Sarita Gupta v. Municipal Corporation of Delhi

(d) that the petitioners‟ houses extended onto the public road and no notice was required for removal of encroachment on public land for widening of the road; and (e) that by way of additional counter-affidavit dated 03.03.2015 filed by the respondent/MCD and short affidavit dated 04.07.2018 filed by the Government of NCT of Delhi, a new point has been raised, whereby the said respondents contend that the subject land which is to be applied for road widening is infact not part of the petitioners‟ property at all. This is sought to be canvassed on the basis of a survey conducted by respondent/MCD and from the revenue records now purportedly checked by the Revenue Department of the respondent/Government of NCT of Delhi. W.P.(C) No.8859/2011 & connected matters

15. In support of its contentions, the respondent relies upon the following judgments of this court and the Supreme Court: Municipal Board, Manglaur vs. Mahadeoji Maharaj: AIR 1965 SC 1147; State of U.P. vs. Ata Mohd.: (1980) 3 SCC 614; M/s. Govind Pershad Jagdish Pershad vs. New Delhi Municipal Committee:(1993) 4 SCC 69; Pt. Chet Ram Vashist (Dead) by LRs vs. Municipal Corporation of Delhi: (1995) 1 SCC 47; Municipal Committee, Karnal vs. Nirmala Devi: (1996) 1 SCC 623; Kamal Goods Carrier vs. Municipal Corporation of Delhi: 2011 (123) DRJ 449; and S. D. Rathi vs. North Delhi Municipal Corporation, single Bench judgment dated 15.02.2018 in RFA No. 125/2018 and SDMC vs. Pawan Garg & Ors., Division Bench judgment dated 24.04.2019 in LPA No. 369/2016. These judgments have been considered and discussed subsequently.

16. The answer to the above legal queries would turn upon an interpretation of three main dispensations viz. the Regularisation Scheme, the Resolution and the DMC Act.

17. The relevant portion of the Regularisation Scheme is extracted below:

6. Community Hall E.S.S. etc. Health Centre 0.09 ” 0.015 ” 0.045 ” 0.015 ” 0.03 ” ___

7. Community facility use Total community facilities The deficient community facility sites in this case is negligible since the sites are provided in adjoining areas. xxxxxx

9. Alternative Plot compensation for affected plot holders. As per the decision of implementation body under the chairmanship of L.G. dated 1-2-78. The Secretary (L&B) shall make arrangement for allotment of alternative plots in lieu of plots affected in community facility sites in this area proposed for allotment of alternative plots within the colony and also in the DDA schemes provided for this purpose. xxxxxx

3. The sites which have been earmarked for parks, schools, open spaces and other community facilities would be immediately acquired through Secretary (L & B), Delhi Admn.

4. The houses constructed on plots adjusted in the regularisation plan shall only be considered for regularisation provided the construction existed before 16-2-1977as per Govt. of India‟s memorandum. The construction on the vacant land adjusted in the plan and the additions to the existing construction will be allowed as per B.B.L., provided other conditions are fulfilled.

5. Alternative plots should be provided on reasonable basis to persons whose plots are covered in this public utility area. xxxxxx

19. The provisions of the DMC Act that are relevant for considering the issue at hand are the following:

20. The definitions of some words that appear in the provisions extracted above are also necessary for understanding the meaning thereof. The relevant definitions are extracted below: Section 2 (44) of the DMC Act defines „public street‟ as under: “(44) "public street" means any street which vests in a Corporation as a public street or the soil below the surface of which vests in a Corporation or which under the provisions of this Act becomes, or is declared to be, a public street;” Section 2 (57) of the DMC Act defines „street‟ as under: “(57) "street" includes any way, road, lane, square, court, alley, gully, passage, whether a thoroughfare or not and whether built upon or not, over which the public have a right of way and also the roadway or footway over any bridge or causeway;”

21. In the above backdrop the petitioners‟ contention is that while under the Regularisation Scheme the Municipal Corporation may divest owners of land for building roads and community facilities, para 2(iv)(a) of the Regularisation Scheme mandates that if families are displaced for providing roads and other community facilities, they must be rehabilitated by providing alternative property. It is also the petitioners‟ contention that the Regularisation Scheme contemplates „acquisition‟ of land for community facilities sites; and even though the “Details of community facilities provided” as listed in the Resolution mentions: schools, parks, open spaces, local shopping centres, community hall, electric sub-station (ESS), health centres and „other community facilities‟ but does not specifically mention „roads‟, clearly the community facilities listed are only illustrative and not exhaustive; and there is no reason why the phrase „community facilities‟ should not include „roads‟. The submission therefore is that if land is required for construction or widening of roads, it must be acquired in accordance with the provisions of the Land Acquisition Act, in just the same way as land required for any other community facility. It is urged that it makes no difference whatsoever to an owner who is divested of a parcel of land, as to whether the land is used for purposes of a school, park, community centre or for the construction or widening of a road. It is argued that under our jurisprudence no law permits „automatic vesting‟ of privatelyowned land in the Government or any authority of Government for any purpose.

