MANO KARAN & ORS. vs MCD & ORS.
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision:20.02.2024
+ LPA 991/2004
MANO KARAN & ORS. ….. Appellants
Through: Mr K. C. Mittal, Advocate.
versus
MCD & ORS. ….. Respondents
Through: Mr Kamal Digpaul and Ms Ishita Pathak, Advocates for R-1 & 7.
Ms Hetu Arora Sethi, ASC for GNCTD with Ms Kavita Nailwal, Advocate.
Ms Kritika Gupta, Advocate for R-4/DDA.
CORAM:
HON’BLE MR. JUSTICE VIBHU BAKHRU
HON’BLE MS. JUSTICE TARA VITASTA GANJU
VIBHU BAKHRU, J.
1. The appellants (109 in number) are claimed to be residents of a JJ Cluster referred to as Kanak Durga Colony, located at Sector-12, R.K. Puram, New Delhi. The appellants have filed the present appeal impugning a common order dated 16.09.2004 passed by the learned Single Judge in a batch of petitions whereby, certain jhuggi dwellers of the Kanak Durga Colony had sought orders restraining the respondents from demolishing the jhuggis of the JJ Cluster (Kanak Durga Colony).
2. The appellants also sought orders directing the respondents to upgrade the JJ Cluster (Kanak Durga Colony) in accordance with their policy.
3. It was the case of the petitioners (appellants before this Court) that the respondents had taken a decision, inter alia, to upgrade certain JJ Clusters including Kanak Durga Colony. They claimed that in view of the said decision of in-situ upgradation of the Kanak Durga Colony, the appellants had a right to be rehabilitated at their site and therefore, could not be removed.
4. The Land Owning Agency (L&DO) had opposed the writ petitions. It claimed that Sector-12, R.K. Puram, New Delhi was prime government land and had been encroached by the appellants unauthorisedly. It was also claimed that the said land, on which the JJ Clusters was located, had been allotted to Rajya Sabha Secretariat for construction of a guest hostel for the members of the Parliament as well as residential quarters for senior officials of the Rajya Sabha Secretariat. It was also contended that no right had been created in favour of the appellants.
5. The learned Single Judge had found that in terms of the extant policy, concurrence of the Land Owning Agency was required for in-situ regularisation, but the same was not forthcoming. The court noted that till date, no lease, license or any grant had been granted to the appellants. The Court also noted that while the respondents were resisting the claim of the appellants for in-situ upgradation, the respondents were willing to relocate the eligible JJ dwellers at another location. Accordingly, the petitions were dismissed.
6. The controversy in the present case is confined to whether the eligible JJ dwellers of Kanak Durga Colony are entitled for an in-situ upgradation of the said JJ Cluster.
7. Mr Mittal, learned counsel appearing for the appellants contended that the allotment of the land to Rajya Sabha Secretariat was the principal reason for denial of in-situ upgradation of Kanak Durga Colony. However, the said reason did not survive, as according to him, the Rajya Sabha Secretariat had surrendered the said allotment and had requested for an alternative plot of land. The said contention is stoutly disputed. The appellants contention that the Rajya Sabha Secretariat has surrendered the allotment of plot of land of Sector-12, R.K. Puram, New Delhi JJ Cluster (Kanak Durga Colony), is not supported by any material. The minutes of the meeting relied upon by Mr Mittal whereby, Rajya Sabha Secretariat had decided to seek alternate plot for its purposes does not indicate that the Rajya Sabha Secretariat had surrendered the allotment of the plot on which Kanak Durga Colony is located.
8. In Sudama Singh & Ors. v. Government of Delhi & Anr.: 2010 SCC OnLine Del 612, the Division Bench of this Court had directed that the case of the jhuggi dwellers, who had approached the court in that case, be considered in terms of the extant policy.
9. Following the said decision, the Delhi Urban Shelter Improvement Board Act, 2010 was enacted to establish the Delhi Urban Shelter Improvement Board (hereafter DUSIB). DUSIB had, at the meeting held on 11.04.2016, approved Delhi Slum & JJ Rehabilitation and Relocation Policy-2015 (Rehabilitation Policy), the same was notified by the Government of NCT of Delhi on 11.12.2017.
