Punjab-Haryana High Court
Bhim Giri And Others vs The Haryana Urban Development ... on 29 April, 2013
Bench: Satish Kumar Mittal, Amol Rattan Singh
CWP No.11960 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of Decision: 29.04.2013
1. CWP No.11960 of 2008
Bhim Giri and others
.....Petitioners
Versus
The Haryana Urban Development Authority and others
.....Respondents
2. CWP No.19567 of 2009
Barjesh Kumar and others
.....Petitioners
Versus
Haryana Urban Development Authority and others
.....Respondents
3. CWP No.19568 of 2009
Partap and others
.....Petitioners
Versus
Haryana Urban Development Authority and others
.....Respondents
4. CWP No.19570 of 2009
Ram Kishore and others
.....Petitioners
Versus
Haryana Urban Development Authority and others
.....Respondents
5. CWP No.19571 of 2009
Paras Ram and others
.....Petitioners
Versus
Haryana Urban Development Authority and others .....Respondents
CWP No.11960 of 2008 2
6. CWP No.1225 of 2010
Nishar Ahmed and others
.....Petitioners
Versus
Haryana Urban Development Authority and others
.....Respondents
7. CWP No.724 of 2011
Gauri Kant Thakur and others
.....Petitioners
Versus
Haryana Urban Development Authority and others
.....Respondents
8. CWP No.732 of 2011
Bashir Ahmed and others
.....Petitioners
Versus
Haryana Urban Development Authority and others
.....Respondents
9. CWP No.740 of 2011
Babunandan Sharma and others
.....Petitioners
Versus
Haryana Urban Development Authority and others
.....Respondents
10. CWP No.7039 of 2011
Patelnagar Sector-4 Residential Welfare Association
.....Petitioner
Versus
State of Haryana and others
.....Respondents
CWP No.11960 of 2008 3
11. CWP No.23244 of 2010
Haryana Valmiki Masabha
.....Petitioner
Versus
Haryana Urban Development Authority and others .....Respondents
12. CWP No.13973 of 2012
Neeraj Goyal and others
.....Petitioners
Versus
The State of Haryana and others
.....Respondents
13. CWP No.10945 of 2003
Ekta Nagar Residential Welfare Association
.....Petitioner
Versus
The Haryana Urban Development Authority and another
.....Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present: Mr. Sanjeev Sharma, Advocate
for the petitioners in CWP No.11960 of 2008
Mr. Sapan Dhir, Advocate,
for the petitioners in CWP Nos.19567, 19568, 19570,
19571 of 2009, 1225 of 2010, 724, 732 and 740 of 2011.
Mr. G.C. Dhuriwala, Advocate
for the petitioner in CWP No.7039 of 2011.
Mr. S.K. Panwar, Advocate
for the petitioner in CWP No.23244 of 2010.
Mr. Jagdish Manchanda, Advocate
for the petitioners in CWP No.13973 of 2012.
CWP No.11960 of 2008 4
Mr. Sanjeev Walia, Advocate
for the petitioner in CWP No.10945 of 2003.
Mr. Sidharth Batra, Addl. A.G., Haryana
Mr. Manish Bansal, Advocate
for respondents-HUDA.
Mr. Sandeep Moudgil, Advocate
for respondent No.7 in CWP No.7039 of 2011.
***
Amol Rattan Singh, J.
1. Of these 13 petitions, 9 petitions pertain to what has been described as "Kisan Mazdoor Colony", adjoining Sector-29, Faridabad, between Faridabad Bye-Pass Road and Gurgaon Canal. In these 9 petitions, 477 persons have been arrayed as petitioners.
In all these petitions, the petitioners are praying that the respondents, i.e. Haryana Urban Development Authority (in short "the HUDA") and other statutory officers/bodies be restrained from forcibly evicting them and demolishing their Jhuggies/Kacha/Pucca houses in the colonies that they have set up.
For convenience, the facts are being taken from CWP No.11960 of 2008, being the oldest petition.
2. As per the petitioners, about 2000 'Semi Pucca/Pucca' houses are existing, in which their families, totaling 6000 to 7000 persons, are residing for about 24 years, as in 2008.
3. Again as per the petitioners, the colony is said to have been established on this land by Government Authorities, when the erstwhile residents of Jhuggi Colonies, of Lachhman Bagh, of Sectors 16A and 28, and of Bhood Colony, Faridabad, were uprooted. This re-settlement CWP No.11960 of 2008 5 is stated to have been done on the intervention of the local MLA, in the presence of the Deputy Commissioner, HUDA Authorities etc., in the year 1986-87.
