Delhi District Court
Smt. Raj Pati Devi vs Delhi Development Authority on 22 September, 2011
Suit No. 1231/2006
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
Suit No. 1231/2006
Smt. Raj Pati Devi
W/o Sh. Ram Murat,
R/o Jhuggi No. B163,
Janakpuri, New Delhi.
At Present:
H. No. D144, Hastsal J. J. Colony,
Uttam Nagar, New Delhi.
.......PLAINTIFF
VERSUS
1. Delhi Development Authority
through its Chairman
having its office at Vikas Sadan,
I. N. A. Market, New Delhi.
2. The Commissioner,
Delhi Development Authority
Vikas Sadan, I.N.A. Market,
New Delhi.
........DEFENDANTS
DATE OF INSTITUTION : 31.01.2001
DATE OF RESERVATION : 19.09.2011
DATE OF DECISION : 22.09.2011
Smt. Rajpati Devi vs. DDA 1/20
Suit No. 1231/2006
JUDGMENT: This is a suit for Mandatory injunction filed by the plaintiff against the defendant. The brief facts as averred in the plaint are as follows:
1. That the plaintiff was a juggie deweller who was living in her own constructed jhuggie in the plot bearing no. 630, BlockB1, Janakpuri, New Delhi since 1975 and has been holding her ration card, identity card and having entries in the voter list at the aforesaid address. That the officials of the defendants had proposed to vacate all jhuggies in the said area after providing an alternative plot measuring 18 meter on the payment of Rs. 7000/ to jhuggi dewellers in lieu of their jhugies. That the defendants has issued the allotment letters to some of the dewellers and shifted them alongwith their families and belongings to their respective plots and kept on promising others including the plaintiff that they shall be issued the allotment letters in the future.
However, the plaintiff was surprised and shocked when all of sudden the officers of the defendants with the police force Smt. Rajpati Devi vs. DDA 2/20 Suit No. 1231/2006 came at the spot and demolished the jhuggi of the plaintiff on 08.01.2001 and the plaintiff and other family members were forcibly dispossessed from their jhuggi.
The aforesaid factual matrix gave the cause of action to the plaintiff to file the present suit seeking the relief that defendants be directed to allot the plot measuring 18 meters to the plaintiff.
2. In the written statement filed on behalf of the defendants no. 1 & 2/ DDA, the allegations of the plaintiff in the plaint are denied and it is stated that the eligible squatters/ dwellers who were in possession of documentary proof of residence pre 1990 were offered 18 sq. meters plot after recovery of Rs. 7000/ on account of ground rent and licence fee. The squatters/ dwellers who were in possession of documentary proof of residence post 1990 but before 31.12.1998 were offered 12.05 sq. meters plot at Hastsal Residential Scheme after recovering Rs. 5000/ as ground rent and licence fee. That before shifting, a survey was conducted and the name of the plaintiff does not find mention in the survey list. That Smt. Rajpati Devi vs. DDA 3/20 Suit No. 1231/2006 the shifting cum demolition programme was conducted in very peaceful manner and the eligible dewellers were offered allotment of plot as per their eligibility. Thus the suit of the plaintiff is not maintainable and liable to be dismissed.
3. The plaintiff had filed replication to the written statement of defendant wherein the plaintiff denied the averments made by the defendant in its written statement and reiterated and reaffirmed the contents of the plaint. The same are not being reproduced herein for the sake of brevity.
