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Judgment
The present Writ Petition has been filed under Articles 226 and 227 of the Constitution of India assailing the Order dated 08.07.20261 passed by the learned Estate Officer, Delhi Cantonment Board, whereby the Petitioner‟s claim that the premises, being 24 Qtrs., Jhuggi, Sadar Bazar, Delhi Cantonment, New Delhi -1100102, formed part of a notified “jhuggi jhopri cluster”3 came to be rejected and consequential directions were issued. The Petitioner also seeks protection against coercive action as well as rehabilitation under the provisions of the Delhi Urban Shelter Improvement Board Act, 20104.
SUBMISSIONS ON BEHALF OF THE PARTIES:
Learned counsel appearing on behalf of the Petitioner, at the outset, submits that there exists no bona fide requirement warranting the acquisition of the subject premises. It is contended that the action initiated by the Respondents appears to have been occasioned solely on account of the proximity of the Petitioner‟s dwelling unit to the site where staff quarters are proposed to be constructed, and it is only for such reason that the Respondents have sought to proceed against the Petitioner.
Learned counsel appearing on behalf of the Petitioner assails the Impugned Order primarily on two grounds, viz., firstly, that the learned Estate Officer has erroneously concluded that the Petitioner‟s dwelling unit does not form part of a JJ Cluster; secondly, that the Petitioner is entitled to the benefit of rehabilitation under the DUSIB Act as interpreted by the Division Bench of this Court in Ajay Maken v. Union of India5.
Elaborating upon the aforesaid submissions, learned counsel submits that although the Petitioner‟s dwelling unit is separated from an existing JJ Cluster by a road approximately ten metres in width, such separation cannot by itself disentitle the Petitioner from being treated as part of the cluster.
Learned counsel for the Petitioner further submits that it remains unclear whether the Petitioner‟s dwelling unit falls within any of the 675 notified JJ Cluster recognised by DUSIB. It is submitted that the burden of establishing that the Petitioner‟s premises do not form part of a notified JJ Cluster lies upon DUSIB and not upon the Petitioner.
Learned counsel further submits that the Petitioner had placed several documents before the learned Estate Officer, inter alia, the ration card, Aadhaar Card, Election Identity Card and Electricity bills to demonstrate long-standing occupation of the premises.
Learned counsel for the Petitioner further submits that the Petitioner is a person of limited means and that her husband is employed as a sweeper with the Delhi Cantonment Board6 and that two other members of the Petitioner‟s family are engaged on a contractual basis with the Ministry of Defence.
Learned counsel for the Petitioner further places reliance upon the decision of the Division Bench of this Court in Ajay Maken (supra) to contend that the protection contemplated under the DUSIB Act is not confined merely to JJ Cluster situated on lands owned by the Government of NCT of Delhi, but is equally applicable to lands belonging to the Central Government. It is submitted that, since the Subject premises, admittedly, falls within the jurisdiction of the DCB, which is an instrumentality of the “Central Government”, the Petitioner‟s claim for rehabilitation cannot be rejected merely on the ground that the land belongs to the Cantonment Board.
It is, therefore, submitted that the Petitioner‟s claim is required to be considered under the rehabilitation framework envisaged under the DUSIB Act and the policy governing rehabilitation of eligible jhuggi dwellers.
Learned counsel for the Petitioner further places reliance upon the observations of the Division Bench, particularly in Paragraph No. 170, in Ajay Maken (supra) to contend that, before any eviction or demolition action is undertaken, the competent authority is under an obligation to determine whether a person claiming to be a jhuggi dweller is entitled to rehabilitation in terms of the extant law and policy.
“170.The decision in Sudama Singh governs the law in relation to slums and slum dwellers in the NCT of Delhi. This is true whether the slums are those under the management of the DUSIB or are located on land owned by other agencies including the central Government. The decision in Sudama Singh requires a Court approached by persons complaining against forced eviction not to view them as „encroachers„ and illegal occupants of land, whether public or private land, but to ask the agencies to first determine if the dwellers are eligible for rehabilitation in terms of the extant law and policy.”
Per contra, Mr. Ankur Mishra, learned counsel on behalf of the DCB, who enters appears on advance service, supports the Impugned Order.
