Delhi High Court
Friends Colony Residents Association vs Lt. Governor Of Delhi And Ors. on 25 September, 2004
Equivalent citations: 114(2004)DLT587, 2004(77)DRJ530
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
1. The Residents Welfare Association of Friends Colony has knocked at the doors of this court drawing attention that the DDA and the Municipal Corporation of Delhi are closing their eyes to rampant encroachment by slum lords on a parcel of land stated to be a park as per the approved lay out plan of the colony. The park in question is adjoining B-Block of Friends Colony (West), New Delhi.
2. Site plan filed by the petitioner shows that after the last row of houses on B-block towards its southern side is a 45 feet wide road making a 'T' junction with the 130 feet wide Mathura Road on the Western side of B-Block. Further South of B-block across the 45 feet road is a strip of land. An electrical sub-station stands constructed. Towards the Eastern side of the land of the sub-station is a passage which joins the 45 feet wide road towards the southern boundary of B-block. Further east along part of the said passage next to the electric sub Station 5, residential plots of B-Block stand carved out. Towards further south at the land where sub station exists is the parcel of land stated to be a park. Land of the park abuts a petrol pump on the main Mathura Road towards the West. Towards the South is a Senior Secondary School.
3. The said parcel of land, stated to be a park along with open space continuous thereto, land use whereof has not been specified, came to be encroached by jhuggi dwellers. Requests to the municipal authorities and the Lt.Governor of Delhi did not yield the desired result.
4. To fulfilll their needs, electricity is stated to be stolen by the slum dwellers. Water lines carrying water to B-block, Friends Colony, West were stated to be unauthorizedly tapped. Filth and waste from the slum is stated to have choked the sewer lines.
5. In brief, petitioner states that life of residents of B-Block, Friends Colony, West has become miserable due to unhygienic conditions created by the slums adjoining the colony.
6. Further grievance of the petitioner is that anti social elements operate in the area. These slum dwellers access the slum through the 45 mtr wide road on the southern boundary of the colony. A constant flow of slum dwellers, day and night, on the road is a source of threat to the life of the residents of B-Block, specially those whose houses abut the 45 feet wide road.
7. It is stated in the petition that what started as a slum cluster consisting of jhuggis erected at site by use of portable material is giving way to concrete structures. Double and triple stroyed constructions were coming up.
8. Photographs have been filed to substantiate the pleadings. Photographs show brick and concrete constructions; single, double and triple storeyed having come up on the land.
9. Placing reliance upon the sanctioned lay out plan, petitioners plead that it is the duty of the municipal authorities to ensure that no land is used contrary to the sanctioned lay out plan. It is pleaded that the land use is regulated by the Zonal Development Plan. Zonal Development Plan requires the land under encroachment to be maintained as a green area i.e. a park.
10. Prayer made in the writ petition is as under:-
"(a) Pass any appropriate writ, order or direction including a writ of mandamus and prohibition directing the Respondents No. 1 to 3 to demolish the illegal and unauthorised encroachment and construction raised in the park (public land) adjacent to DDA 'B' Block, Friends Colony (West), New Delhi;
(b) direct Respondent No. 6 -Delhi Vidyut Board- to disconnect all electricity connections granted illegally in an unauthorised colony built on a public park adjacent to DDA 'B' Block, Friends Colony (West), New Delhi;
(c) direct Respondents No. 4 and 5 to provide all necessary police help to maintain law and order and to assist Respondents No. 1 to 3 for removal of the unauthorised construction on the aforesaid park adjacent to DDA 'B' Block, Friends Colony (West), New Delhi;
(d) direct Respondent No. 7 to immediately disconnect the sewage lines of JJ clusters connected to the sewage lines of DDA 'B' Block, Friends Colony (West), New Delhi."
11. Counter affidavit filed by respondent No. 3, the Slum and JJ Department of the Municipal Corporation of Delhi states that respondent No. 3 is not the land owning agency of the site where the slum has come up. Its duty is to relocate slum at the request of the land owning agency and that too as per the slum clearance scheme. It is stated that the slum clearance scheme stipulates cut of date of 31.1.1990. When relocated, only such slum dwellers who have started residing in slums prior to 31.1.1990 are entitled for resettlement. 25 sq. mtr. plots are allotted at concessional rate.