4. From the pleadings of the parties, following issues were framed by my Ld. Predecessor vide orders dated 24.11.2003:
1. Whether the suit is not maintainable for want of service of notice under Section 53B of DD Act? OPD
2. Whether the plaintiff is entitled for decree of mandatory injunction as prayed? OPP
3. Relief.
5. In order to prove her case, plaintiff examined only one witness. Plaintiff herself entered into the witnessbox as PW1 who vide her affidavit Ex. P1 relied upon the documents Ex. PW1/A to Ex. Smt. Rajpati Devi vs. DDA 4/20 Suit No. 1231/2006 PW1/A6. Ex. PW1/A is the photocopy of ration card, Ex. PW1/A 1 is electoral Icard, Ex. PW1/A2 is the photocopy of Saving Bank Account/ pass book of PNB, Ex. PW1/A3 is legal notice dated 03.07.2001, Ex. PW1/A4 is acknowledgment of legal notice, Ex. PW1/A5 is postal receipt dated 04.07.2001 and Ex. PW1/A6 is certificate of postal receipt.
6. In order to prove their case, defendant/ DDA has also examined one witness i.e. DW1 Sh. M. W. Abbas, Junior Engineer (C), L. M. Branch, West Zone, DDA who vide his affidavit Ex. DW1/X reiterated the contents of the written statement and relied upon the documents Ex. DW1/1 and Ex. DW1/2. Ex. DW1/1 is the possession proceedings and Ex. DW1/2 is the survey/ allotment register.
7. I have heard the counsel for plaintiff Sh. Gaurav Arora and Sh. Vinod Sharma, Ld. SLO for DDA and carefully perused the material available on record.
8. My issuewise findings are as follows:
Smt. Rajpati Devi vs. DDA 5/20 Suit No. 1231/2006
Issue No. 1: Whether the suit is not maintainable for want of service of notice under Section 53B of DD Act?
The onus to prove this issue was upon the defendant/ DDA. However, no substantial evidence has been led on behalf of defendant to show that suit is bad for want of notice under Section 53B of DD Act. After analysis of provision of Section 53B, it is clear as per clause (3) of the section that in a case of injunction, the mandate of statutory notice is not applicable. Thus, this issue is disposed off accordingly.
Issue no. 2: Whether the plaintiff is entitled for decree of mandatory injunction as prayed?
The onus to prove this issue was upon the plaintiff. Plaintiff vide the testimony of PW1 has proved that she was a jhuggi deweller who was living in her own constructed jhuggie in the plot bearing no. 630, BlockB1, Janakpuri, New Delhi since 1975. That she has been holding her ration card and also has opened a bank account for the said address. That the officials of the defendants had proposed to relocate the jhuggi deweller/ eligible squatters from the plot bearing no. 630, BlockB1, Janakpuri upon Smt. Rajpati Devi vs. DDA 6/20 Suit No. 1231/2006 possession of documentary proof were to be alloted 18 sq. meter of plot after payment of Rs. 7000/ as ground rent and licence fee. It is further proved that despite the fact that the plaintiff was very much the resident of 630, Block1, without having been offered alternative accommodation, was dispossessed by the officials of defendant/ DDA on 18.01.2001 by demolishing her jhuggi. On the close scrutiny of Ex. PW1/A which is the copy of ration card and Ex. PW1/A2 which is the copy of Pass book of Punjab National Bank it is clearly revealed that the plaintiff was residing in 630, Block1 since it is the address of the plaintiff in the aforesaid documents. The ration card is for the year 1997, the passbook for the year 1996. Thus, she has been in the possession of the jhuggi in the plot bearing no. 630, Block1, Janakpuri, Delhi.
It is the case of defendant/ DDA that the eligible squatters/ dwellers who were in possession of documentary proof of residence pre 1990 were offered 18 sq. meters plot after recovery of Rs. 7000/ on account of ground rent and licence fee. The squatters/ dwellers who were in possession of documentary proof of residence Smt. Rajpati Devi vs. DDA 7/20 Suit No. 1231/2006 post 1990 but before 31.12.1998 were offered 12.05 sq. meters plot at Hastsal Residential Scheme after recovering Rs. 5000/ as ground rent and licence fee. But before shifting, a survey was conducted and since the name of the plaintiff did not find mention in the survey list, she was not entitled to the alternative accommodation.
