IN THE HIGH COURT OF DELHI AT NEW DELHI

 

SUBJECT : LAND ACQUISITION MATTER

 

WP A No. 1505-25/2005

 

Judgment reserved on  : May   04, 2006

Judgment delivered on  : May 11, 2006

 

 

Village Tughlakabad Occupants

& Residents Welfare Association                         ......petitioner

 

                                                  through: Mr. Arun Kaushal,Advocate.

                                                                      

 

                                                  Versus

 

 

Union of India & Others                                  ....Respondents

 

                                                  through: Mr. Jamshed Bey for L&B Deptt.

                                                  Mr. Gaurav Sarin for DDA

                                                  Mr. Sanjay Poddar for LAC

                                                  MR. Rajeev Mehra for UOI.

 

 

SWATANTER KUMAR, J.

 

1.      Village Tughlakabad Occupants and Residents Welare Association has filed the present writ petition under Article 226-227 of the Constitution of India praying that a writ of mandamus be issued to the respondents directing them to regularise the physical possession of the structure of the occupants in terms of their policy and scheme and in light of  the order of the Court dated 17th August, 1998 passed in CWP No. 4771/93. Further it is prayed that respondents be prohibited from taking any coercive action including dispossessing them from the land in question till the plea of regularisation of the unauthorised colonies built up either on Government land or Gaon Sabha land is finally decided by the concerned authorities.   Lastly, it is prayed that, as per policy of the Government, respondent should be directed to take a decision under Section 48 of the Land Acquisition Act for releasing and denotifying the acquired land from the award dated 28th January, 1968 and take a fresh decision in all aspects of the prayers made.

 

2.      In support of its above prayers, it is pleaded by the petitioner association that they are the occupants of Village Tughlaqabad, Tehsil Kalkaji, District South, New Delhi of Khasra Nos. 859, 875, 1787/876, 1788/876  min. 1788/876 min, 1789/876 min, 2837/1907/861, 979, 958,980 and 957.  According to the petitioner, the Govt. had taken a policy decision for regularisation of unauthorised colonies and in furtherance to this decision, a list of 1071 unauthorised colonies was prepared, a copy of which has been annexed to this petition as Annexure-1.   A further policy was framed for regularisation of these colonies and guidelines were revised and issued in the year 2004 taking March, 2002 as the cut off date.  These guidelines are also filed along with the petition as Annexure-2.  It is averred in the writ petition that in the case of Common Cause Vs. Union of India and Others (CWP No. 4771/93) the Court vide its order dated 17th August, 1998 held as under :-

"Whether a particular colony shall be regularized or not but what we are directing is to take a definite decision and if it is decided not to regularize a particular colony then to carry out that decision to its logical end by demolition action and not merely demolition of only few selected houses but the colony as a whole."?

 

3.      The order is stated to have attained finality as no appeal was filed by any of the parties and thus, the petitioners have a right to require the respondents to regularise the colony in terms of above order.  Even other writ petitions including WP A NO. 11608-17/2004 were filed by the residents of unauthorised colonies, which were disposed of by the order dated 16th August, 2004 in similar terms. 

 

4.      The petitioners claim to be in physical possession of the area, which are squarely covered by the policy of the Government.  The basic argument on behalf of the petitioners in light of these facts is that they are in occupation of unauthorised colony and are entitled to regularisation of their colonies in terms of the policy of the Govt. as well as the orders of the Court passed in somewhat similar circumstances and they should not be disturbed in the meanwhile.

 

5.      Separate counter affidavits were filed by the Union of India, MCD, Govt. of NCT of Delhi and the DDA. In all these affidavits, common case of the respondents is that the petitioners have no right to claim the reliefs prayed for in this petition and it is stated that Govt. policy does exist and the cases are being considered under the revised guidelines dated 4th February, 2004,  copy of which the respondent have annexed to their affidavit as Annexure R-1.  This policy does not vest any person with indefeasible right and the authorities are taking decision while considering various factors before denying or accepting the contention of particular occupant of  the colony for regularisation.  Passing of the order by this Court in different petitions is obviously not disputed. 

