WP(C) 8904/09 & connected matters Page 1 of 57 HIGH COURT OF DELHI AT NEW DELHI + WP(C) Nos.8904/2009, 7735/2007, 7317/2009 and 9246/2009 Judgment reserved on: 17.12.2009 % Judgment pronounced on: 11th February, 2010 1. WP(C) 8904/2009 SUDAMA SINGH & OTHERS ..... Petitioners Through: Mr.Prashant Bhushan, Mr.Somesh Rattan and Mr.Rohit Kumar Singh, Advocates. Versus GOVERNMENT OF DELHI & ANR. ..... Respondents Through Mr.Najmi Waziri, Standing Counsel for GNCTD 2. WP(C) 7735/2007 MAYA DEVI & OTHERS ..... Petitioners Through: Ms. Girija Krishan Varma Advocate. Versus GOVERNMENT OF DELHI & ORS. ..... Respondents Through Mr.Najmi Waziri, Standing Counsel for GNCTD 3. WP(C) 7317/2009 MAJNU ..... Petitioner Through: Mr. S.K.Agarwal with Ms. Vandana Misra, Advocate. Versus COMMISSIONER MCD & ORS. ..... Respondents Through Mr. H.S. Phoolka, Sr.Advocate with Mr. Ravi Bassi, Advocate for MCD Mr.O.P.Saxena,Advocate for Slum & JJ WP(C) 8904/09 & connected matters Page 2 of 57 4. WP(C) 9246/2009 MUKANDI LAL CHAUHAN & OTHERS ..... Petitioners Through: Mr. Divya Jyoti Jaipuria, Advocate. Versus MUNICIPAL CORPORATION OF DELHI & ORS. ..... Respondents Through: Mr. H.S. Phoolka, Sr.Advocate with Mr. Ravi Bassi, Advocate for MCD Mr. Najmi Waziri, Standing Counsel for GNCTD Mr. O.P.Saxena, Advocate for Slum & JJ CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE S.MURALIDHAR 1. Whether reporters of the local papers be allowed to see the judgment ? y 2. To be referred to the Reporter or not ?y 3. Whether the judgment should be reported in the Digest ?y AJIT PRAKASH SHAH, CJ INTRODUCTION 1. The writ petitions have been filed under Article 226 of the Constitution of India seeking intervention of this Court to rehabilitate and relocate the petitioners who were residing at various slum clusters in the Capital city to a suitable place and providing them alternative land with ownership rights pursuant to demolition of their „jhuggies‟ (hutments). The subject matter in these four writ petitions revolves around questions of great importance, inter alia, right to shelter of the petitioners and WP(C) 8904/09 & connected matters Page 3 of 57 those represented by them on one hand, and, on the other, slum cluster being on „Right of Way‟ on which basis the agencies of the State seek to oppose them. Therefore, all of them were taken up together for hearing and are being disposed of by this common judgment. STATE’S POLICY OF RESETTLEMENT OF JHUGGI INHABITANTS 2. Certain background facts, germane to these writ petitions may be noted at the outset. The Government in the year 1990, decided to resettle the then inhabitants of jhuggies in Delhi and a comprehensive survey was conducted by the Civil Supplies Department of Delhi Administration between January and March, 1990, wherein all jhuggi clusters except those residing on road, footpath etc., were identified with the cut-off date of January 31, 1990, pursuant to which a proposal was submitted to the Delhi Administration and the Planning Commission for its 1990-91 Annual Plan. The Municipal Corporation of Delhi mooted a three pronged strategy in its proposal to the Delhi Administration and Planning Commission for Annual Plan, 1990-91, to solve the problem of eligible dwellers which, inter alia, provided: Strategy-I: Relocation of these Jhuggi households where land owning agencies are in a position to implement the projects on the encroached land pockets as per requirements in larger public interest and they submit request to S&JJ Department for clearance the jhuggi cluster for WP(C) 8904/09 & connected matters Page 4 of 57 project implementation and also contribute due share towards the resettlement cost. Strategy-II: In-situ upgradation of JJ clusters and informal shelters in case of those encroached land pockets where the land owning agencies issue NOCs to Slum & JJ Department for utilization of land. However the utilization of land under this strategy is linked with clearance of the project by the Technical Committee of the DDA. Strategy-III: Extension of minimum basic Civic amenities for community use under the Scheme of Environmental Improvement in JJ clusters and its component schemes of construction of Pay and Use Janasuvidha complexes containing toilets and baths and also the introduction of mobile toilet vans in the clusters, irrespective of the status of the encroached land till coverage under one of the aforesaid two strategies. 