At this stage, it is imperative to analyze the guidelines w.r.t. resettlement emphasized by the Hon'ble High Court in the Division Bench Judgment passed by Sh. A. P Shah, the then Hon'ble Chief Justice and Dr. S. Muralidhar, Justice in the case of Sudama Singh & Ors vs. Government of Delhi & Anr., 168 (2010) Delhi Law Times 218 (DB) which are being reproduced herein for the sake of reference:
(a)No resettlement shall take place until such time as a comprehensive resettlement policy consistent with the present guidelines and internationally recognized human rights principles is in place;
(b)Resettlement must ensure that the human rights of women, children, indigenous peoples and other vulnerable groups are Smt. Rajpati Devi vs. DDA 8/20 Suit No. 1231/2006 equally protected, including their right to property ownership and access to resources;
(c)The actor proposing and/ or carrying out the resettlement shall be required by law to pay for any associated costs, including all resettlement costs;
(d)No affected persons, groups or communities shall suffer detriment as far as their human rights are concerned, nor shall their right to the continuous improvement of living conditions be subject to infringement. This applies equally to host communities at resettlement sites, and affected persons, groups and communities subjected to forced eviction;
(e)The right of affected persons, groups and communities to full and prior informed consent regarding relocation must be guaranteed.
The State shall provide all necessary amenities, services and economic opportunities at the proposed site;
(f)The time and financial cost required for travel to and from the place of work or to access essential services should not place excessive demands upon the budgets of lowincome households; Smt. Rajpati Devi vs. DDA 9/20 Suit No. 1231/2006
(g)Relocation sites must not be situated on polluted land or in immediate proximity to pollution sources that threaten the right to the highest attainable standards of mental and physical health of the inhabitants;
(h)Sufficient information shall be provided to the affected persons, groups and communities on all State projects and planning and implementation processes relating to the concerned resettlement, including information on the purported use of the eviction dwelling or site and its proposed beneficiaries. Particular attention must be paid to ensuring that indigenous peoples, minorities, the landless, women and children are represented and included in this process;
(i) The entire resettlement process should be carried out with full participation by and with affected persons, groups and communities. States should, in particular, taken into account all alternative plans proposed by the affected persons, groups and communities;
(j) If, after a full and fair public hearing, it is found that there still exists a need to proceed with the resettlement, then the affected Smt. Rajpati Devi vs. DDA 10/20 Suit No. 1231/2006 persons, groups and communities shall be given at least 90 days notice prior to the date of resettlement; and
(k)Local Government officials and neutral observers, properly identified, shall be present during the resettlement so as to ensure that no force, violence or intimidation is involved.
Thus from the aforesaid guidelines, it is amply clear that a full and prior informed consent regarding relocation must be taken from the affected persons after giving them a prior notice and human rights of the affected persons are to be protected.
It is the case of the defendant that since the name of the plaintiff does not find mention in the survey list, therefore, she is not entitled to any alternative accommodation.
During the crossexamination of PW1, it has been broughtforth that at the time of survey, the plaintiff had gone to see her ailing mother in Distt. Gonda, UP and had returned back after one month and she was informed about that the survey had been conducted by DDA, by the other residents of the area. Merely because the plaintiff was not present at the site when the survey was Smt. Rajpati Devi vs. DDA 11/20 Suit No. 1231/2006 conducted, it cannot be implied that she is not entitled to an alternative allotment. Merely because a particular member of the family is not present at the visit by the official, it cannot be contended that the such a person does not reside in the jhuggi.
At this stage, reliance is placed on the latest judgment of Hon'ble High Court in the case of Sudama Singh & Ors vs. Government of Delhi & Anr., 168 (2010) Delhi Law Times 218 (DB) bearing similar facts wherein it was held by Hon'ble High Court that it is not uncommon that when a survey team arrives at a jhuggi camp, some or the other member may not be found there. By merely stopping with that single visit, and not finding a particular member of that family, it may not be concluded that no such member resides in that jhuggi. Such an exercise, if it has to be meaningful, has to be undertaken either at the time when all the members of the family are likely to be found. Alternatively, there should be repeated visits by the survey team over a period of time with proper prior announcement.
