Sh. Sukhbir Singh vs Union Of India And Ors on 1 November, 2022

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Delhi High Court - Orders

Sh. Sukhbir Singh vs Union Of India And Ors on 1 November, 2022

1. The petitioner who claims to be a permanent resident of village Mahipalpur has approached this Court challenging the impugned notice dated 16 April 2018. The challenge is based upon the contention that the forefathers of the petitioner had been in cultivatory and physical possession of the land in question from prior to the commencement of the Delhi Land Revenue Act, 19541. According to the petitioner, the disputes pertain to Khasra Nos. 1033 and part of Khasra No.1030 situate in village Mahipalpur and which according to them has been in the possession of the petitioner as well as his predecessors from prior to the enforcement of the 1954 Act.

2. The petitioner also asserts that the entire village of Mahipalpur 1 The 1954 Act Signature Not Verified Digitally Signed W.P.(C)4802/2018 Page 1 of 10 By:NEHA Signing Date:03.11.2022 16:33:53 was declared as an urbanized village in terms of the notification issued under Section 507 of the Delhi Municipal Corporation Act, 19572 and is in the nature of an unauthorised colony which is likely to be regularised in light of the provisions made in the National Capital Territory of Delhi Laws (Special Provision) Second (Amendment) Act, 2017. During course of submissions, learned counsel for the petitioner had also sought to claim the benefits which according to him would flow from the provisions incorporated in the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Act, 2019. The notice of 16 April 2018 required the petitioner to remove his unauthorised possession as existing upon Khasra No.1030 consequent to a demarcation exercise which had been undertaken. The respondents assert that the khasras in question form part of a water body and thus the petitioners are in unauthorised occupation and cannot in any case claim regularisation thereof. As per the disclosures made in the counter affidavit, Khasra No. 1030 stands recorded as a water body falling in the revenue estate of village Mahipalpur and Khasra No.1033 has been recorded as "Gair Mumkin Pahad" in the relevant revenue records.

3. Insofar as the question of regularisation of unauthorized occupation over a water body is concerned, the Court notes that taking cognisance of such encroachments the Supreme Court in the landmark decision of Jagpal Singh and others versus State of Punjab and others3 had issued the following general directions: -

"23. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorised occupants of the Gram Sabha/Gram Panchayat/poramboke/shamlat land and these must be restored to 2 The 1957 Act 3 (2011) 11 Supreme Court Cases 396 Signature Not Verified Digitally Signed W.P.(C)4802/2018 Page 2 of 10 By:NEHA Signing Date:03.11.2022 16:33:53 the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show-cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal possession. Regularisation should only be permitted in exceptional cases e.g. where lease has been granted under some government notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."

4. As would be evident from a reading of the aforesaid directions, all State Governments in the country were called upon to take immediate action for eviction of all illegal and unauthorised occupants in possession of Gram Sabha land. The direction for the framing of schemes in furtherance of the aforesaid objectives was to adopt and formulate appropriate provisions for speedy eviction of illegal occupants as also to bear in consideration that mere long duration of illegal occupation was not liable to be treated as a justification for either condoning unauthorised occupation or for regularising illegal possession.

5. The National Capital Territory of Delhi Laws (Special Provisions) Second Act, 20114, came to be promulgated essentially to place in abeyance all enforcement action that may have been liable to be taken for removal of encroachments on government land till such time as a scheme and orderly arrangements had been made for regularisation of unauthorised colonies and illegal encroachments. The provisions of the aforesaid enactment have been extended from time to time by subsequent amending acts with the last granted in terms of the provisions made and contained in the National Capital Territory Signature Not Verified Digitally Signed W.P.(C)4802/2018 Page 3 of 10 By:NEHA Signing Date:03.11.2022 16:33:53 of Delhi Laws (Special Provisions) Second (Amendment) Act, 2021. In terms of the provisions of the aforesaid enactment, the restraint on coercive and punitive action, came to be extended up to 31 December 2023. During the currency of the aforesaid enactment, the Union Government had also promulgated the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Act, 2019. The expression "resident" has been defined under the aforesaid act as being a person having physical possession of the property and residing in unauthorised colonies. An unauthorised colony has been defined under the aforesaid Act to mean a colony or development which has come up without any permission or approval having been obtained from the Delhi Development Authority5. Section 3 of the aforesaid enactment which attempts to regularise occupation notwithstanding the transaction with respect to the immovable property in question being not liable to be accorded legal recognition reads thus:-

"3. Recognition of property rights.--(1) Notwithstanding anything contained in the Indian Stamp Act, 1899 (2 of 1899) and the Registration Act, 1908 (16 of 1908) as applicable to the National Capital Territory of Delhi or any rules or regulations or bye-laws made there under and the judgment of the Supreme Court in the case of Suraj Lamp & Industries (P) Ltd. Vs. State of Haryana & others, dated the 11th October, 2011, the Central Government may, by notification in the Official Gazette, regularise the transactions of immovable properties based on the latest Power of Attorney, Agreement to Sale, Will, possession letter and other documents including documents evidencing payment of consideration for conferring or recognising right of ownership or transfer or mortgage in regard to an immovable property in favour of a resident of an unauthorised colony.

