Delhi High Court
Court On Its Own Motion vs Nct Of Delhi, Dda And Djb on 17 November, 2017
Bench: S. Ravindra Bhat, S.P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 17.11.2017
+ W.P.(C) 7057/2005, C.M. APPL.367/2014, 369/2014 & 2455/2014
COURT ON ITS OWN MOTION ..... Petitioner
Through : Sh. A.S. Chandhiok, amicus curiae.
Sh. Dipender Chauhan with Ms. Ramya Kutty,
Advocates.
Versus
NCT OF DELHI, DDA AND DJB ..... Respondent
Through : Sh. Sanjay Kumar Pathak with Sh.
Kushal Raj Tater, Advocates, for
LAC/L&B/GNCTD.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE S.P. GARG
MR. JUSTICE S. RAVINDRA BHAT
%
1. This Court initiated suo motu proceedings, in public interest, on 21.04.2005 due to a newspaper report that the Delhi Development Authority (DDA) was unable to secure its land and that a large extent of up to 42,000 acres was either encroached or not taken possession of. An amicus curiae, Mr. A.S. Chandhiok, senior counsel, was appointed to assist the Court. Thereafter, the matter was adjourned on several occasions.
2. On 13.11.2006, the Union Land and Development Office [hereafter L&DO] was directed to provide details about the extent and location of lands acquired since 1950, in an affidavit; correspondingly, DDA was also directed to disclose details of lands provided at its disposal, through notifications, by the L&DO. These details were placed on record after some time; it was W.P.(C) 7057/2005 Page 1 of 9 noticed that there were discrepancies between the extent of lands mentioned by the two agencies. This Court, therefore, granted time to them to resolve the discrepancies, and even noted by its order dated 23.05.2007 that the reconciliation of the figures had glossed over vital details. Likewise, on 26.09.2007, it was noticed that DDA did not appear to have a uniform policy to evict encroachers or clear its lands; the statement that 1398.538 acres were encroached, was also noticed.
3. Thereafter, repeated hearings took place; no effective progress was made. As many as 32 hearings took place between 26.09.2007 and 12.03.2010. In these, the only discernable progress noticed is that DDA had filed some further affidavits and indicated that its records were being computerized. On 12.03.2010, a Bench of this Court directed DDA to explain its inability to take possession of 1398.538 acres of land. The order of 10.09.2010 reflects that the Court sought explanation from DDA why over 11,000 acres were not taken possession of, though acquired. The affidavit filed had indicated that large tracts of land were encroached or could not be taken possession of, because of interim orders given by the Court. Likewise, the Court took note of the fact that 6,17,817 bighas had been notified for acquisition (approximately 1,23,000 acres) of DDA's share was 85,867.20 acres. DDA had indicated that 69,348.29 acres were handed over to it. After a series of further hearings, during which it was noted that DDA and L&DO had co-ordinated meetings, the Court made a detailed order on 13.07.2012.
The relevant extracts of the said order are as follows:
"3. In the affidavit filed on 15th October 2005, the DDA stated that the possession of 15,103,95 acres of land acquired for the W.P.(C) 7057/2005 Page 2 of 9 DDA by the Land Acquisition Collector („LAC‟) and Land & Department, GNCTD had not been handed over to it. Subsequently, on 13th November 2006 this Court was informed that L&B Department has still not supplied the complete details of the land acquired right from 1950 till date. Both the DDA and Land & Building Department were asked to file detailed statements as to the land placed at the disposal of the DDA by Land & Building Department, how much of the land of the DDA was under its possession and how much of the said land was not under its occupation or had been encroached.
4. Pursuant to the above order, the DDA filed an affidavit th on 12 December 2007 enclosing a chart showing the details of encroachment of land acquired for the DDA in acres, zone- wise. However, the explanation offered was only in respect of 1398.53 acres of land of which possession was not given to DDA.
5. On 7th February 2007 the Land & Building Department filed an affidavit. In para 6 of the said affidavit it was stated that a large area was notified by the Government for acquisition in 1957, 1959 and 1961 for the Interim General Master Plan and the planned development of Delhi. It was further stated that although the area acquired was large and was spread all over the Delhi, "the compilation of the data in respect of each land would take long time and in some cases the Respondent does not have the complete records." The L&B Department filed an affidavit on 7th February 2007 in respect of the areas covered by Section 6 declaration of the Land Acquisition Act, 1894 („LA Act‟) after 1961. In the enclosed chart it was indicated that the total land measuring about 6,6237-10-14 bighas was notified and of this 44,0902-10 bighas of land was handed over.
