MPISG Cases  - Low Income Housing - Arjun Camp 5007-09/2002

Gita Dewan Verma

IN THE HIGH COURT OF DELHI AT NEW DELHI EXTRA-ORDINARY CIVIL WRIT JURISDICTION CIVIL WRIT PETITION NO. 5009 OF 2002

IN THE MATTER OF:

Bansraj S/o (Late) Bal Govind and 41 others, all residents of J.J. Cluster (Arjun Camp),

Pocket B-9, Vasant Kunj, New Delhi Petitioners

Versus

Delhi Development Authority, Vikas Sadan, INA, New Delhi through its Vice Chairman Respondent

A WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING INTER ALIA FOR ISSUANCE OF A WRIT, ORDER OR DIRECTION IN THE NATURE OF MANDAMUS AND OR ANY OTHER WRIT OF LIKE NATURE RESTRAINING THE RESPONDENTS FROM SHIFTING THE J.J. CLUSTER (ARJUN BASTI) EXISTING AT SITE ADJOINING POCKET B-9, VASANT KUNJ, NEW DELHI IN VIOLATION OF THE MASTER PLAN FOR DELHI PREPARED UNDER THE DELHI DEVELOPMENT ACT, 1957 AND FURTHER TO DIRECT THE RESPONDENT NOT TO SHIFT THE PETITIONERS UNLESS AND UNTIL THEY HAVE READY PLOTS IN A SCHEME AS PER MASTER PLAN NORMS ON ALOW INCOME/ CITY SERVICE PERSONNEL HOUSING SITE WITHIN VASANT KUNJ AS PER APPROVED LAYOUT PLAN.

To,

The Hon’ble The Chief Justice and His other Hon’ble Companion

Justices of the High Court of Delhi at New Delhi.

The Petitioners above named most respectfully

SHEWETH:

That the Petitioners prefer the instant Writ Petition praying inter alia for issuance of a Writ, Order or direction in the nature of Mandamus and or any other Writ of like nature restraining the Respondent from shifting the petitioners from the JJ Cluster (Arjun Camp) existing at site adjoining Pocket B-9 Vasant Kunj, New Delhi in violation of the Master Plan for Delhi prepared under the Delhi Development Act, 1957 and further to direct the Respondent not to shift the petitioners unless and until they have ready plots in a scheme as per Master Plan norms on alow income housing site within Vasant Kunj as per approved layout plan.

That the Petitioners are citizens of India residing in JJ cluster (Arjun Camp) existing at site adjoining Pocket B-9 Vasant Kunj, New Delhi. The Respondent is “State” within the meaning of Article 12 of the Constitution of India and, therefore, amenable to the Writ Jurisdiction of this Hon’ble Court. By this petition the petitioners are seeking to protect and enforce their fundamental rights under Articles 14 and 21 of the Constitution of India and the statutory rights under the Delhi Development Act, 1957.

The Petitioners submit that in Vasant Kunj the Delhi Development Authority (DDA), in abdication of its statutory functions under the Delhi Development Act, 1957 (Act) has not provided for housing for low-income/ city-service personnel families, like those of the Petitioners, needed in residential areas and provided for in the Master Plan for Delhi which has been prepared by the DDA in 1962 and revised and approved in 1990 as per the provisions of the Act. As a result, the Petitioners had no option but to live in a JJ cluster in Arjun Camp, at the address indicated for nearly 15 years now.

The DDA, in recognition of the right to the petitioners not to be forcibly evicted, has begun an exercise in the last week of July 2002 of issuing letters to each of the petitioners herein titled “Offer cum demand letter for alternative plot” asking each of them to pay within 10 days Rs.7000 or Rs.5000 for, respectively, 18 and 12.5 square metre plots. The letters do not indicate where the plots are, why they are short of minimum standards, why they are on offer and what would be the consequence of refusal of the offer. Without indicating in any form of a notice, or even in the offer cum demand letter, the DDA officials have been orally informing the petitioners that the plots are located in a scheme 20 km away from Arjun Camp. What is of greater concern is that the DDA officials have been orally telling each of the petitioners, simultaneous with the handing over of such offer cum demand letter that their dwellings would in any event be demolished in the near future and definitely not later than 16^th August 2002. Despite the demand by the petitioners that they should be given a notice to this effect in writing, the DDA officials have flatly refused on the specious plea that the petitioners dwellings are ‘encroachments’.

The petitioners submission is that this arbitrary and high handed action of the DDA which threatens their right to shelter which is encompassed in their right to life, is violative of the fundamental rights and articles 21 of the Constitution. Further, as will be demonstrated hereunder, DDA which a statutory authority charged with mandatory statutory obligations under the Act and bound by the master plan for Delhi which it has drawn up, is flouting the provisions of the said act as well as the master plan with impunity. Hence this Writ Petition.

The facts of the case necessitating the filing of the present Petition are as under:

In 1957, the DDA was constituted by an Act of the Parliament. Section 6 of the Act sets out its objects as “to promote and secure development of Delhi according to plan”. Section 6 clearly provides “for that purpose” the DDA is vested with powers of land acquisition, development, etc. Further, for development according to plan, Section 7(1) requires the DDA to “prepare a Master Plan”. Section 7(2) of the Act outlines as to how the Master Plan is to guide all development. Section 7(2)(a) provides that it shall “define the various zones”, “indicate the manner in which the land in each zone is proposed to be used” and indicate “the stages by which any such development shall be carried out”. Section 7(2)(b) states that the Master Plan shall “serve as a basic pattern within which the zonal development plans for the various zones may be prepared”. The above sections clearly define the over-riding status of the Master Plan in DDA’s statutory mandate.

7. It is submitted that to facilitate Plan implementation, the government adopted a policy for public acquisition of the entire urbanisable area. Low-income housing was a key purpose of this policy. The Master Plan states in no ambiguous terms that the ownership of land by government “is imperative if slum clearance, redevelopment and subsidized housing and provision for community facilities according to accepted standards have to be undertaken” (Master Plan for Delhi, DDA, 1962, p.7).

8. One of the ‘important recommendations’ of the Master Plan approved in 1962 was: “squatters in bustis are to be relocated in various parts of the urban area so that they are integrated into the neighbourhood community. It is of utmost importance that physical plans should avoid stratification on income or occupation basis.” (p.ii). In respect of standards, the Master Plan said, “while the structures and facilities may be below standard …space standards for schools, parks, streets, etc. should be as for any other areas” in order to “enable public authorities to bring the development up to standard in the not too distant future. Otherwise these will develop into slums.” (p.27). A copy of excerpts relating to low income housing provisions of the Master Plan as approved in 1962 is annexed hereto and marked as ANNEXURE P-1.

9. The revised Master Plan approved in 1990 also emphasizes integration of low-income housing into composite neighbourhoods and, furthermore, spells out norms for doing so. It states that a ‘community’ (about 1 lakh population) “would have minimum 25% as sites and services and 45% housing up to 2 rooms dwellings to provide shelter for low income families in the community” (p.6). In respect of housing standards, for resettlement / in-situ upgrading it permits a minimum plot size of 25 sqm, subject to a maximum density of 250 tenements (about 1250 persons) per hectare (p.73). A copy of excerpts relating to low income housing from the revised Master Plan as approved in 1990 is annexed hereto and marked as ANNEXURE P-2.

10. The Zonal Plan for the area including Vasant Kunj (F-zone) was published in 1993 and states in respect of up gradation/ resettlement only that “The zone has numbers of sub-standard areas viz., resettlement colonies, JJ clusters, unauthorised colonies, urbanised villages and transit camps. These areas require upgradation in terms of basic services/ amenities and need to be dealt with as per policy.” A copy of the said excerpt is annexed hereto and marked as ANNEXURE P-3. In respect of policy, it is submitted that Delhi has had a ‘three-pronged’ slum policy. Where the land owning agency is willing to relinquish the land, MCD’s Slum Wing reconstitutes plots. Where the agency wants the land cleared, it pays Slum Wing on a per-family basis for resettlement. Otherwise, i.e. in most cases, Slum Wing provides basic improvements like paving, etc. It is further submitted that in April 1999, Ministry of Urban Development, the nodal ministry of DDA, brought out a draft national slum policy that “primarily endorses and promotes an upgrading and improvement approach to deal with slums”. It speaks of resettlement only for ‘untenable’ slums, defined as being on sites entailing “undue risk to the safety or health or life of the residents themselves” or where habitation is contrary to “public interest”. For deciding if a settlement’s existence is against public interest, it provides for “full opportunity to the resident community to express their views, in a public hearing.” It also spells out detailed guidelines for resettlement, including that alternatives to resettlement should be fully explored before any decision is taken to move people, relocation distances should be minimised to reduce the impact on livelihoods, resident dwellers must be provided with some choice of alternative sites”, etc.

11. It is submitted that in so far as Vasant Kunj is concerned, it occupies an area that fell beyond urbanisable limits, including inviolable green belt, in the Master Plan approved in 1962. In the ‘80s, when the revised Master Plan had yet to be approved, DDA came out with its Vasant Kunj scheme for flatted housing for one lakh population. Copies of Land use plans from the Master Plan approved in 1962 and revised and approved in 1990 indicating location of Vasant Kunj are annexed hereto and marked as ANNEXURE P-4 (COLLY). Since the draft zonal plan for F-zone was also published only in 1993, in effect DDA developed Vasant Kunj before a Plan, as contemplated in the Act, i.e, Master Plan or Zonal Plan, permitted it or could guide its development. As per the scheme details given on the approved layout plan for Vasant Kunj, facilities are provided as per norms of the revised Master Plan. It is submitted that, however, the residential component of DDA’s Vasant Kunj scheme is not in line with the housing provisions of the revised Master Plan. There is no indication in the approved layout plan of the 25% (nearly 5000) sites and service plots for economically weaker sections mandatory under the Plan. The plan details a small cluster of about 80 janta flats in sector-C and a small pocket of about 160 LIG flats in sector-B and indicates locations of two more clusters of ‘janta’ housing (624 units within composite housing in sector-A and 952 units on Aruna Asaf Ali Marg). Population details tabulated on the side mention 5% recommended city service personnel, which a ‘note’ below that says “will be provided in the new identified areas near Masoodpur Dairy farm & Kishangarh”, but the layout plan does not indicate these areas. In any case, all this does not add up to the quantum of low-income housing that is mandatory under the Plan in a community of one lakh population.

12. Where DDA has already built on the sites indicated in the approved layout plan for low-income housing, there are flats occupied by upper income groups, including for non-residential uses. One of DDA’s LIG projects at Vasant Kunj also featured in the recent ‘housing scam’. Limited occupancy in the said project is limited to offices of property brokers and, ironically, the Master Plan offices of DDA itself, operating out of a block of six flats. Photographs, etc, showing misuse of DDA-built low-income housing sites in Vasant Kunj are annexed hereto and marked as ANNEXURE P-5 (COLLY). It is further submitted that already in the ‘80s, when development at Vasant Kunj started, jhuggis had started coming up to house construction workers. As flats came to be occupied, ‘city service personnel’ – maids, cooks, drivers, hawkers, press walas, mochis, office boys, etc – were needed. With DDA building only middle and upper income flats, including on sites meant for low income housing, these service providers were left to live in pre-Vasant Kunj villages and bastis or in jhuggi clusters within Vasant Kunj. The Petitioners crave leave to refer to Section 7(2)(a) of the Act, which provides that the Master Plan shall indicate stages by which development shall be carried out. The revised Master Plan further provides for a monitoring framework to “evaluate the achievement of physical targets prescribed in the plan” (p.86). It is submitted that had DDA carried out mandatory Plan monitoring, it would have noticed already in early ‘90s the burgeoning slum problem in Vasant Kunj and accorded priority to low income housing. Instead, DDA continues to build only up-market flats in excess of Plan norms in Vasant Kunj.

13. It is further submitted that, instead of settling the poor in planned development, DDA only ‘re-settles’ them in unplanned development, with plots as small as 12.5 sqm (ie, half the minimum permissible size), densities of 400-500 dwellings per hectare (ie, twice the maximum permissible density) in large schemes located far away and meant only for the poor (rather than in integrated neighbourhoods to ensure nearness to work and equitable access to facilities) mainly when a ‘scheme’ has to be undertaken on the land cleared (rather than on the basis of systematic Plan monitoring), with no regard even to whether it is monsoon time or mid-term for school going children, etc. By being violative of plot size, density, integration and monitoring provisions of the Master Plan, resettlement schemes are creating precisely those problems that planned development is meant to solve, tending to deteriorate into slums. This, as mentioned, was precisely what the Master Plan as approved in 1962 had cautioned against (p.27, referred in para-8) and represents one of the worst types of misuse of public land cheaply acquired under a policy with a key purpose of solving the slum problem.

14. It is submitted that in the instant case the DDA seeks to resettle residents of a JJ cluster from Vasant Kunj to a resettlement scheme 20 km away in violation of the Master Plan instead of settling them within Vasant Kunj in accordance with the Master Plan on low income housing sites indicated in the approved layout plan, including one that is available 1 km away. The present case pertains to Arjun Camp, located on a site next to a pocket (B-9-Extn) of DDA flats and named as such in 1996. Photographs of a board listing improvements promised by MCD Slum Wing at the time is annexed hereto and marked as ANNEXURE P-6. Arjun Camp originated in the late ‘80s as a small settlement of construction workers. In 1990, when photo-identity cards were given to all slum dwellers in Delhi, two dozen-odd families in it were also given cards and tokens. At the time flats in B-9 extension were nearing completion. Other pockets of flats – B-2 and B-5&6 – in the immediate vicinity came up subsequently. The proximous site indicated in the approved layout plan for janata housing for 952 families and the city service personnel housing to be made as per the said plan in newly identified areas near Kishangarh and Masudpur, however, were not developed by DDA. Domestic workers, etc, therefore, started living in jhuggis. The settlement adjacent to B-9 grew and settlements came up next to B-5&6 and on a plot in B-2. A copy of part of the approved layout plan showing area around JJ cluster adjoining Pocket B-9, Vasant Kunj is annexed hereto and marked as ANNEXURE P-7.

15. As per a survey carried out by the Petitioners, at present there are about 200 families in Arjun Camp. Nearly all of these (including all Petitioners’ families) have members working or studying in Vasant Kunj. All Petitioners’ families have been settled here for several years. 14 of them were already here in the ‘80s, 22 moved in early ‘90s (ie, before 1993) and only 3 came in mid-90s (by 1996). Nearly all the working members from the Petitioners’ families are engaged in informal sector occupations that serve surrounding residential development, including as maid servants, drivers, hawkers, etc. Nearly all have students attending local schools. Summary of survey findings is annexed hereto and marked as ANNEXURE P-8.

16. In May-June 2002, DDA officials came to Arjun Camp to carry out a ‘survey’ for 3 days. On 25^th July 2002 the DDA officials returned to Arjun Camp to give to just 10 persons letters asking them to deposit within 10 days Rs.7000 or Rs.5000 for a plot of, respectively, 18 sqm or 12.5 sqm. The letters did not say where the plots were located, why they were being offered and what would be the consequences of refusing the offer. A sample copy of one such letter dated 25.7.2002 is annexed hereto and marked as ANNEXURE P-9. Officials only ‘said’ that the plots were some 20 km away, and that the cluster was to be demolished, possibly on 10^th August 2002 and residents would “not be celebrating 15^th August here”.