12. Counter affidavit filed by the Delhi Jal Board, respondent No. 7 is that the choked sewer lines have since been rectified. There is neither an admission nor a denial in the said counter affidavit that the flow of water and accumulation of filth resulted in choking of the sewer line.
13. Counter affidavit by Delhi Development Authority, respondent No. 2 states that certain lands of Village Bahapur were acquired vide award No. 1732 of 1964. Vide notification No. F-10(7)/80/L&B dated 21.7.1981 under section 22(1) of the Delhi Development Act these lands were placed at the disposal of DDA. B-block, Friends Colony (West) was developed on this land. Residential plots have been sold to various persons.
14. It is stated by DDA that migration to the city of Delhi is a problem. There are a number of slum clusters in Delhi. A priority list has been framed by DDA for removal of jhuggi clusters. It is not denied in the counter affidavit that the land on which the slum has come up is required to be maintained partly as a park and partly as an open space.
15. It is stated in the counter affidavit of DDA:-
"Hence the entire process is of relocation of jhuggi dwellers at site is likely to take some more time. Thus, the action of the officers of respondent authority is neither illegal, arbitrary, malafide nor unconstitutional. The entire action of the respondent authority is in accordance with law."
16. An application being CM No. 11725/2000 was filed by Dyal Singh & Others, 25 in number. These applicants sought impleadment as respondents. Averments made in the said application were that the slum is called Dyal Singh Colony. Land on which the slum came up falls in khasra No. 268, 269 (partly), 271 and 275 of Village Bahapur. It was stated that prior to 1954 the said land belonged to various individuals and thereafter possession of the land and super structure came under individual possession of persons who are residing in the structures. Applicants were stated to be resident in the structures in the slum. It was stated in the application that in June, 2000 the railway authorities issued notices requiring some of the slum dwellers to vacate the land, claiming it to be railway land. A civil writ petition being WP(C) No. 3146/2000 was filed in this court seeking relief against railway authorities. Statement was made by the railway authorities that none would be dislocated without due process of law.
17. The applicants sought impleadment to oppose the writ petition. Vide order dated 26.3.2003 CM No. 11725/2000 was allowed. Applicants were imp leaded as respondents.
18. Petitioners had filed an application being CM No. 11710/2000, inter alia, praying to allow the association to construct a boundary wall in the passage between the JJ Cluster and the colony located between Plot B-68 and DVB Sub Station on the ground that security problems had arisen. Vide order dated 26.3.2003 prayer was granted.
19. Applicants of CM No. 11710/2000 filed an appeal against the order dated 26.3.2003 in so far prayer made in CM No. 11710/2000 was granted. The Division Bench stayed the operation of the said order. Ultimately, said order was set aside in as much as the applicants were imp leaded on 26.3.2003 and order in CM No. 11710/2000 was also passed simultaneously. Division Bench was of the opinion that the applicants did not have an effective opportunity of being heard.
20. Counter affidavit has not filed by the persons who sought impleadment.
21. On 29.8.2003 a counter affidavit was filed under the signatures of one Tibholoo claiming to be the President of Dr. Bhim Rao Ambedkar Bhojpuri Samiti (Regd.), stated to be a society registered under the Societies Registration Act, 1860.
22. As per the counter affidavit filed, it is stated that the slum colony called Dyal Singh Colony came up on land comprised in khasra No. 268, 269 (partly), 271, 275 of Village Bahapur. It is stated in the counter affidavit that the colony Friends Colony (West) was established pursuant to lands being auctioned in 1977. It is stated that the land belonged to railway authorities which sought to evict the slum dwellers. WP(C) No. 3146/2000 was filed against railway authorities praying that the jhuggi dwellers be not removed and further that they be rehabilitated by providing alternative site. Writ petition was stated to have been disposed of on an undertaking by the railway authorities that no eviction would be carried out without following the procedure established by law.
23. In the said counter affidavit, averments made in para 1 and 4 of the writ petition are not denied.
24. On the issue of land use pertaining to the disputed site, case of the petitioner is pleaded in para 4 of the writ petition. The same reads as under:-
"4. That the original members of the Petitioner-Association purchased their respective plots auctioned by the Respondent No. 2-DDA. In the Master Plan drawn by Respondent No. 2, which is operative in the area, it has been specifically provided that the park adjacent to DDA 'B' Block, Friends Colony (West), New Delhi was an open space meant for public purpose. The site plan of the area is appended herewith as Annexure 'A' and is marked in red colour."