3. The Delhi Government with the approval of Central Government finalized the Rehabilitation and Improvement Scheme, 2000 for Jhuggi Clusters which came into effect from 01.04.2000 and had a cut-off date of 30.11.1998 for the entitlements. The said Scheme was set aside by this Court in the case of Wazirpur Bartan Nirmata Sangh v. Union of India, reported in 103 (2003) DLT 654 but the Supreme Court WP(C) 8904/09 & connected matters Page 5 of 57 vide its orders dated 19.02.2003 and 03.03.2003 passed in SLP(C) No. 3166-3167/2003 filed by the Union of India stayed the said order of the High Court. Therefore, the policy is still operative today. The policy for relocation of J.J. clusters w.e.f. 01.04.2000, interalia, provided that slums will be relocated only from project sites where specific requests have been received from the land owning agencies and no large scale removal should be resorted to without any specific use. Relocation land will be identified in Delhi and NCR in consultation with DDA and NCRPB so that it is in conformity with the land use policy under the Master Plan and the NCR Plan. Land to be acquired will be identified by DDA/NCRPB in small pockets near existing residential areas so that the cost of peripheral services is minimized. A target of shifting 10,000 Jhuggies in 2000-2001 was laid down which was to be reviewed each year in April by Delhi Government based on requests received from land owning agencies. Cut-off date for beneficiaries was 30.11.1998 and to verify eligibility, ration cards issued prior to 30.11.1998 was to be taken in account, the name of allottee must also figure in the notified voters list as on 30.11.1998. Keeping in view the scarcity and high cost of land, the plot size for single dwelling unit was kept at 20 sqm (those who are eligible before 31.01.1990) and 15 sqm (eligible between 01.02.1990 to 30.12.1998) with 100% ground coverage. The layout plans, building plans and other development works for relocation settlement were to be prepared by the executing agency, i.e. WP(C) 8904/09 & connected matters Page 6 of 57 Slum Department, MCD. Prior to relocation and payment of subsidy by the land owing agency and Delhi Government, a joint survey of the slum cluster was to be carried out by the Dy. Commissioner (Revenue) jointly with the land owning agency and the executing agency. The figure of jhuggies to be relocated was to be determined on the basis of this survey keeping in view the eligibility criteria. A separate revolving fund was also envisaged with the contribution of the beneficiary, the subsidy given by Delhi Government and the subsidy given by the land owing agency which was to be released to the executing agency based on the project estimates. A steering committee under the Chairmanship of the Chief Secretary, Delhi Government was set up for indentifying and prioritizing clusters to be shifted, shifting of identified clusters and for monitoring the execution of each project. MASTER PLAN FOR DELHI - 2021 4. The latest Master Plan for Delhi-2021 (hereinafter referred to as “the MPD-2021”) as notified on 07.02.2007, has already been enforced. It gives statutory relief to the Slum & JJ Clusters. The MPD-2021 envisages three fold strategies to deal with rehabilitation or relocation of the existing squatter settlements/jhuggi dwellers. One of the strategies is relocation of the jhuggies dwellers if the land on which their jhuggies exist is required for a public purpose, in which case, the jhuggi dwellers should be relocated/resettled and provided alternative WP(C) 8904/09 & connected matters Page 7 of 57 accommodation. It also provides that Resettlement whether in form of in situ-upgradation or relocation, should be based mainly on built-up accommodation of around 25 sq. meters with common areas and facilities. Paras 4.2.3 and 4.2.3.1 of MPD- 2021 under the heading “Housing for Urban Poor” read as under: “4.2.3 HOUSING FOR URBAN POOR The category of urban poor for purpose of the Plan would mainly comprise the inhabitants of squatter settlements and informal service providers. Such services could include domestic help, hawkers and vendors, low paid workers in the industrial, commercial and trade/business sectors, etc. These include both existing population and future migrants. In terms of housing requirements of the city, this continues to be the single-biggest challenge and would require a mix of approaches and innovative solutions. 4.2.3.1 Rehabilitation/Relocation of Slum & JJ Clusters In so far as the existing squatter settlements are concerned, the present three-fold strategy of relocation from areas required for public purpose, in-situ up-gradation at other sites to be selected on the basis of specific parameters and environmental up-gradation to basic minimum standards shall be allowed as an interim measure. Rest of the clusters, till they are covered by either of the first two components of the strategy, should be continued. During the Plan period 1981-2001, sites and services approach based relocation was employed in which resettlement of squatter slums was done on 18 sqm and 12.5 sqm. plots (transit accommodation) allotted to eligible persons on licence basis. This has led to a number of aberrations and there are several aspects, due to which this approach needs to be progressively abandoned and substituted by an alternate approach. Broadly speaking this WP(C) 8904/09 & connected matters Page 8 of 57 alternate approach