Delhi High Court
Shri Mange Ram & Ors. vs Union Of India & Ors. on 9 September, 2008
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Sunil Gaur
* IN THE HIGH COURT OF DELHI
+ WP(C) No.6425/1998
SHRI MANGE RAM & ORS. ........ Petitioner
through: Mr.V.P.Singh, Sr. Advocate with
Mr.Virendra Singh, Adv.
VERSUS
UNION OF INDIA & ORS. ........ Respondent
through: Mr.Sanjay Poddar, Adv. for
respondent No.4
Mr.Sanjay Kumar Pathak, Adv. for
respondents No.2 and 3
Mr.Gaurav Sarin, Adv. for
respondent No.5
RESERVED ON:
01.9.2008
DATE OF DECISION:
% 09.9.2008
CORAM:
Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice Sunil Gaur
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
WP(C) No.6425/1998 Page No.1 of 15
: PRADEEP NANDRAJOG, J.
1. The petitioners seek quashing of the notification dated 23.1.1965 issued under Section 4 of the Land Acquisition Act 1894; quashing of the declaration dated 26.12.1968 issued under Section 6 of the LA Act, 1894; quashing of the award dated 19.9.1996 relating to land comprised in Khasra Nos.690/2 (0-18), 692/2 (2-15), 694/1 (0-18), 695 (4-16), 700/2 (2-8) total area being 11 bigha and 15 biswa in the Revenue estate of Village Mahipalpur.
2. Pleadings in the writ petition running into 47 pages are prolix. Further pleadings by way of additional affidavits filed from time to time to bring on record subsequent events are also prolix. In a nutshell, the cause on which the relief is predicated is that over the years a large number of unauthorized colonies have come up on agricultural lands in Delhi in total violation of the prescribed land use, but the Government of India took a decision to regularize 1071 colonies and that from time to time the list of unauthorized colonies expanded; the last known figure of unauthorized colonies to be regularized is 1432. That L-Block, Mahipalpur Extension is one such colony proposed to be regularized. That the land in question is part of L-Block Mahipalpur Extension. Thus, the actual claim is that, notwithstanding the lands being acquired, the respondents be WP(C) No.6425/1998 Page No.2 of 15 restrained from taking over possession of the acquired lands till issue of regularization of unauthorized colonies is finally settled.
3. With reference to a notification dated 24.10.1984, being notification No.F.33/Engg.TP(DP)/11424/94, petitioners drew attention of this Court to the fact that 557 unauthorized colonies i.e. colonies which came up without sanction and in contravention of the prescribed land use were regularized in the year 1984. Therefrom, the case projected was, that from time to time, unauthorized colonies are being regularized and the Government cannot discriminate by resorting to pick and choose certain lands which are acquired but have come under unauthorized colonization and leave out some. The petitioners also sought sustenance from the directions issued by the Division Bench of this Court requiring Government to frame a policy of regularization and act thereunder. Petitioners further seek sustenance by placing reliance on orders passed by this Court from time to time directing that till the issue of regularization was finalized, lands which were acquired but had come under illegal colonization would not be taken possession of till final decisions are taken whether to accept the grounds realities i.e. regularize the unauthorized colonies. The petitioners also seek sustenance from the fact that under a policy decision taken by the Government, it has been decided to regularize all unauthorized WP(C) No.6425/1998 Page No.3 of 15 colonies where more than 50% of the plots have been constructed upon and that L-Block, Mahipalpur Extension is one such colony where more than 50% of the the plots have been constructed upon and hence is entitled to be regularized. Attention of this Court was drawn by the petitioners to the fact that pursuant to a public notice dated 1.7.2006, issued by the Department of Urban Development, Government of NCT, Delhi, unauthorized colonies which had come up till January 2005 were required to form Resident Welfare Association and through the association all plot holders were to submit a joint lay out plan of the colony so that the Government could take follow up action for regularization of the colony. It was submitted that the Resident Welfare Association of L-Block, Mahipalpur Extension had submitted the regularization plans vide registration No.0341 and that, on 16.6.2008, in exercise of power conferred under Section 57 of the Delhi Development Act 1957, the Delhi Development Authority with the prior approval of the Central Government had directed that the Government of NCT, Delhi may issue provisional regularization certificates. Lastly, it was urged that in exercise of power conferred by Section 3 of the National Capital Territory of Delhi Laws (Special Provisions) Act 2007 a notification has been issued on 30.1.2008 requiring suspension of all punitive action and maintenance of status quo in areas where unauthorized WP(C) No.6425/1998 Page No.4 of 15 development and unauthorized colonization has taken place.
