*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 15th March, 2011
+ W.P.(C) 3338/2001
%
FREEDOM FIGHTERS SOCIAL WELFARE
ASSOCIATION ..... PETITIONER
Through: Mr. Meet Malhotra, Sr. Advocate with
Mr. Ravi S.S. Chauhan & Mr. Gaurav
Varma, Advocates
Versus
UOI & ORS. ..... RESPONDENTS
Through: Ms. Zubeda Begum & Ms. Sana
Ansari, Advocates for GNCTD.
AND
+ W.P.(C) 3444/2001
SHREE HAZUR BABA SADHU SINGH JI
MAHARAJ TRUST ..... PETITIONER
Through: Mr. Meet Malhotra, Sr. Advocate with
Mr. Ravi S.S. Chauhan & Mr. Gaurav
Varma, Advocates
Versus
UOI & ORS ..... RESPONDENTS
Through: Ms. Barkha Babbar, Advocate for
UOI.
Ms. Zubeda Begum & Ms. Sana
Ansari, Advocates for GNCTD.
AND
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 1 of 19
+ W.P.(C) 12695-705/2006
DR.TATINDER KUMAR KATHURIA & ORS. ..... PETITIONERS
Through: Mr. Inder Bir Singh, Advocate
Versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Ms. Zubeda Begum & Ms. Sana
Ansari, Advocates for GNCTD.
AND
+ W.P.(C) 12894-905/2006
SH. LALITESHWAR KUMAR CHOWDHARY
& ORS. ..... PETITIONERS
Through: Mr. Inder Bir Singh, Advocate
Versus
GOVT OF NCT OF DELHI & ORS ..... RESPONDENTS
Through: Ms. Zubeda Begum & Ms. Sana
Ansari, Advocates for GNCTD.
AND
+ W.P.(C) 13229-35/2006
SMT. KISHNI & ORS. ..... PETITIONERS
Through: Mr. Inder Bir Singh, Advocate
Versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Ms. Zubeda Begum & Ms. Sana
Ansari, Advocates for GNCTD.
AND
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 2 of 19
+ W.P.(C) 13428/2006
FREEDOM FIGHTERS WELFARE
SOCIETY (REGD.) ..... PETITIONER
Through: Mr. Ravi S.S. Chauhan & Mr.
Gaurav Varma, Advocates
Versus
UOI & ORS ..... RESPONDENTS
Through: Ms. Ruchi Sindhwani with Ms.
Megha Bharara, Advocates for
GNCTD.
AND
+ W.P.(C) 19123-34/2006
SHRI RAJ KUMAR & ORS ..... PETITIONERS
Through: Mr. Inder Bir Singh, Advocate
Versus
GOVT. OF NCT OF DELHI & ORS ..... RESPONDENTS
Through: Ms. Zubeda Begum & Ms. Sana
Ansari, Advocates for GNCTD.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 3 of 19
RAJIV SAHAI ENDLAW, J.
1. This batch of seven petitions entails the usual tussle of mankind i.e.
of deforestation with a short time perspective to use the land of which no
more is being produced for residential and commercial purposes, as
against of afforestation with the long term perspective of preserving the
environment necessary for the very existence of mankind.
2. The challenge in each of the petitions is to the steps taken by the
respondents (being the Revenue, Forest and Flood Control Departments
of the Government of NCT of Delhi (GNCTD)) pursuant to the
Notification dated 2nd April, 1996 of the GNCTD. The said Notification
was issued in pursuance to the directions given by the Supreme Court in
orders dated 25th January, 1996 and 13th March, 1996 in I.A. Nos.18 & 22
in Writ Petition (Civil) No.4677/1985 titled M.C. Mehta Vs. Union of
India & Ors. The Supreme Court directed that uncultivated surplus land
of Gaon Sabha falling in “Ridge” be excluded from vesting in Gaon
Sabha under Section 154 of the Delhi Land Reforms Act, 1954 and be
made available for the purpose of creation of Reserved Forest. The
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 4 of 19
Notification declared “the uncultivated land of Gaon Sabha” specified in
the said Notification and situated in Southern Ridge as surplus land and
excluded the same from vesting in the Gaon Sabha and placed the said
land at the disposal of Forest Department of GNCTD.
