Mukul Mudgal, J.
1. These two writ petitions have been filed by persons who were, at the time of filing of the petitions, residents of a JJ Cluster at Arjun Camp at a site adjoining Pocket B-9, Vasant Kunj, New Delhi. They raise significant questions concerning the implementation of the Master Plan for Delhi (hereinafter referred to as "MPD") and their entitlements to low income housing in terms thereof read with the relevant provisions of the Delhi Development Act 1957 (hereinafter referred to as "Act"). Although the slum cluster in question was demolished during the pendency of these petitions, the court continued with these hearing of the matters in view of the larger issues involved particularly since the phenomenon of burgeoning slums and their demolitions has become almost routine in Delhi.
2. The brief facts of the case according to the petitioners are as follows:
(a) In the late 1980s, Arjun Camp, a JJ Cluster in Pocket B-9 Vasant Kunj, originated as a small settlement of construction workers. The slum cluster grew as the residential flats in the nearby pockets in Vasant Kunj began to be constructed. The petitioners claim that at the time of filing of these petitions, in August 2002, there were about 200 families residing in Arjun Camp, many of them for several years. It is further stated that all the working members of these families were engaged in informal sector occupations serving the residential apartments in the vicinity as maid servants, hawkers, drivers and so on. Their children were attending the local schools.
(b) On 25th July 2002 respondent DDA officials came to the Arjun Camp and gave ten of the petitioners offer-cum-demand letters whereby each of them was asked to deposit, within 10 days' time, sums of Rs. 7,000 or Rs. 5,000 respectively for alternative plots of sizes of 18 sq. m. or 12.5 sq. m. Three more persons were given such letters around 29th July 2002 and few more on 5th, 6th and 9th August 2002. Forty two persons in all were given such letters but the location of such alternative plots was not indicated in the letter.
(c) When it became apparent to the remaining residents that they were not going to be given such letters and that their dwellings would be demolished at any time, they made representations to the respondent DDA requesting to know the reasons for the proposed relocation, the criterion for identification of persons found eligible for issuance of letters of allotment of alternative plots and also for a prior notice before the actual demolition. With no response to their representations, the petitioners approached this Court by filing these two writ petitions.
The second writ petition (C.W.P. No. 5009 of 2002 - Bansraj and 41 Ors. v. DDA) has been filed by those who have been issued allotment letters but who are aggrieved that these allotment letters are legally flawed. They contend that they cannot be subject to forced eviction on the basis of such allotment letters. It is, inter alia, contended that these petitioners were being asked to pay amounts for a small parcel of land, the location of which is not known. Further the sizes of the plots being offered fall far short of the minimum permissible sizes specified in the MPD. Petitioners also expressed apprehension that the forced eviction would take place the midst of monsoon disrupting their lives, livelihoods and the pursuit of education by their children. The prayer in this writ petition is to restrain the respondent DDA from shifting the petitioners from the JJ Cluster at Arjun Camp in violation of the MPD and "further to direct the respondent not to shift the petitioners unless and until they have ready plots in a scheme as per Master Plan norms on a low income housing site within Vasant Kunj as per approved layout plan."
(d) When these writ petitions came up for hearing for the first time on 16th August, 2002 a learned Single Judge of this Court recorded the contention of the learned Counsel for the petitioners that areas which were earmarked in the MPD for construction of accommodation in the low income group (LIG) category were being utilized for construction of accommodation of a higher category with the result that there was no appropriate accommodation available for allotment to the LIG category including persons like the petitioners. Notice was made returnable on 10th December, 2002. However, stay of demolition, despite being sought, was not ordered although notice appears to have been issued on the stay application. A further application for stay appears to have been moved on 20th August, 2002 (C.M. No. 8943 of 2002) but the counsel of the petitioners was permitted to withdraw this application with a liberty to approach the respondent DDA for clarification in respect of the area where the petitioners were to be rehabilitated and their entitlements.
(e) On 19th May, 2003 the entire JJ Cluster at Arjun Camp was demolished and the site cleared. According to the respondent DDA, 39 JJ dwellers, who had completed the requisite formalities had been relocated at the Madanpur Khadar resettlement scheme.
(f) The above development was not viewed by this Court as having rendered the writ petition infructuous particularly in view of the reliefs claimed as set out herein above.
3. The basic issue in these petitions concerns the failure of the respondent DDA to construct adequate LIG housing or housing for the economically weaker sections (EWS) as per the MPD norms resulting in an implementation backlog.
4. The learned Counsel for the petitioners has submitted as under:
(a) Section 7(1) of the Act requires the preparation of a Master Plan which, as per Section 7(2)(b) of the Act, shall "serve as a basic pattern within which the zonal development plans for the various zones may be prepared." Section 7 (1) of the Act reads as under:
Section 7(1) : Civic survey of, and master plan for, Delhi - The Authority shall, as soon as may be, carry out a civic survey of, and prepare a master plan for, Delhi.
(b) That MPD approved in 1962 emphasized the importance of low income housing as a key purpose of the government policy of public acquisition of the entire urbanisable area to facilitate implementation of the MPD. The MPD itself stated that ownership of land by government "is imperative if slum clearance, redevelopment and subsidized housing and provision for community facilities according to accepted standards have to be undertaken."
(c) That the MPD recommended relocation of squatters in busties in the various parts of the urban area so that they are integrated into the larger neighborhood community.
(d) The MPD states "it is of utmost importance that physical plans should avoid stratification on income or occupation basis."
(e) According to the specific portions of MPD, which relate to low income housing clearly show that as regards housing standards for the purposes of either resettlement or in situ upgradation, the minimum plot size should be 25 sq. m subject to a maximum density of 250 tenements (about 1250 persons) per hectare.
(f) The zonal plan for Vasant Kunj (F Zone) also acknowledge the need to upgrade areas containing JJ Cluster and unauthorised colonies. The approved layout plan for Vasant Kunj, however does not allocate the mandatory number of site and service plots for the economically weaker sections. While deviating from the MPD requirements for LIG and EWS housing, the respondent DDA has ignored the mandate of the MPD and that has lead to a present situation of growing slum clusters.
(g). The petitioners have annexed photographs to show how even the LIG flats constructed by the respondent DDA in Vasant Kunj are being misused for other purposes by property brokers and even by the respondent DDA itself. Further the resettlement by the respondent DDA of these slum clusters is in violation of the MPD requirements as to the plot size and number of dwelling units per hectare. The MPD being of a statutory character is binding on the respondent DDA and ought to be implemented in letter and spirit.
(h). There is violation of due process requirements by the respondent DDA in that the petitioners have been subjected to forced eviction without adequate prior notice. They trace their right to shelter, and a corresponding obligation on the State, not only to Articles 14 and 21 of the Constitution, but also Article 11(1) of the International Covenant on Economic Social and Cultural Rights (ICESCR) which has been ratified by India. Article 11 (1) of the ICESCR reads as follows:
1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
5. The learned Counsel for the respondent DDA, submitted as under:
(a) The respondent DDA had not violated the MPD. With the extensive modification of the MPD on August 1, 1990 "the provisions given in the Master Plan 1962 with perspective up to 1981 are no longer valid."
(b) The JJ cluster at Arjun Camp had been removed on May 19, 2003, and that 39 JJ dwellers, who had completed the requisite formalities had been relocated at Madanpur Khadar resettlement scheme. The rest who completed the formalities "will be relocated as per policy of Government of India.
6. The learned Counsel for the petitioners in the rejoinder submitted as follows:
(a) The respondent DDA had not answered many of the contentions in the petitions particularly those concerning the implementation of the backlog in respect of EWS and LIG housing.
(b) The modification to the MPD made in 1990 did not in anyway reverse the provisions of MPD 1962 which required integration of low income housing with other categories of housing; the amendment in 1990 sets out even more detailed norms, standards and targets.
7. When the case came up for hearing on 22nd August 2003, this Court noticed that the respondent DDA's counter affidavit "does not even meet the allegations made in the Writ Petition specially in view of the controversy set out in the order dated 16th August 2002." The court granted the respondent DDA a last opportunity to file a proper affidavit under the signature of the Vice Chairman, respondent DDA.