17. On coming to know of this gross arbitrary action on part of the DDA, one Ms Gita Dewan Verma, a resident of Vasant Kunj who is also a qualified planner, faxed a letter to the DDA Vice Chairman on 26^th July 2002 protesting the said action. A copy of the letter dated 26.7.2002 is annexed hereto and marked as ANNEXURE P-10. Earlier a detailed note had been sent on 2^nd July 2001 to DDA suggesting that DDA ‘pilot’, as part of the work going on in the coordination committee appointed by the court, comprehensive Master Plan implementation in an area like Vasant Kunj instead of ad-hoc projects that made no reference to the Master Plan. This was followed by a more detailed report sent to DDA on 31^st July 2001. In this report it was argued that the Master Plan provisions requiring about 5000 cheap plots to be developed in an area like Vasant Kunj left no grounds for DDA to relocate any slum dwellerfrom here. Copies of said letters, note and report sent in July 2001 to DDA are annexed as ANNEXURE P-11 (COLLY).

18. It may be mentioned here that the residents of DDA Flats in Vasant Kunj through their federation of RWAs had written to the DDA on 1^st August 2002 expressing their solidarity with the petitioners and also lodging a protest against their forcible removal in violation of the master plan for Delhi. A copy of the letter dated 1.8.2002 is annexed hereto and marked as ANNEXURE P-12.

19. Meanwhile on or around 29^th July 2002 DDA officials had come again to Arjun Camp and given 3 more persons letters and asked others to come and see them in their office. There was considerable confusion in the settlement about how eligible persons were being identified and what would happen to the others and when.On 1^st August 2002 the Arjun Camp dwellers including the petitioners herein wrote to DDA to ask, among other things, if they had any option on relocation or choice of a larger plot against payment and if DDA had the same policies and procedures for resettlement as the government and how the proposal to relocate their settlement had suddenly come about. An official demolition notice was also requested. A copy of the original (in Hindi) of the letter dated 1.8.2002 and its translated text is annexed hereto and marked as ANNEXURE P-13 (Colly).

20. Thereafter, on 2^nd August 2002 a few of the Arjun Camp residents who had gone to the DDA office with their ration cardswere told that DDA does not have a policy to give notice for demolition of ‘encroachment’. Notwithstanding that they could be no move for demolition without prior notice, the DDA officials continued on 5^th, 6^th and 9^th August 2002 to give the petitioners offer cum demand letters even while orally informing them that demolition of their dwelling was imminent. Curiously, each of these letters were backdated uniformly as 25^th July 2002 although as mentioned they were given to the petitioners on different dates.

21. The grievance the petitioners have in respect of offer cum demand letters are:

a) Each of the petitioners is being asked to pay up an amount for a so called plot of land, the location of which is not indicated;

b) Each of the petitioners is being orally threatened with forced eviction if they fail to comply with the demand made in the letter while at the same time not being housed as envisaged in the Master Plan for Delhi;

c) In any event, the sizes of the plots being offered fall short of the minimum permissible sizes specified in the master plan for Delhi;

d) The petitioners genuinely apprehend that these alternative plots are also not located in the vicinity of their present location although the Master Plan specifically provides for low income housing for the class of persons to which the petitioners belong and to which they are therefore statutorily entitled; and

e) The petitioners are faced with the prospect and real threat of a forced eviction in the midst of monsoon disrupting their lives, livelihoods, the pursuit of education by their children and a whole host of other survival rights.

22. The petitioners are left with no other equally efficacious remedy except to approach this Hon’ble Court for relief.

GROUNDS:

The Petitioners prefer the present Writ Petition inter alia on the following amongst other grounds:

A. The petitioners submit that the action of the DDA in subjecting the petitioners to force eviction by offering them offer cum demand letters of unidentified plots in contravention of the Master Plan for Delhi is arbitrary, illegal and violative of the petitioners fundamental right and Article 14 of the Constitution. In particular, the petitioners submit that these offer cum demand letters are legally flawed for the following reasons:

a) Each of the petitioners is being asked to pay up an amount for a so called plot of land, the location of which is not indicated;

c) In any event, the sizes of the plots being offered fall short of the minimum permissible sizes specified in the master plan for Delhi;

B. The petitioners submit that their right to be treated in a reasonable manner respecting their fundamental rights flows not only from Articles 14 and 21 of the Constitution but also the Delhi Development Act, 1957 and the Master Plan for Delhi which has been drawn up by the DDA in compliance with the mandatory provisions of the said Act. The petitioners trace their entitlement to the specific provisions of the Master Plan which is a legislative document which has to be read as being part and parcel of the Act itself. A violation of the Master Plan, in the contention of the petitioners, is a violation of the Act and is therefore impermissible in law. The petitioners further submit that the Master Plan is binding on the DDA and cannot be departed from at the sweet will of the DDA. The DDA is statutorily charged with ensuring the implementation of the provisions of the Act which would include the execution of the Master Plan in terms of the Act. The petitioners submit that the present actions of the DDA in respect of the petitioners are in violation of this statutory obligation of the DDA and the statutory entitlement of the petitioners.

C. The Master Plan for Delhi contains specific provisions for low income housing for city service personnel and similar classes of persons to which the petitioners undeniably belong. Under the Master Plan, and with specific reference to the Vasant Kunj area were the petitioners are presently located, there are areas earmarked in the vicinity of Arjun Camp for low income housing. For reasons best known to the DDA the low income housing is not being developed in these areas and residents in J.J clusters, like the petitioners, are being forcibly sought to be re-located to far away locations in violation of the provisions of the Master Plan. The present case is an instance where despite acknowledging and recognising the right of the petitioners herein to alternate housing, the DDA is unwilling to comply with the requirements of the Master Plan.

D. DDA seems to be offering to the Petitioners sub-standard housing, ostensibly on the ground that the Petitioners are “encroachers” and deserve no more. It appears that the DDA is taking a ‘land ownership’ view rather than ‘land use’ view of the situation, although the Act and the Master Plan speak only of land use or misuse, etc. From the land use perspective the settlement may be considered a case of misuse and, therefore, a prior notice is mandatory. Further, the settlement, including the domicile in it of at least a third of the Petitioners, pre-dates the 1990 Plan and is, accordingly, ‘non-conforming’ rather than ‘unauthorised’ from the land use perspective. Therefore, at best the same can be described as ‘DDA implementation backlog’ and certainly not ‘encroachment on DDA land’. It is further submitted that the Act does not envisage ‘DDA land’, and only provides for land in DDA’s custody for planned development, with a clear thrust on safeguarding the interest of poor. Therefore, the said custody has a corresponding responsibility.

E. It is submitted that as per the Act the DDA is mandated to secure development according to Plan. However, in the instant case, DDA’s letters offering allotment to the Petitioners mention plot sizes of 18sqm or 12.5 sqm, when the minimum plot size permissible under the revised Master Plan approved in 1990 is 25 sqm. Further, the 1962 Plan and the 1974 appraisal specifically caution against sub-standard plot sizes as these lead to slums later. It is, therefore, apparent that the DDA’s resettlement scheme is in violation of minimum permissible plot sizes under the Master Plan and, hence, prone to becoming a slum. It is not proper for the DDA to misguide the petitioners to spend their hard-earned money for house plots in a scheme that is unplanned, and prone to becoming a slum.

F. The petitioners submit that their rights to shelter and their rights against forced eviction can be traced also to the International Covenant on Economic, Social and Cultural Rights (ICESCR), and in particular to clause Art.11(1) thereof. India has ratified the ICESCR and had adopted the said covenant explicitly in terms of section 2(d) of the Protection of Human Rights Act, 193 (PHRA). It is no longer open for the government, much less a statutory authority like the DDA, to contend that it has no obligation to conform to the minimum standards envisaged under the ICESCR. In this context the petitioners wish to point out that the Committee on Economic, Social and Cultural Rights (CESCR) constituted with the specific mandate of explicating the content and scope of delineated human rights has come up with the document titled ‘General Comment 7’ (1997) dealings specifically with the right to adequate housing and the right against forced evictions. A copy of the complete text of General Comment 7 issued by the CESCRC (1997) is annexed herewith and marked as Annexure-P/14. In particular the petitioners wish to place reliance on paragraphs 10 and 16 thereof which recognise that the right to shelter encompasses a bundle of survival rights which includes the right to be rehabilitated in the vicinity of one’s place of work, to be granted security of tenure and for the other survival rights to be respected. It is submitted that the impugned actions of the DDA do not conform to the International Human Rights Norms which are now part of legal regime in India and would therefore define the scope and contents of the fundamental rights under our Constitution.

G. The petitioners have been living in their present location for about 15 years now. Their children go to schools in the vicinity. Many of them eke out their livelihood through employment in the vicinity of their place of dwelling in a host of activities. The demand cum allotment letters far from assuring the continuance of these rights, threaten to deprive the petitioners of them. This is a further ground on which this Hon’ble Court should hold that the offer cum demand letters are arbitrary and illegal.

H. The manner in which the DDA seeks to evict the petitioners in the midst of the monsoons and without any prior notice as required by law also smacks of arbitrariness and ought not to be permitted by this Hon’ble Court.

I. The petitioners submit that their right not to be evicted from their present locations until and unless the DDA develops and executes the schemes for low income housing as contemplated by the Master Plan for Delhi flows from the provisions of the Act, the Master Plan and the aforementioned provisions of the Constitution.

23. The petitioners state that no other petition praying for similar relief has been filed by them before this Hon’ble Court or any other Court of law.

PRAYER

In view of the above it is most respectfully prayed that your Lordships be pleased to:

(a) issue a Writ, Order or Direction in the nature of Mandamus and or any other Writ of like nature restraining the Respondent from shifting the petitioners from the JJ Cluster (Arjun Camp) existing at site adjoining Pocket B-9 Vasant Kunj, New Delhi in violation of the Master Plan for Delhi prepared under the Delhi Development Act, 1957 and further to direct the Respondent not to shift the petitioners unless and until they have ready plots in a scheme as per Master Plan norms on alow income housing site within Vasant Kunj as per approved layout plan;

(b) pass such other and further Order(s) as deemed fit in the facts and circumstances of the present case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONERS SHALL, AS IN DUTY BOUND, EVER PRAY.

DRAWN AND FILED BY:

(ANUPAM LAL DAS)

IN THE HIGH COURT OF DELHI AT NEW DELHI EXTRA-ORDINARY CIVIL WRIT JURISDICTION CIVIL WRIT PETITION NO. 5007 OF 2002

IN THE MATTER OF:

Jagdish S/o (Late) Hardayal and 155 others R/O J.J. Cluster, Arjun Camp, B-9, Vasant Kunj, New Delhi. Petitioners

Versus

Delhi Development Authority… Through Vice Chairman Respondent

To,

The Hon’ble The Chief Justice

and His other Hon’ble Companion

Justices of The High Court of Delhi

at New Delhi.

The Petitioners above named most respectfully

SHEWETH:

1 The petitionere prefer the instant writ petition under article 226 of the Constitution of India praying inter alia for issuance of a writ, order or direction in the nature of mandamus and or any other writ of like nature restraining the respondents from shifting the J.J. cluster (Arjun Basti) existing at site adjoining pocket B-9, Vasant Kunj, New Delhi in violation of the master plan for Delhi prepared under the Delhi Development Act, 1957 and further to direct the respondent not to shift the petitioners unless and until they have ready plots in a scheme as per master plan norms on alow income/ city service personnel housing site within Vasant Kunj as per approved layout plan and further to direct the respondent to allot alternate plots to each of the petitioners.

A. That the Petitioners are citizens of India residing at J.J. cluster (Arjun Camp) existing at site adjoining Pocket B-9 Vasant Kunj, New Delhi. The Respondents are “State” within the meaning of Article 12 of the Constitution of India and, therefore, amenable to the Writ Jurisdiction of this Hon’ble Court.

The Petitioners submit that in Vasant Kunj the Delhi Development Authority (DDA), in abdication of its statutory functions under the Delhi Development Act, 1957 (Act) has not provided for housing for low-income/ city-service personnel families, like those of the Petitioners, needed in residential areas and provided for in the Master Plan for Delhi which has been prepared by the DDA in 1962 and revised and approved in 1990 as per the provisions of the Act. As a result, the Petitioners had no option but to live in a JJ cluster in Arjun Camp, at the address indicated for nearly 15 years now.

The DDA, in violation of the mandatory requirements of law, is seeking to demolish the petitioner’s dwellings by falsely terming them as ‘encroachments’. The petitioners are threatened with this arbitrary and forced eviction by the DDA despite their pleas for a written notice and an opportunity for being heard which is implicitly recognised under s. 30 of the Delhi Development Act, 1957.

In addition, the DDA has been arbitrarily choosing some of the residents identically placed as the petitioners herein for issuing offer cum demand letters for alternate plots. No known criteria is being adopted by the DDA in undertaking this exercise. Also, no explanation is forthcoming as to why the petitioners are being discriminated against. Each of the petitioners has documents to show that they have been residents of Arjun Camp for a long time and in many cases for about 15 years. The DDA has been refusing to issue the offer cum demand letters on wholly extraneous grounds.

It is the case of the petitioners that apart from articles 14 and 21 of the Constitution, their right not to be forcibly evicted and their entitlement to alternate plots flows from the provisions of the Master Plan for Delhi prepared under the Act. The proposed forced eviction would seriously endanger and abrogate the other survival rights of the petitioners which would include the right to livelihood, to health, and the right of their children to education. Hence this Writ Petition.

The facts of the case necessitating the filing of the present Petition are as under:

9. The revised Master Plan approved in 1990 also emphasizes integration of low-income housing into composite neighbourhoods and, furthermore, spells out norms for doing so. It states that a ‘community’ (about 1 lakh population) “would have minimum 25% as sites and services and 45% housing up to 2 rooms dwellings to provide shelter for low income families in the community” (p.6). In respect of housing standards, for resettlement / in-situ upgrading it permits a minimum plot size of 25 sqm, subject to a maximum density to 250 tenements (about 1250 persons) per hectare (p.73). A copy of excerpts relating to low income housing from the revised Master Plan as approved in 1990 is annexed hereto and marked as ANNEXURE P-2.

12. Where DDA has already built on the sites indicated in the approved layout plan for low-income housing, there are flats occupied by upper income groups, including for non-residential uses. One of DDA’s LIG projects at Vasant Kunj also featured in the recent ‘housing scam’. Limited occupancy in the said projected is limited to offices of property brokers and, ironically, the Master Plan offices of DDA itself, operating out of a block of six flats. Photographs, etc, showing misuse of DDA-built low-income housing sites in Vasant Kunj are annexed hereto and marked as ANNEXURE P-5 (COLLY). It is further submitted that already in the ‘80s, when development at Vasant Kunj started, jhuggis had started coming up to house construction workers. As flats came to be occupied, ‘city service personnel’ – maids, cooks, drivers, hawkers, press walas, mochis, office boys, etc – were needed. With DDA building only middle and upper income flats, including on sites meant for low income housing, these service providers were left to live in pre-Vasant Kunj villages and bastis or in jhuggi clusters within Vasant Kunj. The Petitioners crave leave to refer to Section 7(2)(a) of the Act, which provides that the Master Plan shall indicate stages by which development shall be carried out. The revised Master Plan further provides for a monitoring framework to “evaluate the achievement of physical targets prescribed in the plan” (p.86). It is submitted that had DDA carried out mandatory Plan monitoring, it would have noticed already in early ‘90s the burgeoning slum problem in Vasant Kunj and accorded priority to low income housing. Instead, DDA continues to build only up-market flats in excess of Plan norms in Vasant Kunj.

