:03:18
Through: Mr. Abhishek Aggarwal, Advocate
for GNCTD
Mr. Parvinder Chauhan and Mr.
Sushil Dixit, Advocates for DUSIB
Mr. R.K. Dhawan, Standing
Counsel for DDA with Ms.
Vanshika Agarwal, Advocate for
R-5/DDA
+ W.P.(C) 3442/2019, CM APPL. 15800/2019 & CM APPL.
40576/2021
SMT. ROSHNI DEVI ..... Petitioner
Through: Ms. Charu Ambwani, Advocate
versus
CENTRAL PUBLIC WORKS DEPARTMENT AND ORS
..... Respondents
Through: Mr. Vivekanand Mishra, Sr. Panel
Counsel for UOI/R-1 and 4
Mr. Parvinder Chauhan and Mr.
Sushil Dixit, Advocates for DUSIB
Ms. Prabhsahay Kaur, Standing
Counsel for DDA/R-5
+ W.P.(C) 2860/2019 & CM APPL. 13299/2019
LOKESH ..... Petitioner
Through: Mr. Naushad Alam, Advocate
alongwith petitioner
versus
CENTRAL PUBLIC WORKS DEPARTMENT AND ORS
..... Respondents
Through: Mr. Dev P. Bhardwaj, Standing
W.P.(C) 2822/2019 & connected matters
Signature Not Verified
Page 2 of 22
Digitally Signed By:GAURAV
SHARMA
Signing Date:13.10.2022
18:03:18
Counsel for UOI with Ms. Anubha
Bhardwaj, Ms. Ankita Gautam and
Mr. Sarthak Anand, Advocates
Mr. Parvinder Chauhan and Mr.
Sushil Dixit, Advocates for DUSIB
Mr. R.K. Dhawan, Standing
Counsel for DDA with Ms.
Vanshika Agarwal, Advocate for
R-5/DDA
+ W.P.(C) 2873/2019 & CM APPL. 13359/2019
BEJANTI VERMA ..... Petitioner
Through: Mr. Naushad Alam, Advocate
alongwith petitioner
versus
CENTRAL PUBLIC WELFARE DEPARTMENT AND ORS
..... Respondents
Through: Mr. Dev P. Bhardwaj, Standing
Counsel for UOI with Ms. Anubha
Bhardwaj, Ms. Ankita Gautam and
Mr. Sarthak Anand, Advocates
Mr. Parvinder Chauhan and Mr.
Sushil Dixit, Advocates for DUSIB
Mr. R.K. Dhawan, Standing
Counsel for DDA with Ms.
Vanshika Agarwal, Advocate for
R-5/DDA
+ W.P.(C) 2883/2019 & CM APPL. 13386/2019
SHYAMA ..... Petitioner
Through: Mr. Naushad Alam, Advocate
alongwith petitioner
Signature Not Verified
W.P.(C) 2822/2019 & connected matters Page 3 of 22
Digitally Signed By:GAURAV
SHARMA
Signing Date:13.10.2022
18:03:18
versus
CENTRAL PUBLIC WORKS DEPARTMENT AND ORS
..... Respondents
Through: Mr. Dev P. Bhardwaj, Standing
Counsel for UOI with Ms. Anubha
Bhardwaj, Ms. Ankita Gautam and
Mr. Sarthak Anand, Advocates
Mr. Parvinder Chauhan and Mr.
Sushil Dixit, Advocates for DUSIB
Mr. Mohit Bhardwaj, Advocate for
R-3/GNCTD
Mr. R.K. Dhawan, Standing
Counsel for DDA with Ms.
Vanshika Agarwal, Advocate for
R-5/DDA
+ W.P.(C) 3775/2019 & CM APPL. 17299/2019
POONAM ..... Petitioner
Through: Mr. Naushad Alam, Advocate
alongwith petitioner
versus
CENTRAL PUBLIC WORKS DEPARTMENT AND ORS
..... Respondents
Through: Mr. Dev P. Bhardwaj, Standing
Counsel for UOI with Ms. Anubha
Bhardwaj, Ms. Ankita Gautam and
Mr. Sarthak Anand, Advocates
Mr. Parvinder Chauhan and Mr.
Sushil Dixit, Advocates for DUSIB
Mr. Divyam Nandrajog, Panel
Counsel for GNCTD with Mr.