8. On September 10, 2003 Mr. Anil Baijal, then Vice-Chairman, respondent DDA filed an additional affidavit in which he submitted as follows: he first contended that:
(a) the resettlement of the petitioners had nothing to do with the issue whether respondent DDA had provided sufficient LIG housing in the Vasant Kunj area. Even if the respondent DDA had provided large number of LIG/ EWS houses, it would not have benefited the petitioners as there were already a number of waitlisted applicants (nearly 10,000) under respondent DDA's LIG scheme.
(b) As regards the MPD norms for providing housing to the site and service category, the affidavit took the stand that "recommendations in the Master Plan are broad guidelines and cannot be taken as scheme specific."
(c) There could be a shortfall in respect of the LIG housing in the Vasant Kunj area. But the matter should be seen not in "geographical or temporal isolation" but in a totality "for the whole city/ zone."
(d) Out of the respondent DDA's total allotted housing stock of 3.3 lakh units, the majority, nearly 60% related to LIG/ EWS category. The specific averment was to the following effect in para 7 of the additional affidavit:
If we see the zonal plan in its totality, it would become even more clear that while there could be possible short falls in respect of LIG housing in the Vasant Kunj area, these have been adequately compensated by construction of such housing other areas in the zone.
(e) The respondent DDA termed the petitioners as "unauthorised encroachers", and urged that they were raising a bogey of Master Plan violation by the respondent DDA.
9. In reply to the additional affidavit the petitioners submitted as follows:
(a) Without the detailed figures of sub-zone wise construction of EWS and LIG units and their comparison to actual plan targets, it would not be possible to know the correct picture.
(b) The monitoring data would show whether the plots meant for LIG/ EWS have been converted illegally to other categories of housing.
10. Thereafter this Court made a detailed order on 12th November 2003 setting out the main issue arising in the petitions. The said order dated 12 November 2003 reads as under:
The additional affidavit has been filed which states a broad position without being specific. General statements have been made about existence of EWS/LIG Housing in and around Vasant Kunj and it has been stated that Vasant Kunj should not be treated in isolation but a holistic view should be taken of Zone F. No details have been given as to whether in Zone F how much EWS/LIG Housing has been constructed or is proposed for construction and not constructed. The example of this in Sector D, Pocket-C where LIG housing was envisaged and construction of the other categories has been done but construction in this category has not been done. No reasons have been specified for the same nor time period prescribed within which the same will come up.
The broad issue which arises for consideration in the present petition is a consequence of the failure of the respondent to develop adequate LIG/Janta Housing in colonies or in peripheral areas which has also resulted encroachment on public land. Subsequently, these public lands are cleared by allotment of alternative sites. It cannot be expected that the persons engaged in vocation which are relevant for the housing in other categories would be able to do so from locations at distance. The net result has been that the alternative sites are sold and the persons come and reoccupy the original sites. Services like a dhobi, iron women etc. are bound to be rendered in and around the colony.
In view of the aforesaid position that the respondent was required to explain as to whether the development of the LIG/Janta flats had kept pace with the construction and developments of the other categories of the flats.
Even assuming that Zone F has to be considered as a whole, the DDA is bound to provide specific details of the LIG/Janta flats constructed in the said Zone and at which time as also the quantum of accommodation under the said categories. This would be true both of Vasant Kunj and areas around it. In the plan filed by the respondent portions have been marked in "Yellow" which have already been constructed and the details of the same are liable to be disclosed. The other areas have been marked in Orange which are proposed for construction but no details have been given as to why the construction of this area has not been completed Along with the constructions of the categories of the other housing. It has to be appreciated that the DDA is the largest land owning agency in Delhi and most of the land is developed by DDA. The object was to provide housing to residents of Delhi in different categories. The housing was to be made available at cheaper rates. Provision of LIG/Janta housing thus formed an integral part of object of housing activities being taken over by DDA.
It can hardly be envisaged that construction is carried out of different categories, other than these categories only on account of the fact that it will be profitable to do so by the DDA. In my view the DDA must set out as to how much LIG/Janta housing has been constructed, is earmarked for construction or as to be proposed to be constructed as well as time schedule thereof by referring to Zone F. The affidavit should be filed within two months Along with the Plan of Zone F clearly earmarking the aforesaid areas and giving the schedule thereof.
I think it appropriate to direct that the Director (Land Management) shall be personally responsible for necessary coordination to file this affidavit and appropriate consultation will be held including with the Vice-Chairman, DDA in view of the important and largest issue involved in the present petition.
The response to the affidavit be filed by the petitioner within two weeks. The costs to be paid in the name of the learned Counsel for the petitioner as per last order.
List on 28.1.2004.
11. Consequent to the above order dated 12th November 2003 passed by a learned Single Judge, a further additional affidavit was filed by Mr. B.S.Jaglan, Director, Land Management, respondent DDA some time in January 2004. This affidavit set out the details of the number of flats constructed in the F Zone under categories of HIG, MIG, LIG and Janta/EWS. It also made the following submissions:
(a) Of the total 52,694 flats constructed, 33.74% belonged to the LIG and Janta/EWS category taken together.
(b) The Janta/EWS category flats by themselves constituted 25.5% of the total number of flats constructed in F zone.
(c) As regards the Vasant Kunj area (in Sub-zone F12) it was contended that the Janta/EWS flats formed 4.5% of the total housing stock and that the short fall of 0.5% would be met by the construction of 1500 LIG/EWS flats proposed to be constructed in Sector-D, Pocket-6 near Sultangarhi.
(d) In the areas adjoining Vasant Kunj there were Janta flats and that these flats were being allotted to the weaker sections of society. However, there could not be any check over the subsequent reselling of these flats. The petitioner further filed a reply to this affidavit contesting the correctness of the data submitted by the respondent DDA.
12. The counsel for the parties were heard at length. The counsel for the petitioners reiterated the pleadings referred to hereinabove and took this Court through the provisions of the Act, the MPD 1962 and its subsequent amended form as MPD 2001 and other documents annexed to the petitions. 13. The learned Counsel for the petitioner further submitted that:
(a) The facts show that there has been a clear violation by the respondent DDA of the binding provisions of the MPD 1962 as well as MPD 2001 which in terms of the Act is of a statutory character and is binding on the respondent DDA. The petitioners were seeking the enforcement of the statutory duty that respondent DDA owed towards each of them as well as respondent DDA's public duty statutorily mandated. The failure to perform this duty enabled them to seek a mandamus from this Court.
(b) The provisions of the Act and the MPD which required the respondent DDA to monitor the implementation of the MPD and evaluate the achievement of the physical targets have not been complied with by the respondent DDA. This has thus defeated the objective of a planned development of Delhi.
(c) As regards the implementation of the backlog, there was a shortfall in the LIG and EWS housing for F Zone as a whole as well at the sub-zone level. A distinction was drawn between the MPD requirements of providing 3% resettlement and 25% EWS 'plots' as opposed to 'flats' said to have been constructed by the respondent DDA.
(d) As regards the built units, the petitioners contended that at the sub-zone levels there is an excess of dwelling units above the MPD targets of 43% and that within this the percentage of HIG housing is disproportionately high. As per the MPD, the zonal target for F zone, keeping in view a five lakh population increase between 1981-2001, was one lakh dwelling units. Of this 25,000 (25%) was to comprise of EWS plots, 3,000 (3%) to comprise of resettlement units and 43,000 was to comprise of (43%) built units. As against these targets, the number of flats constructed for LIG and Janta/ EWS categories was 17,780 which actually constituted only 18% of the target of one lakh dwelling units.
(e) Even within the zone within the built housing target, 20% was to be allocated for LIG. If the figures were examined at the sub-zone and community level which is what the MPD required, it would be seen that the LIG housing fell far short of the target. In many areas the total built housing was far in excess of the holding capacity for that area and a disproportionately large percentage has been taken up by HIG housing, in excess of the MPD target. In effect, there was a violation of the MPD requirement of a balanced and planned development which would ensure an adequate number of LIG and EWS units and at the same time ensure their integration at the community and sub-zone level.
(f) Reference was also made to the report of a Committee on problems of slums in Delhi constituted by the Planning Commission, which had observed that the working population and urban poor in Delhi had not been provided shelter as per the MPD provisions and that there was a huge shortfall in the plan targets for low income housing.