25. Response of the contesting respondents to said para 4 of the writ petition is as under:-
"4. That the averments made in para 4 is a matter of record and thus needs not reply."
26. Case of the private respondents that they have not occupied the area unauthorizedly. How the slum dwellers occupied the land has not been spelt out in the counter affidavit. I may note that in CM No. 11725/2000 applicants stated that the land where the colony has come up is comprised in khasra No. 268, 269, 271 and 275 of Village Bahapur.
27. Said private respondents have themselves filed the revenue records which shows that ownership of the land comprised in said khasras is vested in the Government.
28. The position is clear. The site in question is a land belonging to the Government. Further position is equally clear that the site, as per approved lay out plan has to be used as a park.
29. One fact may be noted. Counter affidavit filed by the private respondents is not by the applicants of CM No. 11725/2000 who were imp leaded as private respondents. Counter affidavit has been filed under signatures of one Tibholoo who claims to be the president of Dr. Bhim Rao Ambedkar Bhojpuri Samiti. Said samiti has not been imp leaded as a respondent as it never sought impleadment.
30. Another material assertion of the petitioner and response thereto needs to be noted. In para 6 of the writ petition, petitioners aver as under:-
"6. That a large scale cluster of Jhuggi-Jhompri dwellers have forcibly, illegally and unauthorisedly occupied the aforesaid open public land, i.e. park adjacent to DDA 'B' Block, Friends Colony (West), New Delhi. In fact, with the passage of time, these jhuggis have gradually been converted into puce houses and shops and a lot of unauthorised and anti-social activity is being carried out in these jhuggis. Photographs of the illegal and unauthorised construction raised are appended herewith as Annexure 'B' collectively. A perusal of these photographs further goes to show that gradually puce double storeyed houses have been and are being constructed on this land actually meant for a public park."
31. Response of the private respondents, while denying that they illegally and unauthorizedly occupied the land in question, does not contain any response whether the jhuggis have been converted into puce houses and shops. Indeed, as noted above, photographs filed by the petitioners shows puce constructions being effected. At the hearing, Mr. V.P. Singh, Senior Counsel who argued the matter for the petitioners stated that with the passage of time, the slum dwellers, by and large have been bought over by land mafia. Original slum dwellers have taken haufty amounts to settle down in other slums. Petty traders in Okhla Mandi have purchased the site of the jhuggis and have constructed houses.
32. The Hon'ble Supreme Court in its judgment reported as Ahmadabad Municipal Corporation Vs. Nawab Khan Gulab Khan held that no one has a right to make use of public property for private purpose and it would be the duty of the competent authorities to remove encroachments which are a constant source of unhygienic conditions, ecological problems etc.
33. A Division Bench of this court in the judgment Wazirpur Bartan Nirmata Sangh Vs. UOI & Ors. held that benevolence in administration is a necessity but this benevolence has to be balanced against the rights of the residents of a town specifically when dealing with one commodity which can never increase, its land. The Division Bench took note of the fact that the whole concept of urbanized development of land in Delhi has almost collapsed. Any person can sit wherever he wants. Squatting on the land gives a right to get another allotment, which allotment is sold. The squatters comes back to squat at another site. Policy of resettlement was being defeated. The Division Bench took note of the fact that unauthorized encroachers could be evicted without alternative land being allotted. The Division Bench noted that countless slum lords have cropped up on public land, creating their own illegal estates.
34. Land use in Delhi has to conform to the zonal development plans prepared under Section 8 of the Delhi Development Act 1957. These plans have the force of law.
35. Mandate of law in in the instant case requires that the land earmarked as a public park in the zonal development plan with which the present petition relates itself to be cleared. Mandamus is issued to D.D.A. as well as the Municipal Corporation of Delhi to jointly and/or severally demolish all illegal and unauthorized constructions which have come up on the park. Land would be fenced and converted into a park. Needful be done within a period of 12 weeks from today.
36. No costs.