Jasneet Jolly and Mr. Mohd.
Shahid Khan, Advocates for R-3
W.P.(C) 2822/2019 & connected matters
Signature Not Verified
Page 4 of 22
Digitally Signed By:GAURAV
SHARMA
Signing Date:13.10.2022
18:03:18
Mr. R.K. Dhawan, Standing
Counsel for DDA with Ms.
Vanshika Agarwal, Advocate for
R-5/DDA
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
1. The instant set of writ petitions have been filed on behalf of the
petitioners under Article 226 of the Constitution of India praying inter
alia for issuance of appropriate writs for quashing the respective notices
issued under Rules 5-A(2) of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 (hereinafter "PP Act") and served
upon the petitioners by Respondent No.1 as well as for issuance of
appropriate directions to the Respondents to rehabilitate the petitioners
and their family members in terms of Delhi Slum & JJ Rehabilitation and
Relocation Policy, 2015 (hereinafter "the Policy").
2. The details of the notices impugned herein are mentioned
hereunder:
Particulars Date of Notice
W.P. (C) 2822/2019 16.02.2019
W.P. (C) 2858/2019 12.02.2019
W.P. (C) 3442/2019 16.02.2019
W.P. (C) 2860/2019 19.02.2019
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SHARMA
Signing Date:13.10.2022
18:03:18
W.P. (C) 2873/2019 16.02.2019
W.P. (C) 2883/2019 19.02.2019
W.P. (C) 3775/2019 16.02.2019
3. The petitioners are dwellers of various shelters/jhuggis situated
near Hanuman Mandir, Mohammadpur, R. K. Puram, New Delhi -
110066. Vide the aforesaid Notices the petitioners have been asked by
Respondent No.1 to vacate their respective jhuggis, situated near the said
area.
4. Respondent No. 1 is the Central Pubic Welfare Department
(hereinafter "CPWD"), Respondent No. 2 is the Delhi Urban Shelter
Improvement Board (hereinafter "DUSIB"), Respondent No. 3 is the
Government of NCT of Delhi and the Respondent No. 4 is the Ministry of
Urban Development.
5. Learned counsels appearing on behalf of the petitioners submitted
that the petitioners are poor migrants and daily wagers who have been
residing at the aforesaid address for years and with the passage of time
constructed temporary shelters for residing. It is also submitted that
several ID/Address proofs (including Ration card, Voter ID, etc.),
electricity and gas connections, bank accounts, and educational
qualification certificates have been issued to the petitioners on the address
at which they are staying currently and are being sought to be evicted
from.
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SHARMA
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6. It is alleged that on several occasions, the Respondent No. 1
threatened the petitioners of demolition of their shelters and evicting
them. In response thereto, a letter was written to the Chief Minister on
19.06.2017. Subsequently, in July, 2017, a Suit was filed by the
petitioners bearing No. CS No.793/2017 titled „Shanti Thapa and Ors. vs.
Central Public Welfare Department and Ors.‟ before Additional Senior
Civil Judge, Patiala House Courts, New Delhi, seeking mandatory and
permanent injunction directing the Respondent No. 1 to 3 not to demolish
and evict them from their jhuggis and comply with the 2015
Rehabilitation Policy.
7. It is submitted that on 04.02.2019, Respondent No. 1 made the
statement before the Senior Civil Judge that they shall not dispossess the
petitioners/jhuggi dwellers without adopting the due processes of law. In
view of the same, the said suit was disposed off as withdrawn with liberty
to avail the remedies under the relevant previsions of law. Thereafter,
eviction/demolition notice dated 16.02.2019 was issued.
8. Learned counsels for the petitioners further submitted that the
impugned action of the respondent no. 1 is illegal, arbitrary, illogical and
capricious and smacks of complete non-application of mind leading to
gross violation of right of shelter guaranteed under Article 21 of the
Constitution of India and also against the 2015 Policy approved by the
Respondent No.2 vide its resolution No. 16/3 dated 11.04.2016 which
provides that JJ Basti which has came up before 01.01.2006 would not be
removed without providing alternative housing facilities, on the same
land or in the vicinity within a radius of 5 Kms and in exceptional
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circumstances beyond 5 Kms with prior approval of DUSIB, with
amenities in the nature and form of water, electricity supply and
sanitation facilities.