should have the following components: (i) Resettlement, whether in the form of in- situ up-gradation or relocation, should be based mainly on built up accommodation of around 25 sq.m with common areas and facilities, rather than on the model of horizontal plotted development. (ii) The concept of land as a resource should be adopted to develop such accommodation with private sector participation and investment, to the extent possible. (iii) Incentives by way of higher FAR, part commercial use of the land and, if necessary and feasible, Transfer of Development Rights should be provided. (iv) A cooperative resettlement model with adequate safeguards may be adopted with tenure rights being provided through the institution of Co-operative Societies. (v) The provision of accommodation should be based on cost with suitable arrangements for funding/financing, keeping in view the aspect of affordability and capacity to pay.” PETITIONERS’ CASE 5. The petitioners have contended that action of the government authorities in demolishing the slum clusters without ensuring relocation of its poor residents (“Urban Poor”) in total violation of their fundamental right to shelter enshrined in right to life under Article 21 of the Constitution. It is contended that the demolition of the jhuggies without relocation of the inhabitants was also in violation of human rights and various Covenants like Universal Declaration of Human Rights, WP(C) 8904/09 & connected matters Page 9 of 57 International Covenant of Economic, Social and Cultural Rights and Resolution No.1993/77 adopted by Commission of Human Rights entitled „Forced Evictions and Human Rights‟. The petitioners claim to be mainly from the low income groups engaged in peripheral activities in the neighbourhood of their clusters. They are characterized by the term “city service personnel” whose daily chores ensure the health and cleanliness of the households in the neighbourhood where they are employed. There is an element of indispensability of their services for the resident population in the upper-class apartments and households. The petitioners claim to possess various identity proofs such as election i-cards, ration cards etc. issued by the concerned civil authorities. Some surveys have been conducted from time to time for the purpose of identifying persons eligible for rehabilitation and relocation. 6. On the other hand, the main contention of the respondents is that petitioners were occupying land which comes under the category of „Right of Way‟ and, therefore are not entitled for any compensation or alternative land under any policy or scheme of the rehabilitation and relocation. FACTS Facts peculiar to the writ petitions may be set out as under:- WRIT PETITION Nos. 8904/2009 & 7735/2007 7. Writ Petition No.8904/2009 and 7735/2007 involve more or less similar facts and circumstances. The demolition of the WP(C) 8904/09 & connected matters Page 10 of 57 petitioner‟s dwelling was carried out by the concerned government authorities (except for the location of „Right of Way‟ involved). In Writ Petition No.8904/ 2009, the jhuggies of New Sanjay Camp Slum Cluster were demolished on 05.02.2009 for the purpose of constructing an underpass on road no. 13 (Okhla Estate Marg) which goes through Okhla Phase –I and Okhla Phase II. The respondents to the petition are the Government of NCT of Delhi (hereinafter referred to as GNCTD) through its Secretary, PWD and Municipal Corporation of Delhi (MCD) through its Additional Commissioner - Slum & JJ Department, MCD (hereinafter referred to as „the Slum Department). In Writ Petition No.7735/2007, the demolitions of Nehru Camp slum cluster was carried out for the purpose of the work of widening of existing National Highway-24 (NH-24) from four lanes to eight lanes. The work on NH 24 was started in August, 2006. The respondents in the petition are GNCTD, PWD and the Slum Department. 8. According to the petitioners, they have been residing at their respective jhuggi clusters for the last many years. These slum clusters were situated on both sides of the road. It is the claim of the petitioners that all the residents of the clusters have proper proof of identity and residence. They are all living well below the poverty line and stand covered within the accepted definitions of the term „Urban Poor‟. They also come within the definition as laid down in the MPD-2021 under the heading “Housing for Urban Poor” in Para 4.2.3. They are and eligible WP(C) 8904/09 & connected matters Page 11 of 57 under the Scheme for rehabilitation and relocation. It is submitted that the demolition of the jhuggies was in violation of the Scheme and MPD-2021 which envisages a three-fold strategy to deal with rehabilitation or relocation of the existing squatter/Jhuggi clusters. 