Shobha Dikshit v. Delhi Urban Shelter Improvement Board & Ors.

ARGUMENTS RAISED ON BEHALF OF RESPONDENT NO. 1 (DUSIB)

14. Mr. Parvinder Chauhan, learned Counsel for the Respondent No.1 submits that the Petitioner has sought mutually contradictory reliefs from this Court in her prayer. It is stated that the Petitioner has sought stay of the demolition and in-situ upgradation of the said Jhuggis, whereas on the contrary, she has also sought rehabilitation of all the residents of the said Jhuggis.

15. Learned Counsel for the Respondent No.1 pointed out that DUSIB is a nodal agency for relocation of JJ clusters with respect to the lands belonging to MCD and Delhi Government and its departments or agencies. In the present case, the land on which the said Jhuggis have been constructed is owned by Respondent No. 2, DDA which is an agency of the Union of India. It is stated that therefore, DDA being a Central Government agency may rehabilitate the Petitioner and other residents of said Jhuggis itself as per policy of Delhi Government or may entrust the task to DUSIB. It is further stated that DUSIB as per its policy does not relocate the residents of Jhuggi Clusters situated on DDA‟s land as DDA has its own policy for relocation and rehabilitation and it has better infrastructure to deal with the same.

16. It has been submitted that DUSIB is a statutory body formed under Delhi Urban Shelter Improvement Board Act, 2010 (hereinafter referred to as „DUSIB Act‟), and its duties and functions are provided under the aforesaid Act only. It has been submitted that a mandamus cannot be issued by this Court to DUSIB directing it to rehabilitate or relocate residents of JJ Clusters which would be contrary to its policy or the laws provided in the aforesaid act as such direction would lead DUSIB to be acting ultra vires to the DUSIB Act.

17. It has been submitted by DUSIB that it comes into picture only after it is asked by the Government of NCT of Delhi to relocate or rehabilitate the residents of a particular Jhuggi Cluster, however, in the present case, no request has been made either by DDA or Government of NCT of Delhi, therefore, DUSIB cannot comment upon the fact that whether the Petitioner and other residents of the said Jhuggis are entitled for rehabilitation or not.

18. Mr. Parvinder Chauhan, the learned Counsel for DUSIB has argued at the bar that no document has been placed on record by the Petitioner establishing that she or other residents have been living at the place of the said Jhuggis since the year 1995 and thus, neither the Petitioner nor any other resident of the said Jhuggis is entitled for rehabilitation as per DUSIB policy, 2015 since as per DUSIB policy, the JJ Clusters constructed prior to the cut-off date of 01.01.2006 are recognized by the DUSIB for rehabilitation.

ARGUMENTS RAISED ON BEHALF OF RESPONDENT NO. 2 (DDA)

19. Ms. Prabhsahay Kaur, learned Counsel appearing for the Respondent No.2 states that the reliefs sought by the Petitioner are not available to her as the present Writ Petition is neither a Public Interest Litigation nor it contains ingredients of the same. Under these circumstances, the reliefs sought by the Petitioner cannot be granted to her and the Writ Petition should be dismissed on this ground alone.

20. It has been stated that DDA is the owner of the land on which the said Jhuggis have been constructed. It has stated that there was unauthorized encroachment on its land by the Petitioner and the other residents of the said Jhuggis. It has further stated that the land on which said Jhuggis have been constructed falls in the Yamuna belt.

21. It has been submitted that it is not possible to recognize the said alleged Jhuggis as a Jhuggi Cluster as they are not even jhuggis, but temporary chappars.

22. It has been further submitted that the DDA had demolished around

45 Jhuggis on 13.12.2013 at the said land on which said Jhuggis have been constructed and had evicted all the encroachers from the said land. However, the said land was again encroached upon and again these temporary chappars were created. It is submitted that the DDA again demolished the said Jhuggis on 25.06.2014 and reclaimed the possession of the said land.

23. DDA has also categorically denied to the claim of the Petitioner that she has been living at the said land on which said Jhuggis have been constructed, since the year 1995.