Learned counsel for the DCB submits that no protection can be claimed under the DUSIB Act, unless the Petitioner‟s dwelling unit satisfies the statutory definition of a “jhuggi” as under Section 2(f) of the DUSIB Act and particularly, forms part of a “jhuggi jhopri basti” within the meaning of Section 2(g) of the DUSIB Act.
Learned counsel for DCB further submits that the scope and applicability of the decision in Ajay Maken (supra) in the context of jhuggi dwellers residing outside notified JJ bastis came to be specifically considered by this Court in Vaishali (Minor) Through Next Friend v. Union of India.7 Placing reliance upon Paragraph Nos. 11 and 12 thereof, he submits that the said decision clarifies that Ajay Maken (supra) cannot be construed as dispensing with the statutory requirements contained in Section 2(g) of the DUSIB and that the protections contemplated under the Act are available only where the statutory prerequisites are duly satisfied. The relevant paragraphs are reproduced herein under for ready reference:
“11.A reading of the above provision would clearly show that DUSIB has to declare a group of jhuggis as “Jhuggi jhopri basti” by way of notification. One of the conditions to be fulfilled by such a group of jhuggis is that it must be inhabited, at least by fifty households, as existing on 01.01.2006. Section 9 of the Act empowers the DUSIB to make a survey of any jhuggi basti. Section 10 of the Act provides for preparation of a scheme for removal of any JJ basti and for resettlement of the residents thereof. Section 12 of the Act provides for the re-development of the JJ basti. The above provisions are applicable only with respect to “Jhuggi Jhopri basti”, that is, inter-alia a group of fifty households as existing 01.01.2006 and duly declared by DUSIB as such by way of a Notification.
12.As noted by the learned Single Judge, the appellants have been unable to produce any such notification under Section 2(g) of the Act. Even in appeal, no such Notification has been produced by the appellants. The appellants are, therefore, not entitled to any protection under the Act.”
Learned counsel for DCB also places reliance upon the subsequent decision of the learned Coordinate Bench of this Court in Dinesh Singh v. Delhi Development Authority8, particularly paragraphs 11 and 12 thereof, to contend that the Court has reiterated the principles enunciated in Vaishali (supra) and held that, in the absence of a notification under Section 2(g) of the DUSIB Act or proof that the concerned settlement answers the statutory definition of a “Jhuggi Jhopri Basti”, no right to rehabilitation or protection under the Act can be claimed. The relevant paragraphs thereof are reproduced herein under for ready reference:
“11.From the decisions aforenoted, it is manifest that a cluster in order to be eligible for extension of benefits under the Rehabilitation Policy must necessarily meet the qualifying criteria as specified in Section 2(g) of the Act. Consequently, it must be a notified cluster comprising of not less than 50 jhuggis. The aforesaid cluster must additionally form part of the 675 clusters which had been identified by the DUSIB. The recitals and recordal of facts of the present case leads the Court to the inescapable conclusion that the cluster in question would not meet those requirements. In view of the aforesaid, the reliefs as claimed cannot possibly be granted.
12.The Court deems it apposite to observe further that neither Sudama Singh nor Ajay Maken mandate a rehabilitation measure being adopted and coverage under the Rehabilitation Policy being extended without the cluster otherwise conforming to the requirements as placed under the Act. The Court also bears in mind that the undisputed fact that the Rehabilitation Policy which was placed in the shape of a protocol in Ajay Maken was neither interfered with nor any adverse observation in respect thereof entered.” (Emphasis supplied)
Learned counsel for DCB further relies upon the judgment of the learned Coordinate Bench in Aftab Alam v. DUSIB9, to submit that the expression “nearby areas” occurring in the proviso to Section 2(g) of the DUSIB Act has been interpreted to mean only those jhuggis or clusters which are contiguous or immediately adjacent to an identified and recognised JJ basti, so as to constitute, in substance, an extension or adjunct thereof. The relevant paragraphs, being Paragraph Nos. 4 and 5 thereof, are reproduced herein under for ready reference:
“4.Ld. Counsel for the Petitioners submits that the term “nearby areas” would required to be interpreted in the present petition. She submits that the Petitioner‟s jhuggi is less than 1 km away from the Goshia slum colony covered under the DUSIB‟s list of jhuggis eligible for rehabilitation. She submits that since the distance is so less, the Petitioners‟ jhuggi should also be eligible.
