Delhi High Court - Orders
Dalbir Singh & Ors vs Govt Of Nct Of Delhi & Anr on 17 November, 2023
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~33 & 35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 14925/2023
DALBIR SINGH & ORS. ..... Petitioners
Through: Mr. Colin Gonsalves, Senior
Advocate with Ms. Kawalpreet Kaur
and Mr. N. K. Jha and Mr. Sushil Kr.
Singh, Advocates.
Mr. Omkar, Mr. C. P. Singh, Mr.
Vinod Kumar, Mr. Md. Rafiur
Rahman, Mr. Mohd. Ayar, Mr.
Vikram Chikkara and Mr. Akarsh
Kumar, Advocates.
versus
GOVT OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr. Sanjay Kumar Pathak, Standing
Counsel with Mr. Sunil Kumar Jha,
Mr. M. S. Akhtar, Mrs. Nidhi Thakur
and Mrs. Rini V. Tiggar, Advocates
for R-1 and 2.
Mr. Udit Malik, ASC with Mr. Vishal
Chanda, Advocate.
Mr. Ankit Jain with Mr. Varun
Phogaat and Mr. Saujanya, Advocates
for Intervening party/Neeraj.
+ W.P.(C) 14928/2023
GAUTAMA NAND SHAH & ORS. ..... Petitioners
Through: Mr. Jayant Mehta, Senior Advocate
with Mr. Kirtiman Singh, Mr. Murari
Kumar, Mr. Rambir Chauhan, Mr.
Achint Kumar, Ms. Nikita Sethi, Mr.
Gagan Chaudhary, Mr. Sunil Kumar,
Mr. Prateek Gupta, Mr. Rahul
Sharma, Mr. Amit Nayyar,
Advocates.
This is a digitally signed order. W.P.(C) 14925/2023 & W.P.(C) 14928/2023 Page 1 of 13
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 20/11/2023 at 22:32:11
Mr. Omkar, Mr. C. P. Singh, Mr.
Vinod Kumar, Mr. Md. Rafiur
Rahman, Mr. Mohd. Ayar, Mr.
Vikram Chikkara and Mr. Akarsh
Kumar, Advocates.
Mr. Sandeep Sharma with Mr. Amit
Choudhary, Mr. Manish Tiwari and
Mr. Chandra Shekhar, Advocates.
versus
GOVERNMENT OF NCT OF DELHI, LAND AND BUILDING
DEPARTMENT THROUGH ITS SECRETARY & ANR.
..... Respondents
Through: Mr. Sanjay Kumar Pathak, Standing
Counsel with Mr. Sunil Kumar Jha,
Mr. M. S. Akhtar, Mrs. Nidhi Thakur
and Mrs. Rini V. Tiggar, Advocates
for R-1.
Ms. Aditi Saraswat, Advocate for Mr.
Jawahar Raja, ASC for R2.
Mr. Ankit Jain with Mr. Varun
Phogaat and Mr. Saujanya, Advocates
for Intervening party/Neeraj.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 17.11.2023 CM APPL. 59524/2023 & CM APPL. 59537/2023 Exemption granted, subject to just exceptions. Let requisite compliances be made within 01 week. The applications stand disposed of.
W.P.(C) 14925/2023 and CM APPL. 59523/2023 W.P.(C) 14928/2023 and CM APPL. 59536/2023 By way of the present petitions filed under Article 226 of the Constitution of India, the petitioners seek quashing of Eviction-cum-
This is a digitally signed order. W.P.(C) 14925/2023 & W.P.(C) 14928/2023 Page 2 of 13The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2023 at 22:32:11 Demolition Notice dated 09.11.2023 issued by the Assistant Settlement Commissioner (E.P. Cell), Land & Building Department directing :
" ..... all the encroachers of the said land occupying the property in question, to vacate the property/premises by 19.11.2023 and the eviction and demolition of the properties shall be stated (sic) from 20.11.2023 ....."
2. The land that is the subject matter of the impugned notice has been defined in the recitals thereof as land comprised in Khasra Nos. 28/8/1 (0-9), 28/19/1 (2-3), 28/22/1 (2-3), 29/1/2 (1-12), 29/2 (4-16), 29/3(4-
16) and 29/4 (1-11) situate in Village : Jharoda, Mazra Burari ('subject land').
3. There are 16 petitioners in W.P.(C) No. 14925/2023 and 114 petitioners in W.P.(C) No. 14928/2023.All petitioners claim to be the residents of the colony known as Sangam Vihar in Jharoda Mazra, Burari, Delhi and Jharoda Extension, Part-2, Burari, Delhi.