9. Per Contra, learned counsels for the Respondent No.1/ submitted
that the area at which the aforesaid jhuggis are situated were declared
dangerous in September 2009. It is stated that Respondent No. 4 notified
the redevelopment plan for Mohammadpur Govt. Colony vide letter no.
15011/1/2010-W2 dated 25.02.2010. After declaration of redevelopment
scheme, the allottees of Mohammadpur Govt. Colony were relocated in
the nearby government accommodation by the Director of Estates. During
this period and in previous survey of Mohammadpur Govt. Colony no
such jhuggis where the Petitioners are currently residing were noticed. As
such, the only reasonable possibility is that of the aforesaid jhuggis being
made after the said period.
10. It is submitted that as soon as these jhuggis came into notice, the
process for eviction of unauthorized occupation of land was initiated and
after notice issued by the Assistant Engineer and no action being taken by
the unauthorized occupants of land, the notices under PP Act were issued
to the unauthorized dwellers.
11. It is also submitted that mere furnishing of id proof mentioning the
said address does not legitimise the illegal occupation of the land that
belongs to the Central Government. In any case, the Petitioners are recent
encroachers since the documents annexed have been issued in recent
years and there is not even a single document appended to show their
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SHARMA
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existence at the subject site prior to 01.01.2006, which is necessary to be
considered to be eligible for consideration for the grant of alternative
accommodation. It is further pertinent to note that, though the subject
area is not a JJ Cluster, however, even if it is taken for a moment that the
Petitioner is a resident of a JJ Cluster, in terms of the extant Policy, she
has to show her existence at site, prior to 01.01.2015.
12. Additionally, it is submitted that in the present case, the perusal of
the documents appended with the Petition, clearly shows that the
Petitioners do not qualify the said cut off. Therefore, even if the entire
case of the Petitioners is seen to be true still, in terms of the extant policy,
the Petitioners are not entitled to any alternative accommodation.
13. It is submitted that the Union Government requires this land for
development of accommodation of Government Employees and hence,
the said area needs to be vacated in public interest.
14. Learned counsel appearing on behalf of the Respondent No.
2/DUSIB submitted that the DUSIB is a Statutory Board constituted in
terms of the provisions contained in the Delhi Urban Shelter
Improvement Board Act, 2010 (hereinafter referred to as "DUSIB Act")
which is an enactment of the Legislative Assembly of the National
Capital Territory of Delhi. Vide Section 10 of the aforesaid DUSIB Act,
the DUSIB has been empowered to prepare a scheme of removal of
"Jhuggi Jhopri Basties" and re-settlement of the residents thereof with the
prior of consultation with the Government.
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SHARMA
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15. It is also submitted that in terms of the proviso to Sub - Section (3)
of Section 10 of the Act, where any "Jhuggi Jhopri Bastis" is situated on
the land belonging to the Central Government or any of its organization,
the process of the removal and re-settlement is to be undertaken with the
prior consent of the Central Government or the concerned organization.
Hence, there is no binding obligation on the Central Government or any
of its Organisation for removal and/or re-settlement of "Jhuggi Jhopri
Bastis" situated on land belonging to them to be carried out by the
DUSIB. It is submitted that none of the provisions of the aforesaid
DUSIB Act empowers the DUSIB to, unilaterally, take up and execute
any project or scheme qua the properties of the Respondents No. 1 or 4.
16. It is further submitted that the DUSIB has been nominated Nodal
Agency of relocation of JJ Bastis upon the land belonging to Delhi
Government or its Agency. It is further relevant to note that there are as
many as 675 JJ Bastis and 82 Additional Bastis which are situated on the
land belongings to the different Government Department or Agencies. It
is relevant to note that the subject area does not find its name mentioned
in the said list of JJ Cluster. In any case, as per the Respondent No.1, the
Petitioner is not a resident of a JJ Cluster.
17. It is also pertinent to mention that, as per the Notification of the
Govt. of N.C.T. of Delhi bearing No. F. No. 692(7)/UD/ BSUP/2015/
Vol- 1/2450-2457, dated 20.09.2017, the Hon'ble Lt. Governor of Delhi
has nominated the Delhi Development Authority, as the Nodal Agency
for Rehabilitation of Slum Dwellers, in respect of land belonging to the
Central Govt. and its agencies. Therefore, the subject area being owned
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SHARMA
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by the Central Govt., any steps as to survey or rehabilitation, needs to be
taken by the Delhi Development Authority. However, the Delhi
Development Authority has not been impleaded by the Petitioner.