5.On the other hand, Mr. Chauhan, ld. Counsel appearing for DUSIB, submits that the matter is covered by order dated 19th October, 2022, passed in W.P.(C) 14781/2022 titled Manoj Kumar & Ors. v. DUSIB & Ors. He submits that in the said order, the Court has clearly defined the expression “nearby areas” to mean areas “either contiguous or adjacent to an identified cluster”, which criteria would not be satisfied by the present jhuggi.”
6.Heard. The relevant extract of the order dated 19th October, 2022 in W.P. (C) 14781/2022 reads as under:
“4.It becomes pertinent to note that Section 2(g) of the Act contemplates the Board attaching any jhuggi jhopri cluster scattered in the nearby areas of any jhuggi jhopri basti. The phrase “nearby areas”cannot possibly be interpreted to extend to include a cluster which is, as per the petitioners own showing, situate at least 3 kilometres away from a recognised cluster For the purposes of attachment of a cluster under the DUSIB Act, it would have to be established that the cluster though standing independently is either contiguous or adjacent to an identified cluster. The expression “nearby areas” would have to be interpreted to mean a cluster which is in the nature of an extension or an adjunct to an identified huggi jhopri basti. It would also have to be additionally established that the separate cluster was in existence along with the identified jhuggi jhopri basti from prior to the recognised cut-off date of 01 January 2006. Viewed in that light, it is manifest that the arguments addressed on lines noted above, would not sustain.”
7.Considering the above, this Court is of the opinion that the impugned order does not deserves to be interfered with.”
Learned counsel for DCB, therefore, submits that tested on the aforesaid principles, the Petitioner fails to satisfy the statutory requirements governing attachment of an independent jhuggi or cluster to a recognised JJ basti. According to learned counsel, the material on record does not establish that the Petitioner‟s jhuggi is capable of being treated as an extension or adjunct of any notified JJ basti within the meaning of the proviso to Section 2(g) of the Act.
Learned counsel consequently submits that the Petitioner cannot claim the benefit of the proviso to Section 2(g), inasmuch as the jhuggi in question is admittedly neither contiguous nor adjacent to any identified or notified JJ basti. On the contrary, it is situated at a substantial distance therefrom and is separated by a major public road, thereby rendering the concept of attachment under the proviso wholly inapplicable.
ANALYSIS:
This Court has heard the learned counsel for the parties, and appreciates the manner in which the matter was presented by the learned counsel. This Court has, with their able assistance, also perused the material available of record and the Judicial precedents passed across the bar.
The principal challenge raised by the Petitioner is to the finding returned by the learned Estate Officer that the Subject premises neither form part of a notified Jhuggi Jhopri Basti nor satisfy the statutory requirements so as to entitle the Petitioner to claim the benefit of rehabilitation under the DUSIB Act.
Since the controversy essentially turns upon the applicability of the provisions of the DUSIB Act, it would be apposite to first advert to the statutory scheme.