Ration cards are also said to have been issued to the residents of the present colony, which continue to be valid and some of which have been annexed with the petition. 2000 electricity connections are also said to be operative in these houses. The copies of some electricity bills are also annexed with the petition. It is further stated that municipal street lights with mercury lamps have been provided and brick-lined pucca street drains have also been constructed by the Municipal Corporation. Two schools are also stated to be running, since 1992.
4. It is further stated that, in the year 1997, without any advance notice, intimation or warning, "high ranking" officers of HUDA, including the Estate Officer, and the SDM with a police force, along with officials of the Irrigation Department, came to the colony and distributed hand bills and directed the residents to remove their houses which are spreading over 24/25 acres, within three days, failing which they would be forcibly evicted.
5. Aggrieved of the above, some residents of the colony filed CWP No.9182 of 1997, titled as Mrs. Malti Pathak Vs. The Haryana Urban Development Authority and others, which was decided along with 15 writ petitions on 19.04.1999, the lead case being CWP No.9182 of 1997. The said detailed judgment, attaching upon the Right to Life guaranteed under Article 21 of the Constitution of India, including the CWP No.11960 of 2008 6 question as to whether Right to Shelter is a part of such Right to Life, was disposed of with the following directions:
"(i) The respondents shall constitute a Committee preferably headed by the Chief Administrator, HUDA for providing alternative sites to those who have been living in jhuggi/jhopri colonies for the last 5 years or more. The period of 5 years has been chosen by us because it is an admitted fact that most of the petitioners have been living in jhuggi/jhopri colonies for 10 years or more except those who are petitioners in CWP Nos.9184 and 9621 of 1997.
(ii) The committee shall, after getting conducted a survey of the colonies, determine the seniority based on the length of occupation of the residents of jhuggi/jhopri colonies in the respective urban estates.
(iii) The committee may frame appropriate policy for allotment of available EWS houses or plots to the petitioners and other residents of jhuggi/jhopri colonies in accordance with their seniority at the rates enumerated in the policy already framed by the HUDA.
(iv) Those who cannot be accommodated by allotment of existing EWS houses/plots shall be offered alternative sites at a maximum distance of 7 to 10 CWP No.11960 of 2008 7 kilometers from the present places of their colonies, (This distance has been indicated by us keeping in view the observations made by the Supreme Court in Olga Tellis v. Bombay Municipal Corporation (supra) in the context of the Right to Livelihood).
(v) The plots to be offered to the residents of jhuggi/jhopri colonies shall not be of more than two Marlas size.
(vi) Those who accept the offer of allotment of EWS houses must vacate the site within 2 months. Those who are offered the plots should be given maximum nine months to raise construction and vacate the present site. Those who do not accept the offer of allotment shall be liable to be evicted without any further notice."
6. SLPs (which were converted into Civil Appeal Nos.1153 to 1167 of 2001) were filed in the Hon'ble Supreme Court, by the Chief Administrator, Haryana Urban Development Authority, Haryana, against the said judgment and the same were disposed of as having become infructuous on 03.04.2008, on account of the fact that HUDA had formulated a Rehabilitation Scheme to provide alternative accommodation to persons in illegal occupation of the land of HUDA at Panchkula and Faridabad, in pursuance to the directions of the High Court vide judgment dated 19.04.1999, reproduced above. The Hon'ble CWP No.11960 of 2008 8 Supreme Court, while disposing of the petitions, made it clear that the merits of the case have not been entered into by the Court.
7. As per the petitioners, they were supposed to have been impleaded in the array of parties as they had jointly engaged counsel along with 5 other persons, who had filed CWP No.9182 of 1997, but were somehow not impleaded in the said case.
8. According to them, when they approached the authorities to deposit their money under the Scheme for Rehabilitation of residents for the allotment of flats/similar sites, on parity with the petitioners in CWP No.9182 of 1997, the authorities bluntly refused to accept the money on the ground that the present petitioners were not party to the writ petition (CWP No.9182 of 1997). As per petitioners, they are also equally entitled to be rehabilitated as the other residents of the same locality, and are willing and ready to pay the entire amount, as per requirement of the Scheme for rehabilitation.
9. After such alleged refusal of the respondents to rehabilitate them, they claim to have received 'threats' from the respondents to the effect that they would be now forcibly dispossessed from the colony, in question.
