VIKALP WELFARE SOCIETY & ORS vs UNION OF INDIA & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 22nd November, 2023

+ LPA 115/2019

(61) VIKALP WELFARE SOCIETY AND ORS. ….. Petitioners
Through:
Versus
UNION OF INDIA & ORS. ….. Respondents
Through: Mr. Chetan Sharma, ASG with Mr. Kirtiman Singh, CGSC, Ms. Pratima Lakra, CGSC with Mr. Amit Gupta, Mr. Waize Ali Noor, Mr. Saurabh Tripathi, Mr. Vikramaditya Singh and Ms. Vidhi Jain and Ms. Shreya Mehra, Advs. for UOI.
Mr. Dev P. Bhardwaj, Ms. Abubha Bhardwaj and Mr. Sachin Singh, Advs. for UOI
Mr. Santosh Kr. Tripathi, Standing Counsel (Civil), GNCTD with Mr. Rishabh Srivastava, Adv. for R2.
Mr. Parvinder Chauhan and Ms. Aakriti Garg, Advs. for respondent DUSIB with Mr. Vijay Maggo (Law Officer) and Mr. Pranav Siroha, Legal Assistant
Mr. Sanjoy Ghose, Sr. Adv. with Mr. Debarshi Chakraborty and Mr. Shashwat Awasthi, Advs. for Review Petitioner.
Ms. Vrinda Bhandari, Ms. Pragya Barsaiyan and Mr. Madhav Aggarwal, Advs. for applicant in CM. NO. 60531/2023

CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA

V. KAMESWAR RAO, J. (ORAL)

Rev. Pet. No.326/2023 & CM No.60531/2023 (application for recall of order dated February 18, 2019)
CM No. 60532/2023(application seeking condonation of 1768 days delay in filing the review petition)
CM No. 60533/2023(application seeking permission to file review on behalf of Mr. Ram Pal)
CM No. 60534/2023 (application seeking condonation of 992 day sdelay in filing the application for recall of order dated February 18, 2019)
1. This review petition and the connected applications have been listed before this Court in terms of the supplementary list, circulated in the post-lunch session pursuant to mentioning made before Hon’ble the Acting Chief Justice.
2. The review petition has been filed for recall of order dated February 18, 2019 on the ground that the review petitioners / applicants were not party either in the writ petition being W.P.(C) No.9285/2018 wherein the impugned order dated January 16, 2019 by the learned Single Judge was passed nor before the Division Bench in the above appeal.
3. At the outset, it may be stated that the review petition / applications for review and recall of order dated February 18, 2019 has been filed with an applications seeking condonation of delay of 992 / 1768 days.
4. The submission of learned counsel for the review petitioner / applicant is primarily that this Court had erred in concluding in the impugned order dated February 18, 2019 that the jhuggi jhopri cluster was not in existence before January 01, 2006. According to them, this Court had overlooked the evidences like the Telephone bill, Aadhaar Card, Election Card in drawing such a conclusion. They submit that the conclusion drawn by this Court that none of the appellants have annexed any documents showing the electricity connection to the dwelling is not a relevant consideration. According to them, the documents like Election Card, Bank Account, Aadhaar Card satisfies the condition that the appellants therein were residing in the jhuggi jhopri cluster before January 01, 2006. Even otherwise, the learned counsel for the review petitioner / applicant would also draw our attention to page 252 of the rejoinder to contend that the appellants (in the appeal) had annexed the electricity bill to show that they had electricity connection and as such, the Members of the Association / the appellants were residing in the jhuggi jhopri cluster in Khasra No.484, Sunder Nagar Nursery, Near DPS, Mathura Road, New Delhi.
5. We are unable to agree with the said submission made by the review petitioner / applicant for the reason that this Court in paragraph 10, has stated that if the appellants could get an Election Card, Bank Accounts, Aadhaar Card, they could have also got the electricity connection to the dwelling. This Court has also held that the appellants having not placed the same, the conclusion one must arrive at, is that they were not residing at that place before January 01, 2006. Even before us, the review petitioner / applicant have not placed any Electricity bill to show that they have been residing in the dwelling before January 01, 2006. On this, their plea is that after privatisation of the Electricity distribution, the companies started giving electricity connections only in the year 2008 and not before that. We are unable to accept such a plea, as the same was not the stand before the learned Single Judge or even before this Court. Moreover, we find that the order of which review is sought was passed in the year 2019 and these applications / review petition have been filed after more than four years in view of the contempt proceedings initiated for violating the order in Jamia Arabia Nizamia Welfare Educational Society dated January 12, 2011 in W.P.(C) No. 3927/2010 and W.P.(C) No.1512/1984 (and other matters) pending before the learned Single Judge. We find that the learned Single Judge in the contempt proceedings had on August 23, 2023 in clear words inter alia stated that in case unauthorised constructions are not removed at Khasra No.484, near DPS, Mathura Road and its surrounding area and a satisfactory report is not filed, the Court would be constrained to initiate contempt proceedings against the land owning department and its Officers. If that be so, the review petition and the applications, are the result of the action being taken by the authorities pursuant to the directions in the contempt petition(s). The filing of the petition / application, now that is after more than four years, cannot be entertained as the review petitioner / applicant were sitting pretty for the last four years and it is because of the action, which has been initiated by the respondents, that they have approached this Court.
6. That apart, we fail to understand, if it is the case of the review petitioner / applicant that they were residing in the jhuggi jhopri cluster before January 01, 2006, and the finding, according to the counsel, in paragraph 10 of the order dated February 18, 2019 is factually incorrect nothing prevented them to approach this Court, much in advance challenging the finding rather than waiting till the last moment when an action is sought to be taken for demolishing the unauthorised construction.
7. That apart, we are of the view that this Court in the order dated February 18, 2019 has also in paragraph 9 stated as under:-
“9. Having heard the learned counsel for the parties, we do not find any infirmity in the order of the learned Single Judge. The orders passed by the Coordinate Bench of this Court in the writ petition filed by Jamia Arabia Nizamia Welfare Educational Society are also very clear, a reference of which is already made above. Be that as it may, the issue which fell for consideration before the learned Single Judge was, whether these jhuggi jhopri basti was in existence before January 01, 2006, which is a pre-requisite for the application of the Policy dated December 11, 2017. The answer to the question has been given in the negative by the learned Single Judge by relying upon a satellite image of October 15, 2006, which clearly indicates that no jhuggi jhopri cluster existed on the said land at that point of time. Reliance placed by Mr. Aneja on the minutes of the meeting dated September 03, 2015 would not be of any help to the appellants herein. The said meeting was of the year 2015. Surely, the deliberations that have taken place in the meeting and the minutes dated September 03, 2015 do not relate to an issue whether the jhuggi jhopri cluster was in existence as on January 01, 2006 or before that.”
8. So, it must follow that non-production of Electricity bill is not the only ground. There is another aspect, which was considered by the learned Single Judge to draw a conclusion that there was no jhuggi jhopri cluster before January 01, 2006 like the satellite image pertaining to the years 2004, 2006 and 2017.
9. That apart, we note that the DUSIB, in their counter affidavit filed before this Court, has in paragraph 8, has stated as under:-
“8. That, as per the DUSIB Act & the Delhi Slum & JJ Rehabilitation, and Relocation Policy, 2015, the answering respondent initiates the process of removal / relocation/ rehabilitation only, after a request to the said effect, alongwith the payment of requisite charges, having been made by the land owning agency. However, currently, no request has been received from the concerned Land Owning Agency for rehabilitation of the dwellers of the subject area. It is pertinent to mention here that, even as per the aforesaid Policy, the JJ Basti must have come up before 01.01.2006. However, there is nothing on the records of the instant case to indicate that alleged JJ Cluster was in existence prior to 01.01.2006.”
(emphasis supplied)
10. It may be stated that much reliance has been placed by learned counsel for the review petitioner / applicant on the survey carried out in the year 2012, which features the names of 212 families as residing in the JJ Cluster, in support of their submission. We are unable to accept such a plea in view of the finding of fact by the learned Single Judge, which has been upheld by us. The plea of the learned counsel for the review petitioner / applicant is that if 2012 survey was in place, DUSIB could not have said that JJ Cluster was not in existence prior to January 01, 2006. The said plea would not help the case of the review petitioner / applicant for the reason that the conclusion drawn by the learned Single Judge was of a position which was in existence before January 01, 2006, that is much before the survey was carried out in the year 2012.
11. We also note that the plea of the learned counsel for the review petitioner / applicant that the review petitioner / applicant was not party in the writ petition filed before the learned Single Judge and before this Court in LPA is also misconceived. In this regard, it is necessary to note the averments made in the writ petition, which we reproduce as under, which clearly reflect that the writ petition was filed in a representative capacity on behalf of slum dwellers residing on Khasra No.484, Sunder Nagar Nursery, near DPS Mathura Road.
“2. That the Petitioner No. 1 happens to be a registered Welfare Society dedicated to the welfare of the slum clusters residing on the land falling in Khasra No. 484, Sunder Nagar Nursery, Near Delhi Public School, Mathura Road, New Delhi; the said Association is being represented through its Joint Secretary, Shri Naaem Khan, who has been duly authorised in this regard to sign, file and pursue the present Writ Petition, inasmuch as, precious interests of the affected residents of the said slum are involved. Thus, the present Petition is being filed by the said Society for and on behalf of its similarly situated residents of the slum. On the other hand, the Petitioners No. 2 to 10 are few of the occupants of the Juggies at the said Slum. The true copy of the Resolution dated 25.08.2018 passed by the Petitioner No. 1 Society for the purpose of filing the present Writ Petition along with the true copy of the Memorandum of the Society are hereby collectively annexed as ANNEXURE P-1 (COLLY.) to the present Petition.”
12. We are of the view that the review petition / application, apart from being barred by time, no ground has been made out seeking review/recall of order dated February 18, 2019. The review petition / applications are dismissed.

V. KAMESWAR RAO, J

MANMEET PRITAM SINGH ARORA, J
NOVEMBER 22, 2023/ak

LPA 115/2019 Page 7