Section 2(f) of the DUSIB Act defines a “jhuggi”, while Section 2(g) defines a “Jhuggi Jhopri Basti” to mean a group of jhuggis which the Board may, by notification, declare as such, subject to the conditions prescribed therein. The proviso to Section 2(g) further empowers the Board to attach any jhuggi or jhuggis situated in the nearby areas to a notified Jhuggi Jhopri Basti, whereupon such jhuggi or jhuggis would be deemed to form part of the notified basti. Section 2(f) and 2(g) of the DUSIB Act reads as under:
“Section 2. Definitions.-In this Act, unless the context otherwise requires,-***
(f)"jhuggi" means a structure whether temporary or pucca, of whatever material made, with the following characteristics, namely:-
(i)it is built for residential purpose;
(ii)its location is not in conformity with the land use of the Delhi Master Plan;
(iii)it is not duly authorized by the local authority having jurisdiction; and
(iv)it is included in a jhuggi jhopri basti declared as such by the Board, by notification;
(g)“jhuggi jhopri basti” means any group of jhuggis which the Board may, by notification, declare as a jhuggi jhopri basti in accordance with the following factors, namely:-
(i)the group of jhuggis is unfit for human habitation
(ii)it, by reason of dilapidation, overcrowding, faulty arrangement and design of such jhuggis, narrowness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities, or any combination of these factors, is detrimental to safety, health or hygiene; and
(iii)it is inhabited at least by fifty households as existing on 31st March, 2002:
Provided that the Board may, by order, attach any jhuggi or jhuggis scattered in the nearby areas to any jhuggi jhopri basti and such jhuggi or jhuggis shall be deemed to be part of such jhuggi jhopri basti;”
The submission advanced on behalf of the Petitioner is that, notwithstanding the fact that the subject premises are separated from an existing JJ Cluster by a road, the same ought to be treated as forming part of the said cluster and, consequently, the Petitioner would be entitled to the protection contemplated under the DUSIB Act and the Rehabilitation Policy.
This Court is unable to persuade itself to accept the aforesaid submission.
The learned Estate Officer has undertaken a detailed examination of the aforesaid issue. Upon considering the statutory provisions as well as the material placed on record, the learned Estate Officer has categorically found that the Subject premises do not form part of any of the 675 notified JJ Clusters and that there exist only three unauthorised structures at the site. Consequently, the minimum statutory requirements prescribed under Section 2(g) of the DUSIB Act are admittedly not fulfilled. The relevant findings in this regard read as under:
21.Notwithstanding the above reasoning, the Respondent has failed to show that premises in question is located in the list of 675 JJ Cluster. For the sake of discussion, it is held that even if the premises was part of the list of JJ Cluster, then also it was not ipso facto entitled for the protection. The Hon‟ble High Court of Delhi in catena of judgments has clarified the legal position regarding the applicability of DUSIB policy on any premises, which is discussed in the succeeding paragraphs.
22.Section 2(g) of DUSIB Act, 2010 stipulates that there is a minimum requirement of fifty household to be covered under the definition of „Jhuggi Jhopri Basti‟. The relevant provision of Section 2(g) of DUSIB Act, 2010 is reproduced hereunder:
(g)“jhuggi jhopri basti” means any group of jhuggis which the Board may, by notification, declare as a jhuggi jhopri basti in accordance with the following factors, namely:-
(iv)the group of jhuggis is unfit for human habitation
(v)it, by reason of dilapidation, overcrowding, faulty arrangement and design of such jhuggis, narrowness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities, or any combination of these factors, is detrimental to safety, health or hygiene; and
(vi)it is inhabited at least by fifty households as existing on 31st March, 2002:
Provided that the Board may, by order, attach any jhuggi or jhuggis scattered in the nearby areas to any jhuggi jhopri basti and such jhuggi or jhuggis shall be deemed to be part of such jhuggi jhopri basti;”
The Counsel for Department has specifically pointed out that there exist only three illegal structures at the site in question. Therefore, the question of applicability of policy framed by DUSIB does not arise in the present case as the premise does not form the part of list of 675 clusters and number of structures is less than 50. This view is supported by the judgment passed by the Hon'ble Delhi High Court in LPA No. 271/2022 titled as, “Vaishali Through Next Friend and Others Vs. Union of India and Others” [2022 SCC OnLine Del 2086]. The relevant portion of the judgment is reproduced below:
“11.A reading of the above provision would clearly show that DUSIB has to declare a group of jhuggis as “Jhuggi jhopri basti” by way of notification. One of the conditions to be fulfilled by such a group of jhuggis is that it must be inhabited, at least by fifty households, as existing on 01.01.2006. Section 9 of the Act empowers the DUSIB to make a survey of any jhuggi basti. Section 10 of the Act provides for preparation of a scheme for removal of any JJ basti and for resettlement of the residents thereof. Section 12 of the Act provides for the re-development of the JJ basti. The above provisions are applicable only with respect to “Jhuggi Jhopri basti”, that is, inter-alia a group of fifty households as existing 01.01.2006 and duly declared by DUSIB as such by way of a Notification.”