6. Nearly three years later, on 12th March 2010 this Court was constrained to note that there was no explanation still forthcoming as to why the DDA had not been handed over possession of 15,103.95 acres of land acquired for it by the W.P.(C) 7057/2005 Page 3 of 9 L&B Department. The DDA was asked to file a further affidavit.
7. The affidavit filed on 15th July 2010 by the DDA did not still contain a satisfactory explanation. In para 3 (viii) of the said affidavit, DDA stated that the land admeasuring 15,103.95 acres acquired for DDA had not been handed over to by LAC/L & B Department for the reason of either being built up, or being part of an unauthorized colony awaiting regularization by the GNCTD or that stay or status quo order has been ordered by various courts or for reasons best known to LAC/L & B Department.
8. The Court passed a detailed order on 10th September 2010 noting the above facts requiring the DDA to file an interim report indicating the steps taken by it within a period of two months.
9. A Committee had been constituted comprising the officers of the DDA and Land B Department to verify the land records and filed a report of compliance. This Court passed an order on 21st January 2011 directing that the said Committee should meet at least once in ten days to monitor the progress of the work and file a report with complete details.
10. For the last nearly seven years since the Court has been seized of the issue, no tangible progress has been made to restore possession of land admeasuring 15,103.95 sq.m to the DDA. In the affidavit filed on 5th May 2011 the DDA pointed out the discrepancies in the figures produced by the LAC. The learned Amicus Curiae has also analyzed the affidavit filed by the DDA on 8th July 2011. This gives the details of the land of which possession has not handed over to the DDA, zone wise.
11. Learned Amicus Curiae informs the Court that as per figures of the Land & Building Department, possession of 38,628 acres of land is yet to be handed over to the DDA W.P.(C) 7057/2005 Page 4 of 9 whereas according to the DDA the figure is 16,810.51 acres of land.
12. It appears to this Court that the officers concerned of the Land & Building Department of the GNCTD with the DDA have not addressed the issue with the degree of seriousness it deserves. The financial implication of the DDA not being put in possession of 15,103.95 acres of land in the Delhi, acquired for it by the L&B Department, can well be imagined. One would have expected the GNCTD as well as DDA to have tackled this problem on a priority basis. However, their collective inaction in this regard in the past seven years is telling.
13. There are two major issues that need to be addressed. One concerns land acquired prior to 1961, in respect of which the L&B Department claimed more than five years ago that compilation of the relevant data would take time. Since then this Court has issued directions in the connected matters for digitization of the entire land records and awards. This Court has been told that considerable progress has been achieved in this regard. Consequently, the L&B Department should not have any further excuse about not being able to compile the data in relation to the lands acquired prior to 1961.
14. The second issue is about of DDA not being put in possession of 15,103.95 acres of land, despite this Court being seized of the issue for more than seven years. On both issues, the Court finds that the steps taken thus far are not satisfactory, to say the least. We are in the same position for the last seven years.
15. Accordingly, this Court directs the Secretary, L&B Department, GNCTD as well as the Vice Chairman, DDA to immediately convene a meeting of both of them, with their officers, and discuss the above issues in light of the various affidavits filed by them in the Court in these proceedings from time to time and in light of the orders passed by this W.P.(C) 7057/2005 Page 5 of 9 Court. The meeting of the Secretary, L&B Department and the Vice Chairman, DDA should take place within one month from today, on a mutually convenient date and time. The purpose of the meeting is to ascertain the progress of the steps taken in the matter."
16. Both the Secretary, L&B Department, GNCTD as well as the Vice Chairman, DDA will file separate affidavits in this Court within eight weeks from today explaining the steps taken thus far and those that they propose to take to ensure that all the lands that have been acquired prior to 1961 and thereafter are in the possession of the L&B Department or the DDA as the case may be. The affidavits will set out a time line for the various proposed steps leading to DDA being put in possession of the 15,103.95 acres of land which was acquired for it. The affidavits will be comprehensive and will not be mutually contradictory in terms of facts and figures. The affidavits will indicate zone-wise when the possession of the remaining lands acquired will be taken. They will indicate the reasons why possession thereof has still not been handed over to the DDA or taken by the Land & Building Department till date."
