DELHI SAINIK COOPERATIVE HOUSING BUILDING SOCIETY LTD.(REGD.) AND ORS. Vs UNION OF INDIA AND ORS.
W.P.(C) 8364/2018 Page 1 of 21
$~J-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 11.01.2021
+ W.P.(C) 8364/2018
DELHI SAINIK COOPERATIVE HOUSING
BUILDING SOCIETY LTD.(REGD.) AND ORS. ….. Petitioners
Through Mr.Dushyant Dave, Sr. Adv. with
Mr.Bahar U. Barqi, Advocate
Versus
UNION OF INDIA AND ORS. ….. Respondents
Through Ms. Maninder Acharya, ASG with
Mr.Anurag Ahluwalia, CGSC, Mr.Abhigyan Siddhant, and Mr.Sharuya Jain, Advocates for Union of India/R -1
Mr.Naushad Ahmed Khan, ASC(CIVIL), GNCTD Ms.Puja Kalra, Standing Counsel and Mr.Virendra Singh, Advocate for SDMC
Mr.AjayVerma, Senior Standing Counsel with
Ms.Ruchi Chopra, Advocate for DDA. Ms.Puja Kalra, Adv. for SDMC.
Mr.Sumeet Pushkarma, Standing Counsel with Mr.Devanshu Lohiya, Ad vocate for Delhi Jal
Board and Mr. L. L. Meena (E. E.)
CORAM:
HON’BLE MR. JUSTICE JAYANT NATH
1. This writ petition is filed seeking the following reliefs:-
JAYANT NATH, J.
“a) That this Hon’ble Court may be pleased to issue a writ of
mandamus or a writ in the nature of mandamus directing
2021:DHC:85
W.P.(C) 8364/2018 Page 2 of 21
respondents, their servants and agents to grant all civic and
other facilities to the petitioners which are available to other citizens occupying their land lawfully in the city of Delhi particularly in respect of supply of water, connection of sewage,
drainage, provision for roads and for security etc. as early as
possible and to continue to maintain the same.
b) That this Hon’ble Court may be pleased to issue a writ of prohibition or a writ in the nature of prohibition r estraining the
respondents, their servants and agents from levying any
additional or extra charges from petitioners acknowledging
their authorised status like other illegal colonies in any manner.
c) That this Hon’ble Court may be pleased to issue a writ of
mandamus or a writ in the nature of mandamus directing respondents, their servants and agents to include Defence Services Enclave area for the purpose of planned development
in harmony with MPD -2020.
d) That this Hon’ble Court may be pleased to issue a writ of
prohibition or a writ in the nature of prohibition restraining the respondents, their servants and agents in any manner treating the petitioners as illegal occupants in respect of their lands
situated at Defence Services Enclave at Khanpur and Khi rki
Village and further prohibit them from acting in any arbitrary
manner to demand any additional levies, charges etc. except those which are legitimate levied and paid by lawful occupants in Delhi.”
2. The case of the petitioners is that 53 of the petitioners before this
court are veterans, decorated officers, war -widows and Armed Forces
Personnel belonging to all the three wings who were allotted plots in
question for residential te nements by respondent No. 1 pursuant to a scheme
formulated by respondent No. 1 in 1961. The area occupied by the
petitioners is about 65 acres in the area called “Defence Services Enclave”.
2021:DHC:85
W.P.(C) 8364/2018 Page 3 of 21
It is stated that they are legally authorised residents and must be
recognized/acknowledged by every respondent herein. The allotment of plots was by the Society formed by the Ministry of Defence which
culminated into proper sale deeds registered with the office of Sub-
Registrar.