10. The said grievance has led to filing of the present petition.
11. Two written statements have been filed. One on behalf of the Irrigation Department (respondent No.4) and the other on behalf of respondents No.1 and 2, i.e. HUDA. The written statements were filed in the month of December, 2008. The essence of both these replies is that the petitioners were never rehabilitated by the respondents on the land in question, as alleged, and are complete encroachers. CWP No.11960 of 2008 9
12. As per the Irrigation Department, the land is being used for the purpose of watch and ward for running and maintenance of the canal, including maintenance of the water flow of the canal by using the service road.
HUDA describes the colony as "Kisan Mazdoor Colony", situated on a 30 to 40 feet tract of land between the Agra Canal and Bye-Pass Road. The encroachment is stated to be causing a huge traffic hazard on the Bye-Pass Road and has become a road block in the process of widening the Bye-Pass Road, for which a tender has been awarded to a company, at a cost of Rs.122.13 crores by HUDA. It is further denied that the petitions have been filed in a representative capacity of 6000 to 7000 persons. It is further stated that the total land occupied by the said Kisan Mazdoor Colony is about 4-5 acres. There is also denial on the length of stay of these persons to the extent of 24 years, as claimed. The other facts, including filing of the previous petition, i.e. CWP No.9182 of 1997, decided on 19.04.1999 and Civil Appeals in the Hon'ble Supreme Court are admitted, including the fact that a Rehabilitation Scheme has been floated by the respondents, as noticed in the order of the Supreme Court, referred to above. However, the right of the petitioners to claim themselves on an equal footing as that of the petitioners in the cases decided on 19.04.1999, has been denied, reiterating that they are encroachers and had they been residents of the colony at the relevant time, their names would have also been reflected in the array of parties.
13. No replication, controverting the contents of the written statement, has been filed.
CWP No.11960 of 2008 10
14. After issuance of notice of motion on 15.07.2008 and replies having been filed, the matter was listed on various dates and on 10.08.2011, a detailed order was passed, reproducing the directions contained in the Division Bench judgment dated 19.04.1999. It was recorded in this order (on 10.08.2011) that the respondents' contention is that the policy, earlier framed, referred to in the order of the Supreme Court, was only applicable to those who were petitioners to the earlier writ petitions. The learned Single Judge, on 10.08.2011, recorded as follows:
"I have heard counsel for the parties and perused the record.
The State acquires land and transfers it to HUDA and other instrumentalities of the State for establishing special economic zones, industrial estates, factories, educational institutions, residential colonies, markets for implementation of various schemes. More often than not, the poor slum dweller, the under privileged, and the economically deprived, are excluded from this distribution of State largessee.
The expression "urban development" denotes inclusive development for all sections of society. HUDA is, therefore, required to ensure that land earmarked to it, is distributed in a just and equitable manner so as to ensure development of all sections of society, irrespective of their economic standing. To deny rehabilitation to the petitioners on the ground that they were not party to the CWP No.11960 of 2008 11 earlier writ petitions disregards the nature of directions issued by this Court. The directions cannot be read to grant a relief in personem as they necessarily apply to all eligible slum dwellers. The orders passed in earlier writ petitions would enure for the benefit of similarly situated persons, including the petitioners subject, however, to their fulfilling the eligibility criteria.
At this stage, counsel for the respondents prays for time to seek instructions.
Adjourned to 05.09.2011 for arguments."
15. Thereafter, the matter, as per Roster, came up before a Division Bench and on all occasions, counsel for the respondents sought further time to obtain instructions in terms of the order dated 10.08.2011.
16. Eventually, on 19.03.2012, a communication dated 07.03.2012 was produced in the Court stating that applications were invited for allotment of flats in various Urban Estates of Haryana in April, 2010, including 3080 flats at Faridabad. However, less than 1000 flats were allotted and the remaining are still lying vacant. Further time was sought to seek instructions as to when a fresh advertisement would be published, inviting applications for allotment of the remaining vacant flats. Time was again sought on the next few dates to seek such instructions and eventually, when the Chief Administrator, HUDA, was directed to be present in Court on 09.07.2012, an affidavit, dated 05.07.2012, of the Chief Administrator, was filed in the presence of the Administrator, HUDA, Faridabad, stating that 313 'jhuggi-dwellers' are CWP No.11960 of 2008 12 in possession of the Bye-Pass Road and they would be the first to be rehabilitated in a month's time, after which the Bye-Pass Road would be constructed from Sectors 37 to 89 Faridabad. As regards the remaining jhuggi-dwellers, a survey would be conducted within a period of four months, that would be completed by 30.11.2012 and an advertisement would be issued to invite applications from jhuggi-dwellers, who were found eligible in such survey. Thereafter, the successful jhuggi-dwellers would be allotted dwelling units under the 'Ashiana' Scheme, within a period of three months of the completion of the survey. The unsuccessful jhuggi-dwellers would be dispossessed only thereafter, as per law.