Smt. Rajpati Devi vs. DDA 12/20 Suit No. 1231/2006 The documents filed on behalf of plaintiff i.e Ex. PW1/A and Ex. PW1/A2 clearly shows that she is a resident of plot bearing no. 630, BlockB1, Janak Puri, Delhi. On the other hand, the defendant have not adduced an iota of oral or documentary evidence to show that any systematic survey had been conducted of the jhuggi clusters where the plaintiff resided. There appears to be no protocol developed which would indicate the manner in which survey was to be conducted and the kind of relevant documentation, each resident was required to produce to justify entitlement to relocation.
From the survey list filed on behalf of defendant which is proved as Ex. DW1/2, is not revealed what was the criteria of survey and the manner in which it was conducted. There is nothing to show that how the list of entitlement of allotment was made. Moreover, going through the survey list at Sr. No. 22 the name of one Sh. Lacchi Ram, at Sr. No. 29 one Sh. Ram Chander, at Sr. No. 31 one Sh. Bansi, at Sr. No. 32 one Sh. Puran etc have been mentioned whose premises were found locked. There is nothing to show in the list as to whether or not the said persons were given an alternative Smt. Rajpati Devi vs. DDA 13/20 Suit No. 1231/2006 accommodation and what was the fate of such residents. There is no name of Field Inspector who is purported to have conducted the said survey nor the said list bears the official stamp of the defendant department. There is no date or time which has been mentioned in the said survey list to show that when the survey was conducted. Thus on the face of it, the list appears to be very ambiguous and very vaguely prepared in exercise of the discretionary powers of the defendant department which apparently seems to have been exercised nonjudiciously.
In the latest case of Akhil Bhartiya Upbhokta Congress vs. State of Madhya Pradesh (2011) 5 SCC, it has been emphasized by Hon'ble Supreme Court that "no functionary of the State or public authority has an absolute or unfettered discretion. The very idea of unfettered discretion is totally incompatible with the doctrine of equality enshrined in the Constitution and is an antithesis to the concept of the rule of law."
Smt. Rajpati Devi vs. DDA 14/20 Suit No. 1231/2006 In the crossexamination of DW1, it has been categorically admitted by the defendants witness that the survey list was serialed at Page no. 3 to 79 in the original register brought by him but page no. 69 was completely blank. The witness on behalf of DDA could not disclose the name of the concerned official who conducted the said survey. He has further admitted that it is correct that Sat Narayan at Sr. No. 16 exist at page no. 27, Rakesh, Vijay, Kishan, Panda Ram at page no. 28 also exists Mohan Lal at Sr. No. 34 at page no. 29, Baban and Sankata at Sr. No. 7677 at page no. 35 exist but other particulars are not mentioned here such as ration card with date, token number with date, demand letter issued, yes or not, details of demand draft number with date and amount paid by the person mentioned.
Thus the defendant/ DDA has failed to show the basis on which the said survey list was prepared and why the name of the plaintiff was not mentioned therein despite the fact that plaintiff has categorically proved vide Ex. PW1/A and Ex. PW1/A2 that she was the resident of the very same plot.
Smt. Rajpati Devi vs. DDA 15/20 Suit No. 1231/2006 Ld. counsel for plaintiff has relied on a judgment dated 01.03.2005 in a parallel connected matter bearing suit no. 15/01 titled as Shanta Prasad & Ors. vs. DDA, pertaining to the same plot bearing no. 630, BlockB1, Janak Puri, Delhi. The said suit was decreed in favour of the plaintiffs who were the jhuggi dewellers of the same plot against DDA vide the judgment of the then Ld. Civil Judge Sh. Ajay Pandey dated 01.03.2005. Admittedly, the said judgment has not been set aside as yet.