(g) As regards the proposal by the respondent DDA to provide for more Janta/EWS flats at Sultangarhi, a copy of the order dated September 16, 2002 passed by Division Bench of this Court in CWP No. 4978 of 2002 was relied upon declaring the proposed project at Sultangarhi to be illegal on the ground of violation of the mandatory provisions of Section 11-A the Act concerning land use change. Section 11-A of the Act reads as follows:
Section 11A Modification to plan - (1) The Authority may make any modifications to the master plan or the zonal development plan as it thinks fit, being modifications which, in its opinion, do not effect important alternations in the character of the plan and which do not relate to the extent of land-uses or the standards of population density.
(2) The Central Government may make any modifications to the master plan or the zonal development plan whether such modifications are of the nature specified in Sub-section (1) or otherwise.:
(3) Before making any modifications to the plan, the Authority or, as the case may be, the Central Government shall publish a notice in such form and manner as may be prescribed by rules made in this behalf inviting objections and suggestions from any person with respect to the proposed modifications before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the Central Government.
(4) Every modification made under the provisions of this section shall be published in such manner as the Authority or the Central Government, as the case may be, may specify and the modifications shall come into operation either on the date of the publication or on such other date as the Authority or the Central Government may fix.
(5) When the Authority makes any modifications to the plan under Sub-section (1) it shall report to the Central Government the full particulars of such modifications within thirty days of the date on which such modifications come into operation.
(6) If any question arises whether the modifications proposed to be made by the Authority are modifications which effect important alternations in the character of the plan or whether they relate to the extent of land-uses or the standards of population density, it shall be referred to the Central Government whose decision thereon shall be final.
(7) Any reference in any other Chapter, except Chapter III, to the master plan or the zonal development plan shall be construed as a reference to the master plan or the zonal development plan as modified under the provisions of this section.
(h) The resettlement scheme under which only some of the petitioners have been offered alternative plots of 18 and 12.5. sq.m. on payment of certain sums is legally flawed as it is not in accordance with the MPD norms. The resettlement site is also not within the vicintity of the petitioners' workplaces particularly when the layout plan for F Zone itself indicates that some areas in the vicinity have been earmarked for low income housing. This defeats the objective of integrating the low income housing with the larger community. Further, the basis on which only some of the petitioners have been picked out for issuance of allotment letters is not known and the criteria if any is clearly arbitrary because many similarly situated petitioners have been denied such allotment letters.
(i) There is no denial in any of the affidavits of the factual averments that the petitioners have been staying in the JJ Cluster in Arjun Camp for several years and that they belong to the category of city service personnel working in the neighborhood as maid servants, hawkers, drivers etc. Further, there is no denial of the fact, demonstrated by photographs attached to the petitions, that even the LIG flats stated to have been constructed in Vasant Kunj are in fact being misutilised for other purposes rather than being allotted to persons belong to the EWS.
(j) There is also no denial by the respondent of the petitioner's contention that the demolition of the JJ cluster took place without any prior notice. The respondent DDA did not give any response to the representations of the petitioners even after the order of this Court.
(k) With the respondent DDA failing to provide any plan for meeting the shortfall in the low income housing targets, the Court should issue time bound orders to the respondent DDA and keep the case on its board for monitoring the implementation of the directions.
13. The submissions of the counsel on behalf of the respondent DDA are as under:
(a) The writ petitions filed by the petitioners have become infructuous with the demolition of the JJ cluster in question. The petitioners have no enforceable right in respect of which relief can be granted by this Court.
(b) The respondent DDA has not violated any provision of the MPD. The Vasant Kunj scheme was developed as per the MPD 1962 norms and the implementation of the EWS and LIG targets had to be examined at the Zonal level and not the sub-zonal or community level as mandated by the MPD 2001. The standards of the MPD 2001 do not apply to the development scheme of Vasant Kunj. In any event any shortfall in the targets for LIG and Janta/EWS housing in F Zone has been made up by providing such housing in other adjoining areas.
(c) If the total picture of the city as a whole is taken, and not sub-zone wise, the LIG and Janta/EWS housing constructed by the respondent DDA conforms to the plan targets.
(d) The respondent DDA is doing its utmost to meet the plan requirements but the large scale unauthorised occupation of land meant for low-income housing makes it difficult to meet the plan target. The respondent DDA ought not to be faulted for the misuse of the constructed LIG flats for non-permissible activities.
(e) Although initially this Court had held the Sultangarhi scheme to be invalid for non-compliance with the procedural requirements under the Act, that position has since been set right with the procedure having been complied with. The project is under execution and will cater to some of the demand for low income housing as well.
(f) As regards the resettlement scheme, it was contended that the respondent DDA is only implementing the policy of the Government of India. Although this policy has been struck down by this Court, the Supreme Court has by an interim order in a special leave petition filed against permitted the policy to be operated till further orders.
14. It would also be worthwhile to mention the following legal sources of the right to adequate housing under the International Human Rights Law:
(a) Article 25.1 of the Universal Declaration of Human Rights, 1948 states as follows:
Everyone has the right to a standard of living adequate for the health and well-being of himself and his including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(b) Article 5 of the International Convention on the Elimination of All forms of Racial Discrimination, 1965 states as follows:
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights... (e) Economic, Social and Cultural rights in particular...(iii) The right to housing.
(c) Part II of the Declaration of Social Progress and Development, 1969 states as follows:
Social progress and development shall aim at the continuous raising of the material and spiritual standard of living of all members of society, with respect for and in compliance with human rights and fundamental freedom through the attainment of the following main goals:
(f) The provision for all, particularly persons in low-income groups and large families, of adequate housing community services.
(d) Section 1 (8) and Chapter 2 (A.3) state of Vancouver Declaration of Human Settlements, 1976 state respectively as follows:
Adequate shelter and services are a basic human right which places an obligation on governments to ensure attainment by all people, beginning with direct assistance to the least advantaged through guided programme of self-help and community action. Governments should endeavor to remove all impediments hindering all of these goals. Of special importance is the elimination of social and racial segregation, inter alia, through creation of better balanced communities, which blend different social groups, occupations, housing and amenities.
The ideologies of States are reflected in their human settlement policies. These being powerful instrument of change, they must not be used to dispossess people from their homes or land or to entrench privilege and exploitation. The human settlement policies must be in conformity with the declaration of principles and Universal Declaration of Human Rights.
(e) Article 8.1 of the Declaration on the Right to Development, 1986 states as follows:
States should undertake, at the national level, all necessary measures for the realization of the right to development and shall ensure, inter-alia, equality of opportunity for all in their access to basic resources education, health services, food, housing, employment and the fair distribution of income....
(f) The General Comment 7 dated 20th May 1997 on the right to adequate housing (Article 11.1) by the Commission on Economic, Social and Cultural rights reads as follows:
(1) In its General Comment No. 4, (1991), the Committee observed that all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. It concluded that forced evictions are prima facie incompatible with the requirement of the Covenant.
(2) The international community has long recognized that the issue of forced evictions is a serious one. In 1976, the United Nations Conference on Human Settlements noted that special attention should be paid to "undertaking major clearance operation should take place only when conservation and rehabilitation are not feasible and relocation measures are made. In 1988, in the Global Strategy for Shelter to the Year 2000, adopted by the General Assembly in its neighborhoods, rather than damage or destroy them was recognized. Agenda 21 stated that people should be protected by law against unfair eviction from their homes or land. In the Habitat Agenda Governments committed themselves to protecting all people from, and providing legal protection and redress for, forced evictions that are contrary to the law, taking human rights into consideration; [and] when evictions are unavoidable, ensuring, as appropriate, that alternative suitable solutions are provided. The Commission on Human Rights has also indicated that forced evictions are a gross violation of human rights.
15. In the case of Government of Republic of South Africa and Ors. v. Gootboom and Ors. reported as  3 LRC 209, the Constitutional Court of South Africa held as under:
93... this case shows the desperation of hundreds of thousands of people living in deplorable conditions throughout the country. The Constitution obliges the state to act positively to ameliorate these conditions. The obligation is to provide access to housing, health care, sufficient food and water, and social security to those unable to support themselves and their dependants. The state must also foster conditions to enable citizens to gain access to land on an equitable basis."