24. It is further submitted that the unauthorized encroacher on government land has no right, title or interest qua the land in question as alleged by the Petitioner in her Writ Petition and therefore, the Petitioner and other residents of said Jhuggis are not eligible for any relocation or rehabilitation.

25. During the course of arguments, it is submitted by Ms. Prabhsahay Kaur, the learned counsel for the DDA at bar that it has been directed by National Green Tribunal vide its Order dated 31.01.2015 that all unauthorized encroachments upon the Yamuna belt be removed. It has been submitted that the said direction was passed by the National Green Tribunal as all these encroachers were polluting the Yamuna River and damaging the ecosystem at the flood plains.

26. It is further submitted that only prayer clause (iii) of the Writ Petition is left for adjudication before this Court because all other prayers have become infructuous as the demolition has already been completed by DDA.

27. Ms. Prabhsahay Kaur, learned counsel for the DDA has filed google earth images of the site at which the said Jhuggis were located before demolition. She has drawn a timeline before this Court by filing images from October, 2006; March, 2013; September, 2014; and March, 2022 so as to show this Court how the Jhuggis at the said location have increased over years despite the order of status quo passed by this Court.

28. Ms. Prabhsahay Kaur, learned counsel for DDA states that after the enactment of DUSIB policy of 2015, the rehabilitation and relocation of the residents of JJ Clusters can be done only as per the provisions of DUSIB policy. She states that as per DUSIB policy, only the JJ Clusters which were into existence before the cut-off date of 01.01.2006 are entitled for rehabilitation. Further, there need to be atleast 50 jhuggis at a site for it to be recognized as a JJ Cluster. After the fulfilment of these conditions, if the JJ Cluster has been notified by DUSIB, then only the residents of such JJ Cluster will be entitled for rehabilitation and relocation. However, in the present case, there were not even 50 jhuggis at the site of demolition and the said Jhuggis were not notified by DUSIB. Thus, the Petitioner and the other residents of the said Jhuggis are not entitled for rehabilitation and relocation.

29. Ms. Prabhsahay Kaur placed reliance on various judgments of this Court. She relied upon Vaishali (Minor) (Through Next Friend Mrs. Sita Devi) & Ors. Vs. Union of India & Ors., LPA 271/2011, decided on 19-04-2022; Vaishali (Minor) (Through Next Friend Mrs. Sita Devi) & Ors. Vs. Union of India & Ors, W.P.(C) 5941/2022, decided on 11-04-2022; Shakarpur Slum Union Vs DDA & Ors., W.P. (C) 6779/ 2021; Urmila Vs. DDA and Ors., WP(C) 9625/2022, decided on 04.08.2022; Dinesh Singh Vs. DDA and Ors., WP(C) 12384/2022, decided on 26.08.2022; Roshan Lal Vs DDA, WP(C) 12/2019, decided on 08.03.2022; and Kasturba Nagar Residents Welfare Association Vs Government of NCT of Delhi & Ors., WP(C) 11945/2022, decided on 13-10-2022.

30. By placing reliance on these judgments, the learned counsel for DDA has distinguished the decisions passed by this Court in Sudama Singh (supra) and Ajay Maken (supra) from the facts of the present case and states that these judgments will not be applicable in the present case. She states that when the decision in Sudama Singh (supra) was passed, there was no policy for rehabilitation and relocation of the slum dwellers and therefore, keeping in mind the humanitarian issue involved, the Division Bench of this Court directed for rehabilitation and relocation and also directed for an appropriate regulation to be brought for the same. She further states that when the decision of Ajay Maken (supra) was passed by this Court, DUSIB policy, 2015 had come into force and the JJ Cluster involved therein was notified by DUSIB, which is not the case in the present Writ Petition.

LEGAL ANALYSIS

31. This Court has heard the counsels for the parties and also examined the documents placed on record and the judgments relied upon by the parties.