13. It is further submitted that, instead of settling the poor in planned development, DDA only ‘re-settles’ them in unplanned development, with plots as small as 12.5 sqm (ie, half the minimum permissible size), densities of 400-500 dwellings per hectare (ie, twice the maximum permissible density) in large schemes located far away and meant only for the poor (rather than in integrated neighbourhoods to ensure nearness to work and equitable access to facilities) mainly when a ‘scheme’ has to be undertaken on the land cleared (rather than on the basis of systematic Plan monitoring), with not regard even to whether it is monsoon time or mid-term for school going children, etc. By being violative of plot size, density, integration and monitoring provisions of the Master Plan, resettlement schemes are creating precisely those problems that planned development is meant to solve, tending to deteriorate into slums. This, as mentioned, was precisely what the Master Plan as approved in 1962 had cautioned against (p.27, referred in para-8) and represents one of the worst types of misuse of public land cheaply acquired under a policy with a key purpose of solving the slum problem.

15. As per a survey carried out by the Petitioners, at present there are about 200 families in Arjun Camp. Nearly all of these (including all Petitioners’ families) have members working or studying in Vasant Kunj. All Petitioners’ families have been settled here for several years. Nearly all the working members from the Petitioners’ families are engaged in informal sector occupations that serve surrounding residential development, including as maid servants, drivers, hawkers, etc. Nearly all have students attending local schools. Summary of survey findings is annexed hereto and marked as ANNEXURE P-8.

19. Meanwhile on or around 29^th July 2002 had come to the Arjun Camp DDA officials had come again to Arjun Camp and given 3 more persons letters and asked others to come and see them in their office. There was considerable confusion in the settlement about how eligible persons were being identified and what would happen to the others and when.On 1^st August 2002 the Arjun Camp dwellers including the petitioners herein wrote to DDA to ask, among other things, if they had any option on relocation or choice of a larger plot against payment and if DDA had the same policies and procedures for resettlement as the government and how the proposal to relocate their settlement had suddenly come about. An official demolition notice was also requested. A copy of the original (in Hindi) of the letter dated 1.8.2002 and its translated text is annexed hereto and marked as ANNEXURE P-13 (Colly).

20. Thereafter, on 2^nd August 2002 a few of the Arjun Camp residents who had gone to the DDA office with their ration cardswere told that DDA does not have a policy to give notice for demolition of ‘encroachment’. Notwithstanding that they could be no move for demolition without prior notice, the DDA officials continued on 5^th, 6^th and 9^th August 2002 to give some of the residents offer cum demand letters even while orally informing them that demolition of their dwelling was imminent. Curiously, each of these letters were backdated uniformly as 25^th July 2002 although as mentioned they were given on different dates.

21. The petitioners are being informed by the DDA officials that their dwellings are going to be demolished at any time in the near future and not later than August 16^th, 2002. They are being denied the offer cum demand letters on par with 42 others identically situated who have been issued such letters on the irrational ground that the address in their ration cards do not read as ‘B-9, Arjun Camp, Vasant Kunj’ or that the other documents which they have such as telephone bills, voter identity cards, electricity bills, 1990 tokens and photo-identity cards and other documents showing their residence at Arjun Camp are unacceptable.

22. The petitioners also submit that there can be no manner of doubt of their being an acknowledged J.J. Cluster and they figure as such in the records of the Municipal Corporation of Delhi. There is a sign board at the Arjun Camp which proclaims it to be a slum improved by the MCD. Arjun Camp is also recognised for the purposes of electricity supply, water supply and municipal health facilities. Schools in the vicinity also recognise this as a valid address for the purposes of admitting the children who live in the Arjun Camp. It is submitted that the petitioners’ dwellings cannot by any stretch of imagination be termed as `encroachments’.

23. The petitioner are faced with a real threat of losing their homes and being rendered shelterless on account of the proposed demolition of the DDA. The petitioners are left with no other equally efficacious remedy except to approach for this Hon’ble Court for relief.

GROUNDS:

The Petitioners prefer the present Writ Petition inter alia on the following amongst other grounds:

J. The petitioners submit that there is absolutely no basis in law for DDA to deny each of the petitioners who are no different from the 42 other residents of the Arjun Camp, offer cum demand letters in respect of plots in a different location. It is submitted that this denial by the DDA of offer cum demand letters is arbitrary, discriminatory, and accordingly illegal and unconstitutional.

K. The petitioners submit that the grounds on which the petitioners are being denied the offer cum demand letters are wholly irrational and unjustifiable. Merely because the ration card in possession of some of the petitioners sets out the address differently from ‘Arjun Camp B-9 Vasant Kunj’ while using alternative descriptions like Masudpur and Harijanbasti (both of which are names known to the DDA and over which the petitioners have no choice) is completely arbitrary. It is submitted that the DDA is resorting to flimsy reasons to avoid its legal obligations to provide the petitioners with alternative plots of land on par with the other residents in the Arjun Camp.

L. It is submitted that the DDA has no reasonable, logical or intelligible yardstick for determining who will be eligible to receive the offer cum demand letter. There also does not appear to be any known guideline formulated by the DDA for this purpose. Thus, the officials in the DDA are free to distribute letters of allotment as per their whims and fancies thus rendering the entire exercise arbitrary and illegal.

M. The petitioners also submit that the absence of guidelines or norms in determining the eligibility criteria for the issuance of letters of allotment encourages illegal and corrupt practices by officials in the DDA who see this as an opportunity for seeking illegal gratification. The victims of this arbitrariness are persons like the petitioners who do not have the wherewithal to take on the DDA and demand accountability. In the circumstances, it is submitted that it becomes imperative for this Hon’ble Court to intervene to protect and enforce the fundamental rights of the petitioners to be treated in accordance with law.

N. The DDA cannot seek to forcibly evict the petitioners without the bare minimum prior written notice and an opportunity of being heard. On the contrary, the petitioners are being orally informed by the DDA officials that their dwellings, which they have assiduously constructed and maintained for about 15 years would be demolished. The DDA is also refusing to reply to the written requests by the petitioners for written notices which they are entitled to in terms of s. 30 of the Act. It is submitted that the proposed demolition by the DDA is illegal and unconstitutional.

O. The petitioners submit that their right to be treated in a reasonable manner respecting their fundamental rights flows not only from Articles 14 and 21 of the Constitution but also the Delhi Development Act, 1957 and the Master Plan for Delhi which has been drawn up by the DDA in compliance with the mandatory provisions of the said Act. The petitioners trace their entitlement to the specific provisions of the Master Plan which is a legislative document which has to be read as being part and parcel of the Act itself. A violation of the Master Plan, in the contention of the petitioners, is a violation of the Act and is therefore impermissible in law. The petitioners further submit that the Master Plan is binding on the DDA and cannot be departed from at the sweet will of the DDA. The DDA is statutorily charged with ensuring the implementation of the provisions of the Act which would include the execution of the Master Plan in terms of the Act. The petitioners submit that the present actions of the DDA in respect of the petitioners is in violation of this statutory obligation of the DDA and the statutory entitlement of the petitioners.

P. The Master Plan for Delhi contains specific provisions for low income housing for city service personnel and similar classes of persons to which the petitioners undeniably belong. Under the Master Plan, and with specific reference to the Vasant Kunj area were the petitioners are presently located, there are areas earmarked in the vicinity of Arjun Camp for low income housing. For reasons best known to the DDA the low income housing is not being developed in these areas and residents in J.J clusters, like the petitioners, are being forcibly sought to be evicted in violation of the provisions of the Master Plan.

Q. The petitioners submit that their rights to shelter and their rights against forced eviction can be traced also to the International Covenant on Economic, Social and Cultural Rights (ICESCR), and in particular to clause Art.11(1) thereof. India has ratified the ICESCR and had adopted the said covenant explicitly in terms of section 2(d) of the Protection of Human Rights Act, 193 (PHRA). It is no longer open for the government, muchless a statutory authority like the DDA, to contend that it has no obligation to conform to the minimum standards envisaged under the ICESCR. In this context the petitioners wish to point out that the Committee on Economic, Social and Cultural Rights (CESCR) constituted with the specific mandate of explicating the content and scope of delineated human rights has come up with the document titled ‘General Comment 7’ (1997) dealings specifically with the right to adequate housing and the right against forced evictions. A copy of the complete text of General Comment 7 issued by the CESCRC (1997) is annexed herewith and marked as Annexure-P/14. In particular the petitioners wish to place reliance on paragraphs 10 and 16 thereof which recognise that the right to shelter encompasses a bundle of survival rights which includes the right to be rehabilitated in the vicinity of one’s place of work, to be granted security of tenure and for the other survival rights to be respected. It is submitted that the impugned actions of the DDA do not conform to the International Human Rights Norms which are now part of legal regime in India and would therefore define the scope and contents of the fundamental rights under our Constitution.

R. The petitioners have been living in their present location for about 15 years now. Their children go to schools in the vicinity. Many of them eke out their livelihood through employment in the vicinity of their place of dwelling in a host of activities. The demand cum allotment letters far from assuring the continuance of these rights, threaten to deprive the petitioners of them. This is a further ground on which this Hon’ble Court should hold that the offer cum demand letters are arbitrary and illegal.

S. The manner in which the DDA seeks to evict the petitioners in the midst of the monsoons and without any prior notice as required by law also smacks of arbitrariness and ought not to be permitted by this Hon’ble Court.

T. The petitioners submit that their right not to be evicted from their present locations until and unless the DDA develops and executes the schemes for low income housing as contemplated by the Master Plan for Delhi flows from the provisions of the Act, the Master Plan and the aforementioned provisions of the Constitution.

24. The petitioners state that no other petition praying for similar relief has been filed by them before this Hon’ble Court or any other Court of law.

PRAYER

In view of the above it is most respectfully prayed that your Lordships be pleased to:

(a) Issue an appropriate Writ, Order or direction in the nature of Mandamus and or any other Writ of like nature restraining the Respondents from shifting the J.J. cluster (Arjun Basti) existing at site adjoining Pocket B-9 Vasant Kunj, New Delhi to a scheme in violation of Master Plan, and further to direct the Respondent to insteadshift the said J.J. cluster to a scheme as per Master Plan norms on alow income / city service personnel housing site within Vasant Kunj, as per approved layout plan;

(b) Issue an appropriate Writ, Order or direction in the nature of Mandamus and or any other Writ of like nature commanding the Respondent to issue/allot alternative plots to each of the petitioners consistent with their entitlements under the Master Plan for Delhi prepared in accordance with Delhi Development Act, 1957.

(c) Issue an appropriate Writ directing the Respondent to develop low income Housing mandatory under the Master Plan at Vasant Kunj, on priority basis and;

(d) Pass such other and further Order(s) as deemed fit in the facts and circumstances of the present case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONERS SHALL, AS IN DUTY BOUND, EVER PRAY.

FILED BY:

Text of Delhi High Court orders of 21.08.02

Orders

21.08.02

Present: Mr. S. Muralidhar with Mr. Anupam Lal Das for the petitioner.

Ms. Anusuya Salwan for the respondent.

CM No.8943/2002 in CW No.5007/2002

After some hearing learned counsel for the petitioner seeks to withdraw this application with liberty to approach the respondent authority for clarification in respect of the area where they have to be rehabilitated and their entitlements. Liberty granted. Application is dismissed as withdrawn.

Dasti.

August 21, 2002

- Sd -

Sanjay Kishan Kaul, J

True copy

-Sd-

Examiner

Orders

21.08.02

Present: Mr. S. Muralidhar with Mr. Anupam Lal Das for the petitioner.

Ms. Anusuya Salwan for the respondent.

CM No.8944/2002 in CW No.5009/2002

Dasti.

August 21, 2002

- Sd -

Sanjay Kishan Kaul, J

True copy

-Sd-

Examiner

(ANUPAM LAL DAS)

Orders

16/08/2002 (notice)

Learned counsel for the petitioner contends that areas which were earmarked for construction of accommodation in the LIG category are being utilised for construction of accommodation of a higher category with the result that there is no appropriate accommodation available for allotment to the LIG category including persons like the petitioners.

Notice to show cause to the respondent as to why rule nisi be not issued, returnable on 10th ecember,

2002.

Mr.Rakesh Kumar, advocate, accepts notice on behalf of respondent and seeks time to file counter affidavit. Counter affidavit be filed within 6 weeks. Rejoinder, if any, be filed within 3 weeks thereafter. List on 10th December, 2002.

SANJAY KISHAN KAUL, J

21/08/2002 (on application filed pursuant to demolition threat)

07/05/2003

Counter affidavit has not been filed despite rule having been issued on the last date of hearing. Last opportunity granted to file counter affidavit within three weeks subject to payment of Rs.3000/- to the Advocates Welfare Fund - Trustee Committee within the same period of time. Rejoinder be filed within two weeks thereafter. List in the category of After Notice Misc. Matters on 22nd August, 2003.

Records relating to the matter and controversy be produced before the Court on the next date.

If the counter affidavit is not filed within the stipulated time the Vice Chairman shall remain personally present in Court on the next date of hearing.

SANJAY KISHAN KAUL, J

22/08/2003

The counter affidavit has been filed extremely belatedly. This has happened after even earlier opportunities have been granted. The counter affidavit does not even meet the allegations made in the writ petition specially in view of the controversy set out in the order dated 16.08.2002.

On the last date of hearing it was directed that if the counter affidavit is not filed within the time stipulated, the Vice Chairman shall remain personally present in Court. Despite, the counter affidavit not being filed in time, neither was the Vice Chairman present nor any application for exemption had been brought up before the Court though it is stated that an application was filed. I fail to appreciate how in the absence of any order of exemption, could the officer be not present. The matter was passed over and on the second call Mr. Vinay Bhushan, Director (Land Management) has appeared in Court. No records have been brought to Court. The concerned officer states that though he is deponent of the counter affidavit, his department was concerned with the clearance of the jhuggi cluster. This is despite the fact that the real issue arising between the parties on which notice has been issued was something different as noticed in the order dated 16.08.2002. Respondent DDA is granted last opportunity to file an appropriate affidavit explaining their position in respect of the controversy set out in the order dated 16.08.2002. The affidavit should be filed under the signatures of the Vice Chairman, DDA, within three weeks failing which the Vice Chairman shall remain personally present in Court and it is made clear that no application for exemption of the Vice Chairman from personal appearance shall be entertained. Response to the said affidavit be filed by the petitioner within two weeks thereafter.

The Director (land Management) shall remain personally present in Court along with relevant records.

Since adjournment today is necessitated on account of the inadequate response filed by the respondent, the respondent is burdened with costs of Rs.2000/-, to be paid to the petitioner within a period of three weeks from today.

Dasti to learned counsel for the parties.

List on 12.11.2003.

SANJAY KISHAN KAUL, J

12/11/2003

Heard learned counsel for the parties in part on the issues raised in the writ petition.

The additional affidavit has been filed which states a broad position without being specific. General statements have been made about existence of EWS/LIG Housing in and around Vasant Kunj and it has been stated that Vasant Kunj should not be treated in isolation but a holistic view should be taken of Zone F. No details have been given as to whether in Zone F how much EWS/LIG Housing has been constructed or is proposed for construction and not constructed. The example of this in Sector D, Pocket-C where LIG housing was envisaged and construction of the other categories has been done but construction in this category has not been done. No reasons have been specified for the same nor time period prescribed within which the same will come up.