16. Section 2 (d) and Section 2 (f) of the Protection of Human Rights Act, 1993 read as follows:
(d) "human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India;
(f) "International Covenants" means the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16th December, 1966.
Thus, by virtue of Section 2 (d) and 2 (f) of the Protection of Human Rights Act, 1993 the right to adequate housing guaranteed by Article 11.1 of the (ICESCR) is part of the law of the land in India. Other international instruments, namely, Universal Declaration of Human Rights, 1948, International Convention on Elimination on All Forms on Racial Discrimination, 1965, Declaration of Social Progress and Development, 1969, Vancouver Declaration of Human Settlements, 1976 and Declaration of the Right to Development also inform the interpretation of the Right to Adequate Housing accordingly. These international instruments provide for right to adequate shelter, housing services and access to land on equitable basis to all. Thus, these instruments cast a positive obligation on the state to take reasonable measures to ensure progressive realization of the right to adequate housing, particularly to the low income/least advantaged groups of the society.
17. This Court is not examining the question if there was a violation of due process norms in carrying out the demolition of the JJ cluster in the instant case. The entire site has been cleared for the past three years and the residents have obviously dispersed. In the circumstances, there is no question of restoring any status quo ante and the issue is therefore academic. Further, this Court has kept the matter on board mainly with a view to examine if the petitioners are entitled to any relief in respect of low income housing as per the MPD norms.
18. It has already been noticed earlier that the petitioners approached this Court in August 2002 apprehending demolition of their dwelling units in the JJ Cluster in Arjun Camp. While it is true that the court did not pass any order staying the imminent demolition, the principal contention of the petitioners was noted even in the first order dated 16th September 2002 to the effect that areas earmarked for construction of LIG housing were being utilized for a higher category with the result that no appropriate accommodation was available for allotment to the LIG category which included persons like the petitioners. Thereafter the court was kept informed of the developments through applications and affidavits.
19. In the very first affidavit filed by the respondent DDA in July 2003 this Court's attention was drawn to the fact that the JJ Cluster had been removed on May 19, 2003 and the site in question cleared. It was only thereafter that the court passed the order on 22nd August 2003 requiring a detailed affidavit to be filed by the respondent DDA to deal with the real issue as set out in the order dated 16th August 2002. Thereafter when no satisfactory affidavit had yet been filed by the respondent DDA, another order was passed by this Court on 12th November 2003 reiterating the central issue to be considered in the petitions. Clearly, this Court did not consider the matter as having become infructuous with the demolition of the JJ Cluster in question because the central issue concerned the failure of the respondent DDA to develop adequate LIG and EWS housing and the entitlement of the petitioners herein to such housing and the effect of the lop sided development of the various zones in Delhi and in particular zone F to the detriment of the weaker sections of the society.
21. This Court is of the view that even though the petitioners may not reside in the JJ Cluster any longer they can still show how they are entitled to low income housing as per the MPD norms. In fact, in none of its affidavits has respondent DDA denied that the petitioners belong to the class of city service personnel that constitute the EWS for whom both the MPD 1962 as well as MPD 2001 make special provisions for housing. The petitioners have come to this Court in their individual capacities not only seeking to restrain the respondent DDA from forcibly evicting them, but also seek a mandamus to the respondent DDA to resettle them in a scheme according to the MPD norms. The latter relief cannot be denied to the petitioners merely because the former is incapable of now being granted in view of the subsequent developments. Thus the contention of the counsel for the respondent DDA that the petitions ought to be dismissed as having become infructuous on account of the demolition of the JJ Cluster cannot be accepted. This issue is accordingly answered in favor of the petitioners.
22. The Act was enacted with a view to promoting and securing the development of Delhi according to plan. As earlier noticed Section 7(1) of the Act requires the respondent DDA to prepare a Master Plan. Section 7(2)(a) provides that the Master Plan shall define the various zones, indicate the manner in which the land in each zone is proposed to be used and also the stages by which any such development shall be carried out. Section 7(2)(b) states that the Master Plan shall serve as a basic pattern within which the zonal development plans for various zones may be prepared. The Master Plan for Delhi (MPD) which was approved in 1962 in terms of Section 7(1) of the Act is thus of the statutory character. Section 14 makes unlawful any violation of the master plan and Section 29 prescribes penalties for such violations. Various other various provisions of the Act reinforce the inviolability of the MPD.
23. It is now well settled that a plan prepared in terms of statute concerning the plan development of a city attains a statutory character and is enforceable as such. In Bangalore Medical Trust v. B.S. Muddappa (1991) 4 SCC 58, the Supreme Court was dealing with the legality of the action of the State Government in converting a site earmarked for a park under the plan for the city of Bangalore, into a civic amenity site. At the instance of the residents of the locality the High Court invalidated the order of the Government. While dismissing the further appeal of the Bangalore Medical Trust, in whose favor the change of land use was sought to be made, the Supreme Court pointed out that the manner of preparation of scheme under the Bangalore Development Authority Act, 1976 indicated that it was a statutory instrument. The court held (para 16, page 69 SCC):
The scheme is a statutory instrument which is administrative legislation involving a great deal of general law making of universal application, and it is not, therefore, addressed to individual cases of persons and places. Alteration of the scheme must be for the purpose of improvement and better development of the city of Bangalore and adjoining areas and for general application for the benefit of the public at large.
24. The MPD is a statutory instrument and is enforceable as such has been the settled position of law laid down in several judgments of the Supreme Court and this Court. In M.C.Mehta v. Union of India , the Supreme Court reminded the respondent DDA that "it has to perform its functions in accord with the provisions of the Delhi Development Act, 1957 which was enacted to provide for the development of Delhi according to plan and for matters ancillary thereto." The Supreme Court referred to the provisions of Sections 7 and 8 which deal with the preparation of the Master Plan and zonal development plan respectively. It also referred to Section 11-A which provides for the detailed procedure for modification of the Master Plan and zonal development plans and Section 14 which forbids the use of land in contravention of the plans. Section 29(2) provides for the imposition of a penalty on any person who uses any land or building in contravention of Section 14. Section 31A empowers the respondent DDA to seal any unauthorised development. In the judgment and order dated September 16, 2002 passed by Division Bench of this Court in CWP No. 4978 of 2002 [Delhi Science Forum v. DDA 2004 (112) DLT 944] declaring the proposed project at Sultangahri to be illegal, the need to strictly adhere to the MPD provisions, particularly by the respondent DDA itself, was reiterated. A Full Bench of this Court in Joginder Kumar Singla v. Govt. of NCT of Delhi , in the context of clear violations of the Zonal development Plan under the Act by impermissible commercial use of residential areas, went as far as to suggest (in para 37) that any "act or attempt which amounts to nothing but mischief with the Development Plan is violative of Article 21 of the Constitution of India."
25. It may be added that the MPD 2001 provides for a monitoring framework to "evaluate the achievement of physical targets prescribed in the plan." The respondent DDA is therefore, obliged to carry out surveys to ensure the monitoring of the achievement of plan targets.
26. The position in law is therefore that the MPD is of a statutory character and is enforceable as such. The provisions of the MPD are binding on the respondent DDA and will have to be complied with fully by the respondent DDA in order to ensure the planned development of Delhi. The stand taken by the Vice Chairman, Mr. Anil Baijal in his additional affidavit dated September 10, 2003 that the norms specified in the MPD 1962 as further amended in 1990 (and is now referred to as MPD 2001) are only broad guidelines and cannot be taken as scheme specific is clearly misconceived and not based on a correct understanding of the legal position.
27. Specific to the facts on the hand, an examination of the MPD 1962 reveals that low income housing was one of the key purposes of the policy adopted by the Government for public acquisition for the entire urbanisable area of Delhi. The MPD 1962 at page 7 states as follows:
The ownership of land by Government is imperative if slum clearance, redevelopment and subsidized housing and provision for community facilities according to accepted standards have to be undertaken.
Further at the very beginning of the document (page ii) the MPD 1962 set out as an important recommendation as follows:
Squatters in basties are to be relocated in the various parts of the urban area so that they are integrated into the neighborhood community. It is of utmost importance that physical plans should avoid stratification on income or occupation basis.
Thus, the thrust of the MPD 1962 was on accounting for the various categories of the population and ensuring equitable distribution of space among them. Almost all sections of the population are noticed and acknowledged as being entitled to space in Delhi.