3. The n arration of facts starts from 1961. It is stated that the then
Defence Minister -Sh. V.K. Krishna Menon form ulated a scheme in 1961
for creation of a chain of housing societies for resettlement of war -widows,
disabled/decorated soldiers and other servicemen in most major cities. The
Army Forces P ersonnel were informed about th is by an A rmy Order dated
06.05.196 1. It is stated that in a meeting in Delhi between the Raksha
Mantri , the Home Minister and the Chief Commissioner of Delhi in 1965,
the Ministry was advised that due to non- availability of land in Delhi as a
special case, Ministr y of Defence should purcha se land in the green belt in
South Delhi. Based on this advic e, the Ministry of Defence through its
Society purchased land s in the Revenue Estate of Khanpur and Khirk ee after
both these were notified as urban areas in 1963 /1966. It is claimed that the
petitioners are paying tax to MCD at urban rates and that subsequently , this
was acknowledged as residential in the Master Plan of Delhi 2021. The petitioners’ land s fall in Zone ‘J’ and all the lands are residential. It is further
stated that appreciating tha t the lands allotted did not have a direct access
from Mehrauli -Badarpur Road, the Ministry of Defence in 1970 took a rear
step of getting a special sanction of the President of India for transfer of a
strip of D efence land measuring 1.61 acres from A rmy Camping Ground ,
Khanpur to the S ociety to provide access to the member s’ plots. It is stressed
that the Defence land is never sold or sold only under extreme ly exceptional
2021:DHC:85
W.P.(C) 8364/2018 Page 4 of 21
circumstances.
4. It is further stated that when the petitioners tried to settle on the plots
allotted to them and submitted building plans to MCD/DDA/the
Commissioner of Lands and Building for sanction. In large number of cases
these organizations refused to acknowledge receipt of the building plans.
Those that were accepted were never repl ied to in spite of numerous
reminders.
5. The grievance of the petitioners is that despite repeated attempts since
last 30 years, MCD has failed to provide a single facility to the petitioners till date under the garb of the petitioners allegedly being unaut horised. It is
pleaded that such a stand of the authorit ies is completely untenable, unjust
and illegal. 6. It is stressed that ex- servicemen resettled under this very scheme in
many other stations in the country are living peacefully since the last 45 years . It is only in Delhi that war -widows and disabled/decorated ex-
servicemen resettle d under the Government of India mooted scheme have
been harassed and denied essential basic amenities of water, electricity,
sewer, road, etc. for the last 55 years. It is p ointed out that the petitioners
have participated in all the wars of 1962, 1965 and 1971 and have been
decorated for the acts of valour on the battle field and awarded distinguished
service m edals for service s recorded to the nation.
7. It is stated that havi ng exhausted all avenues of administrative
redressal for 30 years, the petitioners were compelled to file a writ petition being W.P.(C) No. 5804/2002 before this court on 11.09.2002. The Ministry
of Defence in its affidavit dated 05.05.2003 in the said cas e had in para 8.2
stated as follows:-
2021:DHC:85
W.P.(C) 8364/2018 Page 5 of 21
“8.2 That i n the present facts and circumstances, it is very clear
that the lands were given to the Society for construction of
residential houses for residential purpose so that the Armed
Forces are able to rehabilitate themselves in a proper and
official manner in terms of the Army Order of May 1961.”
8. This writ petition was disposed of on 11.02.2010 whereby the
submission of Dr. M. Ramachandran, Secretary , Ministry of Urban
Development who was present in the court was noted that a policy decision
would be taken one way or the other by 31.12.2010 :
“i. Whether to regularise unauthorized colonies, that is, those
inhabited by the affluent sections of society existing on public land as well as private land including Sainik Farms
ii. the terms and conditions on which regularization, if any, will
be effected and,
iii. in the event of a decision being taken not to regularise Sainik Farms, the consequences thereof and further action on the decision.”
Dr. Ramachandra n stated that the affidavit dated 05.05.2003 filed by
the Ministry of Defence in W.P.(C) 5804/2002 would also be taken into
consideration while framing the policy pertaining to Sainik Farms.
9. It is ple aded that despite the assurance of the Secretary , Ministry o f
Urban development, no steps have been taken and there is no end to the
harassment being faced by the petitioner s.
10. It is further pointed out that Delhi Jal Board in their affidavit dated
05.03.2010 in W.P.(C) 9540-51/2005 had assured this court that the acute
shortage of water of the petitioners’ colony would be solved and the water
would be supplied from Malviya Nagar UGR which is under construction.
