SHABNAM BURNEY vs UNION OF INDIA AND ORS
$~51
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8035/2024
SHABNAM BURNEY …..Petitioner
Through: Mr.Sumit Kumar, Advocate.
versus
UNION OF INDIA AND ORS …..Respondents
Through: Mr.Apoorv Kurup with Mr.Shaurya Agarwal, Advocates for UOI. Mr.Tarun Johri with Mr.Ankur Gupta and Mr.Vishwajeet Tyagi, Advocates for DMRC. Mr.Parvinder Chauhan, Advocate for DUSIB. Ms.Prabhsahay Kaur, standing counsel with Ms.Deeksha L.Kakar, Ms.Ananya Sahu, Mr.Shivansh Sharma, Mr.Bir Inder Singh Gurm, Advocates for DDA with Mr.Lalit Bhiduri, Kanoongo/DDA. Mr.Bahar U. Barqui, Advocate for applicants in C.M.Nos.5835558357/2024 Mr.Prasanna S. With Ms.Rupali Samuel, Advocates for applicant in C.M.No.59163/2024 Mr.Alamgir, Advocate for applicant in C.M.No.58723/2024 Mr.Gautham Narayan with Mr.Rafio Akhter, Advocates for applicant in C.M.No.59162/2024. Mr.Yash S.Vijay with Ms.Pooja B.Mehta, Advocates for Review Petitioner in RP No.373/2024.
% Date of Decision: 08th October, 2024
CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
MANMOHAN, CJ : (ORAL)
Review Petition No.373/2024 & C.M.Nos.59345-59346/2024
1. List along with W.P.(C) No.7594/2018 before a Special Bench comprising Honble the Chief Justice and Honble Ms.Justice Manmeet Pritam Singh Arora on 23rd October, 2024.
C.M.Nos.58355-58357 & 58723/2024
2.
Present applications have been filed primarily seeking stay of the directions contained in the judgment dated 08th July, 2024 passed by this Court.
3.
Mr.Bahar U. Barqui, learned counsel for the applicants in C.M.Nos.58355-58357/2024 states that the applicants are residents of Shram Vihar, an unauthorised colony, who have been issued notices on 27th September, 2024 to vacate the colony in lieu of the demolition that was planned for 30th September, 2024.
4.
Mr.Barqui states that Shram Vihar, Abul Fazal Enclave has been given Registration Number 391C by the Revenue Department and is in the process of being regularised. In support of his contention, he relies upon the counter-affidavit 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.
6. Mr.Barqui emphasises that the Shram Vihar colony is situated on
private land and in support of his contention, he relies upon sale deeds
annexed with the affidavit handed over today.
7. Per contra, learned Standing counsel for the Delhi Development
Authority (DDA) states that the Shram Vihar colony is squarely located in
Zone O, however outside the 1 in 25 flood plains. The salient features of
Zone O as mentioned in the Zonal Development Plan for River
Yamuna/River Front, Zone O and as highlighted by learned counsel for
DDA are reproduced hereinbelow:
ZONAL DEVELOPMENT PLAN FOR RIVER YAMUNA / RIVER FRONT
(Zone O)
1.0 Introduction
1.1 As per MPD-2021 notified on 7.2.2007, the National Capital Territory (NCT) of Delhi has been divided into fifteen zones (Divisions) designated ‘A’ to ‘P’ (except zone ‘I’), eight in urban Delhi (‘A’ to ‘H’), six in Urban Extension (‘J’ to ‘N’ & ‘P’) and one for River Yamuna/River front which has been designated as Zone ‘O’ (Map-1)
1.2
The River Yamuna/ River front, Zone O’ has special characteristics and ecological significance for which various studies have been conducted from time to time. As such, the Zonal Development Plan of Zone ‘O’ is conceived to set the strategies for rejuvenation of river Yamuna and eco-friendly development.
2.0
Statutory provisions and objectives
2.1 The Zonal (divisional) Plan of the area is prepared under Section-8 and processed under Section -10 and simultaneously the modification of the land uses to be processed under Section 11(A) of the Delhi Development Act, 1957.