32. The Petitioner has stated in her Writ Petition that she has filed the present Writ Petition for herself and in interest of other residents of the said Jhuggis. Therefore, after perusing the reliefs claimed in the present Writ Petition, the predecessor of this Court vide his Order dated 14.07.2014 directed the present Writ Petition to be treated as a Public Interest Litigation („PIL‟) and directed it to be listed before appropriate bench of this Court. Pursuant to which, the present Writ Petition was listed before a Division Bench of this Court, but vide its Order dated 23.07.2014, the Division Bench observed that the present Writ Petition cannot be treated as a PIL since the Petitioner herself is also interested in the matter. Consequently, the Division Bench directed this matter to be listed before the concerned Single Bench only.

33. It is pertinent to note that this Court had directed DDA to file a status report. In compliance of the said Order, the DDA filed a Status Report before this Court on 27.05.2015, whereby it was submitted that the land on which the said Jhuggis were situated had been reencroached after the passing of the orders of status quo by this Court. It has been submitted in the Status Report that fresh Chappers have been constructed on the said land in question. Around 60 chappars have been created in one area and about 30 chappars more had been created in another area. DDA had also annexed photographs of these newly constructed chappars along with the Status Report submitted by it. A perusal of these photographs reveal that a violation of the status quo order passed by this Court has been made by reencroaching the said land where the said Jhuggis were situated.

34. It is further pertinent to note here that an Impleadment Application was filed on behalf of some of the residents of the said Jhuggis in the present Writ Petition, however, the same was withdrawn with a liberty to file separate writ petitions vide Order dated 04.03.2020 passed by this Court. An additional affidavit along with some annexures was also filed along with the said Impleadment Application. During the course of arguments, the learned counsel for the Petitioner was placing reliance on these annexures filed along with the additional affidavit, however, this Court has apprised the learned counsel for Petitioner that these annexures cannot be relied upon by the Petitioner as they were filed along with an additional affidavit which was filed by a person who is not a party to the present Writ Petition.

35. Nevertheless, Mr. Pankaj Sinha, the learned counsel for the Petitioner submits that only Prayer (iii) is left for consideration of this Court in the present Petition as rest of the reliefs sought in the present Writ Petition have become infructuous as the demolition of the said Jhuggis has already taken place. Therefore, in view of the submission made, the only point for adjudication before this Court is that whether the Petitioner is entitled for rehabilitation to an alternative place or not.

36. This Court does not agree with the averment of Mr. Pankaj Sinha that in view of the decisions of this Court in Sudama Singh (supra) and Ajay Maken (supra), the Petitioner and other residents of the said Jhuggis are entitled to be rehabilitated to a site having all the basic civic amenities consistent with the rights to life and dignity. It is observed that after the judgment passed by the Division Bench of this Court in Sudama Singh (supra), the Government of National Capital Territory of Delhi enacted the DUSIB Act, wherein Delhi Urban Shelter Improvement Board („DUSIB‟), Respondent No. 1 herein, was set up in order to conduct surveys and recognize JJ Clusters or Jhuggi Jhopri Bastis entitled for rehabilitation.

37. Therefore, since the DUSIB was set up by the Government of NCT of Delhi pursuant to the decision of this Court in Sudama Singh (supra), the task of rehabilitation of the people residing in the Jhuggi Clusters in Delhi was assigned to DUSIB and the procedure for the same was laid down in the DUSIB Act itself. Thus, pursuant to the formation of DUSIB, reliance upon the decision of this Court in Sudama Singh (supra) does not help the case of the Petitioner.

38. Now, with respect to the reliance upon the decision of this Court in Ajay Maken (supra) by the learned counsel for the Petitioner, it is pertinent to extract the following paras of the said judgment containing the relevant observation made by the Division Bench of this Court: “ XII Concluding Observations

141. The right to housing is a bundle of rights not limited to a bare shelter over one„s head. It includes the right to livelihood, right to health, right to education and right to food, including right to clean drinking water, sewerage and transport facilities.

142. The law explained by the Supreme Court in several of its decisions discussed hereinbefore and the decision in Sudama Singh discourage a narrow view of the dweller in a JJ basti or jhuggi as an illegal occupant without rights. They acknowledge that the right to adequate housing is a right to access several facets that preserve the capability of a person to enjoy the freedom to live in the city. They recognise such persons as rights bearers whose full panoply of constitutional guarantees require recognition, protection and enforcement. That is the running theme of the DUSIB Act and the 2015 Policy.