9. The petitioners have claimed that the clusters were settled beyond the area required for widening of the relevant roads and were spread over the stretch in length along the roads in question. The agencies demolished the clusters (jhuggies) not only on the marked area of the road constituting the „Right of Way‟ but even those which were located beyond. Before presenting the writ petitions, the petitioners petitioned various authorities. Lengthy correspondence and communications were exchanged between the petitioners and the respondents regarding the extension of time well as clarifications and information under the provisions of Right to Information Act, 2005. The petitioners in Writ Petition No.7735 of 2007 filed an RTI application with PWD, in response whereof the PWD vide letter dated 21.07.2007 informed them that the total width of land in both sides of the road is called „Right of Way‟. Whenever any new road is constructed, the Government acquires land on both sides of the road equal to the Right of Way of the road. Thus, the end limits of the lands are fixed at the time of initial construction of road and as per the Government policy, no compensation is payable for the encroachers existing in the WP(C) 8904/09 & connected matters Page 12 of 57 Right of Way of road. Reference was made to letter No. F8(158)/R/PWD-III/2006-07/1362 dated 18.10.2006. 10. The main stand of the agencies concerned is that alternative land is not required to be allotted to the inhabitants of jhuggies as land comes under the „Right of Way‟ in view of the policies governing the relocation and rehabilitation of the slum dwellers. It was submitted on behalf of the petitioners that the MPD - 2021 and the Scheme have been approved by this Court in the later decisions and there is no mention of any exception, such as „Right of Way‟ where compensation or alternate plots are not to be given to the Jhuggi dwellers who are on the „Right of Way‟. The petitioners pointed out that the PWD in its reply to RTI Application dated 21.07.2007 has stated that neither the copies of the Policy, Order, Guidelines or Rules indicate what „Right of Way‟ is and where it applies nor any such file relating to the policy of „Right of Way‟ is available with its office. According to the petitioners, the stand of the PWD with regard to non-allotment of alternative accommodation to the inhabitants of land covered under the „Right of Way‟ was completely baseless, arbitrary and discriminatory. 11. During the course of hearing of Writ Petition No.7735 of 2007 this Court vide its order dated 12th November, 2007 appointed a Court Commissioner to visit the area in question and to submit a report after physically verifying the area and the relevant documents, survey reports produced by the respondents. WP(C) 8904/09 & connected matters Page 13 of 57 WRIT PETITION 9246/2009 12. This writ petition has been filed seeking intervention of this Court to rehabilitate the petitioners belonging to Gadia Lohar Basti at Prem Nagar, New Delhi to a suitable place and providing them with 25 sq.yds. of lands with ownership rights in accordance with the policy of MCD, which is one of the respondents to the present petition. 13. The petitioners are the residents of Gadia Lohar Basti which is a nomadic and scheduled tribe often referred as „Khanabadosh‟ who migrated from Rajasthan to Delhi in 1965. The respondents are MCD, the GNTCD and the Slum Department, an implementing agency which initiates action for shifting / relocation of eligible jhuggi clusters upon the receipt of specific request from the concerned land owning / project implementing agency. The Gadia Lohar Basti came into existence in 1965 and the petitioners were residing there since more than 40 years. The petitioners aver that the MCD on 12.01.2009, without prior notice demolished the house structures / jhuggies and irresponsibly displaced more than 200 people without giving them a chance to take their belongings at safe place. The petitioners have strongly relied upon a Resolution dated 12.2.2009 passed by the MCD for rehabilitation of the Gadia Lohar community, pursuant whereto they are eligible to allotment of 25 sq.yds. plots of land along with ownership rights. The petitioners have claimed that such demolitions have resulted in various health hazards and WP(C) 8904/09 & connected matters Page 14 of 57 hardships and the demolition of the slum is contrary to the mandate of Draft National Slum Policy, 2001, Resettlement Policy of 1990 and MPD - 2021 and relevant international covenants. Part B, Paragraph 1 of Draft National Slum Policy, 2001 has been quoted which says that “the Policy does not advocate the concept of slum clearance except under strict guidelines set down for resettlement and rehabilitation in respect of certain slums located on untenable sites.” The term „untenable slums/informal settlements‟ has been defined in Part C para 4 to say that “ A site shall not be declared as untenable unless existence of human habitation on such sites entails undue risk to the safety or health or life of the