4. Mr. Colin Gonsalves, learned senior counsel appearing for the petitioners in W.P.(C) No. 14925/2023 and Mr. Jayant Mehta, learned senior counsel appearing for the petitioners in W.P.(C) No. 14928/2023, submit that the petitioners have been residing in the colonies situate on the subject land for decades and the land has been extensively constructed upon as evidenced by photographs handed-up in court. Let the photographs be filed on record.
5. It is submitted that there are about 5000 households in the area; and with about 04 residents to each household, the area is occupied by more than 20000 residents.
6. It is pointed-out that most residents are occupying the colonies based on a set of documents which include general powers of attorney, This is a digitally signed order. W.P.(C) 14925/2023 & W.P.(C) 14928/2023 Page 3 of 13 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2023 at 22:32:11 agreements to sell and other related documents, which the petitioners claim, give them the right to occupy the subject land. It is further clarified, that in most cases, the general powers of attorney and other related documents were executed before the judgement of the Supreme Court in Suraj Lamps & Industries (P) Ltd. (2) vs. State of Haryana and Another1 pronounced on 11.10.2011; and that, while holding that such documents do not confer 'title' in relation to immovable property, the said verdict protects the possession of the property by the petitioners.
7. Attention of the court has also been drawn to a sample khatauni relating to one of the khasras with bhumidari rights dating back to 1983-84 issued on 24.04.2012 relating to the year 1995-96, a copy of which has been appended within Annexure P-2 (Colly) to W.P.(C) No. 14925/2023, to submit that similar mutation entries exist in the revenue records in favour of the original owners of the land comprised in the khasra numbers in question. It is also submitted that provisional certificates of regularisation have also been issued by the Delhi Government to the residents of the colony under special statutes (referred to herein-below), a sample of which has been appended as Annexure P-4 (Colly) to W.P.(C) No. 14928/2023.
8. Most importantly, senior counsel submit that the colonies in question namely Sangam Vihar and Jharoda Extension, Part-II are protected under by the National Capital Territory of Delhi Laws(Special Provisions) Second Act, 2011 as amended by the National Capital Territory of Delhi Laws (Special Provisions) Second (Amendment) Act 1 (2012) 1 SCC 656 This is a digitally signed order. W.P.(C) 14925/2023 & W.P.(C) 14928/2023 Page 4 of 13 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2023 at 22:32:11 2021 (the '2011 Act'), which extends the protection upto 31.12.2023.
9. Furthermore, it is submitted that the petitioners' claim to the properties they are occupying are also recognised under the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Act, 2019 (the '2019 Act').Attention in this behalf is drawn to the entries at Serial Nos. 340 and 471 as contained in Annexure-II (List of Unauthorised Colonies Identified under 2008 Regulations) to the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Regulations, 2019.
10. That apart, it is argued that demarcation of the land comprised in the subject khasras has yet to be undertaken, absent which the extent and contours of the khasras which are subject matter of the impugned notice are itself in doubt. Senior counsel submit, that though the impugned notice recites that demarcation and identification of the khasra numbers has been carried-out, the petitioners have never received any notice nor have they participated in any such demarcation exercise; and that accordingly, such purported demarcation exercise is meaningless.
11. On a query, the court is informed that the impugned Eviction-cum-
Demolition Notice dated 09.11.2023 was was not served on any of the petitioners individually and was only found pasted at various points in the colonies.
12. In the circumstances, it is prayed that the exercise being contemplated by the respondents vide the impugned notice is wholly illegal; and is in This is a digitally signed order. W.P.(C) 14925/2023 & W.P.(C) 14928/2023 Page 5 of 13 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2023 at 22:32:11 the teeth of the two special statutes referred to above, which protect the petitioners' possession and occupation of the subject land.
13. Attention is also drawn by senior counsel to a recent order dated 05.01.2023 made by the Supreme Court in SLP (Civil) No. 289/2023 titled Abdul Mateen Siddiqui vs. Union of India & Ors., in which case the Supreme Court has stayed the operation of directions issued by the Uttarakhand High Court for eviction of persons in Haldwani, Uttarakhand, from what the Railways claimed was their land, with the following observations :
"Apart from that, there are issues of occupants claiming rights in the land as lessees/auction purchasers. We have cavil to the way the directions have been passed in the impugned order as there cannot be uprooting of 50 thousand people overnight within seven days. We do believe that a workable arrangement is necessary to segregate people who may have no rights in the land and those who have but to be removed but (sic, not) coupled with schemes of rehabilitation which may already exist while recognizing the need of the Railways."
***** "In the meantime, there shall be stay only of the directions passed in the impugned order(s). That has also to be coupled with complete restraint on any further occupation of land and/or construction whether by the existing occupants or by anyone else."