17. The matter was then ordered to be heard on 14.01.2013, on which date, it was adjourned to 08.02.2013 by us, as there was still a dispute on allotments of flats under the Ashiana Scheme to 313 aforesaid jhuggi-dwellers, on the Bye-Pass Road, as also with regard to the others.
18. Mr. Manish Bansal, Advocate, learned counsel for the HUDA, has now submitted that, despite offer made, 313 jhuggi-dwellers are not taking possession of the flats as they are interested in getting plots allotted.
19. In reply to this, Mr. Sapan Dhir, Advocate, counsel for the jhuggi-dwellers in CWP Nos.19567, 19568, 19570, 19571 of 2009, 1225 of 2010, 724, 732 and 740 of 2011, has submitted that the petitioners are not insisting, and would not insist, upon allotment of plots and would be satisfied with the allotment of flats under the Ashiana Scheme.
CWP No.11960 of 2008 13
20. As regards the remaining jhuggi-dwellers of the area, Mr. Bansal has stated that the survey that was to be conducted by the authority/concerned government department, to determine the eligible persons/residents of the Jhuggi/Colony, for allotment of flats under the above said scheme, could not be completed and a further period of three months is required to do the needful.
These were facts governing the petitions pertaining to the colony known as the "Kisan Mazdoor Colony", Sector-29, Faridabad.
21. Now coming to the facts of the other four petitions, pertaining to other parts of Faridabad, we would, first, only discuss the facts of C.W.P. No.7039 of 2011 and the arguments raised by counsel in this petition. The other three petitions would be dealt with thereafter, after directions are given in these 10 petitions.
CWP No.7039 of 2011
22. Mr. G.C. Dhuriwala, learned counsel for the petitioner association in this case, has submitted that the jhuggi-dwellers, who are styled as 'Patelnagar Sector-4 Residential Welfare Association', are in the same boat as the petitioners in the other 9 Writ Petitions, i.e. CWP Nos.11960 of 2008, 19567, 19568, 19570, 19571 of 2009, 1225 of 2010 and 724, 732 and 740 of 2011, inasmuch as, though they are residing at a different location, i.e. Patelnagar Sector-4, Faridabad, their status in terms of being old residents and having electricity connections, ration cards, voter cards, telephone connections etc., are the same and, as such, they too are entitled to the benefit of rehabilitation, in case they are to be evicted and, before such rehabilitation, no demolition of their residential places should be carried out.
CWP No.11960 of 2008 14
23. He has referred to the earlier litigation, some part of which has already been discussed-hereinabove (and some will be referred to later along with submissions of the counsel for the respondents), to say that these 2052 members of the petitioner-association are entitled to benefit of the rehabilitation scheme in terms of the order dated 03.04.2008 of the Hon'ble Supreme Court in Civil Appeal Nos.1153 to 1167 of 2001 (arising out of the Division Bench order dated 19.04.1999).
24. However, Mr. Sandeep Moudgil, Advocate, counsel for respondent No.7, i.e. the Welfare Association, Sector-4R, Faridabad, (impleaded as an additional respondent in this petition), has submitted that the Association is comprised of residents of Sector-4R, who have constructed/purchased residential houses after investing their hard earned money, for a peaceful, comfortable and hygienic living and that the petitioners are, in fact, encroachers who built Jhuggies and illegally possessed the public park facing their houses, causing nuisance in the form of rowdiness and unhygienic living in the area. He further submitted that respondent No.7-association had earlier filed CWP No.1340 of 1996, which was disposed of on 28.04.1998 in terms of an order passed in an earlier Civil Writ Petition, bearing No.999 of 1996, decided on 12.12.1997.