The broad issue which arises for consideration in the present petition is a consequence of the failure of the respondent to develop adequate LIG/Janta housing in colonies or in peripherial areas which has also resulted encroachment on public land. Subsequently, these public lands are cleared by allotment of alternative sites. It cannot be expected that the persons engaged in vocation which are relevant for the housing in other categories would be able to do so from locations at distance. The net result has been that the alternative sites are sold and the persons come and re-occupy the original sites. Services like a dhobi, iron women etc. are bound to be rendered in and around the colony.

In view of the aforesaid position that the respondent was required to explain as to whether the development of the LIG/Janta flats had kept pace with the construction and developments of the other categories of the flats.

Even assuming that Zone F has to be considered as a whole, the DDA is bound to provide specific details of the LIG/Janta flats constructed in the said Zone and at which time as also the quantum of accommodation under the said categories. This would be true both of Vasant Kunj and areas around it. In the plan filed by the respondent portions have been marked in "Yellow" which have already been constructed and the details of the same are liable to be disclosed. The other areas have been marked in Orange which are proposed for construction but no details have been given as to why the construction of this area has not been completed alongwith the constructions of the categories of the other housing. It has to be appreciated that the DDA is the largest land owning agency in Delhi and most of the land is developed by DDA. The object was to provide housing to residents of Delhi in different categories. The housing was to be made available at cheaper rates. Provision of LIG/Janta housing thus formed an integral part of object of housing activities being taken over by DDA.

It can hardly be envisaged that construction is carried out of different categories, other than these categories only on account of the fact that it will be profitable to do so by the DDA. In my view the DDA must set out as to how much LIG/Janta housing has been constructed, is earmarked for construction or as to be proposed to be constructed as well as time schedule thereof by referring to Zone F. The affidavit should be filed within two months alongwith the Plan of Zone F clearly earmarking the aforesaid areas and giving the schedule thereof.

I think it appropriate to direct that the Director (Land Management) shall be personally responsible for necessary coordination to file this affidavit and appropriate consultation will be held including with the Vice-Chairman, DDA in view of the important and largest issue involved in the present petition.

The response to the affidavit be filed by the petitioner within two weeks. The costs to be paid in the name of the learned counsel for the petitioner as per last order.

List on 28.1.2004.

Dasti to the learned counsel for the parties.

SANJAY KISHAN KAUL, J

28/01/2004

It is stated by learned counsel for the parties that the matter is part heard.

Renotify the matter before Hon'ble Mr. Justice Sanjay Kishan Kaul on 10.2.2004, subject to Orders of Hon'ble the Chief Justice.

Vikramajit Sen, J.

10/02/2004

The order dated 12.11.2003 has still not been complied with. Learned counsel appearing in CW No.5009/2002 states that the plan is almost ready but coordination is required by various departments. I fail to appreciate what is this level of coordination when in three months time plan cannot be placed which should have been ready before the construction began. In view of the inability of the respondent to file the plan, I consider it appropriate to direct that all the officers concerned required to coordinate for the purposes of filing of necessary affidavit should remain personally present in Court on the next date of hearing.

List for further directions on 12th March, 2004.

SANJAY KISHAN KAUL, J

12/03/2004 (F-Zone plan handed over by DDA in court)

The Plans have been filed and affidavit has been filed by the DDA saying that 1/3rd of the flats constructed have been earmarked for the economically weaker section. Learned counsel for the petitioners states that he would like to examine the Plan and file response to the same.

It is made clear that the matter shall be taken up for final hearing on the next date of hearing. List in the category of After Notice Misc.Matters on 25.5.2004. The records should be kept available for that date of hearing and an officer conversant with the records should remain personally present in Court.

SANJAY KISHAN KAUL, J

25/05/2004 (adjournment sought as arguing counsel was unavailable)

An adjournment slip has been circulated by learned counsel for the petitioner with no objection of learned counsel for the respondent. List in the category of After Notice Misc. Matters on 13th October, 2004.

May 25, 2004 SANJAY KISHAN KAUL, J

13/10/2004 (matter did not reach)

List on 20th January,2005.

PRADEEP NANDRAJOG, J.

20/01/2005

It is stated that pursuant of orders passed on 12.11.2003, pleadings have been filed by the parties and that the matter requires to be heard finally.

Let both the parties file brief note of submissions. List for hearing on 14th March, 2005 in the category of After Notice of Misc. Matters.

S RAVINDRA BHAT, J

Summary of submissions for hearing on 14/03/2005 in wp 5007&9/2002

The petitioners in both the above writ petitions were residents of JJ Cluster (Arjun Camp) existing at site adjoining Pocket B-9 Vasant Kunj, New Delhi. The first petition is by Jagdish and 155 other residents who have all been forcibly evicted from the JJ Cluster without any rehabilitation whatsoever. Although, their initial prayer was that the respondent DDA should not evict them without first rehabilitating them, they were evicted even during the pendency of the present writ petition. As regards the second writ petition by Bansraj and 41 others, they were given offer-cum-demand letters for alternative plots located 20 kms away from Arjun Camp. Even in the alternate plots, they were not afforded security of tenure although they were require to pay Rs.7,000/- or Rs.5,000/- respectively for 18 and 12.5 sq. mtr plots. Since these alternative plots are also not in accordance with the binding provisions of the Delhi Master Plan, the second writ petition challenges the illegal action of the respondent in forcibly evicting the petitioners from the JJ Cluster in Arjun Camp and demands that they be given alternative plots in accordance with Master Plan norms.
In the very first order dated 16.8.2002, this Hon’ble Court directing notice to be issued records the contention of the petitioners that “areas which were earmarked for construction of accommodation in the LIG category are being utilized for construction of accommodation of a higher category with the result that there is no appropriate accommodation available for allotment to the LIG category including persons like the petitioners.” Thus, the issues in the present writ petitions remain alive notwithstanding the fact that the petitioners have been forcibly evicted by the respondent in complete violation of the Delhi Master Plan provisions as regards their entitlements.
After the eviction of the petitioners wa completed by the respondent in May 2003, this Hon’ble Court continued hearing the petitions and in its order dated 12.11.2002 identified the issue to be considered as under: “The broad issue which arises for consideration in the present petition is a consequence of the failure of the respondent ………
The petitioners submit that issues that arise for consideration, arising from the pleadings filed in the present case are as under:
- (a) failure to develop EWS housing,
- (b) diversion of space earmarked for it,
- (c) illegal resettlement,
- (d) illegal evictions and
- (e) illegal policies

These are summarised here.

FAILURE TO DEVELOP MANDATORY E.W.S HOUSING:

Even as land was acquired only for development according to DMP by a policy with explicit objective of housing the poor (para 6,7), mandatory DMP provisions for integrating 25% EWS plots and 20% LIG units in every residential area for 1 lakh persons/ 20000 families (para-9) have been not been implemented (a fact borne out by Planning Commission report of 2002 (Rejoinder, 19.08.03)).
DDA has admitted (while simultaneously “justifying” and denying) this failure. Affidavit by Anil Baijal indicates (in ‘Yellow’) 324 LIG and 120 Janta flats and (in ‘Orange’) sites for proposed 952 and 624 Janta units. These add up to way less than 5000 EWS plots (25%) and 4500 LIG units (20%) required by DMP in Vasant Kunj, a fact “justified” by DDA by falsely claiming:
- i. Vasant Kunj is not residential (para-11 by Vinay Bhushan)
- ii. DMP provisions are, “indicative”, etc (para-4 by Anil Baijal)
- iii. necessity of higher category flats (para-5 by Anil Baijal)
- iv. urban villages can house the poor (para-5 by Anil Baijal)
- v. “net result of resettling this section of society even though in adjoining areas is they sell” (para-5 by BS Jaglan)
- vi. “DDA is already constructing” in J-Zone 1500 LIG units in D-6 and Sultangarhi (para-5 by Anil Baijal)
- vii. EWS housing in F-Zone (para-7 by Anil Baijal, BS Jaglan) or city (para-2/3 by Vinay Bhushan, para-6 by Anil Baijal).
DDA has also veritably declared it will not rectify this failure – by refusing to comply with order of 12.11.2003 in terms of setting out time schedule for proposed EWS housing in F-Zone (Annexure-A1 by BS Jaglan mentions no EWS units under construction or proposed) or explaining delay in construction on sites indicated in ‘Orange’ in affidavit by Anil Baijal (para-5 by BS Jaglan only saying these “are under unauthorised occupation”).

DIVERSION OF E.W.S HOUSING SPACE:

Failure to develop mandatory EWS housing arises not from innocuous delay but from deliberate diversion of space earmarked for EWS and the skew in favour of profitable use is marked in Vasant Kunj (para-11, 12).
This has not been answered, despite being central to notice of 16.08.2002 and orders of 07.05.2003 (“Records relating to the matter and controversy be produced“), 22.08.2003 (“officer states that though he is deponent …his department was concerned with the clearance of the jhuggi cluster. This is despite the fact that the real issue arising between the parties on which notice has been issued was something different”) and of 12.11.2003. Instead
- i. Fact of profitable development in Vasant Kunj is conceded in para-5 by Anil Baijal with “justification” of necessity of higher category flats, rejected in order of 12.11.2003
- ii. Fact of misuse of EWS housing sites indicated in ‘Orange’ by Anil Baijal is conceded in para-5 by BS Jaglan (“under unauthorised occupation”) without clarifying basis for priority to demolition of Petitioners’ homes in that case (para-1A(f) in Rejoinder of August, para-10 in Rejoinder of September 2003, para-12(a) of Rejoinder of January 2004)
- iii. Fact of misuse of LIG/EWS flats, indicated ‘Yellow’ by Anil Baijal, is ‘regretfully’ conceded in para-5 by BS Jaglan (“unfortunately there is and cannot be any check or control”) regardless of powers for action against misuse and even as misuse owes to design (flats, rather than plots, attractive as offices, etc), disposal prices (2 lakhs), freehold conversion, etc, and in Vasant Kunj LIG flats also to DDA staff housing.
- iv. Fact of mis-targeting LIG/EWS units is conceded (despite later bland claim in para-5 by BS Jaglan that “EWS/Janta flats are allotted to the weaker and the poor sections”) in para-3 and 8 by Anil Baijal declaring that “even if DDA had provided large numbers of LIG/EWS houses in this area, these would have necessarily been made available to … DDA’s wait-listed LIG registrants and not categories such as the petitioners” – even as LIG wait-list bears no relation to DMP target of 400,000 EWS units and Planning Commission reiterates that “EWS houses construction programme of the DDA and the slum improvement should be interlinked” (Rejoinder of 19.08.2002, para-2/3(a)).
DDA has also demonstrated diversion of residential land available and needed for backlog on DMP targets for EWS housing:
- i. Reference to 1500 LIG units in D6 and Sultangari (J-Zone) are regardless of (besides issues in para-10 of Rejoinder of September 2003 / January 2004), DMP modification to legitimise Sultangarhi scheme being notified afterwards.
- ii. The D-6 scheme is included in cases of misuse (para-12, Annexure-P/5 (Colly), Additional document 8, para-12(b) in Rejoinder of 19.08.2003, etc) and letter seeking details after tenders were issued in May 2004 returned no response.
- iii. About Sultangarhi DDA submitted in WP 4978/2002 that it is for HIG and “justified” it further for saving the site from ‘encroachment’, same as used for the illegal Malls/Park scheme usurping 35 Ha DMP residential land near Vasant Kunj (Para-16, Rejoinder of January 2004).
It is pertinent that on the location, in site earmarked District Park, from where Petitioners were evicted on 19.05.2003 only boundary wall has been “developed”, but across it, in same District Park, an illegal club is under construction with no action on complaints since July 2004. DDA also effected on 08.07.2004 demolition of EWS housing in adjoining Masudpur village extension, notwithstanding a “justification” for failure to develop EWS housing being “proximity to areas like Masoodpur… where substantial numbers of EWS/LIG type of housing already exists” (para-5 by Anil Baijal). In view of the instant petitions and PIL against illegal schemes, s.11A responses, etc, citizens groups, including the Petitioners, in 20 clusters in the area (with about 5000 EWS families) made a joint demand on 04.07.2004 that either Mall/ Park usurping 35 Ha DMP residential land be shifted to Sultangarhi area (Green Belt / ridge park in DMP) or 35 Ha space for EWS housing be provided in Sultangarhi scheme, but on 29.07.2004 eight old clusters with about 1000 families were demolished and Sultangarhi and Malls/ Park schemes continue despite notice in WP 8523/2003.

ILLEGAL RESETTLEMENT:

“Resettlement” amounts to substitution of DMP housing for all with illegal “schemes” with facilities and plot sizes short of minimum, densities amounting to crowding, remote segregated locations, etc, offered on discriminatory conditions to arbitrarily selected few to create the very (slum) problem that planned development is meant to solve and represents worst type of misuse of public land acquired in name of Plan (para-13, etc).
DDA has “justified” illegal “resettlement” in name of “policy of Govt of India” (para-1A and 12-13 by Vinay Bhushan, para-3 and 8 by Anil Baijal, para-6 and 7 by BS Jaglan) even as:
- (a) this “policy” amounts to major DMP modification, arguably not permissible under the Act and, in any case, requiring due process of s.11A (para-12 in Rejoinder of 19.08.2003)
- (b) even this “policy” allowed neither DDA intervention in ‘MCD-slum’ (para-10, Rejoinder of 19.08.2003) nor “full ownership rights” as falsely claimed in para-3 by Anil Baijal
- (c) this “policy” was being criticised by authorities (Additional documents 5-6, etc) and had already been quashed by High Court order of 29.11.2002 and in SLP Supreme Court had only allowed allotments subject to outcome of SLP
- (d) petty-scamming under this “policy” had also been exposed in 2003, including in case of site to which the Petitioners were shifted (para-1A(e) and 10 in Rejoinder of 19.08.2003)
- (e) Order of 29.11.2003 had called for legal alternative and Planning Commission report of 2002 had recommended the option of the statutory DMP solution sought in these petitions, etc (para-14, Rejoinder of 19.08.2003)

ILLEGAL SLUM CLEARANCE:

The aforesaid illegalities hinge on demolitions that are illegal in terms of procedures (s.30 of the Act requiring individual notice, reasonable opportunity, etc) and priorities (s.7(2) read with DMP provisions for monitoring requiring clearance of misuse on EWS sites rather than of EWS families best described as backlog on key DMP targets rather than “unauthorised encroachers”, etc).
DDA has not answered this contention and there is no doubt that the ‘procedure’ followed for demolitions is wholly arbitrary and open to scamming and whimsical ‘priorities’, as follows:
- (i) About demolition notice, in August 2002 DDA claimed no policy to give notice to encroachers on two occasions (para-20 and para-2/3(c) in Rejoinder of 19.08.2003) and pasted hand-written ‘notice’ on blank stationery in the petitioners’ settlement on one (additional document no.13, p.285).
- (ii) In the case of demolition of house built by Petitioner no.24 on allotted plot (para-6(b) in Rejoinder of September 2003) similar notice by same officer was pasted and same tout was involved (cf, Annexure-P/1 in Rejoinder of 19.08.2003)
- (iii) In the demolition of 08.07.2004 in Masoodpur village extension (where EWS could stay as per para-3 of affidavit by Anil Baijal) there was no notice.
- (iv) DDA and Police both claimed, on 19.05.2003 and on prior demolition attempts, no policy to have to show orders (para-1A(e) in Rejoinder of 19.08.2003, Additional document 14)
- (v) The illegal club coming up between sites of demolitions in Arjun Camp and Masoodpur is on ‘demand’ of certain flat residents, including one of B-9 Extn (uncle of former DDA Commissioner LM and father of the ACP under vigilance investigation in the matter of suicide by a Sub-Inspector) who has claimed, in writing, cash from Delhi Government’s “bhagidari” prize-money – for demolition of Arjun Camp and a Masudpur resident has lodged a vigilance complaint.
- (vi) A news report of 23.08.2002 quoted DDA Vice Chairman’s vague remarks about some "regional task force" priorities requiring demolition of the petitioners’ settlement (Additional document no.3)