22. The petitioners also contend that from a cogent and fair reading of sections 197, 198 and 199 of the DMC Act, it is clear that there are only two ways that the Municipal Corporation may acquire land: either by agreement or by acquisition. Land may be acquired by the Commissioner by agreement on such terms and at such price as may be approved by the Standing Committee of the Municipal Corporation; and failing that, land may be acquired by the Municipal Corporation through the Government under the provisions of the Land Acquisition Act, for which the Municipal Corporation must pay compensation as may be awarded under the statute, apart from paying charges incurred by the concerned Government for the land acquisition proceedings.

23. Learned senior counsel appearing for the respondent on the other hand argues, that first and foremost, it is to be noted that the subject land was part of an unauthorised colony, which was subsequently regularised under the Regularisation Scheme, whereby a lay-out plan was prepared and approved in consonance with applicable development norms, rules and regulations. As part of the process of regularisation of the colony, by operation of law, land falling within the zone for construction or widening of roads automatically vested in the Municipal Corporation; and the law does not require that such land be acquired by the Municipal Corporation, either by agreement or under the Land Acquisition Act. It is further argued that the Resolution itself spells-out that land was to be acquired only if it was required for purposes of community facilities as specifically enumerated in the Resolution, namely for schools, parks, open spaces, local shopping centres, health centre, community hall, electric sub-station (ESS); and read in the context of such facilities, even the phrase „other community facilities‟ referred to in the Resolution does not include roads. It is also contended that since admittedly, a road already existed in the same location; and upon regularisation of the colony, such road was only to be widened to a width of 100 feet, such road widening is different from construction or building of a community facility; and therefore the requirement of acquisition of land as stipulated the Resolution does not apply to the subject land.

24. It is also contended on behalf of the respondent that upon regularisation of the colony, the existing 65 foot road vested in the Municipal Corporation, as did the parts of the road sought to be widened being a „public street‟ by reason of operation of sections 298 and 299 of the DMC Act. The aforesaid provisions read as under:

25. Senior counsel also argues that a road, by the very nature of the utility, is not the same as the other community facilities referred to in the Resolution; and also that in the present case, a road already existed which was only widened. He submits that land required for laying, or in this case W.P.(C) No.8859/2011 & connected matters widening, a public street vests in the Municipal Corporation by operation of law, without need for acquiring such land, since section 298 of the DMC Act mandates that a „public street‟ vests in the corporation.

26. The respondent‟s submission is that so long as the land taken from the petitioners continues to be utilised as a public street, it would continue to vest in the Municipal Corporation without obligation to either acquire it or to otherwise compensate the petitioners in any form. However, to be sure, the respondent concedes that the Municipal Corporation cannot change the use of such land, which must continue to be used as a road.

27. Senior counsel also draws attention to the specific terms of the Regularisation Scheme and the Resolution, as extracted above, which he contends, warrant the automatic vesting of the subject land in the Municipal Corporation.

28. I now propose to deal with the rival factual and legal contentions raised by the parties in the paragraphs that follow.

29. While it is true that the colony has been approved and regularised as an authorised colony, upon and subject to the terms and conditions contained in the Regularisation Scheme and the Resolution, it cannot be gainsaid that once the policy decision is taken and implemented to „regularise‟ it, the colony must be treated like any other colony, with all development norms, rules and regulations being applicable to it, just as they would apply to a regular colony. Also, the terms and conditions upon which the colony was regularised by way of the Regularisation Scheme and the Resolution must be in conformity with applicable laws inter-alia the DMC Act and the Land Acquisition Act. If there is any ambiguity or doubt as to W.P.(C) No.8859/2011 & connected matters the correct construction or interpretation of any provision of the Regularisation Scheme or the Resolution, the interpretation which conforms to the statute must be applied, else such conflicting provision would be rendered void.