(2) The Central Government may, by notification published in the Official Gazette, fix charges on payment of which transactions of immovable properties based on the latest Power of Attorney, Agreement to Sale, Will, possession letter and other documents including documents evidencing payment of consideration for conferring or recognising right of ownership or transfer or 4 The 2011 Act 5 DDA Signature Not Verified Digitally Signed W.P.(C)4802/2018 Page 4 of 10 By:NEHA Signing Date:03.11.2022 16:33:53 mortgage in regard to an immovable property in favour of a resident of an unauthorised colony through a conveyance deed or authorisation slip, as the case may be.

(3) Notwithstanding anything contained in section 27 of the Indian Stamp Act, 1899 (2 of 1899), the stamp duty and registration charges shall be payable on the amount mentioned in the conveyance deed or authorisation slip, as the case may be. (4) Any resident of an unauthorised colony having registered or un-

registered or notarised Power of Attorney, Agreement to Sale, Will, possession letter and other documents including documents evidencing payment of consideration shall be eligible for right of ownership or transfer or mortgage through a conveyance deed or authorisation slip, as the case may be, on payment of charges referred to in sub-section (2).

(5) No stamp duty and registration charges shall be payable on any previous sale transactions made prior to any transaction referred to in sub-section (4).

(6) The tenants, licensees or permissive users shall not be considered for conferring or recognising any property rights under this Act."

6. It would also be pertinent to note that the Ministry of Housing and Urban Affairs in the Union Government has also framed the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Regulations, 2019. Those regulations seek to regularise the occupation of land upon which unauthorised colonies may have come up on the payment of charges specified in Regulation 4. It also obligates DDA to prepare local area plans and development control norms for all unauthorised colonies and clusters and to incorporate consequential amendments in the Master Plan for Delhi ["MPD-2021"] and Urban Building Bye Laws for Delhi ["UBBL-2016"]. In terms of Regulation 6, cut-off dates of 01 June 2014 and 01 January 2015 have been identified for the purposes of identification of eligible new colonies. Regulation 7 specifies the category of land which would stand excluded and reads thus:-

"Exclusion. - Under these regulations, no rights shall be conferred or recognised-

(a) over prohibited land, that is, land falling in reserved or notified Signature Not Verified Digitally Signed W.P.(C)4802/2018 Page 5 of 10 By:NEHA Signing Date:03.11.2022 16:33:53 forests, land identified as protected or prohibited area by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), land falling in Zone-O, Yamuna Flood Plain, land falling in right of way of existing roads and Master Plan Roads, land under right of way of high tension lines, land falling in ridge area of Delhi and land reserved or protected under any other law for the time being in force;

(b) affluent unauthorised colonies."

7. The issue of whether the illegal occupation over a water body would be entitled to be regularised under the 2011 Act is no longer res integra in light of the following observations which were entered by a Division Bench of the Court in Vijay Pal & Ors. Versus Govt. of NCT of Delhi & Ors.6:-

"7. The learned counsel for the appellant further sought relief under section 3 of the National Capital Territory Of Delhi Laws (Special Provisions) Second Act, 2011, relevant portion of which reads as under:-

"3.(1) Notwithstanding anything contained in any relevant law or any rules, regulations or bye-laws made there under, the Central Government shall before the expiry of this Act, take all possible measures to finalise norms, policy guidelines, feasible strategies and make orderly arrangements 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 (including urban villages), and its extension, existing farm houses involving construction beyond permissible building limits and schools, dispensaries, religious institutions, cultural institutions, storages, warehouses and go downs used for agricultural inputs or produce (including dairy and poultry) in rural areas built on agricultural land, as mentioned below:

(a) Orderly arrangments for relocation and rehabilitation of slum dwellers and Jhuggi-Jhompri clusters in the National Capital Territory of Delhi in accordance with the provisions of the Delhi Urban Shelter Improvement Board Act, 2010 (Delhi Act 7 of 2010) and the Master Plan for Delhi, 2021 to ensure its development in a sustainable, planned and humane manner;

(b) Scheme and orderly arrangements for regulation of urban street vendors in consonance with the national policy for urban street vendors and hawkers as provided in the Master Plan for Delhi, 2021;

(c) Orderly arrangements pursuant to guidelines and 6 2017 SCC OnLine Del 6425 Signature Not Verified Digitally Signed W.P.(C)4802/2018 Page 6 of 10 By:NEHA Signing Date:03.11.2022 16:33:53 regulations for regularisation of unauthorised colonies, village abadi area (including urban villages) 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 or plan for orderly arrangement 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-

(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 (including urban villages) 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."

8. At the outset, we may point out that we are in consonance with the observation of learned Single Judge that removal of unauthorized encroachment over the water body would not be protected by the NCT of Delhi Laws (Special Provisions)."