 

6.      The Delhi Development Authority in its affidavit has stated that the lands, subject matter of the present petition, have been acquired vide award No.50-A/69-70 Supp dated 23rd November, 1981 and 50-B/95-96 Supp dated 10th November, 1995.  It was further stated that possession of the land was taken by the Collector and the same was delivered to the DDA on 16th March, 2004.   Even possession of Kh. No.979 was handed over to the DDA on 24th February, 2004. Possession of  Kh. No. 958 and 980 was handed over on 23rd November, 1981.   The possession of land falling in Kh. No.957 was handed over to the DDA on 19th September, 1996.   It is stated that the land in question, particularly Khasra numbers mentioned in the writ petition are not having any structures much less a fully developed or otherwise an unauthorised colony.  On the contrary, it is stated that it is an open vacant land, which is  vested in the Government and now is under the possession and control of the DDA.  As the possession of the land has been taken in furtherance to the award dated 23rd November, 1981 and 10th November, 1995, the present petition is not maintainable for any relief.  It is also stated that in fact possession of the area was taken and barbed wiring was put by the DDA around the entire area but the petitioners are unauthorisedly and by encroaching  using the land in question for placing the containers.  Photographs are also placed on record in support of this contention.   The DDA has further stated that the land was acquired for a public purpose namely planned development of Delhi.  This purpose has been upheld by different judgments of the Court.  Besides these averments it has also been stated that no relief can be granted to the petitioners in the present petition.

 

7.      In light of the above pleadings of the parties, the following two questions would require consideration by the Court:-

(a) In the facts and circumstances of the case whether the respondents can be directed to consider the representation of the petitioners under Section 48 of the Land Acquisition Act, more so favourably, and if so, to what effect and till then claimed possession of the petitioners be protected by the Court?

 

(b)  Whether this Court can issue mandamus to the respondents directing them to regularise the unauthorised colony as claimed by the petitioners as per the list, Annexure P-1 and policy, Annexure P-2 as framed by the respondent?

 

Discussion on relief

8       It is not in dispute that the petitioners had moved a representation before the authorities requesting them to denotify the land acquired under Award No.50-A suppl/1969-70 vide notification No.F,4(2)/65 L&H dated 28.1.1968.  This representation was of course based on the premise that in terms of policy of the Government and the order of a Division Bench of this Court, unauthorised colonies have to be regularised.  The representation dated 28th January, 2005 has been rejected by the respondents vide their letter dated 3rd June, 2006, which was produced during the course of hearing (copy was given to the petitioners).  The same reads as under :-

"                                                 REGD. AD/SPEED POST

 

         GOVERNMENT OF NCT OF DELHI

         LAND & BUILDING DEPARTMENT

         VIKAS BHAWAN NEW DELHI

 

F.9(24)/2005/L&B/LA/1257                           Dated: 03/05/06

 

To,

 

         The President

         Residents Welfare Association

         Village Tughlkabad

         Tehsil Kalka Ji, New Delhi.

 

Subject:                 Application u/s 48 of the Land Acquisition Act for denotification        of land situated in village Tughlkabad

 

Sir,

        

         With reference to your representation dated 28.1.2005 addressed to the Hon'ble Lt. Governor on subject cited above, I am directed to inform that the since the possession of the land in question has already been taken, the acquisition proceedings stands completed.  Hence the provisions of section 48 can not be invoked in this case. The application for denotification of the land in question as such cannot be considered.  This is issued with the prior approval of Pr. Secretary (L&B).

 

                                                  Yours faithfully,

                                                 

                                                       Sd/-

                                                  (VIJAY KHANNA)

                                            DY. SECRETARY (LA)"?

