Shahzad Khan and Ors. v. Govt. of NCT of Delhi and Ors.

1. Present Letters Patent Appeal has been filed challenging the judgement dated 15.05.2025 passed by the learned Single Judge in W.P.(C) 9115/2023 titled “Shahzad Khan & Ors. vs. Govt. of NCT of Delhi & Ors.”, whereby the learned Single Judge dismissed the writ petition while vacating the status quo order passed and with costs of Rs.5000/- to be paid to the Delhi High Court Legal Services Committee by each of the appellant within 30 days from the date of the impugned judgement.

2. Briefly stated the case of the appellants is that:a. The appellants claim to be in lawful and settled possession of their houses situated upon agricultural land bearing Khasra Nos.482 and 483 of Village Madan Pur Khadar, alleged to be presently known as “Shram Vihar, Abul Fazal Enclave, New Delhi”, by virtue of documents in the nature of electricity bills, house tax receipts as well as unregistered General Powers of Attorney/Agreement to Sell/Affidavits/Receipts/Wills/Possession Letters executed in their favour by the erstwhile owners of the subject land, in the period spanning from 1996 to 2019. b. It has been brought to the fore that proceedings under the Land Acquisition Act, 1894 were initiated by the Government in respect of the subject land as far back as 1989 vide notification dated 23.06.1989 issued under section 4 of the LA Act, for the purpose of the planned development of Delhi viz. Channelisation of river Yamuna. Consequently, an award bearing no.20/92-93 in respect of the land bearing Khasra No.s437 to 512 measuring 139 bigha 7 biswa situated in the revenue Estate of Village Madan Pur Khadar, New Delhi was passed by the Land Acquisition Collector on 19.06.1992. c. The appellants claims that for the next twenty years, the Government neither paid the compensation in lieu of the acquisition nor took over possession of the subject land from the erstwhile owners or for that matter, the subsequent purchasers of the subject land i.e., the appellants herein. d. Accordingly, the appellants claim that due to inaction on the part of the respondents, the appellants and other similarly places persons constructed pucca houses on their respective plots situated on the subject land which eventually turned into a “Colony”, and in the year 1994, the appellants alongwith such other similarly placed individuals constituted an Residents Welfare Association (RWA), namely “Shram Vihar, Abdul Fazal Enclave Welfare Society” registered under the Societies Registration Act, 1860 on 02.02.1994 for the purpose of representing the interests of the residents of the said colony. e. Pertinently, it is claim of the appellants that their colony has been listed as “Abul Fazal Enclave (Main), Kalindikunj Road Okhla, New Delhi” at Serial No.385/Registration no.391B of the List of 1,731 Unauthorised Colonies (excluding affluent Unauthorized Colonies) published by the GNCTD, which are subject to regularisation and eligible for conferment of ownership rights to the residents including the appellants, in terms of the Pradhan Mantri Unauthorized Colonies in Delhi Awaas Adhikar Yojana (hereinafter referred to as “PM-UDAY Scheme”. f. Succinctly put, the PM-UDAY Scheme was conceptualized by the Government of India in 2019 to address the challenges posed by unregulated urban expansion in Delhi. The Scheme specifically sought to regularize unauthorised colonies that had proliferated due to encroachments on public land, unplanned development and the resultant lack of civic amenities, infrastructure as well as hygienic living conditions. In view of these pressing issues, the transformative PM-UDAY Scheme was implemented and accordingly, the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Regulations, 2019 (hereinafter referred to as “NCT Regulations, 2019”) came into force, thereby extending the benefits of regularisation to residents of as many as 1,731 unauthorized colonies in Delhi. g. On 03.12.2012, the Kabza Karyavahi in respect of the subject land stood complete as the respondents demolished the unauthorized buildings, except a temple and two mosques constructed upon the subject land that stood acquired vide Award no.20/92-93. Congruously, the possession of the subject land was acquired by the respondent/GNCTD which was thereafter handed over the respondent/DDA. h. Aggrieved by the demolition action of the respondent authorities, it is claimed that the appellants’ RWA filed a writ petition bearing WP.(C) 1234/2014 titled “Shram Vihar Abul Fazal Enclave RWA (Regd.) vs. Union of India & Anr.” seeking quashing of the acquisition proceedings undertaken by the respondents in view of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. In the said writ proceedings, this Court granted status quo to be maintained with regard to title, possession, and construction -in respect of the subject land; which continued to operate till 27.11.2017. However, the said writ petition ultimately came to be dismissed as withdrawn, by this Court on 23.10.2017. i. Admittedly, the respondent No.3/DDA has since transferred 2,27,978.52 sq. metres of the subject land to the Delhi Metro Rail Corporation (‘DMRC’) for construction of the Kalindi Kunj Metro Depot which already stands completed. However, it is alleged that the DMRC is still deprived of a portion measuring 1,12,158.33 sq. metres of the said land as it remains to be illegally occupied by encroachers such as the appellants and other residents of their colony. It appears that during the pendency of the present petition, the DMRC has also issued a notice dated 18.09.2024 upon the respondent No.4/ Deputy Commissioner requesting Police protection for a demolition exercise to be conducted for removal of the unauthorized constructions carried out by the appellants and other residents of the subject land. j. In the aforesaid backdrop, the appellants are apprehending that the respondent authorities, in an illegal and arbitrary manner, will demolish the houses of the appellants comprising a small part of the colony of “Shram Vihar, Abu Fazal Enclave” and take over possession of the subject land without giving an opportunity to be heard to the appellants herein, even though their colony allegedly fulfils the eligibility criteria to be regularized as provided under the NCT Regulations of 2019. Hence, the appellants filed the underlying writ petition. The learned Single Judge dismissed the underlying petition vide the impugned order. Hence, the present appeal.