ILLEGAL POLICIES/ RELUCTANCE TO RECTIFY ILLEGALITIES:

After being fined twice and having evicted the petitioners already, in its affidavit sworn by Anil Baijal, then DDA Vice Chairman and now Secretary MoUD, DDA dismissed (para-3 and 8) the instant petitions as “diversionary and dilatory tactic” “raising the bogey of violation of Master Plan norms solely for the purpose of resisting relocation of unauthorized encroachers” “as per the policy of Govt. of India” – policy that a news item of 06.03.2004 reported was clarified as ‘approved pattern’ in letter of 11.01.2001 by Madhukar Gupta, then Joint Secretary MoUD and now DDA Vice Chairman.
The instant petitions are based on substantive engagements (in support of DMP entitlements and solutions and against DMP violations and inferior alternatives) since 2000 by constitutional processes that lead to DDA Vice Chairman and Secretary MoUD, who (with MCD, GNCTD, NGOs, etc) continue – regardless even of Planning Commission report of 2002 on Delhi’s slum problem recommending priority implementation of DMP solution of EWS housing – to expand the scope of illegal slum "policy" (eg, Para 12 in Rejoinder of September 2003) in prima-facie attempt to condone, and through DMP-2021 legitimize, diversion of EWS housing space needed to solve the slum problem for illegal "profitable" schemes. This is illegal and amoral and it is doomed to make problems intractable (Para 13 in Rejoinder of September 2003; Para 13, 16 in Rejoinder of January 2004)

IN THE HIGH COURT OF DELHI AT NEW DELHI WP(C) NO.5007 OF 2002

Reserved on: December 9, 2005

Date of Decision: July 14, 2006

Jagdish and Others ...PETITIONER

Through: Dr. S. Muralidhar and Mr.Anupam Lal Das, Advocates

Versus

DDA ...RESPONDENT

Through: Ms.Sumita Kapil, Advocate

AND

WP(C) NO.5009 OF 2002

Bansraj and Others ...PETITIONER

Through: Dr. S. Muralidhar and Mr.Anupam Lal Das, Advocates

Versus

DDA ...RESPONDENT

Through: Ms.Sumita Kapil, Advocate

* HON’BLE MR.JUSTICE MUKUL MUDGAL

Whether Reporters of local papers may be allowed to see the judgment?

To be referred to the reporter or not?

Whether the judgment should be reported in the Digest?

MUKUL MUDGAL, J.

1. These two writ petitions have been filed by persons who were, at the time of filing the petitions, residents of a JJ Cluster at Arjun Camp at a site adjoining Pocket B-9, Vasant Kunj, New Delhi. They raise significant questions concerning the implementation of the Master Plan for Delhi (hereinafter referred to as “MPD”) and their entitlements to low income housing in terms thereof read with the relevant provisions of the Delhi Development Act 1957 (hereinafter referred to as “Act”). Although the slum cluster in question was demolished during the pendency of these petitions, the court continued with these hearing of the matters in view of the larger issues involved particularly since the phenomenon of burgeoning slums and their demolitions has become almost routine in Delhi.

2. The brief facts of the case according to the petitioners are as follows:

(a) In the late 1980s, Arjun Camp, a JJ Cluster in Pocket B-9 Vasant Kunj, originated as a small settlement of construction workers. The slum cluster grew as the residential flats in the nearby pockets in Vasant Kunj began to be constructed. The petitioners claim that at the time of filing these petitions, in August 2002, there were about 200 families residing in Arjun Camp, many of them for several years. It is further stated that all the working members of these families were engaged in informal sector occupations serving the residential apartments in the vicinity as maid servants, drivers and so on. Their children were attending the local schools.

(b) On 25^th July 2002 respondent DDA officials came to Arjun Camp and gave ten of the petitioners offer-cum-demand letters whereby each of them was asked to deposit, within 10 days’ time, sums of Rs.7,000 or Rs.5,000 respectively for alternative plots of sizes of 18 sq.m. or 12.5 sq.m. Three more persons were given such letters around 29^th July 2002 and a few more on 5^th, 6^th and 9^th August 2002. Forty two persons in all were given such letters but the location of such alternative plots was not indicated in the letter.

(c) When it became apparent to the remaining residents that they were not going to be given such letters and that their dwellings would be demolished at any time, they made representations to the respondent DDA requesting to know the reasons for the proposed relocation, the criterion for identification of persons found eligible for issuance of allotment of alternative plots and also for a prior notice before the actual demolition. With no response to their representations, the petitioners approached this Court by filing these two writ petitions.

The second writ petition (C.W.P.No.5009 of 2002 – Bansraj and 41 Others v.DDA) has been filed by those who have been issued allotment letters but who are aggrieved that these allotment letters are legally flawed. They contend that they cannot be subject to forced eviction on the basis of such allotment letters. It is, inter alia, contended that these petitioners were being asked to pay amounts for a small parcel of land, the location of which is not known. Further the sizes of the plots being offered fall far short of the minimum permissible sizes specified in the MPD. Petitioners also expressed apprehension that the forced eviction would take place the midst of monsoon disrupting their lives, livelihoods and the pursuit of education by their children. The prayer in this writ petition is to restrain the respondent DDA from shifting the petitioners from the JJ Cluster at Arjun Camp in violation of the MPD and “further to direct the respondent not to shift the petitioners unless and until they have ready plans in a scheme as per Master Plan norms on a low income housing site within Vasant Kunj as per approved layout plan.”

(d) When these wit petitions came up for hearing for the first time on 16^th August, 2002 a learned Single Judge of this Court recorded the contention of the learned counsel for the petitioners that areas which were earmarked in the MPD for construction of accommodation in the low income group (LIG) category were being utilized for construction of accommodation of a higher category with the result that there was no appropriate accommodation available for allotment to the LIG category including persons like the petitioners. Notice was made returnable on 10^th December, 2002. However, stay of demolition, despite being sought, was not ordered although notice appears to have been issued on the stay application. A further application for stay appears to have been moved on 20^th August, 2002 (C.M.No.8943 of 2002) but the counsel of the petitioners was permitted to withdraw this application with a liberty to approach the respondent DDA for clarification in respect of the area where the petitioners were to be rehabilitated and their entitlements.

(e) On 19^th May, 2003 the entire JJ Cluster at Arjun Camp was demolished and the site cleared. According to the respondent DDA, 39 JJ dwellers, who had completed the requisite formalities had been relocated at the Madanpur Khadar resettlement scheme.

(f) The above development was not viewed by this court as having rendered the writ petition infructuous particularly in view of the reliefs claimed as set out herein above.

3. The basic issue in these petitions concerns the failure of the respondent DDA to construct adequate LIG housing or housing for the economically weaker sections (EWS) as per the MPD norms resulting in an implementation backlog.

4. The learned counsel for the petitioners has submitted as under:-

(a) Section 7(1) of the Act requires the preparation of a Master Plan which, as per Section 7(2)(b) of the Act, shall “serve as a basic pattern within which the zonal development plans for the various zones may be prepared.” Section 7(1) of the Act reads as under:-

“Section 7(1): Civic survey of, and master plan for, Delhi – The Authority shall, s soon as may be, carry out a civic survey of, and prepare a master plan for, Delhi”

(b) The MPD approved in 1962 emphasized the importance of low income housing as a key purpose of the government policy of public acquisition of the entire urbanisable area to facilitate implementation of the MPD. The MPD itself stated that ownership of land by the government “is imperative if slum clearance, redevelopment and subsidized housing and provision for community facilities according to accepted standards have to be undertaken.”

(c) That the MPD recommended relocation of squatters in busties in various parts of the urban area so that they are integrated into the larger neighbourhood community.

(d) The MPD states “it is of utmost importance that physical plans should avoid stratification on income or occupation basis.”

(e) According to the specific portions of MPD, which relate to low income housing clearly show that as regards housing standards for the purposes of either resettlement or in situ upgradation, the minimum plot size should be 25 sq.m subject to a maximum density of 250 tenements (about 1250 persons) per hectare.

(f) The zonal plan for Vasant Kunj (F Zone) also acknowledge the need to upgrade areas containing JJ Cluster and unauthorized colonies. The approved layout plan for Vasant Kunj, however does not allocate the mandatory number of sites and service plots for the economically weaker sections. While deviating from the MPD requirements for LIG and EWS housing, the respondent DDA has ignored the mandate of the MPD and that has lead to a present situation of growing slum clusters.

(g) The petitioners have annexed photographs to show how even the LIG flats constructed by the respondent DDA in Vasant Kunj are being misused for other purposes by property brokers and even by the respondent DDA itself. Further the resettlement by the respondent DDA of these slum clusters in in violation of the MPD requirements as to the plot size and number of dwelling units per hectare. The MPD being of a statutory character is binding on the respondent DDA and ought to be implemented in letter and spirit.

(h) There is violation of due process requirements by the respondent DDA in that the petitioners have been subjected to forced eviction without prior notice. They trace their right to shelter, and a corresponding obligation on the State, not only to Articles 14 and 21 of the Constitution, but also to Article 11(1) of the International Covenant on Economic Social and Cultural Rights (ICESCR) which has been ratified by India. Article 11(1) of the ICESCR reads as follows:

“1.The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”

5. The learned counsel for the respondent DDA, submitted as under:

(a) The respondent DDA has not violated the MPD. With the extensive modification of the MPD on August 1, 1990 “the provisions given in the Master Plan 1962 with perspective upto 1981 are no longer valid.”

(b) The JJ Cluster at Arjun Camp had been removed on May 19, 2003, and that 39 JJ Dwellers, who had completed the requisite formalities had been relocated at Madanpur Khadar resettlement scheme. The rest who complete the formalities “will be relocated as per the policy of Government of India”.

6. The learned counsel for the petitioners in the rejoinder submitted as follows:

(a) The respondent DDA had not answered many of the contentions in the petitions particularly those concerning the implementation of the backlog in respect of EWS and LIG housing.

(b) The modifications to the MPD made in 1990 did not in any way reverse the provisions of MPD 1962 which required integration of low income housing with other categories of housing; the amendment in 1990 sets out even more detailed norms, standards and targets.

7. When the case came up for hearing on 22^nd August 2003, this Court noticed that the respondent DDA’s counter-affidavit “does not even meet the allegations made in the Writ Petition specially in view of the controversy set out in the order dated 16^th August 2002.” The court granted the respondent DDA a last opportunity file a proper affidavit under the signature of the Vice Chairman, respondent DDA.

8. On September 10, 2003, Mr.Anil Baijal, then Vice-Chairman, respondent DDA filed an additional affidavit in which he submitted as follows: he first contended that:

(a) the resettlement of the petitioners has nothing to do with the issue whether respondent DDA had provided sufficient LIG housing in the Vasant Kunj area. Even if the respondent DDA had provided large number of LIG/EWS houses, it would not have benefited the petitioners as there were already a number of waitlisted applicants (nearly 10,000) under the respondent DDA’s LIG scheme.

(b) As regards the MPD norms for providing housing to the site and service category, the affidavit took the stand that “recommendations of the Master Plan are broad guidelines and cannot be taken as scheme specific”.

(c) There could be a shortfall in respect of the LIG housing in the Vasant Kunj area. But the matter should be seen not in “geographical or temporal isolation” but in a totality “for the whole city / zone.”

(d) Out of the respondent DDA’s total allotted housing stock of 3.3 lakh units, the majority, nearly 60% related to LIG/EWS category. The specific averment was to the following effect in para 7 of the additional affidavit:

“If we see the Zonal Plan in its totality, it would become even more obvious that while there could be possible short falls in respect of LIG housing in the Vasant Kunj area, these have been adequately compensated by construction of such housing other areas in the zone.”

9. In reply to the additional affidavit the petitioners submitted as follows:

(a) Without the detailed figures of sub-zone wise construction of EWS and LIG units and their comparison to actual plan targets, it would not be possible to know the correct picture.

(b) The monitoring data would show whether the plots meant for LIG/EWS have been converted illegally to other categories of housing.

10. Thereafter this court made a detailed order on 12^th November 2003 setting out the main issue arising in the petitions. The said order dated 12 November 2003 reads as under:

“The additional affidavit has been filed which states a broad position without being specific. General statements have been made about existence of EWS/LIG Housing in and around Vasant Kunj and it has been stated that Vasant Kunj should not be treated in isolation but a holistic view should be taken of Zone F. No details have been given as to whether in Zone F how much EWS/LIG Housing has been constructed or is proposed for construction and not constructed. The example of this in Sector D, Pocket-C where LIG housing was envisaged and construction of the other categories has been done but construction in this category has not been done. No reasons have been specified for the same nor time period prescribed within which the same will come up.
The broad issue which arises for consideration in the present petition is a consequence of the failure of the respondent to develop adequate LIG/Janta housing in colonies or in peripherial areas which has also resulted encroachment on public land. Subsequently, these public lands are cleared by allotment of alternative sites. It cannot be expected that the persons engaged in vocation which are relevant for the housing in other categories would be able to do so from locations at distance. The net result has been that the alternative sites are sold and the persons come and re-occupy the original sites. Services like a dhobi, iron women etc. are bound to be rendered in and around the colony.

The response to the affidavit be filed by the petitioner within two weeks. The costs to be paid in the name of the learned counsel for the petitioner as per last order.

List on 28.1.2004.”

11. Consequent to the above order dated 12^th November 2003 passed by a learned Single judge, a further additional affidavit was filed by Mr B.S.Jaglan, Director, Land Management, respondent DDA some time in January 2004. This affidavit set out the details of the number of flats constructed in the F Zone under categories of HIG, MIG, LIG and Janta/EWS. It also made the following submissions:

(a) Of the total 52,694 flats constructed, 33.74% belonged to the LIG and Janta/EWS category taken together.

(b) The Janta/EWS category flats by themselves constituted 25.5% of the total number of flats constructed in F zone.

(c) As regards the Vasant Kunj area (in Sub-zone F12) it was contended that the Janta/EWS flats formed 4.5% of the total housing stock and that the short fall of 0.5% would be met by the construction of 1500 LIG/EWS flats proposed to be constructed in Sector-D, Pocket-6 near Sultangarhi.

(d) In the area around Vasant Kunj there were Janta flats and that these flats were being allotted to the weaker sections of society. However, there could not be any check over the subsequent reselling of these flats.

The petitioner further filed a reply to this affidavit contesting the correctness of the data submitted by the respondent DDA.

12. The counsel for the parties were heard at length. The counsel for the petitioners reiterated the pleadings referred to herein above and took this Court through the provisions of the Act, the MPD 1962 and its subsequent amended form as MPD 2001 and other documents annexed to the petitions.