23.The Hon'ble High Court in W.P.(C) No. 12384/ 2022 titled as „Dinesh Singh & Ors. Vs. Delhi Development Authority & Ors.‟ vide order dated 26.08.2022 laid down-three conditions to be satisfied for a cluster in order to be eligible for extension of benefits under the rehabilitation policy. The relevant portion of the judgment is reproduced below:
“11.From the decisions aforenoted, it is manifest that a cluster in order to be eligible for extension of benefits under the Rehabilitation Policy must necessarily meet the qualifying criteria as specified in Section 2(g) of the Act. Consequently, it must be a notified cluster comprising of not less than 50 jhuggis. The aforesaid cluster must additionally form part of the 675 clusters which had been identified by the DUSIB. The recitals and recordal of facts of the present case leads the Court to the inescapable conclusion that the cluster in question would not meet those requirements. In view of the aforesaid, the reliefs as claimed cannot possibly be granted.
12.The Court deems it apposite to observe further that neither Sudama Singh nor Ajay Maken mandate a rehabilitation measure being adopted and coverage under the Rehabilitation Policy being extended without the cluster otherwise conforming to the requirements as placed under the Act. The Court also bears in mind that the undisputed fact that the Rehabilitation Policy which was placed in the shape of a protocol in Ajay Maken was neither interfered with nor any adverse observation in respect thereof entered.”
As per the law laid down in the aforementioned judgment for eligibility to seek rehabilitation under the policy framed by DUSIB, the following three conditions have to be satisfied:
i.Firstly, the cluster in question should meet the requirements specified under Section 2(g) of the DUSIB Act, 2010.
ii.Secondly, it must be a notified cluster comprising of not less than 50 Jhuggis.
iii.Thirdly, the cluster must additionally form part of 675 clusters which had been identified by the DUSIB.
24.In the facts of the present case, none of the conditions mentioned above are satisfied due to which the Respondent is neither protected by the policy of the DUSIB nor entitled for rehabilitation under the policy framed by the DUSIB.
25.Therefore, the fourth issue is decided by laying down herein that the premises in question is not covered in JJ Cluster list and further since Department is not covered by the DUSIB policy 2015.”
This Court finds no infirmity in the aforesaid reasoning. The Division Bench in Vaishali (supra) has categorically held that the protections available under the DUSIB Act are attracted only in respect of a Jhuggi Jhopri Basti which satisfies the requirements of Section 2(g) and stands notified by the Board. In the absence of such notification, no statutory protection under the Act can be claimed.
The aforesaid principle has thereafter been reiterated by the learned Coordinate Bench in Dinesh Singh (supra) wherein it has been held that a cluster seeking the benefit of rehabilitation must satisfy the qualifying criteria prescribed under Section 2(g), comprise not less than fifty jhuggis and additionally form part of the notified list maintained by DUSIB. The Court further clarified that Ajay Maken (supra) does not dispense with the statutory requirements contained in the DUSIB Act.
Equally unmerited is the submission founded upon the proviso to Section 2(g) of the DUSIB Act. The expression “nearby areas” occurring in the proviso has already been interpreted by this Court in Aftab Alam (supra) It has been held that the said expression cannot receive an expansive interpretation so as to include every jhuggi situated within a short geographical distance from a recognised cluster. Rather, it contemplates only such jhuggis or JJ Clusters as are contiguous or immediately adjacent to a notified JJ Basti and which are, in substance, an extension or adjunct thereof.
In the present case, the subject premises are admittedly separated from the notified cluster by a major public road. This Court, therefore, finds no error in the conclusion arrived at by the learned Estate Officer that the benefit of the proviso is unavailable to the Petitioner.
Much emphasis was laid by learned counsel for the Petitioner upon the decision of the Division Bench in Ajay Maken (supra) to contend that the Petitioner was entitled to rehabilitation notwithstanding the fact that the subject premises are situated on land belonging to the DCB, which in turn, falls under the Central Government‟s ambit.