18. It is also stated that the subject area is not a part of any JJ Basti.
Moreover, since, it is the case of the Petitioner itself that there are only 8
houses at the subject premises, the same would also not qualify to be
labelled as a JJ Basti, within the meaning of Section 2 (g) of the DUSIB
Act, 2010. As such, the subject jhuggis would not be entitled to be
considered for rehabilitation. Accordingly, it is submitted that the instant
petitions do not merit consideration of this Court and be accordingly
dismissed.
19. Heard learned counsels for the parties and perused the record.
20. The only question that merits deliberation and consideration of this
Court in the instant petition is whether the petitioners are entitled to any
protection/rehabilitation under the existing policy framework for
rehabilitation of residents of Jhuggi-Jhopri in Delhi. In order to answer
this issue, it is pertinent to refer to the provisions and policies referred to
and applicable in the instant set of circumstances.
21. Relevant provisions of the DUSIB Act, 2010 are furnished
hereunder:
"2(f) "jhuggi" means a structure whether temporary or pucca,
of whatever material made, with the following characteristics,
namely:-
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SHARMA
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(i) it is built for residential purpose;
(ii) its location is not in conformity with the land use of
the Delhi Master Plan;
(iii) it is not duly authorized by the local authority
having jurisdiction; and
(iv) it is included in a jhuggi jhopri basti declared as
such by the Board, by notification;
(g) "jhuggi jhopri basti" means any group of jhuggis which the
Board may, by notification, declare as a jhuggi jhopri basti in
accordance with the following factors, namely:-
(i) the group of jhuggis is unfit for human habitation;
(ii) it, by reason of dilapidation, overcrowding, faulty
arrangement and design of such jhuggis, narrowness
or faulty arrangement of streets, lack of ventilation,
light or sanitation facilities, or any combination of
these factors, is detrimental to safety, health or
hygiene; and
(iii) it is inhabited at least by fifty households as
existing on 31st March, 2002:
Provided that the Board may, by order, attach any jhuggi
or jhuggis scattered in the nearby areas to any jhuggi jhopri
basti and such jhuggi or jhuggis shall be deemed to be part of
such jhuggi jhopri basti;"
22. In terms of the DUSIB Act, the Delhi Slum & JJ Rehabilitation and
Relocation Policy, 2015 was framed, the relevant provisions thereof read
as under:
" 2(a) Nodal Agency
The Delhi Urban Shelter Improvement Board (DUSIB) shall act
as the Nodal Agency for implementation of this policy as per the
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mandate given to it under the provisions of Delhi Urban Shelter
Improvement Board Act, 2010.
(i) Who is eligible for rehabilitation or relocation
JJ Bastis which have come up before 01.01.2006 shall not be
removed (as per NCT of Delhi Laws (Special Provisions)
Second Act, 2011) without providing them alternate housing.
Jhuggis which have come up in such JJ Bastis before 01-01-
2015 shall not be demolished without providing them alternate
housing; (this is in supersession of the earlier cut-off date of
04.06.2009 as notified in the guidelines of 2013)
(ii) No new jhuggis to be allowed in Delhi
GNCTD shall ensure that no new jhuggis come up after this
date, the same shall immediately be removed without providing
them any alternate housing. Government of National Capital
Territory of Delhi will use the following methods to ensure that
no new jhuggis come up:
a. Government of National Capital Territory of Delhi
has started procuring satellite maps every three
months to keep an eye on any new constructions. New
illegal constructions would be removed immediately.
b. Government of National Capital Territory of Delhi
is willing to do joint inspections with land owning
agencies at regular intervals and any fresh jhuggis
would be removed immediately.
c. Government of National Capital Territory of Delhi
would enroll volunteers from Jhuggi Jhopri Bastis,
who will act for the Government and would inform
Government if any fresh jhuggi comes up in any area."
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SHARMA
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23. The question qua rehabilitation of residents of Jhuggi-Jhopri is no
longer res integra. The issue has been adjudicated in a plethora of cases.
24. In view of the rampant encroachment of land in Delhi, and lack of
proper policy for rehabilitation of encroachers, this Court in Sudama
Singh v. Government of Delhi, 2010 SCC OnLine Del 612 passed
certain observations and guidelines furnished as under:
"64. It is declared that:
(i) The decision of the respondents holding that the petitioners
are on the "Right of Way" and are, therefore, not entitled to
relocation, is hereby declared as illegal and unconstitutional.