2021:DHC:85
W.P.(C) 8364/2018 Page 6 of 21
However, needful has not been done.
11. It is admitted that with relentless effort, the petitioners have bee n able
to get BSES electricity connections, telephone lines and other infrastructural
facilities.
12. It is stated that the petitioners’ modest dwelling units which were built
with lime and mortar only, due to cement control, have become old and are
in urgent need of repairs . Roofs are leaking, floors are cracking and there is
seepage in the walls. All the petitioners are old. The authorities including the local police do not allow the petitioners to repair/build their boundary walls. The petitioners’ colony r oads have become a thoroughfare for tens of
thousands of people living in adjoining areas. This has also affected the
security and the lands are open to encroachment. 13. The petitioner s being aggrieved had no option but to file another writ
petition being W. P. (C) 8276/2014 before this court where the following
reliefs were sought: –
“a. Affirmation of authorised status as a Govt. approved
resettlement scheme init iated in 1961 and issue suitable
instructions to all concerned authorities for provision of all
basic amenities like water, electricity, roads, sewerage, security,
etc. which the Govt. is bound to provide at its expense, within a stipulated time bound period .
b. Provide relief to the original members of our society and
their legal heirs, by giving us the authorised status of
regularized colony without additional charges as we have been
resettled under a Govt. approved scheme and most of area development has already been carried out by us at our cost
since last fifty years. Any charges/cost levied on us would be
grossly unjust and beyond our means. If levied, it would defeat the very purpose of the GOI Resettlement Scheme of relieving Defence Forces Personnel from mental agony and offering them
2021:DHC:85
W.P.(C) 8364/2018 Page 7 of 21
housing plots at very reasonable rates as stated by MOD in para
10 of their affidavit.
c. Immediate implementation of the orders of the Division
Bench of Delhi High court dt. 12-04 -2010 in W.P. (C) 9540-
51/2005 for supply of water from Malviya Nagar UG R.
d. Direct the concerned authorities to notify building n orms and
frame a policy for the planned development of Defence Services Enclave in harmony with the MPD 2021.
e. Deemed sanctioned status of petitioners and its members existing dwellings in Defence Service Enclave, since they have been in existence for decades.
f. Early disposal, as justice has eluded us since last 50 years Many original allott ees have passed away. In additional to
widows and those physically disabled while fighting for the
nation almost all of us at present are in ou r Seventies and
Eigh ties, while some are in their nineties. We pray for relief and
justice from the Honourable Court in our lifetime,”
14. On 04.04.2018, learned counsel appearing for the petitioner s
withdrew the petition with liberty to file detailed representation s with
respondent No. 4 and respondent No. 6. Pursuant to the said liberty, the
petitioners submitted detailed representations to respondent No. 4 and
respondent No. 6 on 20.04.2008. It is the grievance of the petitioner s that
despite the said representations filed before the said respondents, namely, Municipal Corporation of South Delhi and D elhi Jal Board, there has been
no response. It is pleaded that the action of the said respondents is clearly contempt of court. It is in these circumstances, having lost of all h opes, the
petitioners state that they have filed the present writ petition before court as
they are being denied the basic amenities and the right to enjoy life with
2021:DHC:85
W.P.(C) 8364/2018 Page 8 of 21
dignity. Hence, the present writ petition.
15. Most of the respondents have filed their counter -affidavits. Delhi Jal
Board, respondent No. 6 in its counter -affidavit has stated that the Defence
Service s Enclave is an unauthorised colony mentioned in the Registration
No. 453 in the list of total 1639 unauthorised colonies which have been identifie d by the Urban Development Department, Govt. of NCT of Delhi.
The Colony in question falls in the category of “Unauthorised Affluent
Colony”. It is also stated that many of the occupants are no t even ex –
servicemen but are subsequent buyers. It is also stated that pursuant to the
order of this court dated 04.04.2018 passed in W.P. (C) 8276/2014, the
answering respondent had written a letter to the Department of Urban
Development, Govt. of NCT of Delhi to know the present status of the area.