143. Once a JJ basti/cluster is eligible for rehabilitation, the agencies should cease viewing the JJ dwellers therein as ‘illegal encroachers’. The decisions of the Supreme Court of India on the right to shelter and the decision of this Court in Sudama Singh require a Court approached by persons complaining against forced eviction not to view them as ‘encroachers’ and illegal occupants of land, whether public or private, but to require the agencies to first determine if the dwellers are eligible for rehabilitation in terms of the extant law and policy. Forced eviction of jhuggi dwellers, unannounced, in co-ordination with the other agencies, and without compliance with the above steps, would be contrary to the law explained in the above decisions.

144. In view of the positive stand of the Respondents, including the Railways, that in terms of the DUSIB Act, the 2015 Policy and the decision in Sudama Singh it is essential to first complete a survey and consult the JJ dwellers, there is, as of now, no imminent possibility of eviction of the JJ dwellers of the Shakur Basti. If no in situ rehabilitation is feasible, then as and when the Respondents are in a position to rehabilitate the eligible dwellers of the JJ basti and jhuggis in Shakur Basti elsewhere, adequate time will be given to such dwellers to make arrangements to move to the relocation site. The right of the JJ dwellers to raise objections to the 2015 Policy and the Protocol and to seek legal redress at the appropriate stage, if the occasion so arises, is reserved.” (Emphasis supplied)

39. A perusal of the above paragraph makes it clear that the Division Bench directed the Courts to protect only those residents of JJ Clusters/Bastis who were eligible for rehabilitation. However, in the present case, the Petitioner is not entitled for rehabilitation as per DUSIB policy, 2015.

40.

DUSIB came up with DUSIB policy, 2015 in order to facilitate the rehabilitation and relocation of residents of Jhuggi Clusters across Delhi, wherein only those JJ Clusters which were set up before 01.01.2006 were eligible for rehabilitation. Further, as per the DUSIB policy, Jhuggis which have come up in such JJ Clusters before the date of 14.02.2015 were eligible for rehabilitation.

41. In the present case, Mr. Pankaj Sinha, the learned counsel for the Petitioner has argued that the Petitioner and the other residents of the said Jhuggis are entitled to be rehabilitated or relocated to alternate accommodation as per the policy of the DUSIB since they have been living at the said Jhuggis since the year 1995.

42. Per contra, Mr. Parvinder Chauhan, learned counsel for DUSIB and Ms. Prabhsahay Kaur, learned counsel for DDA, denied that the Petitioner has been living at the said Jhuggis since the year 1995. They further state that the Petitioner has not been able to prove that she or any other resident of the said Jhuggis has been living at the said Jhuggis since 1995 and the Petitioner has made a false averment in her Writ Petition in this regard.

43. It is pertinent to note here that the DDA has disputed the fact of Petitioner residing at the said Jhuggis since 1995. It is settled law that this Court, being a writ court, while exercising its jurisdiction under Article 226 of the Constitution of India, cannot adjudicate upon disputed matter of facts between the parties. However, prima facie, it is observed that no evidence has been filed along with the Writ Petition in order to prove the fact that the Petitioner and other residents have been living at the said Jhuggis since 1995, therefore, this Court is not convinced by the claim of the Petitioner that she and some other residents of the said Jhuggis have been living there since

1995.

44. Further, the residents of a JJ Cluster were entitled for rehabilitation when the JJ Cluster had more than 50 jhuggis and it was notified by DUSIB. But, in the present case, there were only 45 jhuggis at the time of demolition as pointed out by the learned counsel for DDA and the said Jhuggis were not notified by DUSIB. Therefore, under no circumstance, the Petitioner is eligible for rehabilitation as per the DUSIB policy, 2015 and the DUSIB Act, 2010. Consequently, the reliance upon the decision in Ajay Maken (supra) by Mr. Pankaj Sinha, learned counsel for the Petitioner is futile as the same would not be applicable under the present facts and circumstances.