4. Learned counsel for the respondents did not refute the policy of regularization and the various policy decisions and notifications relatable to regularization of unauthorized colonies, reference whereof was made by the petitioners at the hearing. The only argument advanced was that notwithstanding the regularization of unauthorized colonies being under the active consideration and finalization of modalities by the Government, if lands were required for a public purpose, possession thereof could be taken over by the Land Acquisition Collector and thereafter the lands could be handed over to DDA for the purposes of execution of a public work.
5. Failure of DDA and the Government of Delhi to maintain sanity in the city of Delhi pertaining to land use is a matter of public knowledge and finds mention in various decisions. In the decision reported as AIR 1988 SC 408 Hukum Chand & Ors. Vs. UOI the Hon'ble Supreme Court observed that the growth of population and influx thereof into urban areas is amongst other reasons responsible for making life competitive with everybody becoming self centered and none bothering about the interest of others and the community.
6. On the one hand, after taking monopoly over lands in Delhi with the promulgation of the Delhi Development Act, 1957 WP(C) No.6425/1998 Page No.5 of 15 the Government not only eschewed the responsibility of making available sufficient lands for the citizens of Delhi but did not check land grabbing and unauthorized colonization resulting in unauthorized colonization with impunity. In contravention of the Development Plans and prescribed land use, huge tracks of agricultural lands were colonized day after day. The unfortunate reality is that today more than 40% of the population of Delhi finds shelter in these unauthorized colonies.
7. One fails to understand as to why Government and in particular the DDA chose to resort to monopolistic practices by releasing residential and commercial lands in driblets. One gets a feeling that there was a mala fide intention of those at the helms of the affairs so as to ensure that the developed land is not placed at the disposal of the citizens of Delhi and they are compelled to violate the law. Vote bank politics in Delhi relatable to land use is felt at every election. Historically it is to be seen that before every election, be it the Lok Sabha or the Legislative Assembly of Delhi, concessions are given to not only unauthorized colonizers but even to those who have contravened the development norms relating to floor area ratio. The list of unauthorized colonies which commenced with 557 in the year 1984 reached 1091 in the year 2002 and has reached the figure of 1432 as of the year 2006.
WP(C) No.6425/1998 Page No.6 of 15
8. Thus, whether the lands which are the subject matter of the writ petitions stand acquired or not become a non-issue. What has to be considered today is the effect of the policy decision taken to regularize unauthorized colonies and the latest notifications issued on 30.1.2008 and 16.6.2008, reference whereto has been made by us hereinabove.
9. There are over 100 decisions of this Court directing the respondents not to adopt the policy of pick and choose and till the issue of regularization of a particular colony is decided, to freeze the status quo.
10. We note only one such decision of a co-ordinate Division Bench reported as 2004 (IV) AD (Delhi) 313 Daya Nand & Ors. Vs. UOI & Ors. In paras 8 to 10 it was observed as under:-
"8. It is not a case of an individual or a few persons whose land is acquired and the acquisition is challenged on the ground that construction has been raised on the said land. Here is a case where on the subject land a full fledged colony has come into existence. True that it was an unauthorized colony but the fact remains that a number of such colonies have sprung up in Delhi and the Government has been addressing itself as to how these unauthorized colonies have to be dealt with. Communication dated 16 February 1977 addressed by the Ministry of Works & Housing, Government of India to the Lt.Governor of Delhi on the subject "Unauthorised colonies in Delhi- approval of" itself mentions that the Government had appointed a Committee on 26 August 1974 to make a case by case study in respect of unauthorized colonies which had come up in Delhi from time to time, particular, before 15 June 1972 with a view that the Government could take a decision in regard to the WP(C) No.6425/1998 Page No.7 of 15 future of such colonies. The said Committee submitted its report on 26 February 1975 which was examined by the Government and decision was taken to regularise these colonies on the terms and conditions set out therein. We are concerned with condition No.6 which reads as under :-
"Colonies which have been notified for acquisition will also be considered for regularization and wherever necessary other represential steps will be taken".