3. Mr. Rakesh Tiku, learned senior counsel appears on behalf of the appellants and at the outset contends that the learned Single Judge grossly erred in dismissing the writ petition by overlooking material documents and proof in favour of the appellants forming part of the record. Though, learned senior counsel largely replicated the same arguments which were addressed before the learned Single Judge, he insists that a relevant and material document in the form of order dated 14.07.2011 passed by the Special Secretary (Urban Development Department) has been completely ignored by the learned Single Judge. His contention in respect of the said order is that by virtue thereof the GNCT of Delhi had recognized Shram Vihar Abul Fazal Enclave as one of the three welfare associations and recognized unauthorized colonies registered at registration no.391. Predicated thereon he forcefully submits that the said colony forms part of the 1731 unauthorized colonies which are provisionally recognized for regularization. On that basis, his contention is that those colonies forming part of the 1731 unauthorized colonies are protected from any demolition or other coercive action. Since the DDA has been threatening demolition, the appellants were constrained to file the underlying writ petition and were granted interim protection by the learned Single Judge.

4. Learned counsel also argues that the actions of the respondent/DDA are demonstrably unfair and arbitrary and violative of Article 14 of the Constitution of India, 1950. In that, while the user of the subject area was “recreational” however, for the purposes of use of DMRC, the land user has been changed to “transportation”. Intriguingly, despite the land user having been changed to “transportation”, the yardstick applied for the appellants is seemingly discriminatory for the reason that the land which is subject matter of the present appeal has been treated to be falling within “Zone O” and the appellants are to be evicted from such land. According to learned senior counsel, this establishes infraction of the rights envisages in the Articles 14 and 16 of the Constitution of India.

5. Mr. Tiku, learned senior counsel also sought to draw distinction between the appellants in the present appeal and those applicants who had filed CM. 58355-58357 and 58723/2024 in W.P. (C) 8035/2024 captioned Shabnam Burney vs. UOI & Ors., which was disposed of on 08.07.2024 by the Coordinate Bench. He states that appellants are owners and in possession of subject lands which are private lands and cannot be treated to be in unauthorised possession thereof. He further submits that the applicant/association in Shabnam Burney (supra) and the association of the appellants in the present appeal are two separate and distinct entities inasmuch as the appellants herein are “society’ whereas the applicants therein are an “association”. He further contends that the admissions of the applicants in Shabnam Burney (supra) are wrong and not binding upon the appellants, especially in light of their consistent claim that the respondent/DDA has accepted that it is “Shram Vihar, Abul Fazal Enclave” that is shown at registration no.391B on the List of 1,731 UCs eligible to be regularised under the PM-UDAY Scheme. Accordingly, he submits that the judgement dated 08.10.2024 in Shabnam Burney (supra) is a misnomer and irrelevant to the present proceedings as it does not examine the issues reaised by the appellants herein as regards the area in question being outside or inside the “1 in 25 floodplains” of river Yamuna and he thus, submits that the factual matrix of Shabnam Burney (supra) is distinguishable from that of the present case.

6. It is contended that the GNCT of Delhi has recognized Shram Vihar as an unauthorised colony and the respondent/DDA has to be restrained from carrying out any demolition drive, so as to give effect to the protection being provided to the appellants and other residents under the PM-UDAY Scheme.