         As is clear from the language of the said order that the request has been declined on the ground that the provisions of Section 48 cannot be invoked in the facts and  circumstances of the case.  As per the affidavit filed by the respondents and particularly the DDA it has been stated that possession of the entire land was taken on different occasions.  The possession was taken on 23rd November, 1981,  19th September, 1996, 16th March, 2004 and 24th February, 2004. The khasra numbers referred to in the writ petition were also acquired and possession thereof was taken by the authorities concerned.  The possession of the land in question has been given to the DDA for taking planned development of Delhi in larger public interest.  Once the possession is taken, in that even, the power of the Government to denotify the land from acquisition proceedings is not available even to the authorities.  The representation of the petitioners would hardly be maintainable in those circumstances.  There is no dispute to the fact that the land was acquired and award was made by the collector.  Thereafter, the possession of the entire land including the land referred to in the present petition has been taken by the respondent through different kabza karvahees (possession report and the land have been handed over to the DDA).  The DDA established its possession by fixing pillars all around and putting a barbed wire around the boundaries of the acquired land.  DDA has annexed photographs along with their counter affidavit, which clearly show that these facts are correct.  Furthermore, on the land in question there is no construction and in fact only containers are being stored in the open area.  Even the SHO of the area has stated that DDA had planned removal action with the help of the police authorities but the stay order of the Court was shown, as a result of which, no further action could be taken and there were only containers lying on the land.  To this affidavit, a rejoinder was filed by the petitioners but in the entire affidavit except vague denials nothing has been stated.  It was averred that possession is still with the petitioners.  This averment is without any basis and particularly in view of the above records maintained by the authorities in normal course of their business and the photographs filed by them it cannot be said that petitioners are in possession of the land in question.  In fact the Committee dealing with the representation under Section 48 has also affirmed this fact that possession of the land has been taken and as such the petitioners cannot invoke the provisions of Section 48 of the Act.  This approach of the authorities is in consonance with the scheme of the Act.  Sub Section (1) of Section 48 itself provides that the Government is at liberty to withdraw from the acquisition proceedings of any land, subject to the provisions of Section 36 but with the further proviso, which is in built in the section itself by using of specific language that this power is not available to the Government where the possession of the land has been taken.   Once the Govt. is not vested with such powers, the prayer of the petitioners that Court should direct the said authorities not only to consider the representation but even allow denotification of land can hardly be said to be maintainable or even otherwise just, fair and equitable.  A Division Bench of this Court in the case of Raheja Hospital & Psychiatric Research Institute Vs. Lt. Governor of Delhi and Others 121 (2005) DLT 193 (DB) clearly stated the principles that scope of powers exercisable by the Government under Section 48 was very limited and was distinct from the powers exercisable by the Collector under Section 5A of the Act.  Repeated challenge to the notification would not be permissible even by adopting an indirect method of taking recourse to Section 48 even without satisfying the basic ingredients specified therein. 

         The order dated 3rd May, 2006 rejecting the representation of the petitioner under Section 48 of the Act, thus, is in conformity with the provisions of the Land Acquisition Act and as such calls for no interference.  Face with this situation, the petitioners obviously cannot claim the first relief prayed for by them.

(b)    Coming to the issue of regularisation of unauthorised colonies raised by the petitioners, it may be noticed at the very outset that in the case of Raheja Hospital (supra), a Division Bench of this Court further stated that the guidelines prepared by the authorities are primarily intended to guide the authorities and they do not vest any indefeasible right in the persons.  These guidelines are primarily meant for providing a direction to the authorities so as to enable them to exercise their power in just, fair and lawful manner.  As already noticed, there is no doubt that various Benches of this Court had issued orders  directing the respondents to consider the request of the parties for regularisation of unauthorised colonies and even directed maintenance of status-quo.  Even in this writ petition, similar orders were granted in favour of the petitioners on 1st February, 2005, whereafter the parties were directed to file detailed affidavits to substantiate their claims for regularisation of the colony. The possession of the land including the land referred to by the petitioners in the present writ petition has been taken by the Government.  We have already held that the contention of the petitioners that they are in possession of the land in question is hardly tenable.  In the list of unauthorised colonies, copy of which has been annexed to the writ petition as Annexure P-1, the cut of date was taken to be March, 2002.  It was stated that regularisation of all unauthorised colonies whether on private or public land would be done, subject to the development of proper lay out and service plans in order to ensure that minimum necessary/feasible level of services and community, facilities are provided.  The question of alternative sites was also to be considered as per the procedure prescribed in the guidelines.  The respondents have also annexed copy of the guidelines as Annexure R-1 to the reply of respondent No.1.  These general guidelines were revised and modified in February, 2004.  The respondents whenever consider the case of regularisation of unauthorised colonies would have to consider the same in accordance with these guidelines.  It will be unjust and unfair, if the petitioners having waited for all these time without questioning the acquisition proceedings, particularly when the awards were made in the year 1981 and 10th November, 1995 now want to take up a plea of regularisation of unauthorised colony and defeat the very purpose i.e. of planned development of Delhi.