(ii) In terms of the extant policy for relocation of Jhuggi
dwellers, which is operational in view of the orders of the
Supreme Court, the cases of the petitioners will be considered
for relocation.
(iii) Within a period of four months from today, each of those
eligible among the petitioners, in terms of the above relocation
policy, will be granted an alternative site as per MPD-2021
subject to proof of residence prior to cut-off date. This will
happen in consultation with each of them in a "meaningful"
manner, as indicated in this judgment.
(iv) The State agencies will ensure that basic civic amenities,
consistent with the rights to life and dignity of each of the
citizens in the Jhuggis, are available at the site of relocation."
25. In compliance with the order of Sudama Singh (supra), the
Legislative Assembly of National Capital Territory of Delhi brought out
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the DUSIB Act, 2010 and subsequently in terms of the said Act, the 2015
Policy was rolled out.
26. In Tejpal Guatam v. Central Public Works Department, 2018
SCC OnLine Del 10484, it was held that in the absence of a notification
by DUSIB, notifying any jhuggi cluster as a "Jhuggi Jhopri Basti", it is
not possible to extend the benefit of the 2015 Policy to such a jhuggi
cluster. The relevant observations of the Court in that case are as under:
"11. As far as the policy, to which attention is drawn, the same
is of DUSIB of GNCTD and is titled "Delhi Slum & JJ
Rehabilitation and Relocation Policy, 2015".
12. The said policy, in Part A thereof, in Clause 2(a)(i) titled
"Who is eligible for Rehabilitation or Relocation" provides as
under:
"JJ Bastis which have come up before 01.01.2006
shall not be removed (as per NCT of Delhi Laws
(Special Provisions) Second Act, 2011) without
providing them alternate housing. Jhuggis which have
come up in such J J Bastis before 01-1-2015 shall not
be demolished without providing alternate housing;
(this is in supersession of the earlier cut-off date of
04.06.2009 as notified in the guidelines of 2013)"
13. And in Part B thereof under Clause 1(ii) provides the
eligibility criteria for allotment of alternative dwelling units to
rehabilitate and relocate J J dwellers inter alia as under:
"(ii) The Jhuggi Jhopri basti in which the JJ dwellers
are residing must be in existence prior to 01-01-2006.
However, the cut-off date of residing in the jhuggi for
becoming eligible for rehabilitation shall be 01-01-
2015 (this is in supersession of the earlier cut-off date
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of 04.06.2009 as notified in the guidelines of 2013)"
14. On enquiry, as to what is the definition/criteria of "JJ
bastis" mentioned in Part A under Clause 2(a) (i), the counsel
for the petitioners has drawn attention to the Delhi Urban
Shelter Improvement Board Act, 2010 Section 2(g) wherein
defines „Jhuggi Jhopri Basti‟ as meaning any group of jhuggis
which the Board i.e. DUSIB may, by Notification declare as a
jhuggi jhopri basti in accordance with the factors prescribed
therein.
15. The counsel for the petitioners, on enquiry, admits that
there is no Notification with respect to the jhuggis of the
petitioners, if at all in a basti.
16. It has thus been enquired from the counsel for the
petitioners, that once the jhuggis of the petitioners or the basti if
any where the said jhuggis are situated, has not been notified,
on what basis the petitioners can claim a right of rehabilitation.
17. The counsel for the petitioners, instead of replying to the
aforesaid, states that the petitioners are being targeted,
inasmuch as dwellers of some of the other jhuggis in the vicinity
have not been issued notices and no orders have been passed
against them.
18. However, the law does not recognise any concept of
negative equality. Once, the petitioners are admittedly not
having any right to challenge the action of the respondents of
removal of jhuggis in occupation of the petitioners, the
petitioners cannot be permitted to perpetuate the illegality by
contending that the respondents have not taken any action
against others. It cannot be lost sight of that removal of such
jhuggis/unauthorised occupants is not free from difficulties and
if the respondents in their wisdom have decided to for the first
time being proceed against the petitioners only and not against
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others, the action against the petitioners cannot be faulted
with."