28. The MPD 1962 anticipated growth of slum clusters and projected targets on the basis of such anticipated growth. The MPD 1962 envisaged earmarking of plots as well as construction of dwelling units to meet the housing demand. Further it emphasized the integration of low income housing into the composite neighborhood. The MPD 1962 noticed that the scheme drawn up at that time by the Municipal Corporation of Delhi proposed relocation of the Basti squatters "in suitable areas not too far away from major work centers."
29. The MPD 1962 (at page 27) made the following specific recommendation in respect of low income housing in terms of both standards and the need for integration in the following words:
It is recommended that while the structures and the facilities may be below standard in order to keep down the costs and rents, the space standards for schools, parks, streets etc. should be as for any other area given in the Sub-Division Regulations. Moreover, these should be integrated with a larger neighborhood where there is a mixture of different social and income groups, as well as housing types. In addition it is also recommended that reasonable areas should be earmarked in several zones for the low income group who migrate to Delhi on account of the relentless 'push' from the rural areas. As in the relocation of the basti squatters, sub standard development and construction may be permitted but the space standard for the facilities should be those given for the density on which the layout is planned. It is recommended that building bye laws should be considerably relaxed in such cases not only to permit substandard development but also to enable the construction of low cost cheap houses or huts. This will keep down the cost for the present and will enable public authorities to bring this development up to standard in the not too distant future. Otherwise these will develop into slums.
30. Thus, the MPD 1962 correctly anticipated that low income housing would be required to be provided for in substantial numbers in order to relieve the inhuman conditions in the slum areas as they existed in Delhi at that time. The MPD 1962 also correctly foresaw that there would be a constant inflow of migratory population from the rural areas into Delhi which will have to be provided with a minimum standard of housing and that space will have to be provided in the city for this. Most importantly, the MPD 1962 emphasised that the planned development of Delhi would ensure the integration of the housing for the low income groups with the larger neighborhood which was to avoid segregation and 'ghettoisation' of the economically weaker sections.
31. MPD 1962 was further amended in 1990 and the amended MPD is referred to as MPD 2001. While the MPD 1962 divided the areas into sub-zones, MPD 2001 further divided them as communities. For our purposes it is enough to notice at this stage that the Vasant Kunj area falls in the F12 sub-zone.
32. As per MPD 2001 the requirement of housing for the population in Delhi in the years 1981-2001 is expected to be met in the following manner:
1) 29% individual plots, staff housing etc.
2) 25% EWS plots for the economically weaker sections.
3) 3% resettlement units for existing slums and;
4) 43% fully/partially built housing.
33. Thus the housing requirements were expected to be met by allotting house plots as well as resorting to fully or partially built houses. However, it appears that as regards the EWS category, house plots and not built flats were expected to be allotted. This was based on an expectation that there should be a flexibility in the kind of housing that the EWS categories would want to construct subject of course to other norms specified in the MPD itself. Just as MPD 1962 had done, the MPD 2001 also emphasised the integration of low income housing. The specific paragraph in the MPD 2001 in this regard reads as under:
Housing should be related to affordability and should be integrated. The community (about 1 lakh population) may contain a complete cross section of the income groups, also including hostel accommodation for single. This would have minimum 25% as site and services development and about 45% housing up to 2 rooms dwellings to provide shelter for low income families in the community.
In other words of the total housing stock at the community level the EWS and LIG percentage was expected to be 45% (25+20).
34. The MPD 2001 also prescribed standards for resettlement or in situ upgradation of JJ clusters and for LIG housing. The specific portions of the MPD 2001 in this regard as under:
RESETTLEMENT AND JHUGGI JHOPRI (JJ) IN SITU UPGRADATION (002-C):
i) Maximum net density 250 tenements per hectare.
ii) Plot size- minimum 25 sqm, however, it may be reduced to 16 sqm with 100% coverage provided an area @ 7 sqm per plot / tenement is clubbed with the cluster open space.
(a) Min. 2 mtrs. wide up to 30 mtrs. in length.
(b) Min. 3 mtrs. wide up to 50 mtrs. in length.
LOW INCOME HOUSING
The norms of ISS-8888 formulated by the bids shall be applicable for Low Income Housing which provide a maximum net density up to 300 Dwelling Units (DUs)/ha.
35. To explain this further, for a population of one lakh, the plan target was 20,000 units calculated on the basis that there would be approximately 5 persons per dwelling unit. Of these 20,000 units, the MPD stipulated that there would be 5,000 EWS units (25%) (in the form of house plots) and 4,000 LIG built units (20%). While the MPD 1962 indicates that these percentages are expected to be achieved at the sub zone level, the MPD 2001 requires their achievement at the community level. This is essentially in order to ensure the other main objective of the MPD, which is integration of EWS and LIG housing with the rest of the categories.
33. Indeed, the Zonal Development Plan for F Zone, which covers the area in question, acknowledged the fact that there are number of JJ Clusters in that Zone which required upgradation. Para 11.3 of this document which has been placed on record by the respondent DDA states thus:
11.3 UPGRADATION / RESETTLEMENT
The Zone has number of substandard areas viz., Resettlement Colonies, JJ Clusters, Unauthorised Colonies, Urbanised Villages and Transit Camps. These areas require upgradation in terms of basic services / amenities and need to be dealt with as per policy
36. The layout plan for F Zone, which has been annexed to the affidavit of Mr. Anil Baijal dated September 10, 2003 shows two locations (indicated in yellow color) where 324 LIG flats and 120 Janta flats are stated to have been constructed. Two proposed sites for the construction of 952 and 624 Janta flats are shown in orange color. In regard to this, this Court in its order dated 12.11.2003 observed that the details of the flats constructed in the area marked in yellow were required to be disclosed. It further noted that no details as to why construction of the proposed flats in the area marked in orange color has not yet been completed. While the layout plan does indicate that certain areas were earmarked specifically for low income housing, there is no indication of the 25% site and service EWS plots as mandated in the plan. It appears that at the stage of preparation of the layout plan, no serious effort was made to adhere to either the MPD 1962 or even the MPD 2001 norms in regard to LIG and EWS housing.
37. It is clear that the MPD, both in its 1962 and 2001 versions, is a statutory document which is binding on the respondent DDA and is required to be implemented by the respondent DDA both in letter and spirit. The MPD also stipulates the percentages of low income housing that is required to be provided. It also anticipates the growth of population and further stipulates not only the number and types of housing (both house plots and built structures) but also the minimum standards for both forms. It also emphasizes the integration of low income housing with the larger community at the sub-zonal and community levels. All these flow from the MPD itself.
38. The MPD provisions, read with the provisions of the Act unmistakably show, that the respondent DDA has a statutory obligation to provide low-income housing. But this by itself is not enough for the petitioners to the seek reliefs prayed for. They would have to additionally show that this statutory duty of the respondent DDA is in fact owed to them.
39. As far as the petitioners are concerned, they are right in contending that there has been no denial by the respondent DDA of the facts set out by them in their petitions as to how and since when they came to reside in the JJ cluster at Arjun Camp. Further, there is no denial of the fact that they fall in the category of city service personnel and belong to the EWS. Apart from labeling them as `encroachers' the respondent DDA does not appear to have any explanation as to why they would not be entitled to be considered eligible for the EWS/LIG housing. If it is the contention of the respondent DDA that there is a long list of registered applicants for LIG housing and that the petitioners do not figure in that list it must be stated that the fault for this is not with the petitioners.
40. The respondent DDA was expected to monitor the implementation of the plan targets and in that process ought to have surveyed the area in question and prepared a list of dwellers in the JJ cluster for whom the MPD provides for low income housing. The respondent DDA in fact has not been able to show that it has complied with the mandate of the Plan in regard to such monitoring either for the F Zone with which we are concerned or any other area in Delhi for that matter. The petitioners are in fact the very persons, who are working in the area as drivers, maids, cooks, hawkers etc. who are meant to be covered by the MPD provisions concerning low income housing. If it is shown that respondent DDA has failed to provide low income housing in adequate measure and in good time as per the MPD, then persons like the petitioners who came to reside in Delhi cannot be blamed for resorting to `squatting' or seeking shelter in informal settlements and slums. The MPD 1962 as noticed earlier had correctly anticipated that if adequate numbers of low income affordable housing is not provided, it would inevitably lead to the growth of slums. In light of the present situation in Delhi this is an instance of that prophesy having come true.