30. The first precedent cited by the petitioner is the case of Pt. Chet Ram Vashist (supra) where the question was whether the Municipal Corporation of Delhi is entitled to sanction a plan for building activities with the condition that open spaces for parks and schools be „transferred‟ to the corporation free-of-cost. In this case the standing committee of the corporation had passed the following resolution permitting building activities in the colony in question: “2. …. Resolved that building activity in those parts of Ganga Ram Vatika be allowed where the services have already been completed subject to the condition that the open spaces for parks and schools be transferred to the Corporation free-of-cost….” While interpreting section 313 of the DMC Act and negativing this contention on point of law, the Supreme Court held as follows:

32. In a case very close on facts to the present matter titled M. Naga Venkata Lakshmi (supra) the Supreme Court was dealing with the issue of the Vishakhapatnam Municipal Corporation refusing to regularise a plot in a revised lay-out plan by which the colony was otherwise approved. In the said case, as in the present one, the legality and validity of the sale deed executed by the vendor in favour of the appellant was not in dispute. In fact in the said case, the sale deed was prior to the date of approval of the layout, unlike the present case where the sale deed in favour of the petitioners is after the lay-out plan was approved and the colony had already been regularised. In this backdrop, the Supreme Court held as under:

9. Prima facie, it appears that there is no provision in terms whereof the appellant could be deprived of her right to property without payment of any compensation.”

33. To canvass the contrary position, the respondent relies, firstly upon a decision rendered by the Supreme Court in Mahadeoji Maharaj (supra) to support the submission that once a road or space is dedicated to the public, it vests in the municipality; and that if the public have been using the road for a long period of time, it must be deemed that the road has been so dedicated. This case was concerned with the rights of a municipality to a vacant piece of land adjacent to a metalled public road; and it was the admitted position that the public had been using the road for decades and the municipality had been maintaining the road, by reason whereof, it was conceded that the land adjacent to the road was also dedicated to the public. Having held, on point of fact, that the adjacent land was part of the public pathway, the Supreme Court went on to observe: “8. The law on the subject may be briefly stated thus: Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the highway so dedicated depends upon the extent of the user. The side-lands are ordinarily included in the, road, for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmarks and the manner and mode of its maintenance usually indicate the extent of the user.” whereby the Supreme Court opined that although the owner cannot ask for possession of any part of the public pathway which continues to vest in the municipality, the municipality also cannot put any structures on the land, in this case a Mahatma Gandhi statue, a piao and a library, which are W.P.(C) No.8859/2011 & connected matters not necessary for the maintenance or use of the road as a public highway. In citing the above case however, the respondent misses the point that in the present case, there is no evidence much less proof, of dedication of the subject land for public use or of the long use thereof by the public, in order for it to be included as part of the public street. In fact, it is the respondent‟s own case that the public street had an RoW of 65 feet, which the respondent now seeks to widen to 100 feet by including the subject land within the public street. The respondent is seeking to demolish the dwelling houses or subsume vacant land abutting the dwelling houses, owned by or belonging to the petitioners, to widen the road. A public street vests in the municipal corporation by operation of law; but the subject land is not part of the public street and therefore does not vest in the Municipal Corporation. Vesting of land in the Municipal Corporation follows such land being part of a public street; vesting does not precede it being so.

34. The respondent also cites the decision in Ata Mohd. (supra) where the Supreme Court deals with a similar concept of vesting of public street in the municipality under section 116(g) of UP Municipalities Act, 1916. In its verdict the Supreme Court again mandates inter alia that all public streets, pavements/stones and other materials vest in the municipality; qualifying however, that what vests is the street as a street and not land over which the street is formed. Relying on other judgments, the Supreme Court notes:

35. The respondent relies next upon M/s. Govind Pershad Jagdish Pershad (supra) where the Supreme Court has held as under:

36. The respondent also relies upon Pt. Chet Ram Vashist (supra), a judgment cited by the petitioners as well; and reads that judgment to say that rights to manage the subject land vest in the Municipal Corporation since the land is required for purposes of road widening, without title therein being transferred to the Corporation; and that this is acceptable in law so long as the Corporation does not change the user of the land.