2.2
Section-8 of the Delhi Development Act 1957 defines the contents of the Zonal Plan. As per the MPD-2021, a Zonal Development Plan means a Plan for one of the zones (divisions) of the National Capital Territory of Delhi containing detailed information regarding provisions of social infrastructure, parks and open spaces and circulation system etc. The Zonal (Divisional) plan, details out the policies of the Master Plan.
3.0
Location, Boundaries and Area
3.1 River Yamuna enters from Palla (on north side) traverses a length of 48 km
through National Capital Territory of Delhi and leaves it at Jaitpur (south side).
The zone ‘O’ covers about 9700 ha area (as per MPD 2001) from Northern
boundary of National Capital Territory of Delhi up to the Southern boundary of
the National Capital Territory of Delhi.
The River Yamuna/ River front, Zone ‘O’ is bounded as under:
North: NCTD Boundary South: NCTD Boundary East: Marginal Bund and NCTD Boundary West: Marginal Bund, Ring Road and proposed
NH-2 bypass along Agra canal
4.0 Existing Characteristics/ Developments
4.1 The following are the predominant characteristics of this Zone:
i) River Yamuna in Delhi covers a length of about 48 km including 22 km in urban
area and its spread varies from 1.5 km to 3.0 km.
ii) Seven Road Bridges, two Railway Bridges, one Metro Bridge and two fair weather Pontoon Bridges cross River Yamuna.
iii) Twenty two major drains are discharging effluents into the river.
iv) The river bed gently slopes from 208 msl in the north to 199 msl in the south. Thus the gradient of the river from north to south is about 9m.
v) The zone has an assortment of activities like Delhi Secretariat, Samadhi complex, Cremation Grounds, Sports Complexes, and Thermal & Gas Power Stations, Bathing Ghats, Sewerage Treatment Plants, fly-ash ponds and fly ash brick plants etc. Some of the pockets are under thick plantation and most of the river basin area in Zone ‘O’ is being used for agriculture, horticulture and has a wealth of flora and fauna. The encroachments in the River bed area aggravate the pollution in river Yamuna. In some parts land from river basin has been reclaimed for unauthorized constructions.
4.2 Existing characteristics of various part/ stretches of River Yamuna on either site are as under:
Sub-Zone Description of Area Existing Characteristics/Developments in Zone O
West East
1 NCTD Boundary to Wazirabad Barrage Agriculture, Biodiversity park, Jagatpur village, Wazirabad Village, monuments, Unauthorized colonies, Wazirabad Water works, Ghats. Agriculture, Water works, Facility centre, CRPF Camp-, Delhi police Firing range, Unauthorized colony
2. Wazirabad Barrage to ISBT Bridge Unauthorised colonies, Unauthorised religious structures, CNG station, Bathing ghat 220 KV ESS (Electric Sub-Station), water ponds, grass farms, Marshes, Gurudwara & Agriculture
3 ISBT Bridge to Old Yamuna Rail cum Road Bridge Nigambodh ghat, unauthorized growth of Yamuna Bazaar, Salimgarh fort, ghats, ESS Unauthorized colony, Agriculture, DMRC Depot, IT Park, PSP site.
4 Old Yamuna Bridge to ITO Barrage Electric crematorium, Vijay ghat, Shanti van, Shakti sthal, Rajghat, Gandhi darshan, I.G. stadium complex, Power house, Delhi secretariat, Fly ash brick plant Agriculture, cremation ground
5. ITO Barrage to Nizamuddin Rly Bridge IP power house, Gas turbine power house, STP. Agriculture, Forest, Site for DMRC Depot & Station.
6. Nizamuddin Rly Bridge to NH 24 Fly ash pond, Fly ash brick plant Agriculture, PSP (Public and Semi-Public) site Akshardham temple complex, Parking, CWG Village Complex.