41. The submission of the counsel for the respondent DDA that the petitioners are unauthorised encroachers on public land and are not entitled as such to any relief much less relief by way of consideration for allotment of low income housing requires to be dealt with. This Court is conscious that on several earlier occasions different benches of this Court have deprecated the conduct of the respondent DDA in allowing slums to mushroom on public land. In Wazirpur Bartan Nirmata Sangh v. Union of India 2003 (103) DLT 654 the question before the court was whether land that had been acquired for public purpose from farmers, resulting in the displacement of such farmers, could thereafter be used for allotment to resettle persons who had encroached on public land. Answering the question in the negative a Division Bench held:
The authorities cannot acquire land and thereby make the farmers, who have held the land for generations, landless and displace them with the object to use the same very land for `unplanned development' rather than planned development. To permit such land to be utitlised for rehabilitation of persons who have encroached upon public land would be a travesty of justice and fair play and would amount to a premium on such dishonesty and public encroachment on the land. It would only encourage persons to encroach on public land as has happened.
42. A careful examination of the judgment in Wazirpur reveals that the attention of this Court was not drawn to nor did the court deal with the detailed provisions of the MPD set out hereinabove. Also, in the instant case, the question really concerns planned development but from the perspective of the LIG and EWS categories whose entitlements have been expressly recognised in the MPD itself. The ratio of the Wazirpur judgment to the extent it emphasizes adherence to planned development is unexceptionable. In the present case also the principal concern is the same. The petitioners are not claiming their entitlements on the basis that they are encroachers but have based their claim as they belong to the EWS categories. They do not insist that they should be allowed to squat on public land but ask that they be resettled in accordance with the MPD norms.
43. Consequently this Court holds that each of the petitioners is owed a statutory duty by the respondent DDA to be provided with low income housing as per the MPD norms. If they further demonstrate that respondent DDA has in fact failed to perform its statutory duty, they can certainly seek a mandamus from this Court in exercise of its writ jurisdiction asking the respondent DDA to perform its statutory duty. In what form should such relief be granted, particularly in view of the developments subsequent to the filing of the petitions can be examined later. But for the present, it requires to be held that the petitioners have succeeded in showing that they have an enforceable right in terms of the Act and the MPD 1962 and 2001.
44. This Court is conscious that the petitioners in the instant case are not seeking the enforcement of some policy of the state but of specific statutory provisions in the form of the Act and the MPD. Thus the Court need not be detained by any issue arising out of non-enforceable rights which might depend on the ability and resources of the state. Here the present writ is a case of the respondent DDA being under a positive statutory obligation to provide LIG and EWS housing to an identified set of persons who prima facie satisfy the basic criteria for being considered for allotment of such housing. What now requires to be seen is whether in fact the respondent DDA has discharged such statutory obligation on the facts of the instant case.
45. In order to examine if there has been a compliance of its statutory duty to provide low income housing by the respondent DDA, with particular reference to the F Zone with which this Court is concerned, the additional affidavit filed by respondent DDA in January 2004 through Mr.Jaglan requires to be looked at. From this affidavit it appears that the F Zone itself is divided further into 19 sub zones. As regards Vasant Kunj is concerned, it forms part of the F-12 Sub Zone. The actual figures for this sub zone, as furnished by the respondent DDA indicate that the number of flats constructed in the various categories are as under:
46. Thus, of the total flats constructed in Vasant Kunj (10521), over 90% constituted the HIG category of flats. The LIG and EWS flats constitute only around 4% of the total number of flats constructed by the respondent DDA in Vasant Kunj. Clearly this is grossly inadequate and is nowhere near the Master Plan targets. This was sought to be explained away by Mr. Anil Baijal in his additional affidavit of September 10, 2003 by stating "while that could be possible shortfalls in respect of the LIG housing in the Vasant Kunj area, these have been adequately compensated by construction of such housing in other areas in the zone." Further he admitted that there was a predominance of HIG housing in the Vasant Kunj area but that in the broader context of the housing provided by respondent DDA in LIG/EWS categories "throughout Delhi, these may not be considered as a violation of the Master Plan."
47. To examine the correctness of the claim of respondent DDA that it has provided adequate EWS / LIG housing in other areas if one has to look at the details provided in the chart annexed as A-1 to the affidavit of Shri Jaglan filed in January 2004. The petitioners in response to this affidavit have shown that in each of the sub zones, there is a disproportionately higher percentage of housing units constructed for the higher categories (HIG) and a disproportionately lower (and sometimes none) percentage of housing units in the LIG category. To take the F-12 sub-zone itself, the anticipated population increase was around 10,000 for the years 1981-2001 and the number of units expected to be constructed was around 2000 (on the basis that there would be five persons per unit). Instead a total of 12568 units were constructed in the F-12 zone of which 10289 belonged to the HIG category. There were only 526 LIG and 120 EWS flats. Thus not only was the total number of units in excess of the overall housing target but the LIG/EWS housing was well short of the 45% target (25% EWS and 20% LIG) envisaged in the plan. Likewise the petitioners have been able to demonstrate that even the areas adjoining Vasant Kunj, which includes the F-13, F-14 and F-15 sub zones, the performance in the LIG and EWS housing is far short of the planned targets.
48. The petitioners make a valid point on how these figures provided by the respondent DDA should be understood. The MPD 2001 anticipated that for the entire F Zone area there would be a population increase of approximately 5 lakh persons during the years 1981-2001. This therefore required that one lakh dwelling units would have to be provided for. As per the MPD 2001 norms these one lakh units had to comprise 25,000 EWS plots (25%), 3,000 Resettlement Units (3%) and 43,000 fully or partially built units (43%). Therefore, the percentages have to be worked out on the basis of these target figures. Thus when respondent DDA, in the affidavit of Shri Jaglan in January 2004 claims that it has constructed a total of 52694 flats in the entire F zone and that of these the combined number of 17,780 LIG and EWS flats (4469+13311) constitutes 33.74%, it may not be the correct way of looking at it. The 17,780 EWS and LIG flats constitute only 17.78% of the one lakh dwelling units that were expected to be provided. EWS constitute 13.3% and LIG 4.4% whereas the target percentages were 25% and 20% respectively. There can be no manner of doubt that these targets have not been met and that there is an implementation backlog even if we take F zone as a whole. This is the position even without going into the aspect that respondent DDA was to provide EWS 'plots' and not flats for the EWS category.
49. Further, the plea that the shortfall in one sub zone (F-12) has been made up by constructing adequate number of LIG and Janta flats in adjoining sub zones is also not correct when the actual figures are compared against planned targets. The figures for sub zones F-13, F-14, F-15 show either no LIG flats (F-13) or no LIG or EWS flats (F-14 and F-15). Further it is clear that in the up-market sub zones like F-1 (Friends Colony), F-2 (Kailash Colony), F-3 (Siri Fort), F-4 (Safdarjung), F-13 (Vasant Vihar), F-16 (Saket) the low income housing is far short of the target. Thus the the MPD 1962 and 2001 objective of integration of EWS/LIG housing into the neighborhood at the sub zone and community levels appears to have been defeated. The plea that the achievement of targets must be examined by taking the city as a whole as suggested in the additional affidavit of Mr.Anil Baijal is clearly contrary to what the MPD 1962 and 2001 envisages and is clearly a desperate attempt to explain away the abject failure of the respondent DDA to comply with its statutory obligation of providing integrated low income housing.
50. At this stage we may dispose of another untenable plea of the respondent DDA that the Vasant Kunj scheme was developed as per the MPD 1962 norms and that the MPD 2001 does not apply to it. This plea requires to be negatived since it is an admitted position that the so called development of respondent DDA is a work in progress with respondent DDA trying to contend that it is still proposing construction of further EWS and LIG housing as per MPD 2001 norms. MPD 2001 became effective in 1990 itself. Secondly, even if we take the MPD 1962 as the standard, even then the main objective of an integrated neighborhood comprising low income housing has not been adhered to by the respondent DDA. The correct approach would be to view the MPD 2001 as further explicating the MPD 1962 objectives by providing precise standards as to what percentages of low income housing is to be provided and in what form and minimum standard. The amended plan, MPD 2001, only carries forth the principal objective of the MPD 1962 as regards integrated low income housing.