13. The learned counsel for the petitioner further submitted that:

(a) The facts show that there has been a clear violation by the respondent DDA of the binding provisions of the MPD 1962 as well as MPD 2001 which in terms of the Act is of a statutory character and is binding on the respondent DDA. The petitioners were seeking the enforcement of the statutory duty that respondent DDA owed towards each of them as well as respondent DDA’s public duty statutorily mandated. The failure to perform this duty enabled them to seek a mandamus from this court.

(b) The provisions of the Act and the MPD which required the respondent DDA to monitor the implementation of the MPD and evaluate the achievement of the physical targets have not been complied with by the respondent DDA. This has thus defeated the objective of a planned development of Delhi.

(c) As regards the implementation of the backlog, there was a shortfall in the LIG and EWS housing for F-Zone as a whole as well as at the sub-zone level. A distinction was drawn between the MPD requirements of providing 3% resettlement and 25% EWS ‘plots’ as opposed to ‘flats’ said to have been constructed by the respondent DDA

(d) As regards the built units, the petitioners contended that tat the sub-zone levels there is an excess of dwelling units above the MPD targets of 43% and within this the percentage of HIG housing is disproportionately high. As per the MPD, the zonal target for F Zone, keeping in view a five lakh population increase between 1981-2001, was one lakh dwelling units. Of this 25,000 (25%) was to comprise of EWS plots, 3,000 (3%) to comprise of resettlement units and 43,000 was to comprise of (43%) built units. As against these targets, the number of flats constructed for LIG and Janta/EWS categories was 17,780 which actually constituted only 18% of the target of one lakh dwelling units.

(e) Even within the zone within the built housing target, 20% was to be allocated to LIG. If the figures were examined at the sub-zone and community level which is what the MPD required, it would be seen that the LIG housing fell far short of the target. In many areas the total built housing was far in excess of the holding capacity for that area and a disproportionately large percentage has been taken up by HIG housing, in excess of the MPD target. In effect, there was a violation of the MPD requirement of a balanced and planned development which would ensure an adequate number of LIG and EWS units and at the same time ensure their integration at the community and sub-zone level.

(f) Reference was also made to the report of a Committee on problems of slums in Delhi constituted by the Planning Commission, which had observed that the working population and urban poor in Delhi had not been provided shelter as per the MPD provisions and that there was a huge shortfall in the plan targets for low income housing:

(g) As regards the proposal by the respondent DDA to provide for more Janta/EWS flats at Sultangarhi, a copy of the order dated September 16, 2002 passed by Division Bench of this Court in CWP No.4978 of 2002 was relied upon declaring the proposed project at Sultangarhi to be illegal on the ground of the mandatory provisions of s.11-A the Act concerning land use change. Section 11-A of the Act reads as follows:

“Section 11A Modification to plan – (1) The Authority may make any modifications to the master plan or the zonal development plan as it thinks fit being modifications which, in its opinion, do not effect important alterations in the character of the plan and which do not relate to the extent of land users or the standards of population density.

(2) The Central Government may make any modifications to the master plan or the zonal development whether such modifications are of the nature specified in sub-section (1) or otherwise.

(3) Before making any modifications to the plan, the Authority or, as the case may be, the Central Government shall publish a notice in such form and manner as may be prescribed by rules made in this behalf inviting objections and suggestions from any person with respect to the proposed modifications before such date as may be specified. In the notice and shall consider all objections and suggestions that may be received by the Authority or the Central Government.

(4) Every modification made under the provisions of this ection shall be published in such manner as the Authority or the Central Government, as the case may be, may specify and the modifications shall come into operation either on the date of the publication or on such other date as the Authority or Central Government may fix.

(5) When the Authority makes any modifications to the plan under sub-section (I), it shall report to the Central Government the full particulars of such modifications within thirty day of the date on which such modifications come into operation.

(6) If any question arises whether the modifications proposed to be made by the Authority are modifications which effect important alteration in the character of the plan or whether they relate to the extent of land uses or the standards of population density, it shall be referred to the Central Government whose decision thereon shall be final.

(7) Any reference in any other Chapter, except Chapter III, to the master plan or the zonal development plan shall be construed as a reference to the master plan or zonal development as modified under the provisions of this section.”

(h) The resettlement scheme under which only some of the petitioners have been offered alternative plots of 18 and 12.5 sq.m. on payment of certain sums is legally flawed as it is not in accordance with the MPD norms. The resettlement site is also not within the vicinity of the petitioners’ workplaces particularly when the layout plan for F-Zone itself indicates that some areas in the vicinity have been earmarked for low income housing. This defeats the objectives of integrating the low income housing with the larger community. Further, the basis on which only some of the petitioners have been picked out for issuance of allotment letters is not known and the criteria if any is clearly arbitrary because many similarly situated petitioners have been denied such allotment letters.

(i) There is no denial in any of the affidavits of the factual averments that the petitioners have eben staying in the JJ Cluster in Arjun Camp for several years and that they belong to the category of city service personnel working in the neighbourhood as maid servants, hawkers, drivers etc. Further, there is no denial of the fact, demonstrated by photographs attached to the petitions, that even the LIG flats stated to have been constructed in Vasant Kunj are in fact being misutilised for other purposes rather than being allotted to persons belonging to the EWS.

(j) There is also no denial by the respondent of the petitioner’s contention that the demolition of the JJ cluster took place without any prior notice. The respondent DDA did not give any response to the representations of the petitioners even after the order of this court.

(k) With the respondent DDA failing to provide any plan for meeting the shortfall in the low income housing targets, the Court should issue time bound orders to the respondent DDA and keep the case on its board for monitoring the implementation of the directions.

13. The submissions of the counsel on behalf of the respondent DDA are as under:

(a) The writ petitions filed by the petitioners have become infructuous with the demolition of the JJ Cluster in question. The petitioners have no enforceable right in respect of which relief can be granted by this court.

(b) The respondent DDA has not violated any provision of the MPD. The Vasant Kunj scheme was developed as per the MPD 1962 norms and the implementation of the EWS and LIG targets had to be examined at the Zonal level and not the sub-zonal or community level as mandated by the MPD 2001. The standards of the MPD 2001 do not apply to the development scheme of Vasant Kunj. In any event any short fall in the targets for LIG and Janta/EWS housing in F Zone has been made up by providing such housing in other adjoining areas.

(c) If the total picture of the city as a whole is taken, and not sub-zone wise, the LIG and Janta/EWS housing constructed by the respondent DDA conforms to the plan targets.

(d) The respondent DDA is doing its utmost to meet the plan requirements but the large scale unauthorized occupation of land meant for low-income housing makes it difficult to meet the plan target. The respondent DDA ought not to be faulted for the misuse of the constructed LIG flats for non-permissible activities.

(e) Although initially this court had held the Sultangarhi scheme to be invalid for non-compliance with the procedural requirements under the Act, that position has since been set right with the procedure having been complied with. The project is under execution and will cater to some of the demand for low income housing as well.

(f) As regards the resettlement scheme, it was contended that the respondent DDA is only implementing the policy of the Government of India. Although this policy has been struck down by this court, the Supreme Court has by an interim order in a special leave petition filed against permitted the policy to be operated till further orders.

14. It would als be worthwhile to mention the following legal sources of the right to adequate housing under International Human Rights Law:

(a) Article 25.1 of the Universal Declaration of Human Rights, 1948 states as follows:

“Everyone has the right to a standard of living adequate for the health and well-being of himself and his including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” (emphasis added)

(b) Article 5 of the International Convention on the Elimination of All forms of Racial Discrimination, 1965 states as follows:-

“In compliance with the fundamental obligations laid down under article 2 of this Convention, States Parties to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights… (e) Economic, Social and Cultural rights in particular… (iii) The right to housing,” (emphasis added)

“Social progress and development shall aim at the continuous raising of the material and spiritual standard of living of all members of society, with respect for and in compliance with human rights and fundamental freedom through the attinment of the following goals:

“…..

“Article 10

“…..

(f) The provision for all, particularly persons in low-income groups and large families, of adequate housing community services.” (emphasis added)

(d) Section 1(8) and Chapter 2(A.3) state of Vancouver Declaration of Human Settlements, 1976 state respectively as follows:-

“Adequate shelter and services are a basic human right which places an obligation on governments to ensure attainment by all people, beginning with direct assistance to the least advantaged through guided programme of self-help and community action. Governments should endeavour to remove all impediments hindering all of these goals. Of special importance is the elimination of social and racial segregation, inter alia, through creation of better balanced communities which blend different social groups, occupations, housing and amenities.” (emphasis added)

(e) Article 8.1 of the Declaration on the Right to Development, 1986 states as follows:

“States should undertake at the national level, all necessary measures for the realization of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources education, health services, food, housing, employment and the fair distribution of income…” (emphasis added)

(f) The General Comment 7 dated 20^th May 1997 on the right to adequate housing (Article 11.1) by the Commission on Economic, Social and Cultural rights reds as follows:

“(1) In its General Comment No.4, (1991), the Committee observed that all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. It concluded that forced evictions are prima facie incompatible with the requirement of the Covenant.

(2) The international community has long recognized that the issue of forced evictions is a serious one. In 1976, the United Nations Conference on Human Settlements noted that special attention should be paid to “undertaking major clearance operation should take place only when conservation and rehabilitation are not feasible and relocation measures are made. In 1988, in the Global Strategy for Shelter to the Year 2000, adopted by the General Assembly in its neighbourhoods rather than damage or destroy them was recognized. Agenda 21 stated that people should be protected by law against unfair eviction from their homes or land. In the Habitat Agenda Governments committed themselves to protecting all people from, and providing legal protection and redress for, forced evictions that are contrary to the law, taking human rights into consideration; [and] when the evictions are unavoidable, ensuring, as appropriate, that alternative suitable solutions are provided. The Commission on Human Rights has also indicated that forced evictions are a gross violation of human right.”

15. In the case of Government of Republic of South Africa and others v. Gootboom & others, reported [2001] 3 LRC 209, the Constitutional Court of South Africa held as under:

“93…….. this case shows the desperation of hundreds of thousands of people living in deplorable conditions throughout the country. The Constitution obliges the state to act positively to ameliorate these conditions. The obligation is to provide access to housing, helt care, sufficient food and water, and social security to those unable to support themselves or their dependants. The state must also foster conditions to enable citizens to gain access to land on an equitable basis.” (emphasis added)

16. Section 2(d) and Section 2(f) of the Protection of Human Rights Act, 1993 read as follows:

“(d) “human rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by th Constitution or embodied in the International Covenants and enforceable by courts in India;

(f) “International Covenants” means the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16^th December, 1966”

Thus by virtue of Section 2(d) and 2 (f) of the Protection of Human Rights Act, 1993 the right to adequate housing guaranteed by Article 11.1 of the (ICESCR) is part of the law of the land in India. Other international instruments, namely Universal Declaration of Human Rights, 1948, International Convention on Elimination of All Forms of Racial Discrimination, 1965, Declaration of Social Progress and Development, 1969, Vancouver Declaration of Human Settlements, 1976 and Declaration of the Right to Development also inform the interpretation of the Right to Adequate Housing accordingly. These international instruments provide for right to adequate shelter, housing services and access to land on equitable basis to all. Thus, these instruments cast a positive obligation on the state to take reasonable measures to ensure progressive realization of the right to adequate housing, particularly to the low income/least advantaged groups of the society.

17. This Court is not examining the question if there was a violation of due process norms in carrying out the demolition of the JJ cluster in the instant case. The entire site has been cleared for the past three years and the residents have obviously dispersed. In the circumstances, there is no question of restoring status quo ante and the issue is therefore academic. Further, this Court has kept the matter on board mainly with a view to examine if the petitioners are entitled to any relief in respect of low income housing as per the MPD norms.

18. It has already been noticed earlier that the petitioners approached this Court in August 2002 apprehending demolition of their dwelling units in the JJ Cluster in Arjun Camp. While it is true that the court did not pass any order staying the imminent demolition, the principla contention of the petitioners was noted even in the first order dated 16^th September 2002 to the effect that areas earmarked for construction of LIG housing were being utilized for a higher category with the result that no appropriate accommodation was available for allotment to the LIG category which included persons like the petitioners. Thereafter the court was kept informed of the developments through applications and affidavits.

19. In the very first affidavit filed by the respondent DDA in July 2003 this court’s attention was drawn to the fact that the LL Cluster had been removed on May 19, 2003 and the site in question cleared. It was only thereafter that the court passed the order on 22^nd August 2003 requiring a detailed affidavit to filed by the respondent DDA to deal with the real issues as set out in the order dated 16^th August 2002. Thereafter when no satisfactory affidavit had yet been filed by the respondent DDA, another order was passed by this Court on 12^th November 2003 reiterating the central issue to be considered in the petitions. Clearly, this Court did not consider the matter as having become infructuous with the demolition of the JJ Cluster in question because the central issue concerned the failure of the respondent DDA to develop adequate LIG and EWS housing and the entitlement of the petitioners herein to such housing and the effect of the lop sided development in the various zones in Delhi and in particular zone F to the detriment of the weaker sections of the society.

21. This Court is of the view that even though the petitioners may not reside in the JJ Cluster any longer they can still show how they are entitled to low income housing as per the MPD norms. In fact, in none of its affidavits has respondent DDA denied that the petitioners belong to the class of the city service personnel that constitute the EWS for whom both the MPD 1962 as well as MPD 2001 make special provisions for housing. The petitioners have come to this court in their individual capacities not only seeking to restrain the respondent DDA from forcibly evicting them, but also to seek a mandamus to the respondent DDA to resettle them in a scheme according to MPD norms. The latter relief cannot be denied to the petitioners merely because the former is incapable of now being granted in view of the subsequent developments. Thus the contention of the counsel for the respondent DDA that the petitions ought to be dismissed as having become infructuous on account of the demolition of the JJ Cluster cannot be accepted. This issue is accordingly answered in favour of the petitioners.

22. The Act was enacted with a view to promoting and securing the development of Delhi according to plan. As earlier noticed Section 7(1) of the Act requires the respondent DDA to prepare a Master Plan. Section 7(2)(a) provides that the Master Plan shall define the various zones, indicate the manner in which the land in each zone is proposed to be used and also the stages by which any such development shall be carried out. Section 7(2)(b) states that the Master Plan shall serve as a basic pattern within which the zonal development plans for various zones may be prepared. The Master Plan for Delhi (MPD) which was approved in 1962 in terms of Section 7(1) of the Act is thus of the statutory character. S.14 makes unlawful any violation of the master plan and s.29 prescribes penalties for such violations. Various other provisions of the Act reinforce the inviolability of the MPD.

23. It is now well settled that a plan prepared in terms of statute concerning the plan development of a city attains a statutory character and is enforceable as such. In Bangalore Medical Trust Vs. B.S.Muddappa (1991) 4 SCC 58, the Supreme Court was dealing with the legality of the action of the State Government in converting a site earmarked for a park under the plan for the city of Bangalore, into a civic amenity site. At the instance of the residents of the locality the High Court invalidated the order of the Government. While dismissing the further appeal of the Bangalore Medical Trust in whose favour the change of land sue was sought to be made, the Supreme Court pointed out that the manner of preparation of scheme under the Bangalore Development Authority Act, 1976 indicated that it was a statutory instrument. The court held (para 16, page 69 SCC):

“The scheme is a statutory instrument which is administrative legislation involving a great deal of general law making of universal application, and it is not, therefore, addressed to individual cases f persons and places. Alteration of the scheme must be for the purpose of improvement of the city of Bangalore and adjoining areas and for general application for the benefit of public at large.”