The reliance placed upon Ajay Maken (supra) is, however, misplaced. The said decision undoubtedly recognises that rehabilitation obligations are not confined merely because the land belongs to the Central Government and emphasises that eligibility for rehabilitation ought to be determined in accordance with the applicable law and policy before eviction is undertaken.
However, the said judgment cannot be read as dispensing with the statutory requirements engrafted under the DUSIB Act. As noticed hereinabove, this position now stands authoritatively clarified by the subsequent decisions in Vaishali (supra) and Dinesh Singh (supra), which hold that the entitlement to protection under the DUSIB Act continues to remain governed by the statutory conditions contained in Section 2(g).
Learned counsel for the Petitioner has also placed reliance upon Paragraph No. 170 of the decision in Ajay Maken (supra) to contend that, before undertaking any eviction or demolition action, the competent authority is required to determine whether a person claiming to be a jhuggi dweller is entitled to rehabilitation under the extant law and policy. There can be no quarrel with the aforesaid proposition.
However, the said principle does not advance the Petitioner‟s case. In the present case, the learned Estate Officer has specifically examined the Petitioner‟s entitlement under the DUSIB Act, considered the statutory requirements as well as the decisions in Vaishali (supra ) and Dinesh Singh (supra), and thereafter concluded that the subject premises neither form part of a notified JJ Cluster nor satisfy the conditions for claiming rehabilitation. Thus, the exercise contemplated in Ajay Maken (supra) stands duly undertaken, and merely because the determination has gone against the Petitioner would not furnish a ground for interference in exercise of jurisdiction under Articles 226 and 227 of the Constitution.
Further, the Petitioner‟s reliance upon the documents evidencing long-standing occupation, including the ration card, Aadhaar Card, Election Identity Card and electricity bills, also does not advance her case. At best, such documents may establish occupation of the premises, but not establish that the premises form part of a notified JJ Basti or satisfy the statutory requirements prescribed under the DUSIB Act so as to confer an enforceable right to rehabilitation.
This Court also finds no infirmity in the conclusion of the learned Estate Officer that the Petitioner has failed to establish any independent legal right in the subject premises. The learned Estate Officer has examined the Petitioner‟s plea from the standpoint of adverse possession as well and has found that the requisite ingredients for claiming any such right against Government land are conspicuously absent. No material has been placed before this Court to demonstrate that the said finding suffers from perversity or patent illegality. The relevant portion of the finding in this regard, after discussion of catena of judgements, is reproduced herein under:
“16.Further, during the hearing, the counsel of Respondent has not raised the issue of adverse possession. In view of the above discussion with respect to the third issue, it is held that the Respondent is a mere trespasser having no title or authority to occupy the premises. The occupation of the premises does not confer to the Respondent any rights in the premises and does not give any protection from demolition of the structure erected unauthorizedly on the premises. It is needless to mention that the claim of financial hardship of the Respondent does not justify commission of offence of encroachment on public land and if permitted it would lead to more such incidents undermining the public welfare policy of the state to utilize its land for the public purposes. The issuance of notice under Section 5A of the Public Premises Act, 1971 is in accordance with the facts of case and also is in consonance with the purpose of the said enactment which is to safeguard public interest by making available for public use premises belonging to Government in which the Government or Corporations has substantial interest, owned or controlled by the Government and certain autonomous bodies and to prevent misuse of such premises as observed by the Hon'ble Apex Court in the case of Ashoka Marketing Ltd. and Others Vs. Punjab National Bank and Others [(1990) 4 SCC 406].”
It is trite that while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, this Court does not sit in appeal over findings of fact returned by the competent statutory authority. Interference would be warranted only where the decision-making process is shown to suffer from jurisdictional error, manifest arbitrariness, perversity or patent illegality.
In the facts of the present case, this Court finds that the learned Estate Officer has considered each of the objections raised by the Petitioner, analysed the statutory framework, adverted to the binding precedents governing the field and thereafter returned findings which cannot be said to be either perverse or contrary to law. The Petitioner has failed to demonstrate any ground warranting interference in exercise of the extraordinary jurisdiction of this Court.
In view of the foregoing discussion, the present Writ Petition is dismissed.
The present Writ Petition, along with pending Application(s), if any, stands disposed of in above terms.