37. The respondent also relies upon decision dated 24.11.1995 made by the Supreme Court in the case of Nirmala Devi (supra) where the question was whether a certain shop, though private property, was constructed by encroaching upon a public street and was therefore liable to be removed. Deciding the matter by way of an order, the Supreme Court held as follows:

38. The respondent further places reliance on a decision of a Co-ordinate Bench of this court in Kamal Goods Carrier (supra) which quotes the above noted decisions of the Supreme Court in Nirmala Devi and M/s. Govind Pershad Jagdish Pershad as follows: “20. The Supreme Court in Municipal Committee, Karnal v. Nirmala Devi, (1996) 1 SCC 623 held that every street which is a public street vests in the Municipal Committee and if unauthorised construction is made by encroaching on it, the Municipal Committee has the power to have the unauthorised encroachment and construction removed even if such encroachment is in the nature of a private property. The Supreme Court in Gobind Pershad Jagdish Pershad v. New Delhi Municipal Committee, (1993) 4 SCC 69 also held that even if a private space is dedicated by the owner thereof to the public and acquires the character of a street, the owner ceases to have any right thereto and the Municipality becomes entitled to exercise its powers with respect thereto as owner. Applying the said principle to the instant case, even a street open to the public in a development area belonging to the DDA would vest in the MCD and be governed by the provisions of the DMC Act.” As discussed above, the principle laid down in these cases is that a municipality has the power to remove unauthorised encroachment and construction on a public street, even if such encroachment is in the nature of private property. There is no dispute with the foregoing proposition; except that it has no application to the facts of the present case. In the present case, it is not that any construction was undertaken on a public street; or on a street dedicated for public use by the owner; or on a street that has become a public street by prolonged use by the public at large. The case here is of the Municipal Corporation wanting to widen a public street by utilising land that admittedly belongs to private parties, without acquiring the land or paying any compensation therefor to the owners.

39. The respondent further relies on the case of S.D. Rathi (supra) in which vidé order dated 15.02.2018 made by a Co-ordinate Bench of this court in RFA No. 125/2018, the right of the Municipal Corporation to the vesting of land in the same colony and in relation to the same road was upheld in appeal. The respondent argues that the petitioners‟ case in the present matter is on all fours with that of the appellant in the said RFA. This, I am afraid, is not factually correct. The decision of the single Judge in the RFA is clearly distinguishable since in the said case, the appellant was shown to have encroached upon a part of the main road; and the contention of the Municipal Corporation was that since the appellant was an encroacher on public land, no right vested in an encroacher and therefore there was no requirement of giving any notice to the appellant. In that case, the appellant/plaintiff could not show that the land he claimed did not form part of the public road or that it formed part of any building in the regularisation W.P.(C) No.8859/2011 & connected matters plan of the colony. The essential distinguishing factor is that the appellant/plaintiff in S.D. Rathi could not, in the suit, establish that the land in question belonged to his predecessor-in-interest by failing to file the complete chain of title documents. In the present case however, the following two factors are clear: (a) that the existing road of 65 feet RoW is intended to be widened to 100 feet RoW; and (b) that there is no challenge on fact to the title/possessory title of the petitioners to the subject land, which has admittedly been conveyed by the predecessor-in-title to the petitioners by way of registered sale deeds/other documents, against which requisite mutation has also been made in the records of the Municipal Corporation for purposes of payment of property tax for two of the petitioners. Had it been the Municipal Corporation‟s case that the petitioners were rank encroachers on public land, the petitioners would have simply been ousted from the land, without canvassing any fancy legal notion of the land vesting in the Municipal Corporation under the provisions of section

298. By canvassing section 298, the Municipal Corporation obviously contends that even though the subject land is owned by the petitioners, since it is required for road widening the Municipal Corporation is not required to acquire such land and the same vests in it by operation of section 298.

40. A Division Bench of this court in Pawan Garg (supra) has relied upon Pt. Chet Ram Vashist in interpreting sections 312 and 313 of the DMC Act and held that title in the land does not vest in the public corporation, and what is created is a custodial right of the corporation, which creates an obligation in the nature of trust and may disentitle the owner from selling his interest in the land. However, the said principle does not apply in the facts W.P.(C) No.8859/2011 & connected matters of the present case, since here vesting of the subject land is itself in question; and all that Pawan Garg says is that if land vests in a corporation, then and in that event, only custodial rights vest and not title.

41. The overarching issue that arises in the present case has been considered not long ago by the Supreme Court in a case titled Chairman, Indore Vikas Pradhikaran (supra), in which the Supreme Court has expatiated on the right to property as a constitutional, though not fundamental right. While interpreting certain provisions of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam 1973, the Supreme Court holds that the right to property is now considered to be not only a constitutional right but also a „human right‟ in line with Article 17 of the Declaration of Human & Civic Rights of 26.08.1789, observing as follows:

It was further stated: (SCC p. 640, para 29) “29. The Act is an expropriatory legislation. This Court in State of M.P. v. Vishnu Prasad Sharma observed that in such a case the provisions of the statute should be strictly construed as it deprives a person of his land without consent. [See also Khub Chand v. State of Rajasthan and CCE v. Orient Fabrics (P) Ltd. ] There cannot, therefore, be any doubt that in a case of this nature due application of mind on the part of the statutory authority was imperative.”.....” On the touchstone of the law laid down in this verdict, any interpretation of the terms and conditions of a governmental scheme or action, in this case the Regularisation Scheme and the Resolution, that W.P.(C) No.8859/2011 & connected matters permits or operates to divest an owner of the rights to property must be strictly construed; and any action of the Municipal Corporation that is not in conformity with law would certainly not pass judicial muster. Now a plain reading of section 304(a) of the DMC Act, which is the controlling statute for the Municipal Corporation, requires acquisition of land inter-alia for road widening. Any provision of the Regularisation Scheme or of the Resolution which operates contrary to the mandate of section 304(a) would therefore be ultra-vires the statute.

42. An additional aspect that emerges in this case is that the lay-out plan prepared for the colony post its regularisation, was never prepared and finalised in accordance with the mandate of section 313 of the DMC Act. There is nothing on record to show that the procedures for drafting and finalisation of a lay-out plan under section 313 have been followed. There is nothing to show as to who filed for sanctioning of a draft lay-out plan for the colony; or whether any public notice was issued inviting objections to the draft lay-out plan; or whether any hearing was given to any party prior to finalising the lay-out plan. It would appear that the lay-out plan for the colony has been drawn-up by the Municipal Corporation on its own as part of the Regularisation Scheme and the Resolution. There is therefore no layout plan as envisaged by, or as is required to be sanctioned under, section

313. A Co-ordinate Bench of this court has had the occasion to address the aforesaid question in the case of Khubi Ram Sharma & Ors. vs. Yashpal & Ors. vide order dated 24.10.2016 in RSA Nos. 78/2013 and 94/2013 reported as MANU/DE/2915/2016, in which case the court has opined as under:

43. A Division Bench of the Allahabad High Court has had the occasion to deal with a similar issue, arising from a closely comparable fact situation, in the case titled Rai Ajay Kumar & Ors. vs. State of U.P. & Ors. reported as (2019) 134 ALR 1: MANU/UP/5481/2018 where the question was about vesting of a public street in the municipality under the U.P. Municipal Corporation Act, 1956 inter-alia by operation of sections 274, 278 and 285 of the said Act. The following observations of the Division Bench in the case are relevant:

44. It is important to appreciate that „road widening‟ has been consistently held to be a „public purpose‟ within the meaning of the Land Acquisition Act. In support, the following judgments of the Supreme Court may be referred to: Ambalal Purshottam etc. vs. Ahmedabad Municipal Corporation of the City of Ahmedabad & Ors. reported as AIR 1968 SC 1223: “7. The Land Acquisition Act authorises the appropriate Government to notify land for acquisition which is or is likely to be needed for a public purpose: and road widening in a town is undoubtedly a public purpose....” xxxxx “9. On a review of these provisions it is clear that the municipality under the Bombay Municipal Boroughs Act, 1925, had the power to acquire land needed for municipal purposes including widening, opening, enlarging or otherwise improving any public street or municipal road..... For the purpose of widening the street, the municipality had the power under Section 114 to purchase the land, and under Section 52 the municipality could request the local Government to take action for compulsory acquisition of the land and for vesting the same in the municipality.....” as also the case of Vishakhapatnam Urban Development Authority vs. S.S. Naidu & Ors. reported as (2016) 13 SCC 180: “14. The fact remains that the land in question is required for a public purpose i.e. for widening of a road. There is no need to say that under the Act, the State has power to acquire land for a public purpose and widening of a public road is definitely a public purpose for which the land can be acquired.”

45. While considering the matter in depth, this court came upon a judgment in W.P. (C) No. 1974/2015 and other connected matters titled Shivi Talwar & Ors. vs. Government of National Capital Territory of Delhi & Ors. decided on 08.03.2019 reported as MANU/DE/0872/2019, where the Division Bench of our High Court has taken the view that the residents of an unauthorised colony do not have locus standi to seek declaration in relation to lapsing of a notification under the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013. It is necessary to consider this judgment in the correct perspective. The view taken in that case arises from the conceded position in that case that the land upon which constructions were erected, and which was sought to be acquired, did not belong to the persons claiming relief from the court. The colony in that case constituted encroachment on either public or private land; the persons claiming relief from the court did not have any valid, legal title or interest in the said land; and in fact the issue of regularisation of that colony was pending. The critical difference between the decision of the court in Shivi Talwar (supra) and the present case therefore is that the colony in the present case stands regularised back in 1984; the petitioners hold title/possessory title, having purchased the subject land by way of sale documents after the colony already stood regularised; and also having obtained requisite mutation in municipal records thereafter. The petitioners in the present case are therefore neither encroachers on any public or private land; nor are they persons with no demonstrable right, title or interest in the subject land.