45. Furthermore, it is pertinent to mention here that the Jhuggis in the Ajay Maken (supra) case were constructed by encroaching the land of the Railways before the cut-off date i.e. 01.01.2006, therefore, the facts of the aforesaid case are different from the facts of the case before this Court. The said land on which the said Jhuggis have been constructed is situated at the flood plains of Yamuna River and is vulnerable to being flooded every year leading to risk of damage to life and property of the Petitioner and other residents of the said Jhuggis. Further, the Google Earth images filed by the learned counsel for DDA also shows that in how much proximity, the said Jhuggis are located to the Yamuna River. Thus, the decision in Ajay Maken (supra) would not be applicable in the present case as the Petitioner is an illegal encroacher who had encroached upon the land of DDA.

46. Further, it would be apposite to refer to the decision of a Coordinate Bench of this Court in Dinesh Singh & Ors. Vs Delhi Development Authority & Ors., W.P. (C) 12384/2022 decided on 26.08.2021, wherein the Court after considering the various judgments of this Court observed as follows:

47. A Coordinate Bench of this Court had similar facts before it in the case of Shakarpur Slum Union Vs DDA & Ors., W.P. (C) 6779/ 2021 decided on 02.08.2021. The Coordinate Bench distinguished the facts presented before it from the facts before the Court in Ajay Maken (supra) and Sudama Singh (supra). The relevant portion of the said judgment is extracted hereinbelow:

48. A Division Bench of this Court was also presented with similar facts in an LPA and while disposing of the same, the Division Bench of this Court observed in its Order dated 19.04.2022, passed in LPA 271/2022, titled as „Vaishali (Minor) through Next Friend & Ors. Vs Union of India & Ors.‟, as follows: “11. A reading of the above provision would clearly show that DUSIB has to declare a group of jhuggis as “Jhuggi jhopri basti” by way of notification. One of the conditions to be fulfilled by such a group of jhuggis is that it must be inhabited, at least by fifty households, as existing on 01.01.2006. Section 9 of the Act empowers the DUSIB to make a survey of any jhuggi basti. Section 10 of the Act provides for preparation of a scheme for removal of any JJ basti and for resettlement of the residents thereof. Section 12 of the Act provides for the re-development of the JJ basti. The above provisions are applicable only with respect to “Jhuggi Jhopri basti”, that is, interalia a group of fifty households as existing 01.01.2006 and duly declared by DUSIB as such by way of a Notification.

12. As noted by the learned Single Judge, the appellants have been unable to produce any such notification under Section 2(g) of the Act. Even in appeal, no such Notification has been produced by the appellants. The appellants are, therefore, not entitled to any protection under the Act.

13. As far as the Policy is concerned, the Policy stipulates “eligibility for rehabilitation or relocation” only for those JJ basti, which have come up before 01.01.2006. Therefore, for seeking benefit of the said Policy, it was incumbent on the appellants to show that their JJ basti was in existence since before 01.01.2006. Though the learned senior counsel for the appellants sought to place reliance on a list of families allegedly residing in the said cluster of jhuggis, and submits that many therein have been residing much prior to the cut-off date of 01.01.2006, we find that the addresses mentioned in the said list vary between different blocks of Sarojini Nagar. They, therefore, cannot, at least prima facie, be stated to be forming part of one JJ basti, entitling them to the benefit of the Policy. *****

15. As far as the reliance of the appellants on the Draft Protocol is concerned, the same again applies only to a JJ basti in existence prior to 01.01.2006, and the manner in which such determination is to be made. In the present case, the categorical stand of the respondent nos. 1 and 2 is that such a determination was made in the case of the appellants, and the cluster of jhuggis at Sarojini Nagar was not found in existence as on 01.01.2006, and therefore, not notified under the Act. In case the appellants are to dispute the above, it would be a disputed question of fact, which in any case, cannot be determined in a writ jurisdiction. Therefore, the Draft Protocol also cannot come to the aid of the appellants.