7. Per contra, Ms. Prabhsahay Kaur, learned Standing Counsel for the respondent/DDA submits that the present appeal is squarely covered by the judgment of this Court in Shabnam Burney (supra) in fact, she states that some persons from the very same colony i.e. Shram Vihar had filed the applications bearing CM. 58355-58357 and 58723/2024 in W.P. (C) 8035/2024 (Shabnam Burney) seeking similar reliefs. She states that by a detailed examination of the facts which arose before the Coordinate Bench, a reasoned order repelling the very same arguments which are being raised herein was passed on 08.10.2024.

8. Ms. Kaur states that the appellants were unable to demonstrate that Shram Vihar falls within the list of 1731 recognized unauthorised colonies and that “Shram Vihar” is separate and distinct from “Abul Fazal Enclave” apart from being at a significant distance from each other. In any case, she contends that the entire area falls within the “Zone O” that is the Yamuna Flood Plains and the appellants would be governed by Clause 7 of the NCT Regulations, 2019. She also referred to the relevant portions of the impugned judgment in order to substantiate the reasons rendered by learned Single Judge and prayed that the present appeal be dismissed with exemplary costs.

9. We have heard learned counsel for the parties, perused the impugned judgment, examined the records of the appeal and considered the judgment of the Coordinate Bench in Shabnam Burney (supra).

10. At the first instance, we would refer to the order dated 14.07.2011 relied upon by Mr. Tiku to support his contention that Shram Vihar is one of the unauthorised colonies recognized in the list of 1731 colonies by the GNCT of Delhi. A perusal of the said order demonstrates that the GNCT of Delhi has only recognized the Resident Welfare Associations and nowhere have they granted any recognition to the status of such colony. In fact, this was examined by the learned Single Judge to conclude that Shram Vihar Abul Fazal Enclave shown to be registered at registration no.391 is not the same colony. We have no reason to differ or take a divergent view or come to any converse conclusion. The appellants have been unable to demonstrate that their colony is forming a part of the list of 1731 recognized unauthorized colonies. In that view of the matter, reliance upon order dated 14.07.2011 is misplaced and the submissions predicated thereon are unpersuasive and unmerited. We reject the same.

11. So far as the discrimination predicated on Articles 14 and 16 of the Constitution of India in respect of the purported discrimination meted out by the respondent/DDA upon the appellants in comparison to the DMRC is concerned, there is neither any substance nor merit in the said submission. As has been rightly observed by the learned Single Judge, the change of user from recreational to transportation for the purpose of DMRC would clearly fall within an important “public purpose” which cannot be equated with the unauthorised occupation by the appellants of the subject lands which fall within “Zone O”. It is trite that public purpose would override personal or private rights. In that view of the matter too, the said submission is unmerited and untenable.

12. The distinction sought to be drawn by learned senior counsel with the findings recorded by a Coordinate Bench in Shabnam Burney (supra) and those which arise in the present case also is farfetched and unmerited. In order to reiterate that the issue raised in the present appeal and that which arose for consideration before the Coordinate Bench in Shabnam Burney (supra), it would be apposite to reproduce the entire order dated 08.10.2024. The same reads thus:

upon the counteraffidavit filed by the Department of Urban Development, GNCTD in W.P.(C) No.868/2013, which reads as under:- “Instant matter is regarding demolition of UC namely “Shram Vihar” Abul Fazal Enclave bearing regn. No.391C by the Revenue Department. The petitioner has not sought any relief from the UC Cell, UD Department. However it is to mention that the resident of the said colony, and it was registered number 391. Later on three different localities Abul Fazal Enclave, Bhaskar Enclave and Shram Vihar, Abul Fazal Enclave were considered as an MRWA case and the matter as decided by the competent authority and the said colony i.e. Shram Vihar (Abul Fazal Enclave) was assigned with Regn. No. 391C.”

5. He further contends that the Shram Vihar colony does not fall within the flood plains of river Yamuna and in support of his contention, he relies upon the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies), Regulations, 2019 as well as the counter-affidavit filed by the General Manager, Delhi Metro Rail Corporation (DMRC) Limited in W.P.(C) No.868/2013, which reads as under:- “I say that DMRC vide their letter dated 29.11.2012 while referring to letter dated 21.11.2012 of respondent No.5 confirmed that the matter was already placed before Yamuna Standing Committee (YSC) by DMRC and YSC in its 80th meeting held on 6.3.2012 considered the proposal. In the meeting, YSC observed that the said plot is beyond the flood embankments and surrounded by the habitated area and out of present flood plains of the area. However, YSC cleared the proposal subject to the clearance by the DDA for change in land use. The DMRC accordingly requested the DDA to place the matter in the next meeting of technical committee with full facts as it had already awarded the contract for construction of workshop cum car maintenance depot, but work on the ground cannot start till the change of land use is approved by DDA. A copy of letter dated 29.11.2012 is annexed hereto and marked as Annexure R-10.”