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Olga Tellis & Ors vs Bombay Municipal Corporation & ... on 10 July, 1985

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Delhi High Court
Satbeer Singh Rathi And Ors. vs Mcd And Ors. [Along With Wp(C) Nos. ... on 16 September, 2004
Equivalent citations: 114 (2004) DLT 760, 2004 (77) DRJ 583
Author: P Nandrajog
Bench: P Nandrajog

JUDGMENT Pradeep Nandrajog, J.

1. All petitions pertain to a slum (jhuggi-jhompri) cluster named 'Kanak Durga Colony' at Sector 12, Ramakrishna Puram, New Delhi. The respondents are wanting to relocate the occupants, who resist the relocation. WP(C) No.1813-17/2004 was disposed of vide order dated 30.4.2004. The order records:

"These Writ Petitions are disposed of with the direction that the Respondent shall give thirty days prior notice in writing if they intend to demolish and relocate the jhuggi of the Petitioners at Kanak Durga Colony, Sector 12, R.K.Puram, New Delhi. This Order is passed in view of the stand taken by the Respondent in their Counter Affidavit that as of now no plans for the demolition and relocation of the Jhuggis is on the anvil. It is, however, clarified on behalf of the Respondent that a Survey has been conducted but the Respondents shall comply with the directions of this Court of giving thirty days advance notice. Liberty is granted to the Petitioners to approach this Court by initiating fresh proceedings, if circumstances so warrant.

Sd/-

Vikramajit Sen,J."

2. CM No.5390/2004 was filed praying for recall of the order dated 30.4.2004. Disposal on merits is prayed for. Two other petitions noted above came to be filed by other inhabitants of the area. Accordingly WP(C) 1813-17/2004 was also heard on merits. To complete the formality, CM No.5390/2004 is allowed; WP(C) No.1813-17/2004 is restored. As noted, arguments were heard on merits on 8.9.2004.

3. Present judgment disposes of all the captioned writ petitions.

4. By the year 1990, 818 slum clusters came into existence in Delhi. All were on public land. Not only were the residents of these slums living in filth and squalor, inhabitation of surrounding areas were being affected. A decision was taken by the Union of India to relocate a few slums and upgrade a few. A letter dated 24.1.1991 was written by the Ministry of Urban Development, Union of India to the Commissioner (Slums), Slum Wing, D.D.A. which reads as under :

"My dear Ranjit Singh, I am to refer to this office letter of even number dated 12.3.90 sent to Sh.A.C.Seth, Director(S) of your Department in which a list of 53 Jhuggi clusters was enclosed. The list has been revised priority wise and some more jhuggi clusters have been added. The list of these clusters has also been co-related with the list of 818 clusters sent vide letter dated 1.11.90 of your Department. There are now 70 jhuggi clusters out of which we could locate ___ jhuggi clusters out of the list sent by your Department.

The list of 70 jhuggi clusters have been listed priority wise as under:-

(i) Category 'A' which are to be removed on priority wise.

(ii) Category 'B' which are to be upgraded Rest of the clusters are yet to be categorized and could be done after assessing the requirements for the land in consultation with other Departments/Institutions. A copy of list category-wise is enclosed herewith.

You are, therefore, requested to please take immediate steps to remove the squatters/clusters mentioned in the list enclosed in Category 'A' so that the work held up due to encroachments is started.

With regards, Yours sincerely, sd/ (RAKESH MEHTA)"

4. Kanak Durga Slum was listed at serial number 35 in category 'B'. Petitioners predicate their claim on the said letter. As per the petitioners, the decision to upgrade Kanak Durga Camp results in a right in favor of the slum dwellers to be permanently settled at site. They cannot be relocated.

5. As per the petitioners, they were issued ration cards showing their residence in the slum. They were issued voters identity cards. Their names were entered in the electoral rolls in the Constituency where the slum is located.

6. Rationale for the in-site upgradation of J.J. Clusters, as per the petitioners, is to be found in a policy decision of the Government of India. Inter alia, policy notes as under :

"One specific policy intervention contemplates in-situ upgradation of JJ Clusters/informal shelters on the encroached land, wherever the land owning agencies issue a NO OBJECTION CERTIFICATE, enabling the S&JJ Department to go ahead with this strategy. This scheme envisages that the existing J.J. dwelling units are upgraded in an improved and modified layout by socializing the distribution of land and amenities amongst the squatter families.

This approach envisages the re-planning of Jhuggies/huts in modified layouts by re-distributing the encroached land pockets amongst the squatter families. The Jhuggie households are given sites of 10 to 12.5 sq.mtrs. in the modified layouts at the encroached sites for re-construction of puce informal shelters.