10. In terms of the Rehabilitation Policy, JJ bastis that had come up prior to 01.01.2006, could not be removed or demolished without providing alternate housing. DUSIB had notified 675 JJ bastis that were in existence prior to 01.06.2006. Kanak Durga Camp, Sector-12, R.K. Puram is included in the said list of 675 bastis. Thus, the eligible JJ dwellers of notified bastis are entitled for in-situ rehabilitation or alternate housing in terms of the Rehabilitation Policy.
11. The Rehabilitation Policy also specifically provides that a JJ Basti can be demolished only in certain circumstances, namely, (a) there is a court order; (b) the basti encroaches on a street, road, footpath, railway safety zone, or a park; (c) that the encroached land is required by the Land Owning Agency for specific public project as envisaged in the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011. In such circumstances, if the DUSIB permits demolition, then it shall make efforts to relocate jhuggis in the JJ Basti and hand over the land to the Land Owning Agency.
12. The Rehabilitation Policy also sets out the eligibility criteria for allotment of alternate dwelling unit. The relevant extract of paragraph 2 of the Rehabilitation Policy is set out below:
2. Keeping the above principles in mind, GNCTD announces the following policy for rehabilitation and relocation of JJ basti.
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(iii) In-situ rehabilitation
DUSIB shall provide alternate accommodation to those living in JJ Bastis, either on the same land or in the vicinity within a radius of 5 Km. In case of exceptional circumstances, it can be even beyond 5 Km with prior approval of the Board. The terms and conditions at which alternate accommodation will be provided and the eligibility conditions are being separately notified.
(iv) In-situ Rehabilitation of JJ Bastis on lands belonging to other Land Owning Agencies
i. DUSIB is willing to take over any JJ Basti on the model of Kathputli Colony from any land owning agency in Delhi for in-situ re-development; on the same terms & conditions on which DDA has given Kathputli Colony slum rehabilitation project to a private builder. Therefore, each land owning agency may make a list of all such bastis which they are willing to hand over to DUSIB on these terms.
ii. For the balance bastis;-
MPD 2021 envisages that for in-situ rehabilitation of JJ Bastis, a maximum of 40% land can be used as a resource and minimum of 60% of land has to be used for in-situ redevelopment to rehabilitate JJ dwellers. DUSIB will prepare a scheme of rehabilitation of any JJ Basti and use such portion of land which is required for rehabilitation of JJ Dwellers depending upon density of the said Basti and pass on the remaining portion of land to the Land Owning Agency, which will have to bear the cost of rehabilitation. The cost of rehabilitation would include the cost of construction of dwelling units and cost of land in case, additional land belonging to DUSIB is used for rehabilitation.
(v) Relocation in rare cases
Any Land Owning Agency will not demolish any JJ Basti which is eligible as per para 2(i) above unless:
1. there is any Court order
2. that basti has encroached a street, road, footpath, Railway safety zone, or a park 3. the encroached land is required by the land owning agency for specific public project as envisaged in The NCT of Delhi Laws (Special Provisions) Second Act, 2011, which is extremely urgent and cant wait.
In these circumstances, the land owning agency shall bring the proposal before DUSIB. If DUSIB is satisfied and permits demolition, then DUSIB shall make all efforts to relocate the jhuggis in that JJ Basti, clear the land and hand it over to land owning agency within next six months after the date of DUSIB resolution. In such circumstances, the land owning agency shall pay such amount to DUSIB in advance, which meets the cost of construction of alternate dwelling units, cost of the land at Circle Rate on which those dwelling units are constructed and cost of relocation. However, the beneficiary contribution as well as the contribution made by the Government of India if any, towards the cost of construction of dwelling units, will be deducted from the aforementioned cost of rehabilitation.
13. The learned counsel appearing for the respondents submits that in view of the Rehabilitation Policy, jhuggis at Kanak Durga Colony that had come up before 01.06.2006 will not be demolished without providing alternate housing. Further, the JJ dwellers would be relocated only if the decision is not to upgrade the JJ Cluster in terms of the Policy.
14. The Rehabilitation Policy has been upheld by this Court as well as Supreme Court in various decisions.
15. Mr Mittal also submits that the Rehabilitation Policy is not under challenge.
16. In view of the above, no further orders are required to be passed in the present petition except to direct the respondents to act in accordance with the Rehabilitation Policy.
17. Needless to state that if any action is taken contrary to the Rehabilitation policy, the appellants would be at liberty to apply.
18. The appeal is disposed of in the aforesaid terms.
VIBHU BAKHRU, J
TARA VITASTA GANJU, J
FEBRUARY 20, 2024
RK
LPA 991/2004 Page 1 of 1