25. A perusal of these orders in the earlier writ petitions, referred to above, shows that the Division Bench had directed (on 12.12.1997) that HUDA and the Municipal Corporation, Faridabad, may give 21 days notice to the encroachers for eviction from the park and, in case they failed, the authorities were directed to take immediate action, CWP No.11960 of 2008 15 in pursuance to order dated 13.08.1996 passed in that very writ petition (CWP No.999 of 1996). Vide that order, directions had been issued to initiate appropriate steps for removing the subject encroachment, within a period of two months. As per Mr. Moudgil, the authorities still not having got the park vacated, a contempt petition (COCP No.490 of 1999) was filed by respondent No.7-association, which was decided on 03.09.2001 after noticing the judgment and direction dated 19.04.1999, of the Division Bench in CWP No.11637 of 1996 and other connected cases (reproduced in para No.5 of this order). The order dated 03.09.2001 in the COCP, directed the HUDA Authorities to comply with the directions contained in the order dated 28.04.1998, by resorting to legal proceedings against those persons on whom notice had been served for eviction, within 21 days. The order dated 03.09.2001 further stated that no such proceedings for eviction would be undertaken in regard to the persons who were party to CWP No.11637 of 1996 and other connected 15 petitions.
26. Learned counsel further submitted from the pleadings, that when still no action has been taken by the respondent-authorities, despite numerous representations, a second Contempt Petition bearing No.572 of 2003 was filed on 11.08.2011, which is stated to be still pending alongwith C.M. No.22081-CII of 2004, filed by Jhuggi- Dwellers, seeking impleadment in the Contempt Petition. Reference has also been made to a Civil Suit, filed at Faridabad, in which an application under Order 39 Rules 1 and 2 was also filed, but was dismissed, culminating in order dated 10.10.2007 in Civil Revision No.3563 of 2003, filed before this Court, vide which the learned Single CWP No.11960 of 2008 16 Judge held that the petitioners (in the Civil Revision), have not been able to make out any case for grant of injunction against demolition/eviction in view of the fact that they were encroachers upon the land of the authority/corporation. However, while holding the above, the learned Single Judge made it clear that dismissal of the Civil Revision Petition would not stand in the way of the petitioners (in the Civil Revision) approaching the concerned authority for granting such relief to the destabilized landless persons as the State may, consistent with its policies, be able to provide.
27. This order of the learned Single Judge in Civil Revision No.3563 of 2003 was also challenged before the Hon'ble Supreme Court and was disposed of on 03.04.2008 as Civil Appeal No.8637 of 2003 along with other connected matters, arising out of the judgment of this Court dated 19.04.1999, already referred to hereinabove (whereby submission had been made with regard to the rehabilitation scheme formulated by HUDA for Panchkula and Faridabad, thus, rendering the Civil Appeals infructuous).
28. Mr. G.C. Dhuriwala, does not dispute the above facts and has submitted that he has also set out the above facts pertaining to the earlier litigation, wherein it is also stated that Civil Appeal No.8637 of 2003 was filed by some members of the petitioners association, who were the plaintiffs in the suit and petitioners in the subsequent Civil Revision. In the said appeal, the petitioners had also moved interlocutory application No.2, in which it was held that the interim order of the Hon'ble Supreme Court dated 03.11.2003 would apply to the petitioner-association and its 2016 members. However, after CWP No.11960 of 2008 17 disposal of the Civil Appeal (rendering it infructuous), the petitioners moved interlocutory applications No.9 and 10, seeking permission to withdraw the earlier interlocutory application, so as to enable them to move the High Court for redressal of their grievance. Such permission was granted on 14.02.2011. Thereafter, the present petition (CWP No.7039 of 2011) has been filed.
29. In the reply filed on behalf of the officials-respondents, the formulation of the Ashiana Scheme has again been referred to and it has again been stated that applications for allotment of total number of 3080 flats were invited. Only 875 applications were received and 813 flats were allotted to the eligible Jhuggi-dwellers and the remaining flats are still lying vacant. It is further stated that only 78 persons out of 362 persons of Sector-4R, Faridabad applied for allotment of flats and accordingly the allotment letters were issued to them and they have vacated the Jhuggies, meaning thereby that no other member of the petitioner- association applied for the flats. They are, thus, sought to be ousted from this litigation on that preliminary ground.
30. We have heard learned counsel for the parties in detail. No doubt, all the petitioners in these cases are occupants of public land.
Having said that, we cannot lose sight of the fact that the dwellers of the Jhugi Colonies are not squatting on public land by making any Palaces or Five Star Hotels; they live there in pitiable conditions and are living there, not out of choice. They too are (supposedly) equal citizens of this country, with equal rights guaranteed under the Constitution. They have come to the National Capital Region from near and far, in search of livelihood, for bread and butter and are CWP No.11960 of 2008 18 performing important function in society, being the work force and the labour class, making roads, bridges, canals etc. and also by performing the menial, but nevertheless extremely important chores, in households and offices, such as cleaning and scavenging.