III MODALITIES OF IN-SITU UPGRADATION Some of the modalities being followed in providing in-situ upgradation are:-

1. Identification of JJ Clusters in consultation with the land owning agencies viz. DDA, MCD, L&DO, CPWD, Railways, Departments of Delhi Govt.Delhi Cantonment Board etc. About 180 JJ Clusters were listed by S&JJ Department MCD for in-situ upgradation.

2. Selection of NGOs/Voluntary Organizations for Community Mobilization work in each such JJ Cluster.

3. Finalizing the layout plans for in-situ upgradation.

4. Finalizing the layout plans for in-situ upgradation.

The development norms/shelter norms may require to be altered from site to site because any particular development site upgradation of slums is a very complex exercise and requires extensive innovation and on-site planning interventions where any standardized formulations cannot be strictly applied.

It was the view of the Ministry that general approach to JJ Clusters should be for the environmental improvement of eligible clusters and their in-situ upgradation to the extent possible, rather than for their resettlement of alternative sites. The resettlement of JJ Cluster to alternate sites should be resorted to only on a case to case basis with specific reference to the urgency of requirement of the land owning agency for a priority public purpose project, and subject to the land owning agency undertakings to bear the entire cost of developed site in the new location.

No doubt, In-Situ Up-gradation programme has to be encouraged as far as possible, keeping in view the provisions of the Master Plan, magnitude of the problem and funding pattern of involving builders on sharing and self-financing system but because of non-availability of No Objection Certificates from the Land Owning Agencies for Utilization of their encroached land pockets under this programme, this scheme is not progressing well.

It was for the first time that MCD itself agreed to allow about 50 acres of MCD's land for about 4800 Jhuggi families which are squatting on its land in Shahbad Daulatpur, besides these 4000 families are squatting on the nearby DDA's land across the road. So far as the MCD is concerned, the site clearance and No Objection Certificate had already been given to Slum & JJ Deptt, for in-situ upgradation and already about 4000 jhuggi families have been covered under this programme. This has helped in considerable improvement in quality of life of thousands of slum jwellers, particularly children and women in Phase I of in-situ upgradation. Slum and JJ Deptt. has now taken up with DDA also the issue of clearance and No Objection Certificate, so that another lot of about 4000 jhuggi families squatting on DDA's land could also be taken up for upgradation under similar shelter development programme. This in-situ upgradation model has been found to be economically viable as it does not dislocate the income generating capacity of the jhuggi families and also causes least problems to the city urban management facilities."

7. 672 families were covered under two demonstrative projects known as EKTA VIHAR in R.K.Puram and PRAYOG VIHAR in Hari Nagar.

8. Placing reliance on the policy, relevant extracts whereof have been noted in para 6 above, petitioners contend:-

a) In-site regularisation has to be preferred to relocation because this does not interfere with the livelihood of the inhabitants who come from the poorer strata of the society. Slums come up in areas where work is available.

b) In-site upgradation causes least problems to the city urban development facilities.

9. Petitioners state that steps for in-site upgradation of Kanak Durga Camp were initiated in the year 1990 itself. This is said to be evident by letter dated 7.8.1990 written by Director (P&S), DDA to a N.G.O. Said letter reads as under :-

"The Secretary, Vividh Vikas Samiti, 35/A, Qutab Enclave, New Delhi - 110016 Madam Slum Wing, DDA has already assigned several clusters to you for formation of co-operative societies. In this connection, I am desired to say that you may also initiate the work of formation of multi-purpose co-operative society in the following two clusters:

1) Dr.Ambedkar Basti, R.K.Puram

2) Kanakdurga Camp, R.K.Puram.

All formalities relating to formation of multi-purpose co-operative societies of jhuggie dwellers should be completed in close consultation with Mr.B.H.Bhatia, Consultant (CM).

Thanking you, Yours faithfully, sd/-

(A.C.SETH) Director (P&S)"

10. In-situ upgradation policy required a clearance from the Land Owning Agency. Land where Kanak Durga Camp came up belongs to the Land & Development Office of the Union of India. Unfortunately for the petitioners, L&D.O. did not give the necessary clearance. On 14.10.1999, O.S.D. to the Chief Minister Delhi addressed the following letter to the representative of the petitioners:-

"Subject:- Resettlement of Kanak Durga Colony at Sector, R.K.Puram, New Delhi.

With reference to your letter/ representation received by this office on the subject noted above, it is hereby informed that the matter was referred to Slum & J.J. Department and the above said department has reported that land owning agency of the said cluster is L&DO. The relocation of the JJ Cluster at the same place has been done under insitu upgradation policy by the Slum Delptt. only after getting the NOC from the land owning agency which certify that the said land is not required for any project in near future. In the instant case Slum & JJ Department is not in receipt of NOC from the land owning agency i.e. L&DO. It has also been informed that no proposal for shifting of the cluster is under consideration of the Slum & JJ Deptt.