46. The conclusions that emerge from the above discussion are the following: (a) First and foremost, the subject land concededly belongs to the petitioners. The subject land is not encroached-upon public land but is private land which was transferred to the petitioners, also followed by mutation of the names of two of the petitioners in the records of the Municipal Corporation for purposes of payment of property tax, which tax the said petitioners have been bearing. This position has not been disputed or denied by the respondent. Ergo, this is not a case of rank encroachers laying any false claim to the subject land; (b) In any case, the issue whether the Municipal Corporation is entitled to take-over the subject land for road widening without acquiring it or paying any compensation, would not turn upon whether the ownership of the land lies with the petitioners or with any other person. What is required to be decided is whether the Municipal Corporation can simply take-over the subject land without acquisition or payment of compensation, whether from the petitioners or from any other person, it being admitted that the subject land does not belong to the Municipal Corporation or to the Government;

(c) The Regularisation Scheme is dated 16.02.1977; the

Resolution is dated 11.01.1984; and documents whereby the petitioners came to hold title/possession of the subject land W.P.(C) No.8859/2011 & connected matters are dated between 1992 and 2001. Therefore the parcels of land, of which the subject land is a part, came into the petitioners‟ hands much after the colony had already been approved as a regularised colony by way of the Resolution under the Regularisation Scheme;

(d) The respondent has not been able to show any statutory or regulatory requirement that the road in question must have an RoW of 100 feet, except the administrative decision contained in the Resolution which says: The R.O.W. of Sultanpur Road has been kept as 100‟-00” wide affecting some built up houses. The other roads are kept as existing but minimum

5.00 & 3.04 metres as per prescribed standards. The fact that the road is a „street‟ under section 2(57) over which the public have a right of way and is therefore a „public street‟ under section 2(44) does not, of and by itself, imply that the public street must necessarily be 100 feet wide. What vests in the Municipal Corporation by law is an existing public street which is 65 feet wide; and no law, rule or regulation gives to the Municipal Corporation the right to widen this public street by usurping privately-owned land, whether in the name of „vesting‟ or in any other name; (e) A perusal of the clause 12.3(2) of the Master Plan for Delhi, 2021 shows that only the widest type of intra-city road viz. „arterial roads‟ are required to be over 30 meters RoW, which is about 100 feet. Nowhere in law or in any building regulation is it provided that the road in question, which is clearly a road within the colony, must have an RoW of 100 feet; and the decision of the Municipal Corporation that the RoW would be 100 feet was therefore taken without compulsion of law and without any reference to the petitioners; (f) The drawing-up a lay-out plan for a colony, though the flip side of the same coin as the regularisation of the unauthorised colony, is yet a distinct stage and process. It is the conceded position that the petitioners were neither put to notice nor asked to file objections nor heard in the matter of utilising the subject land for widening of the existing 65 foot road. No draft lay-out plan of the colony was published by the Municipal Corporation; nor any objections invited to such draft plan from the public. That the road in question must have an RoW of 100 feet in the lay-out plan was decided unilaterally by the Municipal Corporation/Government; (g) While it may be undisputed that the existing 65 foot road, being a „street‟ that was already in existence in the unauthorised colony was being used regularly and W.P.(C) No.8859/2011 & connected matters indiscriminately by the public at large and was therefore a „public street‟ which vests in the Municipal Corporation under section 298 the DMC Act, whether the proposed 100 foot road, before it is widened, already vests in the Municipal Corporation is the question. If that be so, then upon the mere intention of a municipality to widen a public street, the land within the contemplation of the road widening exercise, would automatically vest in the corporation without anything further. If that be the legal position, then road widening would be an exercise in utter and complete unilateralism, which would not require even informing private parties which own land that may be required for road widening, much less would it be necessary to pay any compensation. Such position, in my view, would be anathema to all tenets of the rule of law, not to mention basic notions of justice and fairness. Road widening cannot be an excuse for summary usurpation of private land by a State entity; (h) Under section 298 a „public street‟ vests in the Municipal Corporation but only after it is validly and lawfully a public street. The legal device of „vesting‟ of the subject land in the Municipal Corporation cannot kick-in before it becomes part of a public street in the first place. For a widened road to vest in the Municipal Corporation, it must first be lawfully widened;