In response, a le tter was received on 25.05.2018 from the Department of
Urban Development, Govt. of NCT of Delhi that under Clause 3.6 of the
regulations for Regularization of Unauthorised Colonies dated 24.03.2008,
unauthorized colonies inhabited by affluent class cannot be considered for
regularization and development works can be carried out only in the colon ies which are considered for regularization. It is stated that
development work like laying water pipe lines in the area in question can only be executed by the answ ering respondent subject to clearance from the
Urban Development Department, Govt. of NCT of Delhi . It is stated that
permission for installation of four number tube wells have been given to the RWA and at present water is being supplied for drinking purpose through
the existing four tube wells as an interim arrangement which is being
maintained and regulate d by the RWA.
16. A status report has also been filed by South Delhi Municipal
2021:DHC:85
W.P.(C) 8364/2018 Page 9 of 21
Corporation. The status report confirms that the Defence Service s Enclave is
an unauthorised colony and the respondent /SDMC is not carrying out any
development work pertaining to it.
17. Respondent No. 2/Ministry of Housing and Urban Affairs, Govt. of
India has also filed its counter -affidavit. It is stated that the petitioner s had
earlier also filed a writ petition being W.P.(C) No. 8276/2014. It is stated
that the relief sought in the present writ petition is more or less is similar to
the relief sought in W.P.(C) No. 8276/2014. In fact, this court by its order
dated 04.04.2018 had a llowed the petitioner s to withdraw the said writ
petition being W.P.(C) No. 8276/2014. It is further stated that the colony in
question is an unauthorised colony and as per the regulations for
regularization of unauthorised colonies, the orders for regula rization have to
be issued by Govt. of NCT of Delhi who have to also coordinate and
supervise the entire process of regularization. The reliefs sought in the present writ petition, it is stated, fall within the jurisdiction of the local
bodies, namely, DDA , South Delhi Municipal Corporation and Delhi Jal
Board and that the answering respondent is only a performa party.
18. On behalf of Union of India, namely, Directorate General
Resettlement, Department of Ex-Servicemen Welfare, Ministry of Defence,
Govt. of In dia another counter -affidavit has been filed. Respondent No. 1
claims to be a performa respondent. It is stated that in 1961, a proposal was mooted to form co-operative housing societies in all the states. As a result of this initiative, Sainik Co-operative House Building Society was formed in Delhi. The lands were sold by the Society to allottees under individual
registration of sale deeds. It is admitted that the lands purchased by the
Society did not have a direct access from Mehrauli Badarpur Road . So as an
2021:DHC:85
W.P.(C) 8364/2018 Page 10 of 21
exception a strip of Defence land measuring 1.613 acres from Army
Camping Ground, Khanpur was sold to the Society in September 1970 to
provide access to the plots and to help the Society in resettlement of Armed
Forces Personnel. Hence, i t is conclud ed that the lands were given to the
Society for construction of houses for residential purposes so that the Armed
Forces personnel are able to rehabilitate themselves in a proper and official
manner in terms of the Army Order of May 1961.
19. DDA has also fil ed a counter -affidavit which is a very short and
cryptic affidavit which barely reiterates the submissions of the other respondents.
20. The Govt. of NCT of Delhi has also filed its counter -affidavit. In the
counter -affidavit , it is stated that the Defence Se rvice s Enclave squarely
clearly falls within the ambit of definition of an “ unauthorised colony ”. It is
stated that the contention of the petitioner s essentially is that the
establishment of the petitioner Society was with the help and support of the
Minis try of Defence and for the purpose of resettlement of war -widows,
disabled/decorated soldiers and ex- servicemen. However, this itself does not
bestow legitimacy upon the actions of the petitioner Society in setting up the
colony. It is stated tha t no colon y can be regarded as an “authorised colony”
unless it is set up based on an approved lay out plan by the concerned
agency.