(RAKESH NAGPAL) O.S.D. TO CHIEF MINISTER"

11. In early 2004, a survey was carried out by the Slum Department of the Municipal Corporation of Delhi. Petitioners apprehended relocation to another site. A few filed WP(C) 1813-17/04. It came to be disposed of vide order dated 30.4.2004. (Noted in para 1 above). Apprehension came true. Indeed, relocation was initiated.

12. Response of the land owning agency, L&D.O. is:-

"In Delhi there is acute shortage of land for implementation of various Government projects including housing needs of the Government. There has been consistent demand from various quarters for allotment of land for meeting various requirement including housing needs. The land under dispute in the writ petition i.e. Kanak Durga colony, Sector XII, R.K.Puram, New Delhi is a prime Government land which has been encroached upon by the petitioners unauthorizedly. The said land has already been allotted to Rajya Sabha Secretariat for construction of Guest Hostel for Members of Parliament as well as quarters for senior officials of Rajya Sabha Secretariat.

2. After detailed survey undertaken by the Slum & JJ Wing of MCD, the required amount of Rs.2.34 crores for relocation of the eligible jhuggi dwellers has already been sanctioned by the Government and has been paid to Municipal Corporation of Delhi so that the land could be cleared of encroachment and made available to Rajya Sabha Secretariat for implementation of its project. MCD, which is Respondent No.1 in the petition, has already issued notice intimating to the jhuggi dwellers residing on the said property so that relocation of the eligible squatters at a suitable location can be undertaken in accordance with the existing policy pertaining to relocation of slum dwellers."

13. Response of the Slum & J.J. Wing of the Municipal Corporation of Delhi is :-

"In reply to paras 2 to 7 it is most respectfully submitted that the Petitioners are encroachers on public land. They have no legal right to stay over the Public Land. It is purely on humanitarian considerations that in cases where the land owning agency does not require the land for any purpose or use in the near future and gives a no objection to that effect, that the encroachers/slum dwellers are given various facilities by way of temporary measures till they are removed/shifted from the site upon the land been required by the land owning agency. This in a nutshell is what is called the In-Situ upgradation. The action of the answering Respondent is to improve the living conditions of the Slum Dwellers of various sites in the interegnum keeping in view the health hazards in those colonies. But this does not give any right or title to the Slum Dwellers on the Government land. The in situ upgradation of jhuggies undertaken by MCD Slums Deptt. is to ensure the proper sanitation facilities. Basic amenities were provided to the Slum Dwellers till they are reallocated from the Government land. The society so formed was to assist the Slum Dwellers for proper and effective rehabilitation of slum dwellers and improvement of the places where the land is required for public purpose. In the instant case in the year 1991 when the in Situ Upgradation Scheme was implemented, there was no immediate plan for utilization of land for any other purpose, but now the land is required for a public purpose namely construction of Guest Houses for Members of Parliament and therefore necessary action for reallocation had to be started and for such purpose Government has already sanctioned an amount of Rs.2,34,33,000/-. The answering Respondent has received the amount and now it is taking all necessary steps of reallocation at a suitable place in accordance with its policies. The society may also assist the Jhuggi Dwellers in their proper rehabilitation. Thus there is no right or title created in favor of Petitioners by introduction of In Situ Upgradation. On the other hand if such scheme had not been implemented it would have created serious health hazards to all the inhabitants of the site."

14. Shri K.C.Mittal, learned counsel for the petitioners urged that letter dated 24.1.1991 (noted in para 4 above) was a sanction for upgradation of Kanak Durga Camp at the existing site. He urged that as per policy of in-site upgradation coupled with the letter dated 24.1.1991, petitioners got a vested right to be permanently settled at the existing site. Shri Vinay Sabharwal, learned counsel for the Slum & J.J.Wing of MCD and Shri Sidharth Mridul, learned counsel for the Union of India contended that policy decision was a guiding document. It was not the Bible. No right was created under the policy. Even otherwise, policy required concurrence of the land owining agency if permanent settlement at site was to be done. This concurrence was never granted. Counsel urged that till date no document of title, lease or a license was issued in favor of the petitioners or any other slum dwellers in Kanak Durga Camp. Counsel contended that 2 pilot projects of in-site regularisation had not achieved the desired results and, therefore, no further in-site regularisation was done. Counsel stated that a Division bench of this Court had in fact adversely commented upon grant of right in land to slum dwellers as part record showed that a land mafia was operating. Division Bench decision , Wazirpur Bartan Nirmata Sangh Vs. UOI & Ors. was cited.

