Delhi District Court
Naval Kishore & Ors vs U.O.I. & Ors on 2 January, 2012
Suit No. 1527/2006
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
Suit No. 1527/2006
Naval Kishore & Ors.
........PLAINTIFFS
Versus
U.O.I. & Ors.
....DEFENDANTS
Order:
Vide this order, I shall dispose off an application under Order XXXIX
Rule 4 CPC filed on behalf of the defendant/ MCD seeking the vacation of stay granted
vide order dated 30.01.2009 in favour of plaintiff by my Ld. Predecessor. The brief facts
are as follows:
1.The plaintiffs have been residing along with their family peacefully at Indira Anand Basti, Sadar Bazar, Delhi06 for the last 3560 years. The concerned government authorities have provided all facilities like electricity, water, ration card, election card. On 04.09.2006 some officials of defendant no. 2/ MCD visited the suit premise and threatened the plaintiffs to dispossess them on the pretext that the land in question belongs to MCD, however, they were unsuccessful in their efforts. On 07.09.2006, some officials of defendant no. 2/ MCD again visited the suit premise and try to forcibly dispossess the plaintiffs from the land in question. It is averred on behalf of plaintiff that they are residing over the present land for the last 3560 years and they cannot be dispossessed from the suit premise without due process of the order. Hence, this suit.
2. Defendant no. 1/ UOI has contested this suit by filing detailed written statement taking Naval Kishore & Ors vs. UOI & Ors. 1/7 Suit No. 1527/2006 the preliminary objection that the plaintiffs have not come to this court with clean hands, that the suit of the plaintiff is not maintainable and same is liable to be dismissed, that the plaintiffs are not entitled to any discretionary reliefs, that the plaintiffs are the unauthorized encroachers on the government land.
3. Defendant no.2/ MCD has also contested this suit by filing detailed written statement taking preliminary objection that the suit of the plaintiffs is not maintainable for want of mandatory notice under section 477, 478 of the Delhi Municipal Corporation Act, that the plaintiffs have no right over the suit premises and the land measuring 3243 sq. yards out of Khasra No. 544/430/383/2 has been handed over to the MCD, that the plaintiffs have no cause of action to file the present suit.
4. After the detailed order dated 30.01.2009, considering the documents filed on behalf of both the parties, my Ld. Predecessor had allowed the injunction application filed on behalf of plaintiffs thereby restraining the defendants from forcibly dispossessing the plaintiffs from the suit property.
5. Vide the instant application under Order XXXIX Rule 4 CPC, it is submitted by Ld. counsel for defendant/ MCD that certain subsequent events have taken place which merit the vacation of stay order granted in favour of the plaintiff. It is submitted that the land in question has been duly demarcated now and that Delhi Urban Shelter Board has started process of relocation as per modified guidelines policy of G.N.C.T.D. dated 19.02.2010 in respect of land in question and Jhugi Dwellers on the land in question. The copy of Status Report dated 21.10.2010 sent to D.C., S.P. Zone, M.C.D., Delhi.
6. In reply to the present application, it is submitted on behalf of the plaintiffs that the Naval Kishore & Ors vs. UOI & Ors. 2/7 Suit No. 1527/2006 instant application of the defendant no. 2 is not maintainable in the eyes of law or in any manner being sheer misuse the process of law based on malafide grounds deserves its dismissal. That the defendant no. 2 is completely failed to furnish any guidelines/ policy of GNCT dated 19.02.2010 for reallocation of the Jhuggi Dwellers on the land in question. That the defendant no. 2 has completely failed to furnish any project report for the suit site being alleged land owing agency.
7. I have heard Ld. Counsels for the plaintiffs and defendants respectively and gone through the material available on record.
8. It is settled law that the order of injunction cannot be varied or modified except necessitated by change in circumstance or of undue hardship to a party. The said law has been reiterated by the Hon'ble High Court in Viraj Lal Mani Lal and Co. Vs. Adarsh Bidi Co. (2002) 101 DLT 143 Delhi.
