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#22 HIGH COURT OF DELHI
W.P.(C) 4919/2011 & CM APPL. 9981/2011, 10474-10475/2011
MRS. MEETA CHAKRABORTY AND ORS ..... Petitioners
Through Mr. Anuj Castileno with Ms. Mrunal Buva, Advocates
Through Ms. Shobhna Takiar, Advocate for R-2/DDA.
Mr. Parvinder Chauhan with Mr. Akhil Kumar, Advocates for R-3.
Date of Decision: 23rd July, 2013
JUDGMENT
1. Present writ petition has been filed under Article 226 of the Constitution of India seeking a direction restraining the respondents from demolishing C-38A, C-224, C-2/52A as well as other houses in Block B, C, C-2 and E, New Ashok Nagar, New Delhi – 110 096. Petitioners have also prayed for regularisation of the site.
2. Mr. Anuj Castileno, learned counsel for petitioners submits that structures constructed by the petitioners have been regularised by the Government of NCT of Delhi, Urban Development Department vide Order 2013:DHC:3574 dated 4th September, 2012. The relevant portion of the said Order reads as under:- ―Pursuant to the issue of the revised Guidelines 2007 for the regularization of unauthorized colonies in Delhi by the Ministry of Urban Development Department on 05.10.2007 and the notification of the Regulations for regularization of unauthorized colonies in Delhi dated 24.03.2008 by the Delhi Development Authority under section 57 of the Delhi Development Act, 1957, with the previous approval of the Central Government, the Government of NCT of Delhi (GNCTD) had invited applications from the Residents Societies of the unauthorized colonies in the format prescribed in the aforesaid Regulations. After extensive scrutiny of these applications in accordance with the prescribed manner, the Government has been able to identify 895 unauthorized colonies located without any forest and ridge areas and protected areas under the provision of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 and also not posing any hindrance to the provisions of infrastructural facilities under the posing any hindrance to the provisions of infrastructural facilities under the Master Plan 2021, as eligible for regularization under the said Regulations 2008 and the boundaries of each identified colony have been finalized under Clause 5.[3] of the Regulations 2008 as amended on 06.06.2012. These identified unauthorized colonies are given in annexures-I and II to this order as follows:-................‖
3. Learned counsel for the petitioners points out that the List of Colonies attached as Annexure-II to the said order mentions New Ashok Nagar at
┌─────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. Name of the Petitioner Address on Title Documents on Page │ │ No. MOP/Affidavit record no. │ ├─────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. Meeta Chakraborty C-38 A, Ashok Cooking Gas receipt 14 │ │ Nagar and property tax │ │ receipt │ │ 2. Neeraj Chauhan C-2/52A DJB and 15 │ │ Electricity receipt │ │ 3. Dayawati C-224 GPA dated 17 │ │ 22.9.2005 of │ │ property no. C-38 │ │ 4. Subhash Chander B-6 Unregistered and 31 │ │ undated POA of │ │ plot of land and │ │ not constructed │ │ 5. Meera Khanna B-26 GPA dated 33 │ │ October 1997 │ │ 6. Naresh Tyagi B-33 GPA of December 38 │ │ 1997 of plot of │ │ land with no │ │ construction │ │ 7. Manoj Kumar Aggarwal B-273A Undated GPA of 42 │ │ plot of land │ │ 8. Mohd. Yamin Khan B-237 Will dated 47 │ │ 16.2.2000 of a │ │ piece of land │ │ 9. Chhavi Nath Parmar B-273 Ration Card dated 49 │ │ 29.5.2002 │ │ 10. Anil Kumar C-270 Payment receipt of 52 │ │ November 2001 │ │ 11. Geetha Rastogi D-237 Payment receipt of 53 │ │ February 2002 │ │ 12. Manoj Kumar C-296 Unregistered GPA 55 │ │ of August 2003 of │ │ piece of land │ │ 13. Mohd Shahid B-10 Possession letter 58 │ │ dated 11.3.2004 │ │ 14. Sangeeta Rana C-1/62 GPA dated 9th 59 │ │ October, 2006 │ │ 15. Neelam Srivastava B-20 Property receipt of 68 │ │ March 2007 │ │ 16. Seema Gupta B 4A GPA dated 72 │ │ 18.8.2009 of │ │ property C-II/96 │ │ W.P.(C) 4919/2011 Page 5 of 11 │ │ 2013:DHC:3574 │ │ 17. Raj Pal B 10/3 GPA dated 79 │ │ 31.5.2011 of │ │ vacant plot │ │ 18. Savitri Devi C266 & 266A Payment receipt 86 │ │ dated 15.2.2011 │ │ 19. Ram Naresh Gupta B-235 Will dated 88 │ │ 1.3.2011 in the │ │ name of son of the │ │ petitioner │ └─────────────────────────────────────────────────────────────────────────────────────────┘
3.[3] of Regulation 3, the types of colonies which cannot be considered for regularization has been mentioned. Same is being reproduced hereinbelow: ―3.1: Cut off date for regularization is 31st March, 2002. ―3.[3] The following type of colonies or part thereof would not be considered for regularization: a.......................... b. Unauthorized colonies / part of colonies/ habitations which pose hindrances in the provision of infrastructure facilities or fall in the area of right of way (ROW) of existing or proposed railway lines, master plan roads and major / trunk water supply and sewerage lines. c. Unauthorized colonies / habitations where more than 50% plots are un-built on the date of formal announcement of regularization scheme. However, plots, which have been built up in the above and till the date of formal announcement of regularization scheme will be taken into consideration for deciding the eligibility of the colony for regularization.