residents themselves or where habitation on such sites is considered contrary to “public interest”. Reliance is also placed on Draft National Urban Housing and Habitat Policy, 2005. The decision of the Supreme Court in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 121 has also been relied upon wherein the Court observed that “though it is correct to say that roadways and pathways should be kept free of encroachers, should it not be held, in cases where the poor have resided in an area for a long time, that the State ought to frame schemes, and allocate land and resources, for resettling and rehabilitating the urban poor.” 14. The MCD in its response to the petition submitted that many development projects were being undertaken in order to facilitate the holding of the Commonwealth Games, 2010. In WP(C) 8904/09 & connected matters Page 15 of 57 pursuance thereof, a Road Under Bridge (RUB) is being constructed connecting Jawaharlal Nehru Stadium to Tyagraj Stadium under a Joint Venture between the MCD, Railway Department and Central Government. In view of the upcoming Commonwealth Games, it was necessary to connect both the venues. The distance of road between the two stadiums is 1.5 Kms. The existing road connecting the two stadiums is 7 mts. wide which was sought to be widened to 14 mts. and for the purpose, it was necessary to remove all the jhuggies and slum clusters on the pavements which constitute „Right of Way‟ of the road. It was pointed out by the MCD that the Gadia Lohar Basti consisted only of 15/16 jhuggies that were removed whereas altogether around 1000 jhuggies were removed in whole length of the road between the two stadiums. It is the stand of the MCD that the demolition was carried out after receiving prior no- objection certificate from the Slum Department and the jhuggi clusters were not notified and covered under any rehabilitation programme of Delhi Government. According to the MCD, there is no existing rehabilitation policy in MCD for rehabilitation of the people removed from encroachments on public land. The present clusters of jhuggies under consideration in this petition constitute encroachment on „Right of Way‟. Therefore, no statutory and constitutional right can be said to have been violated. Responding to the reliance of the petitioners on Resolution passed by the MCD, it was submitted that the Resolution was a private resolution raised by a Councilor, WP(C) 8904/09 & connected matters Page 16 of 57 passed by MCD and have no legal sanctity and cannot be legally enforceable. A resolution passed on the basis of a proposal by a Councilor is of no legal consequences unless the Commissioner, MCD adopts or formulates a policy on that resolution. Consequently, the petitioners have no right to claim an allotment of an alternative land based on resolution dated 12.2.2009. In support of this contention reliance was placed on a decision of this Court in WP(C) No. 1662/1988 titled: Nirmal Kumar Jain v. MCD, wherein the Court observed that the MCD Act does not contain any provision which makes it incumbent upo the Commissioner to carry out all the dictates of the Corporation. The entire executive power for the purpose of carrying out the provisions of Delhi Municipal Corporation Act vests with the Commissioner. The petitioners being encroachers on „Right of Way‟ were not entitled to any prior notice before demolition action. Reliance was also placed on the decision of this Court in Pitampura Sudhar Samiti v. Govt. of NCT of Delhi, (Writ Petition Nos.4125/95 and 531/90 decided on 27.9.2002) and Wazirpur Bartan Nirmata Sangh v. UOI, 103(2003) DLT 654. 15. A short reply was filed on behalf of the Slum Department, wherein it was submitted that a survey was conducted by the Department determining the eligibility of persons entitled to alternative accommodation on removal of clusters from Kushak Nallah, Prem Nagar. Accordingly, 610 jhuggi units were identified by the concerned land owning agencies out of which WP(C) 8904/09 & connected matters Page 17 of 57 none was found eligible or having a mandatory document as per policy of the Government. It was further submitted that as per the survey none of petitioners had shown ration cards as required to be eligible under the 1990 or 1998 category year of the Scheme for allotment of alternative plots. Out of the 18 petitioners, only the names of 11 petitioners had been recorded in the survey, which were placed on record. Consequently, none of the petitioners were eligible and could be considered for allotment of alternative place under the Scheme. 16. The petitioner in its rejoinder to the reply of respondent – MCD has relied upon various schemes and resettlement policies pertaining to nomadic tribes such as Gadia Lohars. The petitioners have placed on record an unofficial survey of the 92 points by the Slum Department in the year 1990. It is the claim of the petitioners that the respondents erroneously