9. It is, thus, clear that it was in the contemplation of the Government that some of the colonies, respect of which decision is taken to regularize them, are the ones which have been notified for acquisition. It was decided to take necessary steps for the purpose of such regularization. Perhaps for this reason, no steps were taken to take possession of the land, although Notification under Section 4 in this case was issued on 11 December 1981, with the result that these colonies, which came into existence in earlier 70s, are in existence for last more than 30 years.
10. It is pertinent to note that the land was sought to be acquired for the purpose of 'Planned Development of Delhi'. It appears that it was to be handed over to the DDA for some housing project and on the land in question houses already exist. No return is filed either by the Government or the DDA controverting these averments of the petitioners. Therefore, we have no option but to proceed on the basis that possession is still with the petitioners and there is no Notification under Section 22(1) of the Delhi Development Act, 1957 placing land at the disposal of DDA."
11. Directions issued in para 11 read as under:-
"11. In view of the factual scenario projected above, we are of the opinion that the ends of justice would be met if the writ petitions are disposed of with the following directions:
(I) While sustaining Notifications under Sections 4 and 6 of the Act, it is directed WP(C) No.6425/1998 Page No.8 of 15 that the petitioners shall make appropriate representation to the competent authority under Section 48 of the Act for denotification of the land. On making such application within two weeks from the date of receipt of copy of this order, the respondents shall consider the same within six months from the date of making such representation.
(II) If the decision is taken to denotify the land, the Government shall be free to impose the conditions as are set out in communication dated 16 February 1987 on which regularization is to be done, i.e. with regard to lay out plan, provision for road and other community facilities, payment of development charges etc. (III) Till such a decision is taken, the possession of the petitioners shall not be disturbed."
12. We note that after the afore-noted decision of the Division Bench of this Court was pronounced much water has flown by. The policy of regularization has been notified. Norms for regularization have been framed. Residents of unauthorized colonies have formed Resident Welfare Associations and have submitted the plans for regularization. The plans are under consideration. On 16.6.2008 a notification has been issued under Section 57 of the Delhi Development Act, 1957, inter alia, notifying as under:-
"4.6.1. Soon after the requirements of Clause 4 of the Regulations as fulfilled by the residents of the colony, the GNCTD may issue a provisional regularization certificate to that unauthorized colony.WP(C) No.6425/1998 Page No.9 of 15
The local body/DDA and GNCTD would complete the prescribed formalities before formal regularization of the unauthorized colony as prescribed under Clause 5 of the Regulations within a period of 12 months from the date of issue of the Provisional Certificate, Lt. Governor, Delhi may relax the time limit in respect of individual colonies as provided in Clause 5.11 of the Regulations.
4.6.2. However, this certificate cannot be issued to unauthorized colony/habitations inhabited by affluent sections.
4.6.3. However, the final boundary of these colonies would be fixed by the GNCTD only after completing all requisite formalities including those in Clause 3 of the Regulations."
13. On 30.1.2008, in exercise of power conferred by Section 3 of the National Capital Territory of Delhi Laws (Special Provisions) Act, 2007, a notification has been issued which inter alia directs as under:-
" (1) (i) Notwithstanding any judgment, decree, or order of Court, steps shall be taken by the local authority, including desealing, to maintain status quo as on 1st day of January, 2006 in respect of encroachment or unauthorized development referred to in Section 3 of the said Act except in respect of unauthorized colonies, village abadi area and its extension.
(ii) Notwithstanding any judgment, decree, or order of Court, steps shall be taken by the local authority, including desealing, to maintain status quo in the unauthorized colonies village abadi area and its extension, which existed on the 31st day of March, 2002 as on the 8th day of February, 2007.
(2) All notices issued by any local authority for initiating action against encroachment or unauthorized development referred to in Section 3 of WP(C) No.6425/1998 Page No.10 of 15 the Act shall be suspended and no punitive action shall be taken till the 31st day of December, 2008.
(3) During the period up to 31st December, 2008 w.e.f. 5th day of December, 2007, action as per relevant laws shall continue to be taken by the local authorities in respect of the categories of encroachment or unauthorized development, as specified in Section 4 of the said Act and a monthly report of the action taken shall be sent to the Secretary, Ministry of Urban Development, New Delhi by the end of the first week of the succeeding month."