(emphasis supplied)
14. On a prima-facie view of the matter, issue notice.
15. Mr. Sanjay Kumar Pathak, learned Standing Counsel appears on behalf of the Assistant Settlement Commissioner (E.P Cell), Land & Building Department on advance copy; accepts notice; and seeks time to file counter-affidavit.
This is a digitally signed order. W.P.(C) 14925/2023 & W.P.(C) 14928/2023 Page 6 of 13The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2023 at 22:32:11
16. Mr. Ankit Jain, learned counsel appears on behalf of one Mr. Neeraj son of Ranbir Singh resident of Village Ghevra, Delhi, who claims to be the owner of the khasra numbers that are subject matter of the present proceedings; seeking to be impleaded as a necessary party to the present proceedings; and also opposing the grant of any interim relief to the petitioners.
17. Considering the claims made, and with consent of learned counsel on the opposing side, Mr. Neeraj is impleaded as a party-respondent to the present proceedings. Mr. Jain also seeks time to file counter-affidavit.
18. Mr. Pathak appearing for the Assistant Settlement Commissioner (E.P Cell) also points-out certain mis-description of parties in the petitions, which have been noted by learned counsel appearing for the petitioners. The petitioners submit that necessary corrections will be made to the memo of parties.
19. Let amended memo of parties be filed within 07 days in both the petitions.
20. Let a copy of the writ petitions be also served upon learned counsel who has entered appearance on behalf of the newly impleaded respondent/Neeraj.
21. Let counter-affidavit be filed within 06 weeks; rejoinder thereto, if any, be filed within 04 weeks thereafter; with copies to the opposing counsel.
22. Mr. Pathak as well as Mr. Jain submit that the impugned notice was issued towards enforcement of the directions contained in judgment dated 06.09.2019 passed in W.P.(C) No. 542/2016 titled Neeraj vs. Govt. of NCT of Delhi & Ors., whereby the rights of This is a digitally signed order. W.P.(C) 14925/2023 & W.P.(C) 14928/2023 Page 7 of 13 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2023 at 22:32:11 respondent/Neeraj to the khasra numbers in question have been recognised; and it was held that the said respondent continues to remain owner of the land at Burari under a sanad issued initially in 1961, with a long history of litigation thereafter; with a further direction in para 15 of the said order, which reads as follows :
"15. I, accordingly, dispose of the petition with the directions to the respondent to take steps to have the land at Burari evicted from anytrespassers and unauthorised occupants and hand over possession of the same to the petitioner. All necessary assistance would be rendered by the local police in this regard."
(emphasis supplied)
23. It is pointed-out that judgment dated 06.09.2019 was upheld by a Division Bench of this court vide order dated 24.11.2022 made in LPA No. 350/2021; and that subsequently an SLP bearing No. 3755/2023 challenging the Division Bench order also stands dismissed by the Supreme Court vide order dated 08.08.2023.
24. In particular, Mr. Jain argues, that the protection under the special acts referred to above is not available to the petitioners, since : (i) the land in question is private land; and (ii) order dated 06.09.2019 made by the learned single Judge in W.P.(C) No. 542/2016 has been upheld upto the level of the Supreme Court.
25. On a prima-facie conspectus of the averments contained in the writ petitions, and the submissions made at the Bar, as well as the documents filed on record, in the opinion of this court, the following aspects of the matter are significant, at least at this stage :
25.1. There is no cavil that the petitioners have been in occupation of the subject land for decades;This is a digitally signed order. W.P.(C) 14925/2023 & W.P.(C) 14928/2023 Page 8 of 13
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2023 at 22:32:12 25.2. The photographs handed-up in court show extensive construction on the subject land, comprising not just dwelling units but also schools and other similar establishments;
25.3. It is also noticed that apart from merely containing a reference to certain khasra numbers, the impugned notice is completely bereft of any specifics or particulars as to who the addressees of the notice are; as to whether all or only some of the residents of the colonies in question are claimed to be encroachers or unauthorised occupants, and if so which of them; and as to the property numbers in respect of which the direction to vacate has been issued. Moreover, in view of the allegations contained in the petitions, it appears that the extent and contours of the khasra numbers are also disputed.
25.4. On the other hand, the petitioners have cited documents comprising general powers of attorney, agreements to sell, provisional certificates of regularisation issued by State authorities etc., based on which the petitioners claim they are entitled to continue in possession of their respective dwelling units in the subject land. The existence, validity and consequences flowing from such documents cannot be decided in the present proceedings, since that may involve disputed questions of fact. At the same time however, such documents, especially registered general powers of attorney and provisional certificates of regularisation issued by State authorities cannot be brushed aside as being irrelevant or inconsequential, not least at this stage.