When the policy to allot the alternative plot must have been propounded by the concerned authority, the main purpose behind the same must have been to provide shelter to the roofless and needy evictees. In a catena of judgments by Hon'ble Supreme Court, the right to shelter and settlement is declared as a fundamental right and that negation of the same would amount to violation of fundamental right to life as enshrined in Article 21 of the Constitution.
In the case of P. G. Gupta, vs. State of Gujrat, 1995 (2) SCC 182, it was held by Hon'ble Supreme Court that Article 21 of the Smt. Rajpati Devi vs. DDA 16/20 Suit No. 1231/2006 Constitution includes the right to residence and settlement and is a facet of the "meaningful" right to life.
This is a case where there is an apparent dichotomy of clashing interests of the society's right to clean environment and development on one hand and the right to settlement and dignity of a jhuggi dweller. In such a scenario the courts have to apply an approach which balances both the rights in a way to ensure that the goal of a "sustained development" is met with. It has to be seen that in the wake of development, the basic human rights of the people who are dislocated are not infringed.
In the present case, it has been clearly broughtforth that the plaintiff was the jhuggi deweller in one of the jhuggis on plot bearing no. 630, BlockB1, Janak Puri, Delhi. Admittedly, the jhuggis were demolished by DDA and jhuggi dewellers have been alloted an alternative accommodations upon furnishing the relevant documentary proof. The plaintiff has also placed on record, the relevant documentary proof to show her possession in the area in question. Further defendant/ DDA have failed to establish why the Smt. Rajpati Devi vs. DDA 17/20 Suit No. 1231/2006 name of the plaintiff was not mentioned by them in the survey list.
Thus, I am of the considered opinion that plaintiff is entitled to the relief of injunction as prayed for.
It is the defendant/ DDA's own case that those jhuggi dewellers who are in residence prior to 1990 were offered alternative plot after recovery of Rs. 7000/ and those having proof before 1990 but before 31.12.1998 shall be alloted 12.5 sq. meter of plot. But no policy to that effect has been proved or even filed on behalf of defendant/ DDA. Although, the plaintiff has filed the documentary proof which are post 1990 but her contention is that she has been residing in the said premises since 1975. The defendant has failed to controvert the plaintiff at this ground either during the cross examination of PW1 nor the defendant/ DDA have produced any cogent evidence to show that plaintiff has not been residing in the said premises prior to the year 1990. In such an eventuality, I am of the considered that there are no reasons why the plaintiff should not be offered accommodation of 18 sq. meter.
Smt. Rajpati Devi vs. DDA 18/20 Suit No. 1231/2006 Further even in the judgment relied upon by the plaintiff in the parallel case of Shanta Prasad & Ors. vs. DDA bearing suit no. 15/01 passed by Ld. Civil Judge Sh. Ajay Pandey dated 01.03.2005, the similarly placed plaintiff therein were alloted 18 sq. meters of plot and the said judgment is admittedly not set aside as yet. Further judicial notice can be taken of the fact that concept of election Icard came after the year 1990 in India. If the aforesaid criteria is followed then none of the evictees would be entitled to alternative accommodation. Further as is already stated, DDA has not proved any policy of the department to show that those having documentary proof post 1990 year shall be awarded 12.5 sq. meter and not 18 sq. meter of alternative plot.
Accordingly, this issue is decided in favour of the plaintiff and against the defendant/ DDA.
Relief In view of the aforesaid discussions, the suit of the plaintiff is hereby decreed. Defendant/ DDA is directed by way of mandatory injunction to allot an alternative plot admeasuring 18 sq. Smt. Rajpati Devi vs. DDA 19/20 Suit No. 1231/2006 meter to the plaintiff within a period of 1 month from today on the similar terms and conditions as applicable by law to the other similarly placed evictees/ jhuggi dewellers of the same area. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the open court today on 22.09.2011.
(SHEFALI SHARMA)
CIVIL JUDGE (WEST)
THC, DELHI/ 22.09.2011
Smt. Rajpati Devi vs. DDA 20/20