(i) The proposition that once a street is declared to be a „public street‟ it shall vest in the corporation (section 316) does not imply that land for building or widening a public street shall automatically vest in the corporation without need for acquiring it (section 304). It is not the law that whenever land is required for building or widening a public street, it is not necessary to acquire such land. Road building and widening does not enjoy blanket exemption from land acquisition law; (j) The Municipal Corporation is attempting to put the cart before the horse, inasmuch as it is proceeding on the presumptive basis that the „public street‟ in question is 100 feet wide; and being a „public street‟ automatically vests in the Municipal Corporation by operation of section 298 of the DMC Act. However such argument is unacceptable since to widen the street from 65 feet to 100 feet RoW, the Municipal Corporation must first lawfully take-over the land required to widen the public street and only thereafter will the widened public street vest in the Municipal Corporation in its entirety; (k) There is no express exclusion in the Regularisation Scheme or in the Resolution to the effect that land required for building or widening a road will simply vest in the Municipal Corporation without necessity of acquiring it or paying any compensation to the owners;

(l) The respondent has not filed on record decision dated

01.02.1978 of the implementing body under the Chairmanship of the Lieutenant Governor referred to in the Regularisation Scheme. It would appear that this decision is therefore not central to the respondent‟s case. In any case, decision dated 01.02.1978 aforesaid which speaks of acquisition of land for community facilities only must be construed so as to be in conformity with and not de hors the law; and regardless of any justification to the contrary contained in such decision, any interpretation thereof that is in violation of constitutional principles (Article 300A), statutory provisions (section 304(a)) and/or of basic notions of justice and fairness cannot be accepted. The legal construct presented by the respondent is in fact squarely in the teeth of section 304(a) of the DMC Act which contemplates acquisition of land inter-alia for: “... the purpose of opening, widening, extending or otherwise improving any public street or for making any new public street”.