27. A Division Bench of this Court had occasion to deal with an
identical situation in Vaishali (Minor)(Through Next Friend Mrs. Sita
Devi) v. Union of India, LPA No. 271/2022 decided on 19.04.2022 in
the context of jhuggi jhopri cluster at Sarojini Nagar, wherein it was held
as under:
"11. A reading of the above provision would clearly show that
DUSIB has to declare a group of jhuggis as "Jhuggi jhopri
basti" by way of notification. One of the conditions to be
fulfilled by such a group of jhuggis is that it must be inhabited,
at least by fifty households, as existing on 01.01.2006. Section 9
of the Act empowers the DUSIB to make a survey of any jhuggi
basti. Section 10 of the Act provides for preparation of a
scheme for removal of any J J basti and for resettlement of the
residents thereof. Section 12 of the Act provides for the re-
development of the JJ basti. The above provisions are
applicable only with respect to "Jhuggi Jhopri basti", that is,
inter-alia a group of fifty households as existing 01.01.2006 and
duly declared by DUSIB as such by way of a Notification.
12. As noted by the learned Single Judge, the appellants have
been unable to produce any such notification under Section 2(g)
of the Act. Even in appeal, no such Notification has been
produced by the appellants. The appellants are, therefore, not
entitled to any protection under the Act.
XXX XXX XXX
14. The learned senior counsel for the appellant, placing
reliance on the proviso of Section 2(g) of the Act, contends that
the Board, that is, the DUSIB, may attach any jhuggi or jhuggis
scattered in the nearby areas to any JJ basti, and such jhuggi or
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SHARMA
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jhuggis shall be deemed to be part of such JJ basti. He contends
that, therefore, even if these jhuggis were scattered in different
areas of Sarojini Nagar, they would form part of one cluster.
We are unable to agree with the said submission. The proviso
itself states that it is for the Board to take such decision. It is
not the case of the appellants that any such decision has been
taken by the Board in the present case for the jhuggis at
Sarojini Nagar. The appellants cannot, therefore, take the
benefit of the Proviso to Section 2(g) of the Act to stake a claim
of rehabilitation.
15. As far as the reliance of the appellants on the Draft
Protocol is concerned, the same again applies only to a JJ basti
in existence prior to 01.01.2006, and the manner in which such
determination is to be made. In the present case, the categorical
stand of the respondent nos. 1 and 2 is that such a
determination was made in the case of the appellants, and the
cluster of jhuggis at Sarojini Nagar was not found in existence
as on 01.01.2006, and therefore, not notified under the Act. In
case the appellants are to dispute the above, it would be a
disputed question of fact, which in any case, cannot be
determined in a writ jurisdiction. Therefore, the Draft Protocol
also cannot come to the aid of the appellants.
16. As far as the reliance of the appellants on the judgments of
this Court in Sudama Singh (supra) and Ajay Maken (supra) is
concerned, we are again unable to accept the same. In the
referred judgments, this Court was not dealing with the position
where the respondents were disputing the existence of the J J
cluster as on 01.01.2006. Therefore, the said judgments would
have no application to the facts of the present case."
28. The said judgment has been challenged in the Supreme Court by
filing a Special Leave Petition, however, the Apex Court has not stayed
the judgment. The reasoning given by the Division Bench in the aforesaid
case squarely applies to the present case as well.
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Digitally Signed By:GAURAV
SHARMA
Signing Date:13.10.2022
18:03:18
29. In Shakarpur Slum Union v. DDA, W.P.(C) 6779/2021 decided
on 2 August, 2022, a Coordinate Bench of this Court has reiterated that
any jhuggi cluster which was not a part of any notified jhuggi jhopri
basti, and which was not in existence prior to 2006 was not entitled to the
benefits of the 2015 policy. The scope of the judgments in and Ajay
Maken v. Union of India, 2019 SCC OnLine Del 7618 and Sudama
Singh (supra) has also been considered and it has been held as under:
"33. The reliance of the Petitioner-Union on the judgment of
this Court in Ajay Maken (supra) also does not hold any water.