These jhugi/jhopri colonies are often looked upon as dens of vice and "moral corruption". Possibly, owing to their living conditions and lack of work for some of them, these accusations may not be wholly incorrect, qua a certain section of these dwellers. However, can it be said that the more affluent sections of society, are absolutely free of the same vices? The answer is obviously in the negative. These 'slum' dwellers too have, in their strata of society, the same 'good and bad' as is prevalent in the rest of society.
The question, therefore, is that, being in the NCR, putting in their bit towards the running of society and civilisation--no doubt to earn their bread and butter-- where are they to live? To state the ridiculous, they obviously have to live on land; albeit, they have to live somewhere and, as such, they took to occupying whatever place was available and continue to live there in sub-human conditions, like the proverbial children of a lesser God. Can we shut our eyes to their plight? In all humility, we say we cannot.
The respondent-State has already floated a much needed rehabilitation scheme known as "Ashiana Scheme" and, as per Mr. Manish Bansal, learned counsel for HUDA, on our specific query put to him, the said scheme is a continuous one and does not end with the construction of the flats at present available. Thus, dwelling units would continue to be constructed, as per need, in the future. Without CWP No.11960 of 2008 19 doubt, it is a very laudable scheme and would be put to use to rehabilitate the petitioners and such like persons in the immediate, as well as yet to come, future, also.
31. Our task in the present petitions, has been made easy by the Division Bench judgment dated 19.04.1999, which has already dealt with the same in elaborate detail, discussing the entire case law on the subject of Right to Shelter, including the Constitution Bench judgment in the case of Olga Tellis and others Vs. Bombay Municipal Corporation, AIR 1986 SC 180. The Division Bench also referred to judgments of the Hon'ble Supreme Court in the cases of Ram Prasad Yadav Vs. Chairman, Bombay Port Trust and others, AIR 1989 SC 1306, State of Karnatka and other Vs. Narasimhamurthy and others, JT 1995 (6) SC 375 and Chameli Singh and others Vs. State of U.P. and another, (1996) 2 SCC 549; and held that the Right to Shelter is a basic right of every human being and constitutes a part of the Fundamental Right to Life, guaranteed under Article 21 of the Constitution of India. Further, it was held that though, ordinarily, the Court will not issue a prerogative writ to protect encroachments on public land, but where the State and its agencies have recognized the physical existence of encroachments for a long time by providing civic facilities to the people living in jhuggies/jhopris and pavements, and the State has failed to take steps to remove encroachments, and since the persons who have made such encroachments, are downtrodden and belong to poor sections of the society, the Court may issue appropriate direction to the State to frame a policy for providing alternative sites before evicting them. CWP No.11960 of 2008 20
It was after this discussion and the effect of demolition and eviction, that the directions dated 19.04.1999 were issued in that batch of petitions.
32. Thus, in view of the earlier directions of this Court, read with the concession made by the respondents before the Hon'ble Supreme Court on 03.04.2008, we dispose of these petitions with the directions hereinunder contained.
33. Undoubtedly, a number of flats are still available for allotment. Out of these, first, 313 are to be given to the eligible jhuggi- dwellers, who are in occupation of the area assigned for expansion of the Bye-Pass Road, which is subject matter of CWP Nos.11960 of 2008, 19567, 19568, 19570, 19571 of 2009, 1225 of 2010, 724, 732 and 740 of 2011. In respect of the remaining jhuggi-dwellers of this area (Kisan Mazdoor Colony), (whether they are petitioners here or not), the respondents-authorities would conduct a survey within a period of three months, as already stated by Sh. Manish Bansal, on the same pattern as was directed by the Division Bench of this Court in its order dated 19.04.1999, and all such persons who are found eligible, would be allotted the remaining flats as per their seniority. Such survey would also cover the areas which are subject matter of the other petitions listed in this batch before us.
34. In the application of the scheme, with regard to whatever cut off date is fixed therein, to determine eligibility, we would direct as follows:-
(i) If there are more eligible people than the number of flats, after determination of eligibility on the cut off date given in the CWP No.11960 of 2008 21 'Aashiana' scheme, they would be put on a waiting list and would be the first to be accommodated upon construction of new flats under the said scheme, or any such other scheme which replaces the present Aashiana Scheme. Needless to say, while accommodating the petitioners and other residents in the existing flats and in the future also, those on the waiting list, would be accommodated first, in a seniority which would be prepared as per number of years of stay.