51. It was argued by the learned Counsel for the respondent DDA that while respondent DDA may not have been able to meet the targets set out in the MPD 1962 and 2001, that cannot be construed as a violation of the MPD. On closer scrutiny, this claim appears to be unjustified. From respondent DDA's own showing, in the affidavit of Shri Jaglan "the areas marked orange in the layout plan annexed to the previous affidavit are the proposed sites belonging to respondent DDA marked for constructions of the LIG/Janta as well as MIG flats but are under unauthorised occupation of the encroachers." The failure to remove these encroachers and to provide for adequate LIG / EWS housing in these earmarked areas should be laid at respondent DDA's doorstep. There was no justification for the respondent DDA to deviate from the MPD norms and construct the disproportionately large number of HIG flats or to allow the areas earmarked for LIG and EWS housing for other purposes or, as it is now claimed to permit them to be encroached. This failure on the part of the respondent DDA has resulted in worsening the housing problem and, as correctly anticipated by the MPD 1962 over four decades ago, has resulted in the growth of slums and JJ Clusters where the poor are compelled to reside. The failure to provide low income housing as per MPD norms has meant that the migrant population come to Delhi in search of livelihood as to inevitably to find shelter in JJ Cluster and slums which are perhaps the only affordable places for them. In more than one way therefore, the respondent DDA itself has, by failing to monitor the implementation of the MPD targets and providing for adequate integrated low income housing, contributed to the growth of slums in the city.
52. If, on the other hand, as pointed out by the petitioners, the respondent DDA had been monitoring the achievement of the planned targets, as mandatorily required by the MPD, it could have checked the problem as it arose and not brought about the present situation. Not infrequently we have auction-purchasers of the respondent DDA plots, coming to this Court complaining that the land in question has been encroached by jhuggies and thereafter the court is constrained to order the demolition of such jhuggies with a view to restoring the land to the auction purchaser (see for e.g. Sewa Hotels and Resorts v. DDA ). Very often, pursuant to such court orders,
respondent DDA resorts to demolition drives involving forced eviction and partial and unsatisfactory relocation of the slum population. All of this unfortunately is not in conformity with the MPD provisions and leads to further violations.
53. At this juncture it may be useful to refer to the report of the Committee constituted by the Planning Commission of India on the problems of slums in Delhi, which was submitted in June 2002 which reads as under:
Between 1960-61 and 1970-71 while the high income groups got as much as 49.8% of the plots through auction, the MIG and LIG groups were allotted on 24.7% and 11.5% respectively. Prima facie, the allocation of land for the housing of the urban poor has been insufficient to meet the requirements, and below the proportion of their share. While DDA is in charge of planned development of the city, the provision of land and housing are failing to meet the demand of the urban poor. The DDA should examine what were the provisions made for housing of the economically weaker sections in the Master Plan, lands earmarked and actually made available, as well as strategies of construction and allotment of EWS houses to meet the need to address the problem of slums. In its present operations relating to provisions of land and houses, a definite bias for a planned provision of alternatives to existing slums, has to be uppermost in DDA's programmes. In the new Master Plan the provision for housing for the urban poor should be made more specific and measures should be taken to make such housing actually available. As the most deprived sections in shelter are the slum dwellers, and with the objective of achieving a slum-free city, the Plans should make all-out efforts to meet needs of EWS housing. At the implementation level, the EWS houses construction programme of the DDA and the slum improvement should be interlinked, with allotment of land or houses to residents of specified locations of slums as first option. The land thus cleared should be immediately put to its alternative public use and protected from further renewed encroachments.
54. Annexed to the Writ Petition as Annexure-P-5 are photographs showing how even the so called LIG flats stated by respondent DDA to have been constructed in the Vasant Kunj area are in fact been used as offices of the property brokers. There are photographs to show how respondent DDA itself is using some of these flats for its Master Plan offices. Subsequent affidavits of the petitioners have also pointed specific instances of misuse of the areas earmarked for low income housing either by allowing encroachments to persist or be used for some other non-plan purpose. Unfortunately, in the reply filed by the respondent DDA in June 2003, there is no denial whatsoever of either these averments or the photographs. None of the subsequent affidavits of the respondent DDA have bothered to deal with this serious issue of misuse of the built LIG housing or encroachment. The affidavit of Mr.Jaglan filed in January 2004 only claims sweepingly that "EWS/Janta flats are allotted to the weaker and the poor sections of society including the class of people engaged in the services like Dhobi cleaning women, iron women etc. and as observed in the submissions aforegoing that there is adequate housing provided in the colonies itself or adjoining colonies but unfortunately there is and cannot be any check or control over the subsequent selling of these houses." This claim is not backed by any facts or figures that the built LIG or janta flats have in fact been allotted to these persons and that they subsequently re-sold them. If it were correct, there should have been no problem for the respondent DDA to give such details. The photographs tell a very different story and there is no whisper of a denial. This belies the claim of the respondent DDA in the affidavit of Mr. Jaglan that these flats are allotted to weaker sections of the society. Further it seems odd that the respondent DDA justifies the non provision of such housing on the ground that the poor are likely to sell them and go back to the original sites when in fact the respondent DDA itself has turned a blind eye to the misuse of the built LIG houses which is happening under its very nose. The responsibility for checking or controlling misuse by any person whether it is by a person belonging to the LIG and EWS category or any other person not at all entitled to such allotment, has to squarely rest with the respondent DDA and with no one else. The failure by the DDA to check misuse cannot be a justification for denying the poor to their entitlement to low income housing as per MPD norms.
55. Thus the facts brought on record by the petitioners and the details provided by the respondent DDA show that there is an implementation backlog in the area of low income housing in the F Zone and that respondent DDA is squarely responsible for this failure on its part to fulfill its statutory obligation.
56. The petitioners in the second writ petition have brought up the issue of the lawfulness of the resettlement scheme. They contend that the so called resettlement of the JJ dwellers by the respondent DDA is legally flawed and contrary to the MPD norms. The counsel for the respondent DDA on the other hand point out that a Division Bench of this Court had, in Okhla Factory owners' Association v. Government of National Capital Territory of Delhi 2003 (108) DLT 517, struck down the policy for rehabilitation of slum dwellers by allotting alternative plots of land.
It is undoubtedly the duty of the Government authorities to provide shelter to the under-privileged. It is possible to have a housing scheme developed for these under-privileged people. However, the respondents in their affidavits have admitted their failure to devise housing schemes for persons in the economically weaker sections of the society. This lack of planning and initiative on the part of the respondents cannot be replaced by an arbitrary system of providing alternative sites and land to encroachers on public land. If the schemes were to be devised for the economically weaker sections of society base on a rational criteria, it would achieve a social objective. The basis cannot be encroachment on public land. Such a basis, in our considered view would be arbitrary and illegal on the face of it. It encourages dishonesty and violation of the law.
57. The above judgment does not support the plea of the respondents and only refers to ad hoc and unplanned relocation of slum dwellers and the decision does not deal with or prohibit the implementation of the MPD qua the economically weaker sections.
The petitioners in the instant case are in fact contending that the action of the respondent DDA in make allotments of alternate plots to a few of them is not based on any rational criteria and that in any event it violates the MPD. In the Okhla case too the respondent DDA admitted to a failure to develop any housing schemes for the EWS although they did not tell the court that this was mandated by the MPD and the Act. It is of course another matter that the decision in Okhla is now pending consideration before the Supreme Court and that court has by an interim order permitted the respondent DDA to continue operating the policy till further orders. Therefore the legality of that resettlement policy need not be gone into here.
58. Suffice it to say that any resettlement scheme of the respondent DDA will have to both comply with the MPD norms and also be based on some rational and intelligible criteria. When the offer cum demand letters issued to some of the petitioners in these petitions is examined, it is seen that there is no indication whatsoever of the location of the alternative plots. Also plot sizes which are stated to be 18 sq. mtrs. or 12.5 sq. mtrs. do not conform to the MPD requirement of a minimum plot size of 25 sq. mtrs. If the respondent DDA wanted to deviate from the MPD norms it ought to have followed the prescribed procedure for modification set out under the Act and Rules made there under. Admittedly it has not initiated any steps to change the MPD norms in this regard. Further the relocation will have to be to the earmarked places under the MPD norms consistent with the mandate that the low income housing must be integrated in the larger neighborhood. Thus the relocation of 39 of the JJ dwellers residing at Arjun Camp to the Madanpur Khadar scheme, which is said to be at a considerable distance from their workplaces appears to contradict the MPD requirement.