9. In the present case, I have gone through the impugned order dated 30.01.2009. In para no. 4 of the said order, it had been categorically mentioned that documents placed by MCD which were Jamabandi Mauja were not convincing enough to show the ownership of MCD in the suit property and that the land in question was yet to be demarcated which gave a benefit of doubt to the plaintiff. On the other hand, the plaintiff had filed a copy of ration card and voter Icard of the suit property which prima facie established his possession. The relevant portion of the order is being reproduced herein for the sake of ready reference: "the document placed by MCD in support of its ownership does not appear convincing to me. On the contrary plaintiffs have filed their ration card and voter identity card thereby prima facie showing their Naval Kishore & Ors vs. UOI & Ors. 3/7 Suit No. 1527/2006 possession over the suit property. Secondly, MCD in its written statement submits that land in question is yet to be demarcated which gives benefit of doubt to the plaintiff."
10.It is the contentions of the defendant/ MCD that now demarcation has been carried out and the process of relocation has been initiated w.r.t. to the land in question. They have also filed a list of dwellers who have been provisionally identified by the committee consisting of Dy. Director, Slum and JJ Department, Tehsildar and copy had been sent to Dy. Commissioner (Revenue) for ascertaining the eligibility of the occupants for relocation. The name of the plaintiff herein figures at Sr. No. 16 of the said list. Thus although this list reveals that the suit property is within the control and management of MCD yet at the same time confirms the possession of the plaintiff over the same and the fact that he has been considered for relocation.
11.At this stage, it is clarified that the said order granted in favour of the plaintiff was pertaining to only against any forcible dispossession. There is no stay in relocating the plaintiff from the suit property with due process of law.
12.In support of his case, Ld. counsel for defendant/ MCD has filed various judgments including that of Bakshi Ram vs. DDA, 1995 (32)DRJ, Hari Kishan & Anr. vs. S. P. Dabas & Ors, CONT.CAS(C) 716/2009, Friends Colony Residents Association vs. Lt. Governor of Delhi & Ors., 2004(77) DRJ 530, Asharfi Lal & Ors. vs. UOI & Ors., 161 (2009) Delhi Law Times 277, Contempt case (C) No. 113/04, 120/04, 131/04 & 136/04 dated 31.08.2004, Premji Ratansey Shah vs. UOI, SLP No. 10792/1994 dated 22.07.1994, Hari Ram vs. MCD, W.P. (C) 2311/2010 & CM No. Naval Kishore & Ors vs. UOI & Ors. 4/7 Suit No. 1527/2006 4653/2010 and Harbans Kaur & Ors. vs. Bhola Nath & Anr., 57(1995) Delhi Law Times 101.
13.In the catena of judgments relied upon by Ld. counsel for defendant/ MCD, although it has been clearly held by the Superior Courts that the encroachment by a trespasser on a public land should not be permitted, yet in none of the judgments, it has been revealed that such alleged encroacher can be forcibly dispossessed.
14.Again it is reiterated that vide orders dated 30.01.2009, my Ld. Predecessor has granted stay in favour of the plaintiffs and against the defendants qua "forcible dispossession". There is no stay, as is already stated above, in relocating the plaintiff with due process of law.
At this stage, it is imperative to analyze the guidelines w.r.t. resettlement/ relocation emphasized by the Hon'ble High Court of Delhi by 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 equally protected, including their right to property ownership and access to resources;
Naval Kishore & Ors vs. UOI & Ors. 5/7 Suit No. 1527/2006
(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 low income households;
(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 Naval Kishore & Ors vs. UOI & Ors. 6/7 Suit No. 1527/2006 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 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.
In the present case, no comprehensive resettlement policy or guidelines have been brought forth by the defendant/ MCD and it is clear that the process of relocation shall not be detrimental to the human rights of the persons concerned.
15.Again it is reiterated that there is no stay granted against defendant/ MCD in adopting the due process of law as laid down above to relocate the occupants, including the plaintiff herein and stay is only against forcible dispossession. Thus, the order dated 30.01.2009 calls for no alteration or modification. Accordingly, the present application under Order XXXIX Rule 4 CPC is hereby dismissed.
16.Nothing stated herein shall tantamount to an expression of opinion on the merits of the case.
Pronounced in the open court today on 02.01.2012 (SHEFALI SHARMA) CIVIL JUDGE (WEST) THC, DELHI/ 02.01.2012 Naval Kishore & Ors vs. UOI & Ors. 7/7