It is further stated that the Society purchased the lands for its members
pursuant to a me eting between the Defence Ministry, Home M inister and
the Chief Commissioner of Delhi . However, the Minutes of the Meeting
dated 10.05.1965 sets out that the petitioner Society cann ot be given land for
residential pur poses, the purchase of lands by the petitioner Society in Delhi
2021:DHC:85
W.P.(C) 8364/2018 Page 11 of 21
will be confined to areas falling in and around the green belt of Delhi and
will be for the purpose of farm houses within the agricultural area. It is
stated that the allotment letter produced by the petitioner s itself shows that
the allotment was for the purpose of farm houses and not for residential purpose. However, the subject colony does no t comprise of any farm house
but of the residential house s.
It is stressed that no pe rson has a vested right to claim regularization.
Where any habitation/colony is unauthorised or contrary to the sanctioned
plan/zonal plan/master plan, such habitation/colonies cannot claim
regularization as a m atter of right.
It is further stated that it is an admitted case that the petitioner society
represents owners of only 54 plots out of 387 plots of the said colony. It is
stated that it is an admitted case that the rem aining members have sold their
plots and do not own plots in the said colony any more. It is stated that an application was received for regularization of the colony in 2007- 08. T he
application pertained to the entire 387 plots in the said colony.
21. I have heard learned senior counsel appearing for the petitioners,
learned ASG for respondent/Union of India and learned counsel for the other respondents. The petitioners have also filed their written submissions.
22. Learned senior counsel for the petitioners ha s pointed out that the aim
of the scheme was to ease the agony of Armed Forces Personnel by providing them housing plots at reasonable rates to enable them to lead a peaceful retired life. Further, it was on the advice of the Home Minister and
the Chief Commissioner of Delhi, the Ministry of Defence bought
agricultural land from farmers in South Delhi. It is hence evident that the plots were allotted to the petitioners for residential purposes only. In fact,
2021:DHC:85
W.P.(C) 8364/2018 Page 12 of 21
Armed Forces Personnel resettled under this very scheme in many other
cities in India are leading a peaceful retired life in their residential houses since the last fifty years. It is further pointed out that the building plans
submitted to the concerned agencies for sanction were n either refused n or
acknowledged in spite of numerous reminders. Since the applications were
not turned down, a deemed sanctioned status of the dwellings in existence is
there in view of the lapse of more than 40 years. It is stressed that the
petitioners have given their best years in the service of the nation. They have
participated in the wars of 1962, 1965, and 1971 and have been awarded medals for acts of valour. Having been resettled there over 50 yea rs ago, the
petitioners who are at the fag end of their lives are entitled to basic
amenities.
23. Reliance is also sought to be placed on the counter affidavit filed by
the Director General of Resettlement, Ministry of Defence in W.P.(C) No.5804/2002 where th e affidavit notes that the lands were given to the
Society for construction of houses for residential purposes so that Armed
Forces Personnel are able to rehabilitate them selves in a proper and official
manner. A reference was also made to the order of the Division Bench dated
25.03.2015 passed in W.P.(C) No.8276/2014.
24. Learned Additional Solicitor General has stressed that the colony is
unauthorised and cannot be regularised as is sought to be urged. It was also stressed that the present writ petition does not lie as a similar writ petition
had been filed earlier being W.P.(C) 8276/2014 which was withdrawn on 04.04.2018. Another writ petition seeking the same reliefs would not lie.
25. Learned counsel appearing for the Govt. of NCT of Delhi has stressed
that the colony as per the policy of the Govt. of NCT of Delhi cannot be
2021:DHC:85
W.P.(C) 8364/2018 Page 13 of 21
regularised.
26. The first thing that strikes the court is that the writ petition seems to
have completely ignore d that the area in question as per the stipulated
regulations is for agricultur e purpose s.
This is also apparent from Annexure P -3, which is a copy of the sale
deed executed sometime s in 1993 by Delhi Sainik Co operative Housing
Building Society Ltd. in favour of Col. A.K.Pandita. The third last para of
the said document clearly states that the land is an agricultural land and is
being used only for agricultural purposes.
