Observing that illegal encroachment has become severely rampant, the Delhi High Court has directed DDA and MCD to frame rules for imposing fines on such unlawful activities.
A single-judge bench of Justice Rajnish Bhatnagar in a writ petition under Article 226 of the Constitution ordered the following:
"The land owning authorities i.e., DDA and MCD are directed to devise a mechanism or frame rules so as to levy charges on the encroacher for illegal encroachment on public land. In case of encroachment, the encroacher shall be made liable to the extent of illegal encroachment done by him by the concerned land owning authorities. There should be a clear perception through careful quantification of the charges to be recovered from the encroacher that shall be for the benefit of public at large."
Brief Facts of the Case
One Food Eatery in the name and style of “Books and Beans” was causing trouble and discomfort by playing loud music in their cafe since morning till midnight. The Cafe was located at one end of the market and the vacant space is being used by Cafe owner as a seating area by putting chairs and tables. On night, the patrolling staff found that the cafe owner has kept the tables and chairs in open and hence, legal action was taken against them.
Subsequently, at the end of the year, a joint encroachment removal program in association with MCD was initiated against the cafe and twenty chairs and seven tables which were found placed outside in the open area were seized by MCD. The owner and staff members of the cafe were again given directions not to place the chairs and tables in open.
Defying the directions, they went on to place green grass carpet on an area excess to the rented premises and on said area, they had also placed 8-10 tables and numerous chairs.
Though on joint raid with MCD, tables and chairs placed on the excess area were seized, however, the green grass carpet laid on the excess area was not seized.
Since the area occupied by the respondent no. 3 for running the cafe was public land and was encroached upon by them, therefore, notice was issued to DDA and MCD and they were impleaded as respondent no. 5 & 6 respectively.
Contentions of Parties
It was submitted by learned ASC that respondent no. 3 has occupied an area of more than 200 sq. Feet and had placed tables and chairs on the said area which is being used as extension to their present actually tenanted business premise. It was further submitted that by encroaching upon the government land, the owners illegally enriched himself at the expense of the State, therefore, he should be made to pay user charges at the prevailing market rate for the period for which the said land was in his possession.
During the course of arguments, learned Standing Counsel for DDA informed the Court that the land encroached by respondent no. 3 belongs to DDA and respondent no. 3 has no right over it and is using this piece of land without any authority.
High Court's Observation
The Court after listening to the arguments and considering the material on record was of the view that accused-respondent no. 3 had placed green grass carpet as well as furniture like tables and chairs on an area which they were using as an extension to their rented premises despite knowing that the said land is DDA land and not within their tenancy.
It observed that Respondent no.3 by using this area without the permission of the concerned authority i.e., DDA has been using the said public land for his own personal gains to illegally enrich himself at the expense of the State, i.e., DDA in the present case and public at large.
"Encroachment on public places specially footpath, roads etc by putting hoardings, stalls, furniture pieces such as tables and chairs, has become so rampant that it forces public persons to walk on the roads because of such encroachments which leaves the user of roads and footpaths in a life threatening situation by exposing them to vehicles plying on road thereby endangering their lives", it remarked.
The Court reiterated its stance taken in Jamia Arabia Nizamia Welfare Education vs. DDA that encroachment is one of the worst forms of civil wrong as it is like committing a 'dacoity' in which the landowning agency itself loses its land and the public at large loses a valuable asset.
When the Standing Counsel for DDA responded to the court's query that there is no provision for recovery of any user charges or penalty for usage of encroached land/area at the current market price, the latter directed DDA and MCD to devise a mechanism or frame rules to levy charges on the encroacher for illegal encroachment on public land.
"For ascertaining the charges to be recovered from the encroacher, the land owning authorities shall take into consideration various factors such as the area of encroached land, period for which the encroached land was illegally used by the encroacher for his own personal gains, the market price or circle rate of the encroached area or as the case may be", the court added.
Case Title: Kamlesh Jain vs. Commissioner
Case Details: W.P.(CRL) 3407/2023 AND CRL.M.A. 31588/2023
Coram: Hon'ble Mr. Justice Rajnish Bhatnagar
Advocates for Petitioner: Petitioner in person
Advocates for Respondent: Mr. Amol Sinha, ASC for the State with Mr. Kshitiz Garg, Mr. Ashvini Kumar and Ms. Chavi Lazarus and with Insp. Dara Singh and SI Anil Kumar, PS Pandav Nagar. Mr. Pawan Reley, Mr. Akshay Lodhi, Mr. Gaurav Kumar and Ms. Simran Singh, Advocates for R-3. Mr. Sanjeev Sabharwal, Standing Counsel for MCD with Ms. Shweta Singh, Advocate. Ms. Manika Tripathy, Standing Counsel for DDA with Mr. Uday Singh, Advocate for DDA.
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