This is a digitally signed order. W.P.(C) 14925/2023 & W.P.(C) 14928/2023 Page 9 of 13The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2023 at 22:32:12 25.5. And most importantly, this court cannot ignore the provisions of the two special statutes cited by the petitioners, the relevant portions of which are extracted herein below for ease of reference :
National Capital Territory of Delhi Laws(Special Provisions) Second Act, 2011 Section 2. Definitions.
(1) In this Act, unless the context otherwise requires,--
*****
(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;
*****
(j) "unauthorised development" means use of land or use of building or construction of building or development of colonies carried out in contravention of the sanctioned plans or without obtaining the sanction of plans, or in contravention of the land use as permitted under the Master Plan or Zonal Plan or layout plan, as the case may be, and includes any encroachment."
Section 3. Enforcement to be kept in abeyance.
***** (2) Subject to the provisions contained in sub-section (1) and notwithstanding any judgment, decree or order of any court, status quo--
(i) as on the 1st day of January, 2006 in respect of encroachment or unauthorised development; and
(ii) in respect of unauthorised colonies identified under the National Capital Territory of Delhi (Recognition of Property Rights of Residents in This is a digitally signed order. W.P.(C) 14925/2023 & W.P.(C) 14928/2023 Page 10 of 13 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2023 at 22:32:12 Unauthorised Colonies) Regulations, 2019, in respect of village abadi area (including urban villages) and their extensions, which existed on the 31st day of March, 2002 and in aforesaid categories, where construction took place up to the 1st day of June, 2014 as, mentioned in sub-section (1), ***** shall be maintained"
National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Act, 2019
2. Definitions.--In this Act, unless the context otherwise requires,--
(b) "unauthorised colony" means a colony or development comprising of a contiguous area, where no permission has been obtained for approval of layout plan or building plans and has been identified for regularisation of such colony in pursuance to the notification number S.O. 683(E), dated the 24th March, 2008 of the Delhi Development Authority, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii), dated the 24th March, 2008."
***** "3. Recognition of property rights.--(1) Notwithstanding anything contained in the Indian Stamp Act, 1899 (2 of 1899) and the Registration Act, 1908 (16 of 1908) as applicable to the National Capital Territory of Delhi or any rules or regulations or bye-laws made there under and the judgment of the Supreme Court in the case of Suraj Lamp & Industries (P) Ltd. Vs. State of Haryana & others, dated the 11th October, 2011, the Central Government may, by notification in the Official Gazette, regularise the transactions of immovable properties based on the latest Power of Attorney, Agreement to Sale, Will, possession letter and other documents including documents evidencing payment of consideration for conferring or recognising right of ownership or transfer or mortgage in regard to an This is a digitally signed order. W.P.(C) 14925/2023 & W.P.(C) 14928/2023 Page 11 of 13 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2023 at 22:32:12 immovable property in favour of a resident of an unauthorised colony.
***** (4) Any resident of an unauthorised colony having registered or un-registered or notarised Power of Attorney, Agreement to Sale, Will, possession letter and other documents including documents evidencing payment of consideration shall be eligible for right of ownership or transfer or mortgage through a conveyance deed or authorisation slip, as the case may be, on payment of charges referred to in sub- section (2).
(emphasis supplied)
26. In view of the above, while keeping all rival contentions raised by both sides open for consideration, what prevails with the court at this stage is that admittedly the petitioners have been in occupation of the subject land for a very long period of time; and the aforementioned special statutes specifically protect such possession by providing that notwithstanding any judgment, decree or order of any court, status-quo as of 01.01.2006 is required to maintained in relation even to any encroachment or unauthorised development in terms of section 3(2) of the 2011 Act.
27. Though the newly impleaded respondent/Neeraj claims that his title to the subject land has been upheld vide order dated 06.09.2019 passed by Co-ordinate Bench of this court in W.P.(C) No. 542/2016, the question before this court is not as to title but as to possession of the petitioners in relation to the subject land, which possession is prima-facie protected by the special statutes referred to above. Also, if at this stage, the respondents are allowed to proceed and act upon the impugned This is a digitally signed order. W.P.(C) 14925/2023 & W.P.(C) 14928/2023 Page 12 of 13 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2023 at 22:32:12 Eviction-cum-Demolition Notice dated 09.11.2023, the petitioners along with their families would face summary eviction from the subject land, which would lead to an immediate humanitarian crisis.
28. In the circumstances, the effect and operation of the Eviction-cum-
Demolition Notice dated 09.11.2023 issued by the Assistant Settlement Commissioner (E.P Cell), Land & Building Department, shall remain stayed, till the next date of hearing.
29. Re-notify on 20th February 2024.
ANUP JAIRAM BHAMBHANI, J NOVEMBER 17, 2023 ds This is a digitally signed order. W.P.(C) 14925/2023 & W.P.(C) 14928/2023 Page 13 of 13 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2023 at 22:32:12