Punjab-Haryana High Court
Shivalya Colony Welfare Association vs State Of Haryana And Another on 17 October, 2012
Bench: A.K.Sikri, Rakesh Kumar Jain
CWP No.3323 of 2003 [1]
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.3323 of 2003
Date of decision:17.10.2012
Shivalya Colony Welfare Association ...Petitioner
Vs.
State of Haryana and another ...Respondents
CORAM: Hon'ble Mr. Justice A.K.Sikri, Chief Justice
Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. Rajiv Sharma, Advocate,
for the petitioner.
Mr. Aman Chaudhary, Addl. A.G., Haryana.
Mr. Parveen Gupta, Advocate,
for respondent No.2.
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A.K.Sikri, CJ. (Oral)
The instant writ petition is filed by the residents of colony known as Shivalya Colony which is situated at National Highway No.2, NIT, Faridabad. It is their case that they are residents of this colony for last 40-50 years and, therefore, government authorities, particularly Municipal Corporation, Faridabad, has no right to demolish their constructions or to dispossess them from the said colony.
When the matter was heard on May 7, 2012, the Corporation made a statement that it has prepared a scheme to rehabilitate these occupants, who were admittedly unauthorized occupants, by allotting them two bedrooms tenements measuring about 25 square meter. The Court had CWP No.3323 of 2003 [2] ***** directed the Commissioner, Municipal Corporation, Faridabad to file an affidavit giving undertaking in unequivocal terms and the time schedule within which the occupants would be shifted and allotted the tenements.
In compliance with that order, the Municipal Corporation, Faridabad has filed CM No.7688 of 2012 enclosing therewith affidavit of D. Suresh, Commissioner, Municipal Corporation, Faridabad. In this affidavit, it is stated that there are 27 Jhuggi Clusters on the Municipal Corporation land in Faridabad and the Municipal Corporation, in terms of a policy for shifting Jhuggi clusters and allotment of Economically Weaker Section (EWS) flats constructed under Jawahar Lal Nehru Urban Renewal Mission (JNNURM), has constructed sufficient number of EWS flats as to accommodate Jhuggi dwellers of Shivalya colony as well. It is also mentioned that as per biometric survey of the area, it is found that there are 163 Jhuggi families residing in this colony who are eligible for applying for allotment of EWS flats in terms of the said policy. Copy of the policy and list of eligible persons are enclosed with this affidavit as Annexures A-1 and A-2 respectively. The undertaking to allot the flat to them in terms of that policy is given in the following terms:-
"3. That the Municipal Corporation, Faridabad has prepared to allot flats to the dwellers of Shivalya colony at 2D Park, N.I.T., Faridabad and in any case within a period of two months from the date the eligible dwellers apply to the Corporation for allotment of flat in terms of the Policy-annexure A-1. It is wroth pointing out here that Municipal Corporation, Faridabad had given a public notice in Hindi Daily, namely, Dainik Jagran on 24.05.2011 inviting applications from the Jhuggi CWP No.3323 of 2003 [3] ***** dwellers at 2D Park i.e. place in question for applying for allotment of flat. However, none of the Jhuggi dwellers of 2D Park who are the members of the petitioner-Association ever applied. The true translated copy of the public notice published in the said newspaper on 24.05.2011 is attached herewith as Annexure A-3."
It is an admitted case that the aforesaid Shivalya colony has come up on a public park. It is also admitted fact that this is a public land which is encroached upon by the occupants who are the residents and members of the petitioner association. Normally, under these circumstances, there would not have any right to continue in the occupation of the said public park, however, having regard to the fact that they are in occupation for more than 40-50 years, they get a right of re-allocation to some other suitable place. That is precisely what is done by the aforesaid policy (Annexure A-1) framed by the Municipal Corporation, Faridabad. Once an undertaking is given to allot the flats to the dwellers of Shivalya colony as per the said policy, we see no reason why the petitioners/residents of this colony be not shifted there. It will also be pertinent to mention that the Municipal Corporation, Faridabad has even issued public notice which is published in the newspaper calling upon the residents of Shivalya colony to make an application seeking allotment of the EWS flats constructed for them. In these circumstances, the present writ petition is disposed of with the following directions:-
i) It would be open to the residents of the Shivalya colony, who are the members to the petitioner association, to CWP No.3323 of 2003 [4] ***** make an application under the aforesaid policy to the Municipal Corporation, Faridabad for the allotment of EWS flats which have been constructed by the Municipal Corporation, Faridabad and are available for allotment.
Such an application shall be made within a period of 2 months from today. On making the application by the residents, the same would be scrutinized and all those who are found eligible for allotment under the said policy shall be allotted the EWS flats on the terms and conditions contained in the policy (Annexure A-1);
(ii) This exercise shall be completed within a period of two months thereafter; and
(iii) After the allotment is made, it would be open to the Municipal Corporation, Faridabad to remove the encroachments from the said colony.
(A.K.Sikri) Chief Justice (Rakesh Kumar Jain) Judge 17.10.2012 vinod*