14. It is not in dispute that the Residents Welfare Association of L-Block, Mahipalpur Extension has submitted the requisite lay out plan for regularization of its colony. It is also not in dispute that the Government of NCT, Delhi and the Central Government are processing the lay out plans submitted by the Welfare Associations of 1432 colonies which have come up as unauthorized colonies in Delhi. It is also not in dispute that as per the notifications issued from time to time, status quo is being maintained.
15. Thus, prima facie, the petitioners would be entitled to relief at par which was granted by the Division Bench of this Court in Dayanand's case. (supra).
16. The submission made by learned counsel for the respondents that the policy of regularization excludes such lands which are required for an urgent public purpose needs to be noted and dealt with.
WP(C) No.6425/1998 Page No.11 of 15
17. It is not in dispute that the original public purpose for which lands were sought to be acquired in Delhi has been totally frustrated because of unauthorized colonization on said lands and a decision has been taken by the Government to regularize the unauthorized colonies which satisfy the norms for regularization. Thus, the original public purpose of the acquisition has lost all relevance. The competing claim for regularization under the policy decisions taken by the Government has frustrated the purpose of the acquisition. But, within the field of regularization of unauthorized colonies, there still remains the field of a public purpose, namely, requirements of land to provide public facilities in the unauthorized colonies and for laying roads and highways to connect the unauthorized colonies with adjoining colonies or as thoroughfare through the unauthorized colonies. Certainly, these lands can be acquired and taken possession of, because these lands would in any case be required to be taken over and utilized for a public purpose in harmony and in tune with the regularization norms of the unauthorized colony. But, the respondent has then to show to the Court, with material, that independent of the original public purpose for which the lands were acquired, notwithstanding the issue of regularization of unauthorized colonies pending scrutiny as per the policy of regularization, the land is still required for a public purpose as per WP(C) No.6425/1998 Page No.12 of 15 the current development scheme which, in harmony with the policy of regularization would still require the land to be taken possession of and put to a public use.
18. No such material was placed before us or shown to us.
19. Before concluding we note that there is a dispute raised by the respondent qua the possession of the subject lands. It is urged that possession was taken over.
20. However, we note that the possession was not taken over, evidenced by the fact that when the writ petition was filed status quo was directed to be maintained. DDA filed CM No.18252/2007 alleging that the petitioners have violated the status quo by raising the constructions on the land.
21. A Local Commissioner was appointed by this Court on 4.1.2008 who reported that the petitioners were in possession of the subject lands. Certain constructions at site were reported.
22. Before issuing final directions in the writ petition, we record that we are not going into the issue whether the petitioners violated the status quo or not for the reason from the photographs filed and even the report of the Local Commissioner it is difficult to ascertain whether the constructions were recent constructions or are constructions relatable to the time when unauthorized colonization took place.
23. Further, we note that the photographs and the report WP(C) No.6425/1998 Page No.13 of 15 of the Local Commissioner evidence very little construction on the subject land and major part thereof is lying vacant.
24. We thus draw attention of the authorities concerned to be conscious of the fact that the subject lands are by and large not built upon and that the policy of regularization requires more than 50% of the plots in a colony to be built upon.
25. Be that as it may, these factors are to be taken into account while taking the decision on the regularization of L-Block, Mahipalpur Extension.
26. In harmony with the decision in Daya Nand's case (supra) and noting subsequent developments we dispose of the writ petition directing that till issue of regularization of L-Block, Mahipalpur Extension is finalized and final decision taken whether or not to regularize L-Block, Mahipalpur Extension, the respondents would not disturb the possession of the petitioners who are also directed to maintain status-quo and not effect any constructions on the subject lands. Needless to state, if the final decision taken by the Government is to regularize L-Block, Mahipalpur Extension, and within the said colony, to regularize the plotted development made by the petitioners, that would be the end of the matter and in said eventuality possession of the subject lands would not be taken over. In case of L-Block, Mahipalpur Extension being not regularized or the subject lands WP(C) No.6425/1998 Page No.14 of 15 excluded from the regularization of the said colony, it would be open to the respondents to take possession of the subject lands.
27. No costs.
PRADEEP NANDRAJOG, J.
SUNIL GAUR, J.
September 09, 2008 vg WP(C) No.6425/1998 Page No.15 of 15