24. The MPD is a statutory instrument and is enforceable as such has been the settled position of law laid down in several judgments of the Supreme Court and this Court. In M.C.Mehta v. Union of India (2004) 6 SCC 588, the Supreme Court reminded the respondent DDA that “it has to perform its functions in accord with the provisions of the delhi Development Act, 1957 which was enacted to provide for the development of Delhi according to plan and for matters ancillary thereto.” The Supreme Court referred to the provisions of Sections 7 and 8 which deal with the preparation of the Master Plan and zonal development plan respectively. It also referred to Section 11-A which provides for the detailed procedure for modification of the Master Plan and zonal development plans and Section 14 which forbids the use of land in contravention of the plans. Section 29(2) provides for the imposition of a penalty on any person who uses any land or building in contravention of Section 14. Section 31A empowers the respondent DDA to seal any unauthorized development. In the judgment and order dated September 16, 2002 passed by Division Bench of this Court in CWP No.4978 of 2002 [Delhi Science Forum v.DDA 2004 (112) DLT 944] declaring the proposed project at Sultangarhi to be illegal, the need to strictly adhere to the MPD provisions, particularly by the respondent DDA itself, was reiterated. A Full Bench of this Court in Joginder Kumar Singla v. Govt. of NCT of Delhi AIR 2005 Del 258, in the context of clear violations of the Zonal development Plan under the Act by impermissible commercial use of residential areas, went so far as to suggest (in para 37) that any “act or attempt which amounts to nothing but mischief with the Development Plan is violative of Article 21 of the Constitution of India”.

25. It may be added that the MPD 2001 provides for a monitoring framework to “evaluate the achievement of physical targets prescribed in the plan.” The respondent DDA is therefore, obliged to carry out surveys to ensure the monitoring of achievement of plan targets.

26. The position in law is therefore that the MPS is of a statutory character and is enforceable as such. The provisions of the MPD are binding on the respondent DDA and will have to be complied with fully by the respondent DDA in order to ensure the planned development of Delhi. The stand taken by the Vice Chairman, Mr. Anil Baijal in his additional affidavit dated September 10, 2003 that the norms specified in the MPD 1962 as further amended in 1990 (and is now referred to as MPD 2001) are only broad guidelines and cannot be taken s scheme specific is clearly misconceived and not based on a correct understanding of the legal position.

27. Specific to the facts on the hand, an examination of the MPD 1962 reveals that low income housing was one of the key purposes of the policy adopted by the Government for public acquisition for the entire urbanisable area of Delhi. The MPD 1962 at page 7 states as follows:

“The ownership of land by Government is imperative if slum clearance, redevelopment and subsidized housing and provision of community facilities according to accepted standards is to be undertaken.”

Further, at the very beginning of the document (page ii) the MPD 1962 set out as an important recommendation as follows:

“Squatters in basties are to be relocated in the various parts of the urban area so that they are integrated into the neighbourhood community. It is of utmost importance that physical plans should avoid stratification on income or occupation basis.”

Thus the thrust of MPD 1962 was on accounting for the various categories of the population and ensuring equitable distribution of space among them. Almost all sections of the population are noticed and acknowledged as being entitled to space in Delhi.

28. The MPD 1962 anticipated growth of slum clusters and projected targets on the basis of such anticipated growth. The MPD 1962 envisaged earmarking of plots as well as construction of dwelling units to meet the housing demand. Further it emphasized the integration of low income housing into the composite neighbourhood. The MPD 1962 noticed that the scheme drawn up at that time by the Municipal Corporation of Delhi proposed relocation of the Basti squatters “in suitable areas not too far away from major work centers.”

29. The MPD 1962 (at page 27) made the following specific recommendation in respect of low income housing in terms of both standards and the need for integration in the following words:

“It is recommended that while the structures and the facilities may be below standard in order to keep down the costs and rents, the space standards for schools, parks, streets etc, should be as for any other area given in the Sub-Division Regulations. Moreover, these should be integrated with a larger neighbourhood where there is a mixture of different social and income groups, as well as housing types. In addition it is also recommended that reasonable areas should be earmarked in several zones for the low income group who migrate to Delhi on account of the relentless ‘push’ from the rural areas. As in the relocation of the basti aquatters, sub standard development and construction may be permitted but the space standard for the facilities should be those given for the density on which the layout is planned. It is recommended that building bye laws should be considerably relaxed in such cases not only to permit sunstandard development but also to enable the construction of low cost cheap houses or huts. This will keep down the cost for the present and will enable public authorities to bring this development upto standard in the not too distant future. Otherwise these will develop into slums.” (emphasis added)

30. Thus, the MPD 1962 correctly anticipated that low income housing would be required to be provided for in substantial numbers in order to relieve the inhuman conditions in the slum areas as they existed in Delhi at that time. The MPD 1962 also correctly foresaw that there would be a constant inflow of migratory population from the rural areas into Delhi which will have to be provided with a minimum standard of housing and that space will have to be provided in the city for this. Most importantly, the MPD 1962 emphasised that the planned development of Delhi would ensure the integration of the housing for the low income groups with the larger neighbourhood which was to avoid segregation and ‘ghettoisation’ of the economically weaker sections.

31. MPD 1962 was further amended in 1990 and the amended MPD is referred to as MPD 2001. While the MPD 1962 divided the areas into sub-zones, MPD 2001 further divided them as communities. For our purposes it is enough to notice at this stage that the Vasant Kunj area falls in the F12 sub-zone.

32. As per MPD 2001 the requirement of housing for the population in Delhi in the years 1981-2001 is expected to be met in the following manner:

1) 29% individual plots, staff housing etc

2) 25% EWS plots for the economically weaker sections

3) 3% resettlement units for existing slums and

4) 43% fully/partially built housing.

33. Thus the housing requirements were expected to be met by allotting house plots as well as resorting to fully or partially built houses. However, it appears that as regards the EWS category, house plots and not built flats were expected to be allotted. This was based on the expectation that there should be a flexibility in the kind of housing that the EWS categories would want to construct subject of course to other norms specified in the MPD itself. Just as MPD 1962 had done, the MPD 2001 also emphasized the integration of low income housing. The specific paragraph in the MPD 2001 in this regard reads as under:

“COMMUNITY MODULE

Housing should be related to affordability and should be integrated. The community (about 1 lakh population) may contain a complete cross section of the income groups, also including hostel accommodation for single. This would have minimum 25% as site and services development and about 45% housing up to 2 room dwellings to provide shelter for low income families in the community.”

In other words of the total housing stock t community level the EWS and LIG percentage ws expected to be 45% (25+20).

34. The MPD 2001 also prescribed standards for resettlement for in situ upgradation of JJ clusters and for LIG housing. The specific portions of the MPD 2001 in this regard as under:

“RESETLEMENT AND JHUGGI JHOPTI (JJ) IN SITU UPGRADATION (002-C)

i) Maximum net density 250 tenements per hectare

ii) Plot size – minimum 25 sqm, however, it may be reduced to 16 sqm with 100% coverage provided an area @ 7 sqm per plot / tenement is clubbed with the cluster open space.

iii) Pathways:

(a) Min. 2 mtrs. Wide upto 30 mttrs. in length

(b) Min. 3 mtrs. Wide upto 50 mtrs. in length

LOW INCOME HOUSING

The norms of ISS-8888 formulated by the BIS shall be applicable for Low Income Housing which provide a maximum net density upto 300 Dwelling Units (DUs)/ha.”

35. To explain this further, for a population of one lakh, the plan target was 20,000 units calculated on the basis that there would be approximately 5 persons per dwelling unit. Of these 20,00 units, the MPD stipulated that there would be 5,000 EWS units (25%) (in the form of house plots) and 4,000 LIG built units (20%). While the MPD 1962 indicates that these percentages are expected to be achieved at the sub zone level, the MPD 2001 requires their achievement at the community level. This is essentially in order to ensure the other main objective of the MPD, which is integration of EWS and LIG housing with the rest of the categories.

33. Indeed, the Zonal Development Plan for F Zone, which covers the area in question, acknowledged the fact that there are number of JJ Clusters in that Zone which required upgradation. Para 11.3 of this document which has been placed on record by the respondent DDA states thus:

“11.3 UPGRADATION / RESETTLEMENT

The Zone has number of substandard areas viz, Resettlement Colonies, JJ Clusters, Unauthorised Colonies, Urbanised Villages and Transit Camps. These areas require upgradation in terms of basic services / amenities and need to be dealt with as per policy.”

36. The layout plan for F Zone [sic, Vasant Kunj], which has been annexed to the affidavit of Mr Anil Baijal dated September 10, 2003 shows two locations (indicated in yellow color) where 324 LIG flats and 120 Janta flats are stated to have been constructed. Two proposed sites for the construction of 952 and 624 Janta flats are shown in orange color. In regard to this, this court in its order dated 12.11.2003 observed that the details of the flats constructed in the area marked in yellow were required to be disclosed. It further noted that no details as to why construction of the proposed flats in the area marked in orange color has not yet been completed. While the layout plan does indicate that certain areas were earmarked specifically for low income housing, there is no indication of the 25% site and service EWS plots as mandated in the plan. It appears that at the stage of preparation of the layout plan, no serious effort was made to adhere to either the MPD 1962 or even the MPD 2001 norms in regard to LIG and EWS housing.

37. It is clear that the MPD, both in its 1962 and 2001 versions, is a statutory document which is binding on the respondent DDA and is required to be implemented by the respondent DDA both in letter and spirit. The MPD also stipulates the percentages of low income housing that is required to be provided. It also anticipated the growth of population and further stipulates not only the number and types of housing (both housse plots and built structures) but also the minimum standards for both forms. It also emphasizes the integration of low income housing with the larger community at the sub zonal and community levels. All these flow from the MPD itself.

38. The MPD provisions, read with the provisions of the Act unmistakeably show, that the respondent DDA has a statutory obligation to provide low-income housing. But this by itself is not enough for the petitioners to the seek reliefs prayed for. They would have to additionally show that this statutory duty of the respondent DDA is in fact owed to them.

39. As far as the petitioners are concerned, they are right in contending that there has been no denial by the respondent DDA of the facts set out by them in their petitions as to how and since when they came to reside in the JJ Cluster at Arjun Camp. Further, there is no denial of the fact that they fall in the category of city service personnel and belong to the EWS. Apart from labeling them as ‘encroachers’ the respondent DDA does not appear to have any explanation as to why they would not be entitled to be considered eligible for the EWS/LIG housing. If it is the contention of the respondent DDA that there is a long list of registered applicants for LIG housing and that the petitioners do not figure in that list it must be stated that the fault for this is not with the petitioners.

40. The respondent DDA was expected to monitor the implementation of the plan targets and in that process ought to have surveyed the area in question and prepared a list of dwellers in the JJ cluster for whom the MPD provides for low income hosuing. The respondent DDA in fact has not been able to show that it has complied with the mandate of the Plan in regard to such monitoring either for the F Zone with which we are concerned or any other area in Delhi for that matter. The petitioners are in fact the very persons who are working in the area as drivers, maids, cooks, hawkers etc. who are meant to be covered by the MPD provisions concerning low income housing. If it is shown that the respondent DDA has failed to provide low income housing in adequate measure and in good time as per the MPD, then persons like the petitioners who came to reside in Delhi cannot be blamed for resorting to ‘squatting’ or seeking shelter in informal settlements and slums. The MPD 1962 as noticed earlier had correctly anticipated that if adequate numbers of low income affordable housing is not provided, it would inevitably lead to the growth of slums. In light of the present situation in Delhi this is an instance of that prophesy having come true.

41. The submission of the counsel for the respondent DDA that the petitioners are unauthorized encroachers on public land and are not entitled as such to any relief much less relief by way of consideration for allotment of low income housing requires to be dealt with. This Court is conscious that on several earlier occasions different benches of this court have deprecated the conduct of the respondent DDA in allowing slums to mushroom on public land. In Wazirpur Bartan Nirmata Sangh v. Union of India 2003 (103) DLT 654 the question before the court was whether land that had been acquired for public purpose from farmers, resulting in the displacement of such farmers, could thereafter be used for allotment to resettle persons who had encroached on public land. Answering the question in the negative a Division Bench held:

“The authorities cannot acquire land and thereby make the farmers who have held the land for generations, landless and displace them with the object to use the same very land for ‘unplanned development’ rather than planned development. To permit such land to be utilized for rehabilitation of persons who have encroached upon public land would be a travesty of justice and fair play and would amount to a premium on such dishonesty and public encroachment on the land. It would only encourage persons to encroach on public land as has happened.”

42. A careful examination of the judgment in Wazirpur reveals that the attention of this Court was not drawn to nor did the court deal with the detailed provisions of the MPD set out herein above. Also, in the instant case, the question really concers planned development but from the perspective of the LIG and EWS categories whose entitlements have been expressly recognized in the MPD itself. The ratio of the Wazirpur judgment to the extent it emphasizes adherence to planned developmentis unexceptionable. In the present case also the principal concern is the same. The petitioners are not claiming their entitlenment on the basis that they are encroachers but have based their claim as they belong to the EWS categories. They do not insist that they should be allowed to squat on public land but ask that they be resettled in accordance with the MPD norms.

43. Consequently thos Court holds that each of the petitioners is owed a statutory duty by the respondent DDA to be provided with low income housing as per the MPD norms. If they further demonstrate that respondent DDA has in fact failed to perform its statutory duty, they can certainly seek a mandamus from this Court in exercise of its writ jurisdiction asking the respondent DDA to perform its statutory duty. In what form should such relief be granted, particularly in view of the development subsequent to the filing of the petitions can be examined later. But for the present, it requires to be held that the petitioners have succeeded in showing that they have an enforceable right in terms of the Act and the MPD 1962 and 2001.

44. This Court is conscious that the petitioners in the instant case are not seeking the enforcement of some policy of the state but of specific statutory provisions in the form of the Act and the MPD. Thus the Court need not be detained by any issue arising out of non-enforceable rights which might depend on the ability and resources of the state. Here the present writ is a case of the respondent DDA being under a positive statutory obligation to provide LIG and EWS housing to an identified set of persons who prima facie satisfy the basic criteria for being considered for allotment of such housing. What now requires to be seen is whether in fact the respondent DDA has discharged such statutory obligation on the facts of the instant case.

45. In order to examine if there has been a compliance of its statutory duty to provide low income housing by the respondent DDA, with particular reference to the F Zone with which this Court is concerned, the additional affidavit filed by respondent DDA in January 2004 through Mr Jaglan requires to be looked at. From the affidavit it appears that the F Zone itself is divided further into 19 sub zones. As regards Vasant Kunj is concerned, it forms part of the F-12 sub zone. The actual figures for this sub zone, as furnished by the respondent DDA indicate that the number of flats constructed in various categories are as under:

HIG 9845

MIG 232

LIG 324

Janta/EWS 120

46. Thus, of the total flats constructed in Vasant Kunj (10521), over 90% constituted the HIG category of flats. The LIG and EWS flats constitute only around 4% of the total number of flats constructed by the respondent DDA in Vasant Kunj. Clearly this grossly inadequate and is nowhere near the Master Plan targets. This was sought o be explained away by Mr anil Baijal in his additional affidavit of September 10, 2003 by stating “while that could be possible shortfalls in respect of LIG housing in the Vasant Kunj area, these have been compensated by construction of such housing in other areas of the zone.” Further he admitted that there was a predominance of HIG housing in the Vasant Kunj area but that in the broader context of the housing provided by the respondent DDA in LIG/EWS categories “throughout Delhi, these may not be considered as a violation of the Master Plan.”

