Tejpal Gautam And Ors vs Central Public Works Department And Anr

RAJIV SAHAI ENDLAW, J

This petition under Article 226 of the Constitution of India, by as many as thirteen petitioners, claiming to be residing along with their families in

different jhuggis at R.K. Puram, Delhi, impugns the notices, all stated to be dated 4th September, 2017, issued to each of them, under Section 5A(2) of

the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (PP Act) as well as the orders, all stated to be dated 14th September, 2017,

under Section 5A(2) of the said Act, of removal of the jhuggis of the petitioners. Alternatively, direction is sought to the respondents Central Public

Works Department (CPWD) and Govt. of NCT of Delhi (GNCTD) to provide appropriate alternative accommodation to the petitioners in the vicinity

of the jhuggis in their possession.

The petition came up first before this Court on 21st September, 2017, when without recording any reason, notice was issued and operation of the

orders dated 14th September, 2017 stayed.

The respondent No.1 CPWD and the respondent No.2 GNCTD through Delhi Urban Shelter Improvement Board (DUSIB) have filed their counter

affidavits.

Request for adjournment is made on behalf of the advocate for the respondent No.1 CPWD.

However, not finding any reason recorded in the order aforesaid for grant of stay and which has been operating against the respondents for the last

nearly one year, the counsel for the petitioners has been asked to argue, to verify whether there is any need to hear the counsel for the respondent

No.1 CPWD.

The counsel for the petitioners has argued, that the jhuggi of each of the petitioners is within the colony of R.K. Puram, though on the periphery

thereof and the said jhuggis have been in existence since prior to 2015 and the petitioners are not liable to be removed therefrom and their jhuggis are

not liable to be demolished, without the petitioners being rehabilitated in accordance with the policy in this regard, copy of which is filed at page 93 of

the paper book.

On enquiry, it is informed that the petitioners do not claim any right, title or interest in the land on which their jhuggis are situated and the claim of

the petitioners is only under the aforesaid policy.

In response to another query, as to why the appeals under Section 9 of the PP Act have not been preferred, the counsel for the petitioners states

that no appeal against an order under Section 5A(2) is provided in Section 9 of the PP Act.

Though at one point of arguments there was also some controversy as to whether the jhuggis of the petitioners are abutting the walls of the

government accommodation in the colony of R.K. Puram as pleaded in counter affidavits or far away from it, as argued by counsel for petitioners but

the counsel for the petitioners drew attention to the photographs at page 296 to 310 of the paper book and from a perusal of the said photographs it is

clear that the jhuggis are abutting the government accommodation in the colony. The counsel for the petitioners of course contended that the

photographs are of jhuggis of others and the jhuggis of the petitioners are not abutting the walls of the government accommodation in the said colony.

However the aforesaid question is not relevant, inasmuch as the same is not determinative either way.

As far as the policy, to which attention is drawn, the same is of DUSIB of GNCTD and is titled “Delhi Slum & JJ Rehabilitation and Relocation

Policy, 2015â€​.

The said policy, in Part A thereof, in Clause 2(a)(i) titled “Who is eligible for Rehabilitation or Relocationâ€​ provides as under:

“JJ Bastis which have come up before 01.01.2006 shall not be removed (as per NCT of Delhi Laws (Special Provisions) Second Act, 2011)

without providing them alternate housing. Jhuggis which have come up in such JJ Bastis before 01-1-2015 shall not be demolished without providing

alternate housing; (this is in supersession of the earlier cut-off date of 04.06.2009 as notified in the guidelines of 2013)â€​

and in Part B thereof under Clause 1(ii) provides the eligibility criteria for allotment of alternative dwelling units to rehabilitate and relocate JJ dwellers

inter alia as under:

“(ii) The Jhuggi Jhopri basti in which the JJ dwellers are residing must be in existence prior to 01-01-2006. However, the cut-off date of residing in

the jhuggi for becoming eligible for rehabilitation shall be 01-01-2015 (this is in supersession of the earlier cut-off date of 04.06.2009 as notified in the

guidelines of 2013)â€​

On enquiry, as to what is the definition/criteria of “JJ bastis†mentioned in Part A under Clause 2(a)(i), the counsel for the petitioners has

drawn attention to the Delhi Urban Shelter Improvement Board Act, 2010 Section 2(g) wherein defines ‘Jhuggi Jhopri Basti’ as meaning any

group of jhuggis which the Board i.e. DUSIB may, by Notification declare as a jhuggi jhopri basti in accordance with the factors prescribed therein.

The counsel for the petitioners, on enquiry, admits that there is no Notification with respect to the jhuggis of the petitioners, if at all in a basti.

It has thus been enquired from the counsel for the petitioners, that once the jhuggis of the petitioners or the basti if any where the said jhuggis are

situated, has not been notified, on what basis the petitioners can claim a right of rehabilitation.

The counsel for the petitioners, instead of replying to the aforesaid, states that the petitioners are being targeted, inasmuch as dwellers of some of

the other jhuggis in the vicinity have not been issued notices and no orders have been passed against them.

However, the law does not recognise any concept of negative equality. Once, the petitioners are admittedly not having any right to challenge the

action of the respondents of removal of jhuggis in occupation of the petitioners, the petitioners cannot be permitted to perpetuate the illegality by

contending that the respondents have not taken any action against others. It cannot be lost sight of that removal of such jhuggis/unauthorised

occupants is not free from difficulties and if the respondents in their wisdom have decided to for the first time being proceed against the petitioners

only and not against others, the action against the petitioners cannot be faulted with.

The counsel for the respondent No.2 DUSIB has in addition, pointed out (i) that the land which the petitioners are occupying is of the Government

of India and the policy relied upon does not apply to such land, per Section 10 of the DUSIB Act; (ii) that though the petitioners have filed photocopies

of a number of documents to show their possession since prior to 1st January, 2015, being the cut-off date in terms of Clause 2(a)(i) of Part A supra

of the policy but except for one or two documents, all the other documents are of after the said date; (iii) that for Clause 2(a)(i) of Part A to apply,

what has to be proved is that the basti was in existence before 1st January, 2006 and the date of 1st January, 2015, is only with respect to occupation

of such jhuggis which may have come up in such bastis; (iv) there is no averment in the petition, of the existence of any basti where the jhuggis of the

petitioners are situated, prior to 1st January, 2006 and the petitioners thus, even if the policy were to apply, have no right under the policy.

Though the counsel for the petitioners has also raised sympathy grounds and the sympathy in favour of the homeless is indeed justified, but such

sympathy cannot be permitted to allow the colonies which have been developed by Government of India or by the GNCTD or by private developers,

to be turned into slums, by allowing the jhuggis jhopris to come up in the open spaces in the said colony. Rather, from the photographs, it appears that

the subject jhuggis are touching the wall of the government accommodation which may have been allotted to government officials and whose

residence along with their family members in the said accommodation may not be possible as long as the jhuggis exists. This Court, when approached

cannot consider the plight of the petitioners alone and has to necessarily consider the overall situation and considering which it is felt that showing any

sympathy to the petitioners will be to the prejudice of other citizens of the country including government employees who for years wait for their turn

for allotment of government accommodation. Such government employees cannot be deprived of such benefit of their employment, by making the

accommodation allotted to them unusable for the reason of allowing petitioners and others to surround the said accommodation with their unauthorised

jhuggis.

There is thus no merit in the petition.

Dismissed.