16. As far as the reliance of the appellants on the judgments of this Court in Sudama Singh (supra) and Ajay Maken (supra) is concerned, we are again unable to accept the same. In the referred judgments, this Court was not dealing with the position where the respondents were disputing the existence of the JJ cluster as on 01.01.2006. Therefore, the said judgments would have no application to the facts of the present case.”

49. Further, it would be apposite here to refer to a decision of a Single Bench of this Court in Kasturba Nagar Residents Welfare Association Vs Government of NCT of Delhi & Ors., W.P.(C) 11945/2022, passed on 13.10.2022, wherein it was observed as follows: “6. Ultimately it was incumbent upon the petitioners to have established that they were part of an identified cluster and formed part of the list of 675+82 bastis which had been duly identified by DUSIB for the purposes of extension of benefits under the 2015 Policy. The Court further notes that the decisions noticed in Dinesh Singh have consistently held that the question whether the cluster forms part of those which were identified by DUSIB is determinative of whether the residents thereof are entitled to extension of benefits under the 2015 Policy. That was a detailed and comprehensive exercise which was undertaken by DUSIB for the purposes of identifying those clusters to which the relocation and rehabilitation policy would apply.

7. The Court also notes that the 2015 Policy incorporated an injunct against recognition and extension of the benefits envisaged therein to clusters which may spring into existence thereafter. Viewed in that light, there appears to be no scope in law to undertake a fresh exercise to determine whether a cluster was in existence prior to the cut-off date prescribed under the 2015 Policy. That issue clearly attained finality once the list of eligible clusters had been duly identified by DUSIB. The prayers for the Court to embark down that path would not only lead to it being compelled to delve into disputed questions of fact and a de novo assessment of evidence, it would also unsettle a position which was statutorily conferred finality.

8. The Court also bears in mind that the petitioners are not shown to have assailed their exclusion from the list of identified clusters at any point of time prior to the filing of the instant writ petition. The record would indicate and establish that the identity of clusters which came to be included for the purposes of extension of benefits under the 2015 Policy, was a matter of common public knowledge. It is not the case of the petitioners that they were oblivious to their exclusion from the list of identified JJ bastis. If the Court were to countenance or entertain a challenge as suggested in the present petition, it would become an unending exercise and scuttle the very objective of the Act and the 2015 Policy.” (Emphasis supplied)

50. In view of the authorities discussed hereinabove, the law is well settled that after coming into force of the DUSIB policy, 2015, the residents of jhuggis whose jhuggis were not notified by DUSIB, are not entitled to any rehabilitation or relocation. Therefore, in light of the decisions mentioned hereinabove, this Court is not inclined to injunct to the Respondents to provide rehabilitation to the Petitioner or other residents of the said Jhuggis.

51. Moreover, before parting, it would be worthy to refer to the observation of this Court in Shakarpur Slum Union (supra), wherein this Court had directed DDA to follow norms of DUSIB for demolition. The relevant extract is as follows:

52. In view of the direction made in the Shakarpur Slum Union (supra), it is pertinent to note here that the demolition was done at the correct time i.e. on 25.06.2014 in the present case. It was done at the right time when the scorching heat of the summers had gone and the rainy season was just at the doorstep. Since the said Jhuggis were situated at the bank of Yamuna River, the time for demolition of the said Jhuggis was ideal so that no damage is caused to any life if the banks of the Yamuna River are flooded in the rainy season.

53. In view of the detailed discussions made hereinabove, this Court holds that the Petitioner is not entitled to the prayer of rehabilitation and relocation as prayed for. Further, this Court is also not willing to pass a direction to Respondents for rehabilitation of the Petitioner under the Pradhan Mantri Awas Yojna as sought for by Mr. Pankaj Sinha, since Union of India is not made as a party to the present proceedings. Further the Petitioner has no right upon the land on which the said Jhuggis were located, and was only an illegal encroacher upon the said land of DDA.

54. Accordingly, the present Writ Petition fails and shall stand dismissed. Pending application also stands disposed of accordingly. No orders as to cost.

GAURANG KANTH, J. FEBRUARY 24, 2023