3. The contention of Mr. Meet Malhotra, Senior Advocate appearing
for the petitioners in W.P.(C) Nos.3338/2001 & 3444/2001 is that the
purport of the orders aforesaid of the Supreme Court in pursuance
whereto the Notification aforesaid was issued and of the Notification was
to place only such land at the disposal of the Forest Department, which
were open and vacant and not land which had already been encroached
and built upon as on the date of the Notification. Reliance is placed on
copies of revenue records to show that some of the land mentioned in the
said Notification was described as “Gair Mumkin Makanat”, meaning
that the same was already built upon even prior to the orders aforesaid of
the Supreme Court. Reliance is also placed on the affidavit dated 4th
August, 2003 of Sh. Bajrang Lal, Sub Divisional Magistrate, Hauz Khas,
Delhi filed in W.P.(C) No.3338/2001 confirming that as per Khasra
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 5 of 19
Girdawari of the year 1995-96, the land in Khasra Nos.39 & 40 of village
Neb Sarai was described as “Gair Mumkin Makanat”.
4. The senior counsel has fairly stated that though the petitioners
admit that the land belonged to the Gaon Sabha and has been illegally
encroached upon but contends that since the same had been built upon
prior to the orders of the Supreme Court aforesaid and the Notification
dated 2nd April, 1996, it could not have been placed at the disposal of the
Forest Department.
5. The further contention of the senior counsel for the petitioners is
that the GNCTD is also considering regularization of colonies which
have illegally come up on the land meant for agricultural purposes and
belonging to the Gaon Sabha. It is contended that the proposals for
regularization of unauthorized colonies had been invited and submitted;
that some of the land subject matter of the Notification dated 2 nd April,
1996 (supra) is part of the said unauthorized colonies. It is contended
that the land which, as on the date of the orders aforesaid of the Supreme
Court or on the date of the Notification was part of the unauthorized
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 6 of 19
colony and the proposal for regularization whereof was pending, could
not be the part of the Notification dated 2 nd April, 1996 whereby the same
land was vested in the Forest Department. It is urged that there is thus an
apparent inconsistency and arbitrariness requiring this Court to intervene.
The petitioners in this regard have relied upon a public notice published
in the newspapers in the year 1999 in pursuance of the directions of this
Court in W.P.(C) No.4771/1993 requiring submission of lay out plans of
the colonies pending consideration for regularization.
6. Though the counsels have not relied upon any orders in W.P.(C)
No.4771/1993 (supra) of this Court but I find in the files a copy of the
judgment dated 2nd February, 2006 of a Single Judge of this Court in
Civil Writ No.8977-79/2003 titled Village Pul Pehladpur Residents Vs.
Union of India therein setting out the order dated 17th August, 1998 of
the Division Bench of this Court in W.P.(C) No.4771/1993 titled
Common Cause (Regd.) Vs. Union of India which indicates that this
Court had directed the Government to take definite decision whether to
regularize or not to regularize the unauthorized colonies and to take
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 7 of 19
action for removal of encroachments / structures on public land, qua
colonies with respect whereto decision not to regularize is taken.
7. The senior counsel for the petitioners has further argued that the
directions aforesaid of the Supreme Court in the year 1996 and the
Notification (supra) in pursuance thereto was to be only prospective i.e.
with respect to the land which till then was open and vacant and not qua
land which had already been encroached and built upon and was part of
the unauthorized colony and a scheme for regularization whereof was
under consideration. It is urged that the orders of the Supreme Court did
not direct removal of encroachments on the land and used the expression
“likely to be misused” and which indicate that the said directions were
not intended for land which was not vacant and which already had been
encroached and built upon. The senior counsel though during the
arguments agreed that the said orders were not so unequivocal and
contended that the same could be clarified by the Supreme Court only.
8. Ms. Ruchi Sindhwani, Advocate for GNCTD in some of the writ
petitions invited attention to the affidavits filed of the revenue officials to
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 8 of 19
the effect that there was no construction on the land prior to 2nd April,
1996. She contends that the petitioners have not shown anything to prove
construction over the land since prior to the orders aforesaid of the
Supreme Court. In the said affidavit, it is also pleaded that the said lands
were part of the ridge area as per the Master Plan and were vide
Notification dated 2nd April, 1996 (supra) vested in the Forest
Department.
9. Ms. Ruchi Sindhwani, Advocate for GNCTD has also argued that
pursuant to the directions of the Division Bench of this Court in W.P.(C)
no.4771/1993 (supra), the GNCTD has on 24th March, 2008 notified the
“Regulations for Regularization of Unauthorized Colonies in Delhi” and
has during the course of hearing handed over a copy of the said
Notification. As per the said Notification, the unauthorized colony or
parts thereof falling under notified or reserved forest areas are not to be
considered for regularization. It is contended that as per this Notification
also, the question of the land falling in ridge / forest area being
considered for regularization even if part of any unauthorized colony,
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 9 of 19
does not arise and as such there is no inconsistency as has been urged.
10. I may in this regard also notice that the judgment of this Court in
Village Pul Pehladpur Residents (supra) had also noticed that without
any regulations or guidelines for regularization, action for removal of
encroachments / demolition of unauthorized colonies was being taken
selectively. Now in the light of the Notification of 24 th March, 2008,
there are clear guidelines as to which parts of the unauthorized colonies
are eligible for regularization and which are not.