15. Petitioners ask for a judgment that they cannot be evicted from their squalid abodes and have a right to be in-site permanently sheltered. Their plea is that the policy of the respondents recognises that relocation adversely affects the livelihood of the evictees and, therefore, rehabilitation must be at the same site. Respondents respond that petitioners are rank trespassers. They cannot be choosy. They are not being rendered shelterless. They are being relocated to better sites where they can live with dignity. Delhi has expanded. They can find alternative means of livelihood.

16. With a growing population and migration to cities in search of jobs, teeming millions are added to the Metropolitan City of Delhi each decade. There is a wide gap between the demand and supply of housing. The gap is far increasing. Magnitude of the problem can be gauged from the fact that of the many persons who had got themselves registered, in the year 1979 with the Delhi Development Authority, are yet to be allotted a flat. Rural jobs are few. This couples with lack of medical, educational and other facilities pushes the rural poor to the cities, not only in search of a living but also basic amenities in life.

17. The Government has a problem of fiscal resources. It therefore becomes important that available finances and resources are put to best use. The enfranchised population has a growing appetite. It has already acquired the power to make the political system respond. The miniscule tax payer has started to feel that it is he who is being made the pay for a corrupt and inefficient political apparatus.

18. Division Bench of this Court in the decision , Wazirpur Bartan Nirmata Sangh Vs. UOI & Ors. has held:-

"1. Benevolence in Administration is necessary but this benevolence has to be balanced against the rights of the residents of a town specially when dealing with one commodity which can never increase which is land."

"44. The Supreme Court in Ahmedabad Municipal Corporation's case (Supra) has already held that there cannot be mandatory requirement for providing alternative accommodation at the expense of the State for ejectment of encroachers on public land. In fact normally such encroachers should not be provided with alternative accommodation as it would only encourage the illegal act of encroachment. The Supreme Court in Almitra H.Patel's case (Supra), thus observed that creation of slums has become a good and well organized business. This has obviously happened in active connivance with the municipal bodies and the promise of free land at the tax-payers costs in place of a jhuggi is a proposal which attracts more land grabers. One cannot but use the expression as stated in the said judgment which best describes this position as 'giving reward to a pick-pocket'. Any town or city has its limitations in respect of population which can be inhabited and cannot be an unlimited number. The respondents have admitted in their affidavits that there is a flow of population to Delhi but Delhi cannot accommodate such continuing number of persons pouring in from various parts of the country. Schemes and methods have to be devised to provide employment to such persons at their original places of habitation."

19. A welfare state is expected to care for its citizens from the cradle to the grave. This concept has to change. The role of the State, in today's world, has to be one of regulator. The State has to create an environment of growth and equal opportunity. Thereafter it is for each to prosper or perish. The weaker, the poor, the destitute can be made recipients of special grants, but up to a point; limited within the fiscal means of the state.

20. Of all services which have multiplied in the modern state, the one which generates most litigation is Town and Country Planning. As observed in `Administrative Law' 5th Edition by H.W.R Wade,(P.163) town and country planning aims to prevent the anti-social use of land, and to some extent also to promote the social use of it through 'positive planning' by local authorities.

21. How the two have to be achieved is primarily to be decided by the State. Impugned action is not alleged to be taken under a statute which is ultra vires the Constitution. It is not alleged that the `impugned action' is in violation of any statutory right. It is not alleged that the impugned action is mala-fide. Only allegation is that a right is vested as per policy, relevant part noted in para 6 above. It is alleged that letter dated 24.1.1991 (noted in para 4 above) creates a vested right.

22. Policy relied upon requires, sine qua non, the concurrence of the Land Owning Agency for in-situ regularization. None is forthcoming. On the contrary, the L&D.O. denies any such concurrence. Claim fails on this short ground. Right, if at all, vests if such concurrence is accorded. No concurrence-No right. Till date no lease, license or a grant has been granted to the petitioners.

23. It is not a case where respondents are not rehabilitating the slum dwellers.

24. Constitution Bench decision in AIR 1986 SC 190 Olga Tellis vs. Bombay Municipal Corporation is a complete answer. (Para 57):

"To summarise, we hold that no person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or other places reserved or earmarked for a public purpose..........."

25. Right to life is not violated in the present case. Petitioners are being resettled. Temporary inconvenience has to be suffered. Rehabilitation of slum dwellers is a collossal task. Respondents have adopted a benevolent and sympathetic policy. The land is required for a public purpose. No malice is alleged. The petitioners must meet the inevitable fate.

26. Dismissed without costs.