(m) For abundant clarity, the issue of any portion of the petitioners‟ land vesting in the Municipal Corporation has nothing to do with the petitioners having carried-out unauthorised construction on such land. Unauthorised construction, if any, on the petitioners‟ land would obviously have to be addressed by either charging compounding fee to compound permissible deviations; and failing that, by directing the petitioners to demolish the unauthorised W.P.(C) No.8859/2011 & connected matters construction or by the Municipal Corporation undertaking such demolition itself. Land belonging to the petitioners cannot vest in the Municipal Corporation merely on account of the petitioners having undertaken unauthorised construction, if any, thereupon; (n) If there is any conflict between the provisions of the Regularisation Scheme and the DMC Act, the provisions of the scheme must yield and be read so as to conform to the statute; and to the extent there is irreconcilable discordance between any terms of the Regularisation Scheme and the DMC Act, such terms of the scheme would be invalid. This would apply equally to the Resolution, inasmuch as if any provision of the Resolution is contrary to the Regularisation Scheme or to the DMC Act, ultimately the provisions of the DMC Act would prevail; (o) To say in the Regularisation Scheme that structures will be regularised after fitting them in a lay-out plan and after keeping clear space for roads and other community facilities is not the same as saying that in order to regularise structures, the land upon which such structures stand, shall vest in the Municipal Corporation without acquisition and without payment of any compensation to the owners; (p) Once the Regularisation Scheme itself provides that land required for community facilities shall be acquired, then nothing warrants the inference that there is no need for W.P.(C) No.8859/2011 & connected matters acquiring land required for building or widening roads. The distinction sought to be drawn by the respondent between „community facility‟ and „road‟ in this context is specious and cannot be countenanced in law. In my view, even if the term „community facility‟ as defined by illustration does not expressly include „road‟, the requirement of acquisition of land would nevertheless apply equally whether land is required for a community facility or for building/widening a road. It must be borne in mind that the Regularisation Scheme is a policy document and not a statutory instrument. The Regularisation Scheme must therefore not be interpreted literally or pedantically but in a practical, purposive, just and fair manner so as to be in consonance with the statute, not as a statute; (q) Keeping the issue of regularisation of an unauthorised colony aside, it is well accepted, that whenever land is required for building or widening a road, such land is acquired by the Government. Regularisation of the colony must be seen in its true perspective, namely that regularisation has been done as a matter of Government policy by way of amnesty and not as a special favour to any individual petitioner, against which the Municipal Corporation may extract a special price in the form of divesting the subject land from the petitioners. To say, as the respondent contends, that since the colony was at one time an unauthorised colony that gives to the respondent W.P.(C) No.8859/2011 & connected matters the right to take-over land for road widening free-of-cost is, to my mind, wholly unacceptable. I say so for the following reason: unless specifically prohibited by law, land can be bought and sold whether comprised in a forest, on a mountain, in a city or a village. A „colony‟ is a concept that refers to urbanisation of land whereby parcels of land are organised in an ordered development, with certain civic amenities such as connecting roads, facilities for electricity and water, provision of parks and recreational spaces, green belt etc., under some system of municipal governance. Every colony would comprise land, but every parcel of land is not necessarily situate in a colony. A person may enjoy rights to land without such land being part of a colony. A colony may be authorised or unauthorised, which would decide the use to which the land in a colony may legally be put. But ownership of the land comprised in a colony would not depend on whether the colony is authorised or unauthorised. An owner cannot be divested of title merely because the land is situate in an unauthorised colony. The Municipal Corporation cannot usurp land merely because it is situate in an unauthorised colony; (r) The provision of the Regularisation Scheme that says that houses constructed on plots adjusted in the regularisation plan shall only be considered for regularisation provided the construction existed before 16.02.1977, again, would have no W.P.(C) No.8859/2011 & connected matters relevance or application to the issue at hand, since whether a house is regularised, or the whole or some part of it is to be demolished to bring it in conformity with applicable building bye-laws, does not lend itself to the inference that land beneath an unauthorised part of a house will automatically vest in the Municipal Corporation for road building or road widening. That in any case is not the respondent‟s argument. The respondent‟s case is simply this: since the subject land is required for road widening, it vests automatically in the Municipal Corporation, without need for acquisition or payment of compensation to the petitioners; (s) If the fact that the subject land was validly purchased after the colony had already been regularised makes no difference to implementation of the Regularisation Scheme and the Resolution, then the respondent must answer if it is the Municipal Corporation‟s contention that it could at any future time, even decades later, simply helps itself to land owned by a private party for road building or widening on the ground that the colony was unauthorized to begin with. If we are to be governed by the rule of law and if Article 300A is to have any meaning, the answer to this question would clearly be in the negative; (t) In so far as the question of whether the petitioners get any better right than the original owners of the subject land, since the petitioners purchased the subject land after the colony W.P.(C) No.8859/2011 & connected matters was regularised, the answer is contained in the question itself. The rights, titles and interests get transferred to the petitioners as subsequent owners subject to all encumbrances and liens that existed upon the title. So merely because the petitioners became owners of the subject land subsequent to regularisation of the colony does not confer upon them any extra right or title. However, since there is nothing to show that the colony was regularised upon the pre-condition that the road would be 100 foot wide, this question is irrelevant and does not change the decision in any manner; (u) As regards the respondent‟s belated contention contained in short affidavit dated 04.07.2018 that the petitioners are not the recorded owners as per their Revenue Records, such contention is as vague and ambiguous as it is irrelevant, since the respondent does not say that someone else, and if so who, is the recorded owner. And even if someone else is the recorded owner, that would only mean that the respondent is liable to acquire the subject land from such other owner; it does not mean that the land would vest in the respondent. In contrast to such belated and ambiguous allegation of the respondent, the petitioners rely upon documents of sale, which evidence a chain of title; apart from mutations in the records of the Municipal Corporation for purposes of payment of property tax, which makes it clear that at the least the subject land is not Government property.

50. The respondents have accordingly failed to cite any provision of law or any precedent to bear-out the contention that the petitioners can be deprived of the subject land without the Municipal Corporation acquiring it, either by agreement or under the Land Acquisition Act (through the Delhi Government) and after payment of requisite compensation.

51. As a sequitur to the above inferences and conclusions, the present petitions succeed.

52. In view of the foregoing, a mandamus is issued restraining the respondent/North Delhi Municipal Corporation from disturbing the peaceful, physical possession of the petitioners in W.P.(C) No. 8859/2011 and W.P.

(C) No. 8867/2011 over their respective parcels of the subject land; and directing the said respondent to hand-over peaceful, vacant, physical possession of the parcel of the subject land that belongs to the petitioner in of W.P.(C) No. 1601/2012 within two weeks of the date of this judgment. Since, according to the petitioner in W.P.(C) No. 1601/2012, the existing construction on his parcel of land was demolished by the Municipal Corporation, the said petitioner is entitled to construct/re-construct on the land, subject of course to complying with the building bye-laws, rules and regulations as may be applicable to such construction.

53. The present petitions are allowed in the above terms; without however any order as to costs.

54. Pending applications, if any, stand disposed of.

ANUP JAIRAM BHAMBHANI (JUDGE) 18th September 2019/j/uj/Ne