Full Text
HIGH COURT OF DELHI
Date of Decision: 6th December, 2022
JAYA SAINI ..... Petitioner
Through: Mr. Luv, Advocate.
Through: Ms. Sweety Singh, Adv. for R-1.
(M: 9810488115)
Mr. Parvinder Chauhan, ASC, Mr. Aman Ghawana, Mr. Ram Kumar and
Mr. Sushil Kumar, Advs. with Mr. H.K. Srivastav(Law Officer) and Mr. Pranav Siroha (LA) for R-2 & 3.
(M: 9711376612)
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The Petitioner has challenged the impugned order dated 13th July, 2022 passed by the competent authority i.e. The Lieutenant Governor of Delhi under Section 45 of the Delhi Urban Shelter Improvement Board Act, 2010. Vide order dated 1st February, 2021 passed by the Dy. Director (JJR), DUSIB the Petitioner was directed to vacate his shop. This order was challenged before the Director, JJR, DUSIB which was also dismissed vide order dated 6th August 2021. An appeal was preferred challenging this order before the Competent authority which dismissed the same by the impugned order dated 13th July 2022 which is under challenge in this writ petition.
3. The brief chronology of events is that some time in 1960s and 1970s, various JJ resettlement (JJR) colonies were developed in Delhi. These JJR colonies were to be allotted on license/lease basis to persons who were dislocated during removal/demolition and eviction from various JJ clusters. Various residential and commercial plots were carved out in the said JJR colonies. One such commercial plot bearing no. 4/24, DDA Market, Dakshin Puri Extension, New Delhi-110062 was allotted to Ms. Jaya Saini under the JJR Scheme. As per order dated 20th June. 2013, issued by the Department of Urban Development, Government of NCT of Delhi, Dakshin Puri Extension is one of the JJR colonies which was developed by the Government under the JJR scheme and approved for conversion to freehold to eligible occupants.
4. Initially, on 11th June, 1984 a policy was issued by the GNCTD allowing allottees to purchase the houses constructed in Delhi under the slum clearance scheme and lease hold rights over the land on which the houses were built were also granted. The guidelines for mutation of properties allotted by the slum & JJR wing, Delhi Development Authority (DDA) were laid down as per the DDA’s office order dated 14th July, 1987. However, despite the extensions of the said policy for mutation, a large number of allottees appeared to have not applied for mutation.
5. Thereafter, in 2010, the DUSIB came into existence with the enactment of Delhi Urban Shelter Improvement Board Act, 2010. The Slum and JJ Department was transferred to DUSIB from the Municipal Corporation of Delhi (MCD). Additionally, in 2011, vide order dated 19th September, 2011, issued by the Director JJR, the collection of license fee was suspended and the DUSIB was directed to frame a policy for lease-hold/free-hold rights on the allotted accommodation in the JJR wherein fee could be charged for conversion to lease-hold/free-hold. The said policy was announced by the Department of Urban Development, Government of NCT of Delhi on 20th June, 2013. On 11th November, 2019 an office order was issued for laying down the guidelines for conversion of DUSIB properties to lease hold and free hold as also for allotment to legal heirs in case of death of the allottee. However, as per the policy, the conversion of licence status to free hold or lease hold was only applicable to residential plots in the designated JJR colonies and not to commercial properties or shops.
6. The Petitioner in this case is in occupation of a shop which are located in the DDA market of the JJR colony, Dakshin Puri Extension. It is not in dispute that the Petitioner is a subsequent purchaser from the original allottee of this plot. Neither was mutation carried out by the legal heirs of the original allottees nor was there any application for conversion from lease hold to free hold since as per the prevalent policy the said conversion was permissible only qua residential properties.
7. It was under these circumstances that orders under Section 41 and 42 of the DUSIB Act, 2010 were passed by DUSIB on 1st February, 2021 directing eviction of various unauthorised occupants. The said order passed by the Deputy Director, JJR, DUSIB, GNCTD was appealed by various occupants of these shops. The said appeals were decided vide order date 6th August, 2021 by the Director, JJR, DUSIB, GNCTD under the DUSIB Act,
2010. Further, appeals was preferred to the Lieutenant Governor, Delhi under Section 45 of the DUSIB Act which have also been dismissed by the impugned order.