8. This Court is further of the opinion that in light of the binding directives issued by the Supreme Court in Jagpal Singh, the question of regularisation of illegal occupation over water bodies would not arise at all and in any case cannot be countenanced in law. Learned counsel for the petitioner also did not dispute the aforesaid position.

9. The solitary issue which was raised was with respect to the total area of the water body in question and whether it would be 3 bighas and 18 biswas or 1 bigha and 6 biswas. The contention addressed on behalf of the petitioner was that the boundaries and the total area over which the water body is stated to have existed has been unilaterally amended and notified by the respondents.

10. It becomes pertinent to note that in respect of the very same Khasra, the Court had in Manish Kumar & Ors versus Union of Signature Not Verified Digitally Signed W.P.(C)4802/2018 Page 7 of 10 By:NEHA Signing Date:03.11.2022 16:33:53 India & Ors.7 had passed the following order on 02 August 2019: -

"CM No. 34679/2019

"1. The petitioner has filed the present application, inter alia, praying that the SDM, Vasant Vihar, be directed not to take any coercive action in respect of the property forming a part of Khasra No. 1030 located at Mahipalpur Extension, Block A, New Delhi- 110037.

2. The relief as sought for in the application cannot be granted as it runs contrary to express orders issued by this Court directing the concerned authorities to verify whether the land encroached upon was a water body at any time and to further take steps that so the said water body and the area surrounding it is cleared of all encroachment. This Court had further directed that steps be taken for rejuvenating the water body.

3. Mr Gupta, the learned senior counsel appearing for the petitioner states that as per the revenue records, Khasra No. 1030 measures approximately three Bighas and the water body, which is only a part of the said land, measures approximately one Bigha six Biswas. He states that, therefore, only a part of the said land is required to be cleared.

4. The said contention is unmerited as the respondent authorities are not only required to clear encroachment from the area of the water body, but are also to ensure that the water body is rejuvenated. For the said purpose, the surrounding land would also have to be cleared of encroachment. The petitioner has no title to the land, therefore, the prayers sought for by the petitioner cannot be granted.

5. The application is, accordingly, dismissed."

11. That order was subjected to challenge in Manish Kumar & Ors versus Union of India & Ors. [LPA No.533/2019] which came to be disposed of on the following terms:-

"1. We may note that the original record, including the order dated 11.02.2019, passed by the District Magistrate, concerning the exact measurement of the water body, has been shown to us by respondent nos.2 and 3.

1.1. According to the counsel for respondent nos.2 and 3, the necessary corrections have been made in the Khatoni.

2. It is the case of the learned counsel for respondents no.2 and 3, that the water body measured 3 bighas and 18 biswas and not 1 bigha and 6 biswas.

2.1. Mr Gaurav Sarin, who appears on behalf of the appellants, 7 W.P.(C).3830/2018 Signature Not Verified Digitally Signed W.P.(C)4802/2018 Page 8 of 10 By:NEHA Signing Date:03.11.2022 16:33:53 contests this position.

3. However, after some arguments, Mr Sarin, on instructions from Mr Sudhanshu Tomar, advocate, seeks leave to withdraw the instant appeal.

4. The appeal is, accordingly, dismissed as withdrawn.

5. Accordingly, the interim order dated 20.08.2019 shall stand vacated.

6. It goes without saying that the application filed on 27.01.2005, for regularization of the subject area will be decided, in accordance with the extant provisions of the law.

7. Needless to state, the rights and contentions of both sides shall remain open.

8. Pending applications shall also stand closed."

12. It is in the aforesaid backdrop that learned counsel for the petitioner contended that the respondents would be obliged to carry out an appropriate demarcation exercise and earmark the total area of the water body and Gaon Sabha land as per the records which had been maintained and as they stood on the date of enforcement of the Delhi Land Reforms Act, 1954.

13. Learned counsels appearing for the concerned Sub-Divisional Magistrate [SDM] and the other authorities of the GNCTD have submitted that the aforesaid exercise of demarcation and determination of the contours of the water body shall be duly undertaken in accordance with the relevant revenue records. In view of the aforesaid, the Court disposes of the instant writ petition leaving it open to the revenue authorities to carry out the requisite demarcation exercise and which may effectively and conclusively determine the contours of the water body and thereafter proceed to take further steps to remove all encroachments that may be found to exist on the water body in accordance with law.

14. If the petitioner be found to be in occupation of any part of the land that is found to be part of the total area of the water body, it shall Signature Not Verified Digitally Signed W.P.(C)4802/2018 Page 9 of 10 By:NEHA Signing Date:03.11.2022 16:33:53 be opened to the respondents to take further action in accordance with the law.

YASHWANT VARMA, J.

NOVEMBER 1, 2022 neha Signature Not Verified Digitally Signed W.P.(C)4802/2018 Page 10 of 10 By:NEHA Signing Date:03.11.2022 16:33:53

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Delhi High Court - Orders