The counter affidavit of Delhi Jal Board clearly states that the
Defence Services Enclave is an unauthorised colony mentioned in
Registration No.453 in the list of total 1639 unauthorised colonies, which
have been identified by Urban Development Department, Govt. of NCT of
Delhi. South Delhi Municipal Corporation also in its counter affidavit has stated that the Defence Services Enclave is an unauthorised colony and
SDMC is not carrying out any development work pertaining to it. Similarly,
Govt. of NCT of Delhi in its counter affidavit also states that D efence
Service Enclave is an unauthorised colony. It has been clarified that the
pleas of the petitioners to the contrary are misplaced as no colony can be
regarded as authorised colony unless it is set up bas ed on an approved layout
plan by the concerned agency. The said counter affida vit also relies upon the
letter of allotment produced by the petitioners from which it is clear that the
allotment was made for the purpose of farmhouses and not for residential
purposes.
Merely because the petitioners were allotted the plots cannot be a
ground to insist that the area is for residential purposes. The contention of
2021:DHC:85
W.P.(C) 8364/2018 Page 14 of 21
the petitioners to the contrary claiming that the area is a residential area is a
misplaced contention.
27. In this context, reference may be had to Sections 7, 8(1) and 14 of the
DDA Act, which read as follow: –
“7. (1) The Authority shall, as soon as may be, carry out a civic
survey of, and prepare a master plan for, Delhi.
(2) The master plan shall—
(a) define the various zones into which Delhi may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out; and
(b) serve as a basic pattern of frame -work within which the
zonal development plans of the various zones may be prepared. ”
“8. (1) Simultaneously with the preparation of the master plan
or as soon as may be thereafter, the Authority shall proceed with the preparation of a zonal development plan for each of the
zones into which Delhi may be divided.
…………..”
“14. After the coming into operation of any of the plans in a
zone no person shall use or permit to be used any land or
building in that zone otherwise than in conformity with such
plan:
Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made
in this behalf any land or building for the purpose and to the
extent for end to which it is being used upon the date on which
such plan comes into force. ”
2021:DHC:85
W.P.(C) 8364/2018 Page 15 of 21
28. Hence, as per Section 7 of the said Act, DDA has to prepare a Master
Plan for Delhi which will indicate the manner in which the land in each zone
is proposed to be used. Further , Zonal Development Plans are to be prepared
which will indicate the aspects stated in Section 8 of the said Act. As per
Section 14 of the said Act, no person shall use any land in a particular zone other wise than in conformity with the plan.
29. Nowhere at any stage has it seriously been contended by the
petitioners that the area of the plots in question falls in the area which as per
the Master Plan/Z onal Development Plan ha ve a residential user. Some bald
pleas have been made that the area is residential under Master Plan 2021 but no efforts was made to back this plea from the concerned documents. It is
manifest that the area as per the plan s is for agricultural use. Further, all the
respondents have described the colony in question as an unauthorised colony.
30. Given the above facts, it would follow that the plea raised by the
petitioners about being a residential colony does no t have any basis
whatsoever.
31. However, the matter cannot be put to rest given the peculiar facts and
circumstances of this case which warrant a close look . There are certain
admitted facts in this case which warrant a close look . The scheme under
which the land was allotted to the petitioners had envisaged giving land s for
residential purpose s to members of the Armed Forces. Nobody has argued to
the contrary that in other towns , other than in Delhi under the same scheme
defence personnel were given proper ty/land for the purpose of construction
of the residential houses .
32. The Ministry of Defence in W.P.(C) 5804/2002 had filed a counter
2021:DHC:85
W.P.(C) 8364/2018 Page 16 of 21
affidavit where the following averments were made:-
“11. That in the present facts and circumstances, it is very
clear that th e lands were given to the Society for construction of
residential houses for residential purpose so that the Armed
Forces are able to rehabilitate themselves in a proper and official manner in terms of the Army Order of May 1961.”
33. It is clearly the acknowledged case of the Ministry of Defence that the
lands were given to the Society for construction of houses for residential
purposes.