11. Ms. Ruchi Sindhwani, Advocate for GNCTD has also argued that
the argument of the petitioners tantamount to a challenge to the
Notification dated 2nd April, 1996 (supra) and the said Notification
having been issued in pursuance of the directions of the Supreme Court,
the challenge thereto can lie before the Supreme Court and not before this
Court.
12. Ms. Zubeda Begum, Advocate appearing for the GNCTD in some
other writ petitions has contended that the petitioners have not placed
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 10 of 19
anything before this Court to demonstrate that any of the land with
respect whereto the petitions have been filed was part of any
unauthorized colony pending for regularization. She has further
contended that the purport of the orders aforesaid of the Supreme Court
and the Notification dated 2nd April, 1996 (supra) was to vest all land
mentioned therein, even if had been already encroached upon, in the
Forest Department for the purpose of afforestation as part of the ridge
area. She has without prejudice to the said plea contended that none of
the petitioners have filed any documents to show the Khasra numbers on
which their properties may be located.
13. At this stage, I may describe briefly the land subject matter of each
of the petitions:
(i) W.P.(C) No.3338/2001 has been filed by a Society claiming
to be an Association of owners in possession of built up
residential plots in Freedom Fighters Enclave Colony,
village Neb Sarai. The said Society contends that its
members had built upon land in Khasra Nos.39 & 40; that
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 11 of 19
though as per Notification the entire Khasra Nos.39 & 40 iswith the ridge but the action with respect to only parts
thereof was being taken. Vide interim order dated 23rd May,
2001 in this writ petition, the respondents were restrained
from dispossessing the petitioner.
(ii) W.P.(C) No.3444/2001 has been filed by a Religious Trust
claiming to be having land in Khasra Nos.8 & 41 in village
Neb Sarai. Interim order restraining dispossession was
granted in this petition also.
(iii) W.P.(C) No.12695-705/2006 has been filed by eleven
residents also of Freedom Fighters Enclave who claim their
land to be in Khasra No.26. Interim order of status quo was
granted in this petition also.
(iv) W.P.(C) No.12894-905/2006 has been filed by twelve
residents also of Freedom Fighters Enclave who claim their
land to be in Khasra Nos.24 & 16.
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 12 of 19
(v) W.P.(C) No.13229-35/2006 has been filed by seven persons
who claim their land to be in Khasra No.27. They also enjoy
interim protection.
(vi) W.P.(C) No.13428/2006 has been filed by an Association of
owners having land in Khasra No.42.
(vii) W.P.(C) No.19123-34/2006 has been filed by twelve
petitioners who claim their land to be in Khasra Nos. 223 &
224 in Chattarpur Enclave, village Chattarpur, Mehrauli,
New Delhi. They contend that even though their land is not
included in the Notification dated 2nd April, 1996 (supra) but
is being wrongfully treated as part of forest / ridge area and
when decision for regularization of the unauthorized colony
which has come up on the said land is pending.
14. A perusal of the order dated 25th January, 1996 (supra) of the
Supreme Court shows that the land with respect whereto Notification was
directed to be issued was described as “Ridge area which has to be
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 13 of 19
preserved. No cultivation or any type of construction can be permitted on
this area.” The Supreme Court in the said proceedings was concerned
with preservation of the green area to provide a lung to the ever
increasing population of the city of Delhi. In the subsequent order dated
13th March, 1996, the Supreme Court further observed that the “land is
part of the ridge area. Even though it is not a reserved forest, it happens
to be a forest. This area cannot be utilized in any manner in view of the
prohibitions contained in the Forest Conservation Act, 1980. In this view
of the matter, issuing of notification is a simple formality to secure the
area. We, therefore, reiterate and request the Lieutenant Governor to
have necessary notification issued within time specified by us.”
15. Seen in the aforesaid perspective, when the purport of the order
was preservation of environment necessary for the very survival of the
city, it is irrelevant whether the encroachment by the petitioners of the
land with respect whereto the Notification has been issued was before the
said Notification or thereafter. Even if the petitioners, as they claim had
encroached upon the said land prior to the year 1996, they cannot be
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 14 of 19
permitted to continue with the encroachment. The land subject matter of
the Notification is required to be afforested by removal of all
encroachment, structures etc. existing thereon.
16. I am further of the view that now in any case in view of the
Regulations for Regularization of Unauthorized Colonies in Delhi, 2008
which prohibit consideration for regularization of unauthorized colonies /
portions thereof falling in notified or reserved forest areas, the matter has
been placed beyond any pale of controversy. It cannot now be contended
that the regularization of the unauthorized colony on the land is pending
consideration. The conflict and inconsistency relying whereupon the
petitions were filed and the interim orders obtained no longer exists. The
petitions now have to necessarily fail.