7. NH 24 to Okhla Barrage Electric crematorium, Rajiv Gandhi Smriti Van, unauthorized petrol pump, unauthorized encroachment, Electric sub-station, site of underground water reservoir, unauthorized colonies Agriculture
8. Okhla barrage to NCTD Boundary Unauthorized colonies, water body, agriculture, Madanpur Khadar resettlement scheme, LPG bottling plant Agriculture & Water body.
xxx xxx xxx
5.6 MPD-2021
i) Rejuvenation of River Yamuna through a number of measures including ensuring adequate flow in river by release of water by riparian states, refurbishment of trunk sewers, treatment of drains, sewering of unsewered areas, treatment of industrial affluent, recycling of treated effluent and removal of coliforms at STPS (ANNEXURE-I).
ii) The natural features such as Forest, Wildlife Sanctuary, River Yamuna and other water bodies should be conserved and kept free from unrestricted and unplanned urban development.
iii) Designation and delineation of appropriate land uses and aesthetics of the river front which should be more fully integrated with the city and made more accessible-physically, functionally and visually.
iv) Water bodies, having a minimum size of surface area of 1 ha shall be
preserved by the concerned authorities. Further effort shall be made at the local
level to retain smaller water bodies.
8.
She emphasises that in terms of Zonal Development Plan for River Yamuna/River Front, Zone O is conceived for rejuvenation of river Yamuna and eco-friendly development in line with the river and its morphology. She also states that Shram Vihar falls in the definition of flood plains as mentioned in River Ganga (Rejuvenation, Protection and Management) Authorities Order, 2016.
9.
Learned counsel for the DDA specifically relies upon her reply affidavit to contend that the alleged Shram Vihar colony is not included in the list of 1731 unauthorised colonies recognised by the GNCTD. She emphasises that the Shram Vihar colony is distinct and separate from Abul Fazal Enclave, another colony located in the same area.
10.
She points out that the land on which construction has been undertaken by the applicants was handed over by the DDA to DMRC on the condition that DMRC shall remove encroachments over the allotted land.
11.
Having heard learned counsel for the parties, it is an admitted position that Shram Vihar colony is not one of the 1731 unauthorised colonies that have been recognised by the GNCTD. Consequently, it is an unauthorised colony that is not due for recognition as an unauthorised colony.
12.
The argument that Shram Vihar does not fall in the flood plain as the risk of flooding is only one (1) in twenty five (25) years is not correct as the flood plain has been defined under the River Ganga (Rejuvenation, Protection and Management) Authorities Order, 2016 as, such area of River Ganga or its tributaries which comes under water on either side of its due to floods corresponding to its greatest flow or with a flood of frequency once in hundred years.
13.
Moreover, even if it is assumed, that Shram Vihar colony is situated outside the flood plains, yet it falls within Zone O, which is an ecologically fragile zone and is being primarily used for horticulture and has a wealth of flora and fauna. It needs to be borne in mind that Zone O has been conceived for rejuvenation of river Yamuna and eco-friendly development in line with the river and its morphology.
14.
The applicants reliance on the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies), Regulations, 2019, is misconceived as an Exclusion clause has been incorporated by virtue of Regulation No.7, which specifically states that no rights shall be conferred or recognised under the said Regulations on the land falling in Zone-O, Yamuna Flood Plain……..
15.
Further, though the applicants claim to be in possession of a private land, yet they have not obtained any Sanctioned Plan or Completion Certificate either prior to construction or after completion of construction. It is settled law that even owners of a private land have to take permission from the statutory authority before carrying out any construction and if that is not done, the construction is liable to be demolished.
16.
This Court takes judicial notice of the fact that the pollution in river Yamuna is at all-time high. As recent as yesterday i.e. 7th October, 2024, the Times of India, a daily Newspaper has published an article Why Yamuna is Stinking Like Never Before. According to the said report, which is based on a report prepared by Delhi Pollution Control Committee, the fecal coliform levels are 1,959 times the permissible limit, 9,800 times the desired limit where the river exits the city. In the said article, it is pointed out that the fecal level is at an all-time high in September, 2024 and one of the main
reasons for the same is untreated sewage flowing from unauthorised colonies into river Yamuna.
17.
Keeping in view the aforesaid, this Court is of the view that the applicants are not entitled to stay of the notice dated 27th September, 2024 and/or of the directions contained in the judgment dated 08th July, 2024.
18.
Accordingly, the present applications are dismissed.
CHIEF JUSTICE
TUSHAR RAO GEDELA, J OCTOBER 08, 2024 KA