34. I may also note the two orders of the Division Benches which are
relevant herein. On 11.02.2010 in W.P.(C) 5804/2002, this court passed the
following order:-
“Mr. Ramchandran, Secretary in the Ministry of Urban
Development is present in Court pursuant to our order dated
28th January, 2010.
He says that there a typographical error in paragraph
3(vi) of his affidavit dated 8th February, 2010. He seeks leave
to correct the typographical error.
Leave granted.
Mr. Ramchandran assures this Court that a policy
decision will be taken one way or the other by 31st December,
2010 :
i. whether to regularise unauthorized colonies, that is, those
inhabited by the affluent sections of society existing on public
land as well as private land including Sainik Farms,
ii. the terms and conditions on which regularization, if any, will
be effected and,
iii. in the event of a decision being taken not to regularise
Sainik Farms, the consequences thereof and further action on
the decision.
Mr. Ramchandran says that affidavit dated 5th May,
2021:DHC:85
W.P.(C) 8364/2018 Page 17 of 21
2003 filed by the Ministry of Defence in WP(C) No.5804/2002
will also be taken into consideration whil e framing the policy
pertaining to Sainik Farms.
In view of the statement of Mr. Ramchandran, nothing
further survives in the matter. It is, accordingly, disposed of.
It is clarified that the earlier orders passed by this Court
have not been vacated with the disposal of the writ petition. ”
No party has pleaded that a policy decision was taken pursuant to the
above direction dated 11.02.2010.
35. Similarly, in W.P.(C) 8276/2014 on 25.03.2015, the Division Bench
passed the following order: –
“The petitione rs’ society and its members are stated to be
either Armed Forces Officers or War Widows or descendants of Armed Forces Officers. A list of the allottees/dependents
owning the plots in the area known as Defence Services
Enclave has been supplied to us. It is a list of 54 persons. The
said list is taken on record. A copy of this list is given to the
learned counsel for the Central Government.
The petitioners seek regularisation of their colony. We
are of the view that the petitioners in this case are to be treated
differently from the persons who are residing in Sainik Farms
which is the subject matter of WPC 1145/2014. The petitioners in the present petition belong to an entirely different class and category of persons and prima facie cannot be termed as affluent persons. It is also pointed out by the learned counsel for the petitioners that the land which has been allotted to the
petitioners was allotted by the Central Government.
It is, therefore directed that the Central Government
should take a clear dec ision on regularising Defence Services
Enclave before the next date of hearing. ”
36. It is manifest from a reading of the above two orders that the Division
Bench of this court took the view that the petitioners are to be treated
differently from the persons residing in Sainik Farm s which is the subject
2021:DHC:85
W.P.(C) 8364/2018 Page 18 of 21
matter of another writ petition. The court noted that the present petitioners
belong to an entirely different class and category of persons and prima facie
cannot be termed as affluent persons. Thereafter , a clear direction was
passed to the Central Government to take a clear decision on regularising
Defence Services Enclave before the next date of hearing. Again, no
progress appears to have been made despite the said direction s of this court.
37. There is a nother aspect which is relevant, namely, the fact that the
plots and lands were allotted to the petitioners sometimes in 1970s. The sale deed which is Annexure P -3 to the writ petition is of 1983. Hence, roughly
40 to 50 years have passed since the petitioners have been in occupation of
the lands in question and have been using it for residential purposes despite
the colony being “unauthorised colony”.
38. I also cannot help noticing that the petitioners are all retired defence
personnel who have devoted the most productive period of their lives
defending the nation’s border s and perform ing other dangerous and difficult
tasks normally performed by defence service officers.