(ii) If, on the other hand, there are still a number of vacant flats due to non-eligible persons available, as per the cut off date provided in the scheme, the cut off date would be extended further, i.e. if the cut off date for determination is, for example, 01.01.2006, and the number of persons who complete the required number of years of residence in these colonies up to 01.01.2006 is less than the number of flats available, then the cut off date would be extended to 01.01.2007 and so forth, up to the point where the existing flats are filled up. The remaining people on the waiting list would thereafter be accommodated, again as per seniority, in the yet to be constructed flats.
(iii) Keeping in view its financial situation, Government would endeavor to make the construction of flats under the Aashiana Scheme (or any such subsequent scheme), a continuous process, so as to accommodate as many number of jhuggis/slum dwellers as possible, as per criteria framed under the schemes.
35. The question now remains as to what has to be done with regard to the remaining dwellers of these jhuggies, if any, after all such allotments are made, as per eligibility.
CWP No.11960 of 2008 22
36. This question also need not detain us any further as, direction (iv) of the order dated 19.04.1999 (reproduced in para 5 of this judgment) well takes care of such persons. The same order as was given in those cases, would hold good even now. Consequently, it is directed that such persons as are still not accommodated in view of any shortage of flats under the Ashiana Scheme, would be provided an alternative vacant site/sites, (not public parks in any residential colony/commercial colony) at any available place in the area of Municipal Corporation, Faridabad.
Such vacant land shall be identified immediately on completion of the survey. In case it is found that there are persons still left over to whom allotments cannot be made in view of any shortage of flats, they would be shifted to such vacant land within a period of one month after completion of the survey, i.e. within a period of four months from today.
The sites that are subject matter of the petitions pertaining to the Kisan Mazdoor Colony and CWP No.7039 of 2011, would be made absolutely vacant after allotment of flats/alternative land to all the jhuggi-dwellers, residing there presently. It is made clear that the area where the Bye-Pass is being widened and the park in Sector 4-R, Faridabad, would positively be got vacated at the end of four months from today and the jhuggi-dwellers residing upon the public land would be rehabilitated/resettled (in case of non-allotment), without any further delay.
37. We do realize that, with the continuous influx of employment seeker in the NCR, from various parts of the country, the CWP No.11960 of 2008 23 housing problem would continue. Whether it can be solved by introducing sky-scrapers, or by constantly expanding further into the NCR in all directions etc., would obviously be an executive decision, to be taken from time to time, by the authorities. All we can hope is that, in the scheme of things, while taking the nation forward in its path towards development, the welfare of all citizens, including the labour force that occupies the so called "slum" areas, would be given equal weightage by those at the helm of affairs.
38. These 10 writ petitions are disposed of, in the manner, indicated above.
39. Now coming to the facts of the remaining 3 cases. CWP No.23244 of 2010
40. This petition has been filed by the Haryana Valmik Mahasabha, stated to be a registered organization, having 411 members, as depicted in para 2 of the petition. These members are stated to be residents of Jhuggies in Prem Nagar Colony, Near Sector 17-18, Faridabad. They again state that they were resettled by the authorities after being unsettled from various colonies of Faridabad. Again the factum of possession of ration cards, voter cards, electricity connections along with street lights, hand pumps etc. in the colonies, has been stated. They also claim resettlement before any eviction, in terms of the Division Bench judgment in CWP No.9184 of 1997.
41. The respondents (HUDA) again reiterate the same averments as have been made in the reply to other connected petitions. The respondents further state that the petitioners are occupants of the Bye-Pass Road from Badarpur Border to Sector 61, Faridabad, CWP No.11960 of 2008 24 alongside the Delhi-Mathura Road and are thus, causing an impediment in the smooth flow of traffic on a major arterial road of the country, going through the National Capital Region.
CWP No.13973 of 2012
42. This case was ordered to be heard along with the other petitions, without issuing notice and, as such, has been tagged with this bunch of petitions. Even in the absence of a reply to this petition, in view of the directions we are giving in these cases, these Jhuggie- dwellers, also being residents of Faridabad, we feel that a common direction can be given in this case also.
43. The five petitioners in this case, who claim to be residents of Azad Nagar Gudier Residents Association, Sector-5, Ward No.3, Ballabgarh, Faridabad, again state that they are residents of the said place for more than 25 years and have sought alternative accommodation in terms of the judgment dated 19.04.1999 of this Court, and as per the Rehabilitation Scheme. (In many of the cases, the judgment dated 19.04.1999 has been referred to as judgment dated 26.04.1999, though it is, in fact, the same judgment).