59. Whatever may the components of the resettlement plan, it will have to satisfy the basic requirement of an integrated community spelt out in the MPD itself. Also the basis of eligibility of persons to low income housing will have to be evolved in a transparent manner with the participation and consultation of the persons who are to benefit from such a scheme. Unless housing that is relevant and useful to the working classes is provided, there are bound to be situations where such housing will be transferred illegally and the original slum residents come back to squatter colonies. The discussion on this point is concluded by observing that respondent DDA will have to be issued directions to evolve a meaningful resettlement scheme in a time bound and transparent manner consistent with the MPD 1962 and 2001 norms.
60. A brief mention was made during arguments of the likely changes in the on-going revision of the MPD 2001 which may have a bearing on the issues considered here. This Court made it clear to the parties that the MPD provisions as it stood at the time of the hearing of the petitions would be applicable. This Court finds that a similar approach has been adopted by another bench of this Court in Sarojini Market Shopkeeper Association v. Union of India where it was observed that "It would be impermissible to take an action contrary to the master plan but defer rectification on the ground that may be, the future master plan for Delhi would provide otherwise."
61. The persistent rise in the number of slums in cities is a menace for the civic authorities and government bodies, particularly in a city like Delhi, where the pressure of population on land, water and health care facilities is immense. Due to economic growth Delhi attracts aspirants from all parts of the country and from all sections of society wanting to improve their economic status. But ironically, it is the apathy of the authorities such as the respondent DDA which is one of the major causes for the rise in the number of slums. Slums mostly comprise of domestic workers, like servants, dhobis and persons providing ironing services. The support services provided by these persons are indispensible to any affluent or even middle class household. Cities would simply come to a halt without the labour provided by these persons. Yet, inspite of the statutory provisions in terms of the Act and the MPD, 1962 and 2001which impose an obligation on the respondent DDA to provide for adequate housing for low income groups, slums continue to grow. The primary reason for this is the avoidance by the respondent DDA of the statutory mandate of the provisions of the Act and the MPD 1962 and 2001.
62. Before considering the grant of reliefs, it might be useful to summarise the findings in this judgment as under:
(a) The Master Plan for Delhi is a statutory document and is binding on the respondent DDA. It is enforceable as such.
(b) The MPD spells out the entitlement of the poor to housing as it specifically provides that the respondent DDA must make available adequate integrated housing in the LIG and EWS categories.
(c) The petitioners who undeniably belong to the EWS categories and who have been living, at the time of the filing of the petitions, in informal dwelling units in the JJ Cluster at Arjun Camp, were entitled to be considered for allotment of EWS housing.
(d) Notwithstanding the fact that the JJ Cluster in question has already been demolished on May 19, 2003, that would not disentitle the petitioners from seeking the relief of resettlement in accordance with the MPD 1962 and 2001 norms pertaining to low income housing.
(e) The respondent DDA is under a statutory obligation in terms of the Act and the MPD 1962 and 2001 to provide EWS and LIG housing and in particular in the zone in which the petitioners were residing. Thus the petitioners can enforce their entitlement under the MPD 1962 and 2001 to housing against the respondent DDA which owes them a statutory duty. In other words the petitioners have an enforceable right against the respondent DDA in terms of the Act and the MPD 1962 and 2001.
(f) The facts brought on record by the petitioners and the details provided by the respondent DDA show that there is an implementation backlog in the area of low income housing in the F Zone and that respondent DDA is squarely responsible for this failure on its part to fulfill its statutory obligation.
(g) The respondent DDA has also permitted the misuse of the LIG flats constructed by it by persons not eligible in that category and has also failed to check encroachments in the areas earmarked for EWS and LIG housing. The responsibility for this failure must be borne by the respondent DDA itself.
(h) The respondent DDA will have to be issued directions to evolve a meaningful scheme in a time bound and transparent manner for resettling the petitioners consistent with the MPD 1962 and 2001 norms. The basis of eligibility of persons to low income housing is required to be evolved in a transparent manner with the participation and consultation of the persons who are to benefit from such a scheme.
63. Now I come to the question as to what reliefs can be granted to the petitioners. As already held, the petitioners have succeeded in showing that they are owed a statutory duty by the respondent DDA and that there has been a failure on the part of the respondent DDA to perform that statutory duty.
64. This is clearly a case where notwithstanding the demolition of the JJ Cluster, the petitioners would certainly be entitled to be considered for allotment of EWS and LIG housing if they satisfy the criteria for that purpose. The respondent DDA despite the order of this Court dated 12.11.2003 has failed to indicate when it proposes to achieve the MPD targets as regards EWS and LIG housing in the F zone area. This is indeed unfortunate since the matters have been delayed considerably as a result of respondent DDA's inaction. It therefore becomes necessary to direct the respondent DDA, to now evolve a time bound scheme for the resettlement of the petitioners. The scheme must be evolved in a transparent manner and after consulting the petitioners or their authorised representatives. As part of the scheme the respondent DDA is bound to formulate the criteria for determination of such eligibility for allotment of an EWS plot or a LIG housing unit. It has also to show a degree of flexibility in devising such norms consistent with ground realities where the poor face a lot of hardship in being able to demonstrate their identity and their residence at a particular place. The approach should be to enable and facilitate to enforce their entitlement rather than to exclude them.
65. In the present case, it is likely that the petitioners are all no longer residing at the same pace since after the demolition of their dwellings and may have dispersed throughout the city. Therefore, the respondent DDA will have to give sufficient publicity to make known the formulation of a draft scheme which will be finalized after consulting such of those petitioners who come forward and/or their representatives.
66. Accordingly, these two writ petitions are allowed in part and it is directed as under:
A writ of mandamus is issued to the respondent DDA to take the following steps:
(i) Within a period of six weeks from today the respondent DDA will prepare and file in this Court a draft scheme for the resettlement of the petitioners in both writ petitions consistent with the MPD norms as explained in this judgment.
(ii) The draft scheme will also contain the criteria for determination of the eligibility of the petitioners for allotment of an EWS plot or a LIG housing unit. The criteria should be reasonable
(iii) The draft scheme will be published within a period of one week of its preparation and be given wide publicity and will also be published at the site where some of the petitioners are said to have been relocated.
(iv) The petitioners and/or their authorized representatives will be permitted to file their objections to the draft scheme within a period of thirty days after such publication of the draft scheme. The petitioners will also, within a period of fifteen days thereafter, be afforded an opportunity of being heard through their representatives on their objections to and suggestions for improving the draft scheme.
(v) Within a period of two weeks after the conclusion of the hearing, the respondent DDA will finalise the scheme for resettlement of the petitioners and give it adequate publicity apart from giving copies to the petitioners and their representatives to enable such of them who wish to avail of the benefit, within a period of four weeks, to make applications for allotment of EWS or LIG housing as the case may be.
(vi) The respondent DDA will thereafter, without unreasonable delay and in any event not later than four weeks after the last date for the receipt of the claim applications of the petitioners, process them and prepare a list of all persons eligible to be allotted EWS or LIG category housing, as the case may be, in terms of the resettlement scheme
(vii) The respondent DDA will file an interim compliance report along with the affidavit of its Vice-Chairman within a period of two months indicating the progress in the implementation of the above directions and thereafter further interim reports as may be directed by this Court till all the above directions are complied with.
(x) In the first interim compliance report to be filed within a period of two months from today, the respondent DDA will place the complete details of the exact shortfall/backlog in providing low income housing in the F Zone in general and F12 sub-zone in particular. It will also indicate the exact time frame, which should be reasonable, within which it will make available to the petitioners found eligible the EWS and LIG housing in the F 12 sub zone and when it proposes to make up the shortfall in the F Zone area in conformity with MPD 1962 and 2001 and the steps it proposes to take in that regard.
67. These two writ petitions will now be listed on 22nd September, 2006 for reporting compliance and consequent directions.