‖ Regulation 4.2.3: There shall be no obligation on part of the local body / DDA / GNCTD / Union of India to allot alternate site / flats to residents who may be displaced on account of provision of land for civic amenities/infrastructure which are not regularized as in clause 3.3. That the Master Plan of Delhi-2001 was extensively modified and notified by the Central Govt. on 7th February 2007 with the perspective for the year 2021 keeping in view the emerging new dimensions in Urban Development viz a viz the social, financial and other ground realities. The National Capital Territory of Delhi Laws (Special Provisions Act, 2007) was enacted on 5th December 2007 to make special provisions or the areas of National Capital Territory of Delhi for a period upto 31st December 2008 which has been continued for a period upto 31st December 2011 to provide temporary relief and to minimize avoidable hardships and irreparable loss to the people of the NCT of Delhi against any action by the concerned agency. Under Section 3 of the above referred Act enforcement has been kept in abeyance not withstanding anything contained in any relevant laws or any rules, regulations or bye laws made thereunder. Simultaneously under Section 4 of the said Act, exceptions have been given by which the provision of the Act does not apply in certain cases. The same is being reproduced hereinbelow: ―4: Provisions of this Act not to apply in certain cases During the period of operation of this act, no relief shall be available under the provisions of the Section 3 in respect of the following encroachment or unauthorized development namely: a. encroachment of public land except in those cases which are covered under clauses a, b & c of Sub section 1 of Section 3 b. removal of slums and jhuggi jhonpri dwellers, hawkers and urban street vendors, unauthorized colonies or part thereof, village abadi area (including urban villages) and its extension in accordance with the relevant policies approved by the Central Govt. for clearance of land required for specific public projects.‖
8. That in the present petition maximum land which is the subject matter of the petition is a vacant land as mentioned above or have been purchased or constructed after the cut off date, i.e. after 8th February 2007. The property/ land subject matter of the present petition comes in the way of Master Plan Road which is 45 meter wide and in view of the provisions as mentioned herein above not protected under the existing statute and regulations. The Respondent DDA has demolished the fresh constructions which have taken place in contravention of the above said regulations. The action has been taken by the respondent by informing the residents of the area and the local police before demolition. The petitioners are unauthorized encroachers over the government land and are not protected under the regulations as mentioned above as well as The National Capital Territory of Delhi Laws (Special Provisions Act) 2011 as mentioned above. The Development Plan of Zone E is annexed as Annexure I hereto which shows the proposed Master Plan road of 45 meter width from which the unauthorized encroachment has been or has to be removed.‖
12. In rejoinder, learned counsel for the petitioners states that because of existing construction at site the forty-five meter wide road cannot be constructed.
13. Having heard learned counsel for the parties, the admitted position that emerges is that petitioners neither have any registered title documents nor any approved plan/drawing or any sanctioned plan of any building from any statutory authority.
14. Further, New Ashok Nagar is an unauthorised colony, which from the prayer clause of the present writ petition is pending regularization. Though a provisional regularization certificate has been placed on record but no final registration certificate has been produced.
15. Admittedly, the petitioners’ construction do neither fall within the definition of Jhuggi or Jhuggi Jhopri Basti under the Delhi Urban Shelter Improvement Act 2010 nor have they been declared in a notification by the Board as Jhuggi Jhopri Basti.
16. In any event, from a perusal of the photographs on record at pages 23 and 24 of the paper book, it is apparent that there are no jhuggi jhopri clusters in New Ashok Nagar. From the photographs it seems that very palatial and large structures have been constructed on Government land.
17. In view of the diametrically opposite stand taken by the parties with regard to the show cause notice as well as practicability of construction of public road, this Court is of the view that the same cannot be adjudicated in writ proceeding as they are disputed question of facts.
18. Since the averment of the respondent-DDA that land in question has been acquired for construction of a proposed Master Plan Road of forty-five meter wide has not been disputed, this Court is of the view that the protection under the Act, 2011 would not be available to the petitioners. Section 4 of the Act, 2011 reads as under:- ―4. Provisions of this Act not to apply in certain cases.–During the period of operation of this Act, no relief shall be available under the provisions of section 3 in respect of the following encroachment or unauthorised development, namely:— (a) encroachment on public land except in those cases which are covered under clauses (a), (b) and (c) of subsection (1) of section 3; (b) removal of slums and Jhuggi-Jhompri dwellers, hawkers and urban street vendors, unauthorised colonies or part thereof, village abadi area (including urban villages) and their extensions in accordance with the relevant policies approved by the Central Government for clearance of land required for specific public projects.” (emphasis supplied)
19. The order dated 4th September, 2012 issued in pursuance to Regulations for Regularization of Unauthorised Colonies in Delhi framed under Section 57 of Delhi Development Act, 1957 would not be applicable in view of its Regulation 3.[3] which states that unauthorised colonies which pose hindrance in the provision of infrastructure facilities or fall in the area of right of way of existing or proposed master plan roads amongst others cannot be considered for regularization.
20. Consequently, as the land in question is required for construction of proposed Master Plan Road of forty-five meter wide which constitutes a public project, neither Section 3(2) of the Act, 2011 nor the Order dated 4th September, 2012 offers any protection to the petitioners.
21. Accordingly, present writ petition and pending applications are dismissed. Interim orders stand vacated. MANMOHAN, J JULY 23, 2013 rn