44. They state that they have made a representation on 14.03.2012, to the Estate Officer, HUDA, Faridabad, asking for rehabilitation in terms of the said Scheme, but no action has been taken thereupon. They are also alleging a 'threat' of dispossession from the staff of HUDA. The facts with regard to possession of water, electricity connections, ration cards, voter cards are also given in this petition as in the other petitions. They have also referred to a decision in COCP No.224 of 2012, which was filed by some members of Azad Bharat CWP No.11960 of 2008 25 Colony, Panchkula, in which the rejection of the claim of the petitioners in that case was considered in the Contempt Petition and order dated 24.05.2012 was passed by a learned Single Judge of this Court, directing that the petitioner society would submit its claim to the Addl. Deputy Commissioner, Panchkula, who shall verify the eligibility as on 01.04.2003 and make recommendations to the HUDA Authorities before 31.07.2012. Thereafter, on receipt of recommendations, a flat under the Ashiana Scheme would be allotted, irrespective of the changed status of the prospective allottee. (Since the eligibility was to be seen as on 01.04.2003 and not at the time when the allotment was being made). CWP No.10945 of 2003
45. In this case, the petitioner-association which is stated to be comprising 208 residents of a Jhuggi Jhopri Colony known as Ekta Nagar, Sector-27C, Post Office, Amar Nagar, Faridabad, is also seeking to be either rehabilitated or for their colony to be regularized in terms of judgment dated 19.04.1999 of this Court. The contents of the petition, in all material particulars, run exactly like in the other cases and it is stated that 1000 to 1200 persons, including women and children, are living in the cluster of Jhuggies. (The association which has filed the petition is said to comprise of 8 persons; however, the number of residents of the colony are stated to be 1000 to 1200 persons).
46. Additionally, it has been stated that the petitioners had earlier filed CWP No.9058 of 2002, which had been disposed of on 27.03.2003 along with a batch of connected petitions, the lead case being CWP No.591 of 2003. The judgment has been annexed with the petition, a perusal of which shows that when Jhuggie-dwellers had been CWP No.11960 of 2008 26 threatened to be evicted/dispossessed, they approached this Court and sought 'transfer of house' after accepting the value of the site as determined, in pursuance of the State policy. At that time, learned Advocate General, Haryana had made a statement that none of the petitioners would be dispossessed without giving due opportunity to reply to the show cause notices issued/to be issued by the concerned authority and without giving opportunity of hearing. The Division Bench had disposed of all the writ petitions as such.
47. In the reply now filed by the respondents (HUDA), it has been stated that the land in question, had actually been acquired in 1972-73 and physical possession also taken, but thereafter encroachments had been made by erecting Jhuggies, and constructing houses and, when eviction was sought to be undertaken, litigation in this Court (CWP No.9058 of 2002) had been resorted to by the petitioners.
48. Thereafter, again, unauthorized encroachments were sought to be removed and Jhuggies were sought to be evicted on 29.04.2003, but the petitioners filed a Civil Suit, in which interim relief, however, was refused. As per respondents, the petitioners were then actually evicted and the entire vacant land is in the possession of the respondents. This is stated in the reply filed on 26.07.2003, by the Estate Officer, HUDA, Faridabad.
49. Petitioners have filed a replication, denying that the land was in occupation of the respondents and have annexed photographs dated 01.06.2004, showing that they are still residents in the colony, having their jhuggies/jhopries.
CWP No.11960 of 2008 27
No counter affidavit thereafter has been filed by the respondents, to refute this factum of possession.
50. Though, undoubtedly, the petitioners are in possession of public land, they are stated to be in such possession since 1972-73, hence, they would obviously on the same footing as the petitioners in the other petitions, who are also occupants of public land.
51. Now, to sum up on these 3 petitions, in our opinion, the situation of the residents of the jhuggis/jhopri colonies which are subject matter of these three writ petitions, viz. CWP Nos.23244 of 2010, 13973 of 2012 and 10945 of 2003, is no different to the petitioners of the other 10 petitions, in which we have already given directions hereinabove. They too are residents of these colonies in different parts of Faridabad and, as such, would also be entitled to the same relief as has been given in those 10 cases.
Thus, these 3 writ petitions are also disposed of with the same directions as have been given in paras no.33 to 37 hereinabove.
The same criteria as has been adopted for the others in the Aashiana Scheme, would apply to the petitioners in these cases also.
52. All these writ petitions are disposed of as above, with no order as to costs.
(AMOL RATTAN SINGH)
JUDGE
29.04.2013 (SATISH KUMAR MITTAL)
vcgarg /anand JUDGE