4. The subsequent proceedings and orders have shown that the direction of the Court orders, has been to somehow gather all facts to arrive at the correct figure of lands that were acquired and transferred to DDA and the lands which were handed over to it; the lands where leases were to be managed and those where lease tenure ended or were likely to end; the extent of encroachment of such lands, etc. Each of these - and the responses of various authorities, including the DDA have highlighted that substantial parts of acquired lands were facing encroachment; it is unclear whether the lands (of which possession was taken) were occupied or were later encroached upon (after vacant land was taken possession of). Some orders W.P.(C) 7057/2005 Page 6 of 9 have dealt with the problem relating to encroachment by religious structures; the Court noticed that in terms of extent policy, recommendations were made for removal of several such structures.
5. On 11.01.2017, the amicus appointed by the Court drew pointed attention to the fact the Comptroller and Auditor General of India had prepared a report on the issue of land management policies and practices of the DDA and had made a series of recommendations, towards improvement and strengthening of systems. The DDA was required to file its response, by way of affidavit, which it did.
6. This Court notices that the long, 12 year saga of this case, has revealed that DDA's record in securing lands acquired by it (and in taking over possession as well as in ensuring them to be encroachment free) has been appalling. At one stage, there was ambiguity about the total extent of land acquired and what was indeed in its possession. Even as on date, precise details are not forthcoming, readily. Without using strong language, it is clear that at considerable public expense and cost, acquisition proceedings are undertaken, with a view to execute a planned public project. Even before the implementation of such project (be it extension of roads, construction of highways or any other public utility work) acquired land- vacant or otherwise is encroached upon - in most cases, partly. The DDA or the concerned agency is unable to execute the project - at least in a timely manner. In other cases (the Rohini Residential Scheme being the most spectacular one) the public project cannot progress and is impeded to a great extent.
7. A new dimension to this entire issue has been added with the enactment of the Right to Fair Compensation and Transparency in Land W.P.(C) 7057/2005 Page 7 of 9 Acquisition, Rehabilitation and Resettlement Act, 2013 (hereafter "the Act"), especially Section 24(2), wherever the appropriate government had not taken possession of the acquired lands or paid compensation to the land owners (interpreted by the Supreme Court as actual payment of compensation) within five years prior to coming into force of the Act, the acquisition of such land is deemed to have lapsed. This Act has led to the Supreme Court and this Court, declaring in several hundreds of cases, that land acquisition is deemed to have lapsed.
8. The other development is that since 2007, the National Capital Territory of Delhi Laws (Special Provisions) Act has been in force. It defines encroachment as follows: "(c) "encroachment" means unauthorised occupation of Government land or public land by way of putting temporary, semi-permanent or permanent structure for residential use or commercial use or any other use..." A statutory injunction to refrain from taking any action for removal of encroachments- made up to 1st June, 2014, till 31st December, 2017 is given by Section 3 (3). These provisions were extended from time to time, in 2011 and 2014. As on date, these provisions are in force, which means that except for the exceptions provided , (i.e., to complete or execute a project of public utility) no encroachment removal can be undertaken.
9. In these circumstances, the Court is of opinion that the only useful direction that can be issued is to require the DDA, the Govt of NCT of Delhi (through the Land and Building Department) and the Central Government to create a standing unit or cell, which is tasked to evolve effective land management policies and for the purpose, also ensure that appropriate W.P.(C) 7057/2005 Page 8 of 9 software is designed to cater, real time, to the needs of the agencies. This cell shall also evolve the appropriate task force (or task forces), which shall clear encroachments on public lands in a systematic, and time-bound manner. The task force or cell, in the opinion of the Court, should be given statutory status and manned by high ranking officers; it should have a separate office, all under the authority of the DDA. The Central Government shall consider the feasibility of creating such a body, with its personnel (drawn from such disciplines and with appropriate experience). This unit or cell, in the opinion of the Court, should continuously monitor the land management policies of DDA and ensure that wherever needed, Court orders are implemented and also oversee all other relevant aspects. An action taken report shall be filed by DDA, in this regard, after consultation with all concerned parties (i.e the Central Government, Govt. of NCT of Delhi, the Delhi Police and the other local and municipal bodies operating in Delhi) in ten weeks.
10. List on 19.01.2018 to ensure that consequential action is taken.
11. The writ petition is disposed of, but subject to the above directions.
S. RAVINDRA BHAT (JUDGE) S.P. GARG (JUDGE) NOVEMBER 17, 2017 W.P.(C) 7057/2005 Page 9 of 9