17. There is another aspect of the matter. The petitioners admittedly
are trespassers / encroachers on Gaon Sabha land. They have no equities
or rights in their favour. Though the Government as a populist or a
humane measure has agreed to consider regularization of unauthorized
colonies which had come up illegally on public / private land but none
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 15 of 19
can claim any right thereto. The petitioners as encroachers / trespassers
on land, be it of the Gaon Sabha or of the forest, are liable to be ejected
therefrom.
18. Before parting with the subject, I may record that though of the
opinion that the petitions before this Court were in any case
misconceived since the challenge therein was to the Notification dated 2 nd
April, 1996 issued under directions of the Supreme Court but since the
same have remained pending before this Court for long and interim
protection was also granted to the petitioners, I have deemed it
appropriate to deal with them on merits rather than dismissing them on
such ground only.
19. That leaves only the controversy in W.P.(C) No.19123-34/2006,
the land subject matter whereof is claimed to be in Khasra Nos.223 &
224 in Chattarpur Village and which is stated to be not part of the
Notification dated 2nd April, 1996. The said petition has been filed
contending that nevertheless the said land is being treated as part of ridge
/ forest.
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 16 of 19
20. The said contention is misconceived. The Notification dated 2 nd
April, 1996 is not the sole repository of the land in the ridge / forest area.
The said Notification had to be issued only for the reason that though the
said land in the Master Plan was shown as part of the ridge area but under
the Delhi Land Reforms Act, 1954 vested in the Gaon Sabha. The
Notification was therefore directed to be issued for exempting the said
land from the land vesting in Gaon Sabha and to place the same with the
Forest Department. It thus cannot be urged that the land in Khasra
Nos.223 & 224 in Chattarpur Enclave, village Chattarpur, Mehrauli, New
Delhi is not part of the ridge / forest merely for the reason of not finding
mention in the said Notification.
21. The counsel for the petitioners in W.P.(C) No.19123-34/2006
however urges that in the counter affidavit filed, it is pleaded that Khasra
Nos.223 & 224 is Gaon Sabha land no action of removal of
encroachment or for afforestation of Khasra Nos.223 & 224 in pursuance
to notification dated 2nd April, 1996 is being taken.
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 17 of 19
22. However, in pursuance to the specific order dated 2nd February,
2010 of this Court in the said proceedings, an affidavit of Sh. Prabhat
Tyagi, Dy. Conservator of Forests (South) has been filed in which it is
stated that the land in Khasra Nos.223 & 224 village Chattarpur as also
the land subject matter of all the other petitions falls within the
Morphological Ridge as per Geological Survey of India Map. The said
affidavit also reproduces the Master Plan providing for maintenance of
the ridge in its pristine glory for maintaining ecological balance and the
need to conserve the same to sustain the natural eco system.
23. Thus the position which emerges is, that the land in Khasra
Nos.223 & 224 is part of ridge since before the issuance of the
Notification dated 2nd April, 1996. Thus, it cannot be said that merely
because the land in Khasra Nos.223 & 224 is not included in the
Notification dated 2nd April, 1996, that the same is not part of the ridge /
forest.
24. There is another aspect of the matter. Even if the petitioners in
W.P.(C) No.19123-34/2006 claim that the land in Khasra Nos.223 & 224
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 18 of 19
of village Chattarpur is not included in ridge / forest and is Gaon Sabha
land, the fora for having the same adjudicated is not by way of this writ
petition but is by way of demarcation or by seeking declaration of their
rights under the provisions of the Delhi Land Reforms Act, 1954 stated to
be applicable. The writ petition is misconceived for this reason also.
25. I find that the Notification dated 2nd April, 1996 (supra) was also
challenged before the Division Bench of this Court in Bhagat Singh Vs.
UOI MANU/DE/1737/2010 on the ground that prior to issuance thereof,
no exercise for assessing the requirement of the village had been
undertaken. The Division Bench held that no such exercise was required
to be carried out with respect to land which was part of the Ridge Area
inasmuch as the objective of the Notification was to protect the Ridge.
26. None of the petitions have any merits. The interim orders granted
earlier are vacated. The petitions are dismissed. The respondents are
directed to forthwith take possession of the land by removal of all
encroachments / constructions thereon. I refrain from imposing any
costs.
RAJIV SAHAI ENDLAW
(JUDGE)
MARCH 15, 2011/„gsr‟
W.P.(C) Nos.3338/01, 3444/01, 12695-705/06,12894-905/06, 13229-35/06, 13428/06 & 19123-34/06 Page 19 of 19