 

9.      In the writ petition, the petitioners have only made a bald averment that they are occupants of an unauthorised colony of Village Tuglakabad.  No details, plans or photographs were ever filed along with the writ petition.  On the contrary, the DDA and other authorities have not only filed affidavits but have even annexed the photographs showing that there is no construction on the land referred to in the writ petition and it is an area, possession of which has already been taken by the DDA. The petitioners and one M/s K.G. Logistics Containers Pvt. Ltd have placed their containers on the land in question.  This certainly is an abuse of the public property and we are unable to understand as to why the authorities have not taken any action for all these years though interim order was passed by this Court in February, 2005. 

 

10.    Be that as it may, the petitioners have not even approached the Court with complete and true facts.  The writ petition is vague in all its averments and in fact  does not state any substance or satisfy the ingredients stated in law and even in the policy of the Government for regularisation of unauthorised colonies.   We have no reason to disbelieve the affidavits filed by the authorities and the photographs placed on record.  The petitioners have not filed the proper rejoinder nor filed the photographs in response to the affidavit, which was filed by the DDA as back as on 19th January, 2006. 

         During the course of hearing, learned counsel appearing for the respondents contended that the acquired land, particularly the portion of the land, which have been referred to in the writ petition is adjacent to the Tuglakabad Fort and in any case no construction can be raised in that area.

         Para 7 of the affidavit filed by the DDA reads as under :-

         "7.                 It is further submitted that the land subject matter of the present petition is lying vacant on site and is under the management of the Horticulture Department of DDA.  It is submitted that there is no colony or structures on the land subject matter of the present petition.  Hence, the inclusion of the same in the 1071 colonies in the proposed regularisation is a false statement and concealment of facts by the petitioner and the petitioner be put to strict proof thereof.  The photographs pertaining to Khasra Nos. 856, 857, 859, 860, 861, 875 and 876 of Village Tughlaqabad are annexed herewith for the ready perusal of this Court and are marked as Annexure R-1(colly_......"?

         The petitioners have filed no document, copies of revenue record, or even other documents or photographs which could even remotely suggest that the colony exists and petitioners are in possession of the land.  It is interesting to note that in the rejoinder filed by the petitioners themselves, they referred that the respondents and the officers of the Archaeological Department with the active support and connivance of the Local MLA Shri Ranvir Singh Bidhuri, Shri Virender Bidhuri and their Associates allowed them colonizing of Tughlakabad Fort land and permitted them to raise unauthorised construction inside and adjoining to the walls of the world historical Ancient monument and deface the beauty of the said Fort.  This averment itself shows that the land in question is adjacent and opposite to Tughalakabad Fort and the photographs filed by the DDA exactly show the same land, however, without any construction or colony existing on that land.  It is a matter of regret that such an Ancient Historical Monument is surrounded by the containers and the public land is being put to such misuse.  The concerned authorities are certainly responsible for this misdeed and it is a clear act of carelessness and callousness on the part of the concerned department. 

 

11.    In the peculiar facts and circumstances of the case we do not consider it even a fit case where the Court should issue a mandamus directing the respondents to consider the representation of the petitioners for regularisation of the so called unauthorised colony, which does not even exist on the site.  We are conscious of the fact that in some other cases, such a direction for consideration was issued but in those cases, record reflected that there were colonies existing and according to the petitioners in those cases they had satisfied the parameters stated in the policy of regularisation of unauthorised colonies issued by the Government.

 

12.    For the reasons aforestated, we find no merit in this petition and the same is dismissed, however, living the parties to bear their on costs.

                                                                       Sd/-

                                                  ( SWATANTER KUMAR)

                                                                JUDGE

 

                                                           Sd/-

                                                  ( S.L. BHAYANA )

May 11, 2006                                       JUDGE