8. Mr. Luv, ld. Counsel appearing for the Petitioner fairly brings to the notice of this Court the order passed by the ld. Single Judge in the W.P.(C) 14254/2022 dated 7th October, 2022 where in respect of one of the occupants of similarly situation person i.e., Mr. Subhash Solanki a similar writ petition was rejected. Ld. Counsel submits that the Petitioner in these petition have raised an additional ground i.e., that the policy of DUSIB which was issued some time post 2019 is discriminatory and arbitrary in nature inasmuch as it only permits conversion of licence status into free hold in respect of residential plots and not commercial plots. He, thus, submits that these petition would be distinguishable from the Subhash Solanki case as no challenge with respect to the policy was raised in the said petition.
9. On the other hand, ld. Counsel for the Respondent, DUSIB-Mr. Ram Kumar submits that irrespective of whichever policy the Petitioner is relying upon, the said policies would be applicable only to the original allottees of their legal heirs and not to the subsequent purchasers. This fact is disputed by ld. Counsel for the Petitioner who brings the attention of this Court to a requirement under the 2013 policy which seeks the complete change of sale purchase documents in case of bonafide purchasers for conversion from license status to free hold in residential plots.
10. The submission, therefore, on behalf of the ld. Counsel for the Petitioner is that if this policy did not discriminate between residential plots and commercial plots, the Petitioner would have been entitled to apply for conversion from license status to free hold.
11. The Court has perused the impugned order as also the earlier orders passed under Section 41 & 42 by the authorities under the DUSIB. A perusal of the said orders would show that in all these cases the original allottees or their legal heirs did not apply for mutation. The sale and purchase have taken place without knowledge of DUSIB or any other appropriate authority. At the time of purchase, the Petitioner was well aware of the fact that these properties are on a license fee basis and are not free hold properties. Despite the same, whenever the policy for conversion of residential plots to commercial plots were announced no challenge was raised in respect thereof by the Petitioner.
12. At this stage, it is observed that the Petitioner continues to remain in occupation without both levels of transfer i.e., without a mutation in favour of the legal heir/purchaser from whom the present Petitioner purchased the property within the JJR colony and also without conversion from lease hold or free hold as the same was not permissible as per the policy. It is also pointed out that a survey conducted by the Official Surveyor of DUSIB has also revealed massive unauthorised encroachment in the plot and even transfer to unauthorised persons.
13. Insofar as the mutation aspect is concerned, the same is fully covered by the earlier order of this Court dated 7th October, 2022 wherein it is noted as under:
14. Ld. Counsel for the Petitioner submits that the issue of mutation does not arise in the present case as the Petitioner has purchased the property from its original allottees. Mr. Chauhan, ld. Counsel also submits that the 2019 policy does not apply to the Petitioner as the same applies only to the resettlement colonies i.e., the residential colonies and not to the commercial plots.
15. Insofar as the challenge to the policy on the ground of discrimination is concerned, ld. Counsel for the Petitioner does not dispute the fact that the policy which has been issued by the DUSIB is a policy of the Government Contemporaneously no challenge was raised to the said policy. It is only when action for eviction of the occupants has been ordered, that now, at a belated stage the policy is being challenged. Even otherwise, the resettlement of people who have been allotted these plots both residential and commercial is a pure question of policy which cannot be interfered with by the Court unless the same is an arbitrary or a perverse exercise of power.
16. In the present factual background, this is a commercial plot and the Petitioner knew all along that it was allotted on a license basis. The Court is hesitant to interfere in policy issues, especially when the same has not been challenged at the time, since it was issued. Similarly placed parties having already been evicted from these premises, and thus this Court does not find any merit in the present writ petition.
17. Be that as it may, a perusal of the order dated 7th October, 2022 also shows that in the said petition, the Petitioner had prayed that the DUSIB ought to frame a policy with regard to grant of perpetual lease hold rights in respect of the tenements constructed in Delhi under the slums areas. A similar prayer has also been made in the present petition. There is no distinguishing feature between the earlier view taken by this Court and the present case.
18. Accordingly, the present writ petition is dismissed and all pending applications are disposed of.
PRATHIBA M. SINGH JUDGE DECEMBER 6, 2022 dj/am