39. Keeping in view the above facts and circumstances, in my opinion,
the respondents are duty boun d to take an appropriate decision based on the
cogent fact s regarding the stat us of the said area known as “ Defence
Services Enclave ”. I reiterate the directions made by the Division Bench on
25.03.2015 in W.P. (C) 8276/2014 which read as follows:-
“It is, therefore , directed that the Central Government should
take a clear decision on regularising Defence Services
Enclave ……”
40. In view of the above, I request Secretary , the Ministry of
Defence /respondent No. 1 to convene a meeting of functionaries who can
2021:DHC:85
W.P.(C) 8364/2018 Page 19 of 21
take a decision in terms of the above directions of the court. If necessary , the
concerned Secretary, Ministry of Urban Development/ respondent No. 2 and
the Chief Secretary, Govt. of NCT of Delhi may form part of the
Committee. Such other officers may be nominated to the Committee as the
Secretary, respondent No. 1 may deem necessary. The said Committee so
constit uted by the S ecretary, respondent No. 1 is requested to take an
appropriate decision as spelt out herein as per law expeditiously preferably
within four months from today. The decision so taken shall be duly
communicated to the petitioners.
41. There is another aspect which I would also like to touch upon. One of
the pleas raised by the petitioners is that they have been deprived of the basic civic am enities, namely, drinking water, sewerage, etc. T hey have
managed to get electricity connections from the concerned distribution
company -BSES Rajdhani Power Ltd.
42. As far as drinking water is concerned, it has been stated in the
counter -affidavit of Delhi J al Board that the develop ment work like laying
of water pipeline in the area in question can only be executed by the said
respondent subject to clearance fr om the Urban Development Departme nt,
Govt. of NCT of Delhi. It has also been stated that as the colony is
unauthorised in this case, permission for installation of four number tube
wells has been given to the RWA and at present, water is being supplied for
drinking purposes through the existing tube wells as an interim arrangement.
The said arrangement is said to be maintained and regulated by the RWA.
43. It is settled position of law tha t an individual has a right to access to
drinking water in quantum and quality equal to his basic needs. In this
context reference may be had to judgment of the Supreme Cou rt in the case
2021:DHC:85
W.P.(C) 8364/2018 Page 20 of 21
of A.P. Pollution Control Board II vs. Prof. M. V. Nayudu (Retd.) & Ors.,
(2001 ) 2 SCC 62 where the Supreme Court held as follows
“3. Drinking water is of primary importance in any country. In
fact, India is a party to the resolution of the UNO passed during
the United Nations Water Conference in 1977 as under:
“All people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantum and of a
quality equal to their ba sic needs.”
Thus, the right to access to drinking water is fundamental to life and there is a duty on the State under Article 21 to provide clean drinking water to its citizens.
4. Adverting to the above right declared in the aforesaid
Resolution, in Narmada Bachao Andolan v. Union of
India [(2000) 10 SCC 664 : (2000) 7 Scale 34] (Scale at p. 124 :
SCC p. 767, para 248), Kirpal, J. observed:
“248. Water is the basic need for the survival of human
beings and is part of the right to life and human rights a s
enshrined in Article 21 of the Constitution of India….”
44. Clearly, it is settled legal position that right to access to drinking
water is fundamental to life and there is a duty of the State under Article 21
of the Constitution to provide clean drinking w ater to its citizens . In the
present case , the petitioners have bee n staying in the said area for the last 50
years. Admittedly, the respondent De lhi Jal Board is supplying drinking
water to various other unauthorised co lonies. This court in W.P. (C)
8276/ 2014 on 25.03.2015 has held that the petitioners in the present case
belong to a n entirely different class and are to be treated different ly from the
persons who are residing in Sainik Farms. Further, the petitioners in my
2021:DHC:85
W.P.(C) 8364/2018 Page 21 of 21
opinion cannot be deprived of a r ight to access to drinking water m erely on
the ground that it is an unauthorised colony. The petitioners have been
residing in the said area for the last 50 years and cannot continuously be
deprived of this right to access to drinking and portable water.
45. In the light of the above, I direct the respondent De lhi Jal Board to
make an appropriate scheme as per their normal procedure for supply of
portable drinking water to the 54 petitioners in accordance with law . The
scheme shall be framed and implemented expeditiously preferably within 9
months from today.
46. Nothing further survives in this petition. The same is accordingly
disposed of with the above directions. Pending applications, if any, also
stand disposed of.
JAYANT NATH, J
JANUARY 11, 2021/ rb
2021:DHC:85