The judgment of Ajay Maken (supra) holds to the extent that
once a cluster has been identified under the DUSIB Policy, then
the persons living in that JJ cluster cannot be treated as illegal
encroachers and they cannot be removed from that location
without being rehabilitated in accordance with the DUSIB
Policy. As stated earlier, when the judgment of Sudama
Singh (supra) was pronounced, there was no policy in place
and this Court in Ajay Maken's case was dealing with the
cluster which had been identified by the DUSIB and, therefore,
the members of that cluster were entitled to the benefit of the
DUSIB Policy. The learned counsel for the Petitioner has
contended that a reading of paragraph 171 of the judgment of
this Court in Ajay Maken (supra) indicates that the Division
Bench of this Court has held that the DUSIB Policy, 2015, will
apply to all the jhuggi Clusters alike and that, therefore,
regardless of the fact that the present Cluster is included in the
notified Cluster or not, the protection given by this Court in the
judgment of Sudama Singh (supra) should be extended to the
Petitioners as well. This argument does not hold water. If this
submission is accepted, the entire DUSIB Policy, 2015, would
be rendered infructuous, and there would have been no
necessity for the DUSIB to bring out the policy restricting the
right of rehabilitation only to those Clusters which were
existing on 01.01.2006 and those jhuggis which were inside
those Clusters as on 01.01.2015. It is the opinion of this Court
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SHARMA
Signing Date:13.10.2022
18:03:18
that the judgment of Ajay Maken (supra) has to be read in that
light. The said judgment has not rendered the DUSIB Policy,
2015, as violative of Article 14 of the Constitution of India. The
purpose of the judgments passed by this Court in Sudama
Singh (supra) and Ajay Maken (supra) was not to provide
rehabilitation of the dwellers in the JJ Cluster even if they have
encroached on government land. Encroachment on government
land cannot be said to be a fundamental right of any person and
a person encroaching upon government land cannot claim that
he is entitled to rehabilitation as a matter of right even in the
absence of any policy bestowing the benefit of rehabilitation
and relocation on the said person."
30. In view of the aforesaid rulings as well as the provision of Act and
the policy framework, regarding rehabilitation/relocation in Delhi, the
following principles emerge:
(i) A temporary/pucca structure must be unauthorized by
jurisdictional local authority, built for residential purpose, and must
not be in conformity with the land use of the Delhi Master Plan.
(ii) The board shall notify any group of such structures/jhuggis as a
"jhuggi jhopri basti" if the group of jhuggis is unfit for human
habitation, and it, by reason of dilapidation, overcrowding, faulty
arrangement and its design, narrowness or faulty arrangement of
streets, lack of ventilation, light or sanitation facilities, or any
combination of these factors, is detrimental to safety, health or
hygiene and it must be inhabited at least by fifty households as
existing on 31.03.2002.
(iii) Such notified "jhuggi jhopri basti" which have come up before
01.01.2006 shall not be removed without providing them alternate
W.P.(C) 2822/2019 & connected matters
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Digitally Signed By:GAURAV
SHARMA
Signing Date:13.10.2022
18:03:18
housing. Whereas any jhuggis which have come up in such jhuggi
jhopri basti before 01.01.2015 shall not be demolished without
providing them alternate housing.
(iv) Any new jhuggis beyond this cut-off date are not to be allowed
in Delhi and the GNCTD shall ensure that no new jhuggis come up
after this date, the same are immediately required to be removed
without providing them any alternate housing.
31. Applying the aforesaid principles to the instant case, firstly, there is
no notification by the DUSIB which is an essential pre-requisite to be
qualified/recognized as a jhuggi jhopri basti for the purpose of the Act
and the 2015 Policy. As such, reliance placed by the petitioners relying
upon the 2015 Policy is totally misconceived, for the reason that same is
applicable only to such jhuggi jhopri bastis which are duly notified by the
DUSIB.
32. Secondly, there is also nothing on record to suggest that the said
settlement of the petitioners had come up before the cut-off date i.e.
01.01.2015.
33. Thirdly, the petitioners have clearly been unable to fulfil the
requirement of fifty households being part of their settlement the claim of
it for being considered as a part of jhuggi jhopri basti and being entitled
to rehabilitation.
34. In view of the aforesaid, the instant set of petitions being devoid of
merits is accordingly dismissed.
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SHARMA
Signing Date:13.10.2022
18:03:18
35. Pending applications, if any, also stand dismissed.
36. Order be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
OCTOBER 7, 2022
Dy/@dityak.
W.P.(C) 2822/2019 & connected matters
Signature Not Verified
Digitally Signed By:GAURAV
SHARMA
Signing Date:13.10.2022
18:03:18