47. To examin the correctness of the claim of respondents DDA that it has provided adequate EWS/LIG housing in other areas if one has to look at the details provided in the chart annexed as A-1 to the affidavit of Shri Jaglan filed in January 2004. The petitioners in response to this affidavit have shown that in each of the sub zones, there is disproportionately higher percentage of housing units constructed for the higher categories (HIG) and a disproportionately lower (and sometimes none) percentage of housing units in the LIG category. To take the F-12 sub zone itself, the anticipated population increase was around 10,000 for the years 1981-2001 and the number of units expected to be constructed was around 2000 (on the basis that there would be five persons per unit). Instead a total of 12568 units were constructed in the F-12 zone of which 10289 belonged to the HIG category. There were only 526 LIG and 120 EWS flats. Thus not only was the total number of units in excess of the overall housing target but the LIG/EWS housing was well short of the 45% target (25% EWS and 20% LIG) envisaged in the plan. Likewise the petitioners have been able to demonstrate that even in the areas adjoining Vasant Kunj, which includes the F-13, F-14 and F-15 sub zones, the performance in the LIG and EWS housing is far short of the planned targets.

48. The petitioners make a valid point on how these figures provided by the respondent DDA should be understood. The MPD 2001 anticipated that for the entire F Zone area there would be a population increase of approximately 5 lakh persons during the years 1981-2001. This therefore required that one lakh dwelling units would have to be provided for. As per the MPD 2001 norms these one lakh units had to comprise 25,000 EWS plots (25%), 3,000 Resettlement Units (3%) and 43,000 fully or partially built units (43%). Therefore, the percentages have to be worked out on the basis of these target figures. Thus when respondent DDA, in the affidavit of Shri Jaglan in Januar 2004 claims that it has constructed a total of 52694 flats in the entire F zone and that of these the combined number of 17,780 LIG and EWS flats (4469+13311) constitute 33.74%, it may not be the correct way of looking at it. The 17,780 EWS and LIG flats constitute only 17.78% of the one lakh dwelling units that were expected to be provided. EWS constitute 13.3% and LIF 4.4% whereas the target percentages were 25% and 20%. There can be no manner of soubt that these targets have not been met and that these ir an implementation backlog even if we take F zone as a whole. This is the position even without going into the aspect that respondent DDA was to provide EWS ‘plots’ and not flats for the EWS category.

49. Further, the plea that the shortfall in one sub sone (f-12) has been made up by constructing adequate number of LIG and Janta flats in adjoining sub zones is also not correct when the actual figures are compared against planned targets. The figures for sub zones F-13, F-14, F-15 show either no LIG flats (F-13) or no LIG or EWS flats (F-14 and F-15). Further it is clear that in the up-market sub zones like F-1 (Friends Colony), F-2 (Kailash Colony), F-3 (Siri Fort), F-4 (Safdarjung), F-13 (Vasant Vihar), F-16 (Saket) the low income housing is far short of the target. Thus the the MPD 1962 and 2001 objective of integration of EWS/LIG housing into the neighbourhood at the sub zone and community levels appears to have been defeated. The plea that the achievement of targets must be examined by taking the city as a whole as suggested in the additional affidavit of Mr. Anil Baijal is clearly contrary to what the MPD 1962 and 2001 envisages and is clearly a desperate attempt to explain away the abject failure of the respondent DDA to comply with its statutory obligation of providing integrated low income housing.

50. At this stage we may dispose off another untenable plea of the respondent DDA that the Vasant Kunj scheme was developed as per the MPD 1962 norms and that the MPD 2001 does not apply to it. This plea requires to be negatived since it is an admitted position that the so called development of respondent DDA is a work in progress with respondent DDA trying to contend that it is still proposing construction of further EWS and LIG housing as per MPD 2001 norms. MPD 2001 became effective in 1990 itself. Secondly, even if we take the MPD 1962 as the standard, even then the main objective of an integrated neighbourhood comprising low income housing has not been adhered to by the respondent DDA. The correct approach would be to view the MPD 2001 as further explicating the MPD 1962 objectives by providing precise standards as to what percentages of low income housing is to be provided and in what form and minimum standard. The amended plan, MPD 2001, only carries forth the principal objective of the MPD 1962 as regards integrated low income housing.

51. It was argued by the learned counsel for the respondent DDA that while respondent DDA may not have been able to meet the targets set out in the MPD 1962 and 2001, that cannot be construed as a violation of the MPD. On closer scrutiny, this claim appears to unjustified. From respondent DDA’s own showing, in the affidavit of Shri Jaglan “the areas marked orange in the layout plan annexed to the previous affidavit are the proposed sites belonging to the DDA marked for construction of the LIG/Janta as well as MIG flats but are under unauthorized occupation of the encroachers.” The failure to remove these encroachers and to provide for adequate LIG / EWS housing in these earmarked areas should be laid at respondent DDA’s doorstep. There was no justification for the respondent DDA to deviate from the MPD norms and construct the disproportionately large number of HIG flats or to allow the ares earmarked for LIG and EWS housing for other purposes or, as it is now claimed to permit them to be encroached. This failure on the part of the respondent DDA has resulted in worsening the housing problem and, as correctly anticipated by the MPD 1962 over four decades ago, has resulted in the growth of slums and JJ Clusters where the poor are compelled to reside. The failure to provide low income housing as per MPD norms has meant that the migrant population come to Delhi in search of livelihood as to inevitably find shelter in JJ Cluster and slums which are perhaps the only affordable places for them. In more than one way therefore, the respondent DDA itself has, by failing to monitor the implementation of the MPD targets and providing for adequate integrated low income housing, contributed to the growth of slums in the city.

52. If, on the other hand, as pointed out by the petitioners, the respondent DDA had been monitoring the achievement of the planned targets, as mandatorily required by the MPD, it could have checked the problem as it arose and not brought about the present situation. Not infrequently we have auction purchasers complaining that the land in question has been encroached by jhuggies and thereafter the court is constrained to order the demolition of such jhuggies with a view to restoring the land to the auction purchaser (see for e.g. Sewa Hotels and Resorts v. DDA AIR 2006 Del 32). Very often, pursuant to such court orders, respondent DDA resorts to demolition drives involving forced viction and partial and unsatisfactory relocation of the slum population. All of this is unfortunately not in conformity with the MPD provisions and leads to further violations.

53. At this juncture it may be useful to refer to the report of the Committee constituted by the Planning Commission of India on the problem of slums in Delhi, which was submitted in June 2002 which reads as under:

“Between 1960-61 and 1970-71 while the high income groups got as much as 49.8% of the plots through auction, the MIG and LIG groups were allotted on 27.4% and 11.5% respectively. Prima facie, the allocation of land for the housing of the urban poor has been insufficient to meet the requirements, and below the proportion of their share. While DDA is in charge of planned development of the city, the provision of land and housing are failing to meet the demand for the urban poor. The DDA should examine what were the provisions made for housing of the economically weaker sections in the Master Plan, lands earmarked and actually made available, as well as strategies of construction and allotment of EWS houses to met the need to address the problem of slums. In its present operations relating to provisions of land and houses, a definite bias for a planned provision of alternatives to existing slums, has to be uppermost in DDA’s programmes. In the new Master Plan the provision for housing for the urban poor should be made more specific and measures should be taken to make such housing actually available. As the most depriveved sections in shelter are the slum dwellers, and with the objective of achieving a slum free city, the Plans should make all-out efforts to meet needs of EWS housing. At the implementation level, the EWS houses construction programme of the DDA and the slum improvement should be interlinked, with allotment of land or houses to residents of specified locations of slums as first option. This land thus cleared should be immediately put to its alternative public use and protected from further renewed encroachment.” (emphasis added)

54. Annexed to the Writ Petition as Annexure-P-5 are photographs showing how even the so called LIG flats stated by respondent DDA to have been constructed in the vasant Kunj area are in fact been used as offices of the property brokers. There are photographs to show how the respondent DDA itself is using some of these flats for its MAster Plan offices. Subsequent affidavits of the petitioners have also pointed specific instances of misuse of the areas earmarked for low income hosuing either by allowing encroachments to persist or be used for some other non-plan purpose. Unfortunately, in the reply filed by the respondent DDA in June 2003, there is no denial whatsoever of either these averments or the photographs. None of the subsequent affidavits of the respondent DDA have bothered to deal with this serious issue of misuse of the built LIG housing or the encroachment. The affidavit of Mr.Jaglan filed in January 2004 only claims sweepingly that “EWS/Janta flats are allotted to the weaker and the poor sections of society including the class of people engaged in the services like Dhobi cleaning women, iron women etc. and as observed in the submissions aforegoing that there is adequate housing provided in the colonies itself or adjoining colonies but unfortunately there is and cannot be any check or control over the subsequent selling of these houses.” This claim is not backed by any facts or figures that the built LIG or janta flats have in fact been allotted to these persons and that they subsequently re-sold them. If it were correct, there should have been no problem for the respondent DDA to give such details. The photographs tell a very different story and there is no whisper of a denial. This belies the claim of the respondent DDA in the affidavit of Mr.Jaglan that these flats are allotted to weaker sections of the society. Further it seems odd that the respondent DDA justifies the non provision of such housing on the ground that the poor are likely to sell them and go back to the original sites when in fact the respondent DDA itself has turned a blind eye to the misuse of the built LIG houses which is happening under its very nose. The responsibility for checking or controlling misuse by any person whether it is by a person belonging to the LIG or EWS category or any other person not at all entitled to such allotment, has to squarely rest with the respondent DDA and with no one else. The failure by the DDA to check misuse cannot be a justification for denying the poor to their entitlement to low income housing as per MPD norms.

55. Thus the facts brought on record by the petitioners and the details provided by the respondent DDA show that there is an implementation backlog in the area of low income housing in the F Zone and that respondent DDA is squarely responsible for this failure on its part to fulfill it statutory obligation.

56. The petitioners in the second writ petition have brought up the issue of the lawfulness of the resettlement scheme. They contend that the so called resettlement of the JJ dwellers by the respondent DD is legally flawed and contrary to the MPD norms. The counsel for the respondent DDA on the other hand point out that a Division Bench of this court had, in Okhla Factory Owners’ Association v. Government of National Capital Territory of Delhi 2003 (108) DLT 517, struck down the policy for rehabilitation of slum dwellers by allotting alternative plots of land.

“It is undoubtedly the duty of the Government authorities to provide shelter to the under-privileged. It is possible to have a housing scheme developed for those under-privileged people. However, the respondents in their affidavits have admitted their failure to devise housing schemes for persons in the economically weaker sections of the society. This lack of planning and initiative on the part of the respondents cannot be replaced by an arbitrary system of providing alternative sites to and land to encroachers on public land. If the schemes were to be devised for the economically weaker sections of society based on a rational criteria, it would achieve a social objective. The basis cannot be encroachment on public land. Such a basis, in our considered view would be arbitrary and illegal on the face of it. It encourages dishonesty and violation of the law.” (emphasis added)

57. The above judgment does not support the plea of the respondents and only refers to ad hoc and unplanned relocation of slum dwellers and the decision does not deal with or prohibit the implementation of the MPD qua the economically weaker sections.

The petitioners in the instant case are in fact contending that the action of the respondents DDA in nake allotments of alternative plots to a few of them is not based on any rational criteria and that in any event it violates the MPD. In the Okhla case too the respondent DDA admitted to a failure to develop any housing schemes for the EWS although the did not tell the court that this was mandated by the MPD and the Act. It is of course another matter that the decision of in Okhla is now pending consideration before the Supreme Court and that court has by interim order permitted the respondent DDA to continue operating the policy till further orders. Therefore the leagality of the resettlement policy need not be gone into here.

58. Suffice it to say that any resettlement scheme of the respondent DDA will have to both comply with the MPD norms and also be based on some rational and intelligible criteria. When the offer cum demand letters issued to some of the petitioners in these petitions are examined, it is seen that there is no indication whatsoever of the location of the alternative plots. Also plot sizes which are stated to be 18 sq.mtrs. or 12.5 sq.mtrs. do not conform to the MPD requirement of a minimum plot size of 25 sq.mtrs. If the respondent DDA wanted to deviate from the MPD norms it ought to have followed the prescribed procedure for modification set out under the Act and Rules made thereunde. Admittedly it has not initiated any steps to change the MPD norms in this regard. Further the relocation will have to be to the earmarked places under the MPD norms consistent with the mandate that the low income housing must be integrated in the larger neighbourhood. Thus the relocation of 39 of the JJ dwellers residing at Arjun Camp to the Madanpur Khadar scheme, which is said to be at a considerable distance from their work places appears to contradict the MPD requirement.

59. Whatever may the components of the resettlement plan, it will have to satisfy the basic requirement of an integrated community spelt out in MPD itself. Also the basis of eligibility of persons to low income housing will have to be evolved in a transparent manner with the participation and consultation of the persons who are to benefit from such a scheme. Unless housing that is relevant and useful to the working classes is provided, there iare bound to be situations where such housing will be transferred illegally and the original slum residents come back to squatter colonies. The discussion on this point is concluded by observing that respondent DDA will have to be issued directions to evolve ameaningful resettlement scheme in a time bound and transparent manner consistent with the MPD 1962 and 2001 norms.

60. A brief mention ws made during arguments of the likely changes in the on-going revision of the MPD 2001 which may have a bearing on the issues considered here. This Court made it clear to the aprties that the MPD provisions as it stood at the time of the hearing of the petitions would be applicable. This Court finds that a similar approach has been adopted by another bench of this Court in Sarojini Market Shopkeeper Association v. Union of India 2005 (81) DRJ 334 where it was observed that “It would be impermissible to take an action contrary to the master plan but defer rectification on the ground that may be, the future master plan for Delhi would provide otherwise.”

61. The persistent rise in the number of slums in cities is a menace for the civic authorities and government bodies, particularly in a city like Delhi, where the pressure of population on land, water and health care facilities is immense. Due to economic growth Delhi attracts aspirants from all parts of the country and from all sections of society wanting to improve their economic status. Bit ironically, it is the apathy of the authorities such as the respondent DDA which is one of the major causes for the rie in the number of slums. Slums mostly comprise of domestic workers, like servants, dhobis and persons providing ironing services. The support services provided by these persons are indispensable to any affluent or even middle class household. Cities would simply come to a halt witout the labour provided by these persons. Yet inspite of the statutory provisions in terms of the Act and the MPD 1962 and 2001 which impose an obligation on the respondent DDA to provide for adequate hosuing for low income groups, slums continue to grow. The primary reason for this is the avoidance by the respondent DDA of the statutory mandate of the provisions of the Act and the MPD 1962 and 2001.

62. Before considering the grant of reliefs, it might be useful to summarise the findings in this judgment as under:

(a) The Master Plan for Delhi is a statutory document and is binding on the respondent DDA. It is enforceable as such.

(b) The MPD spells out the entitlements of the poor to housing as it specifically provides that the respondent DDA must make available adequate integrated housing in the LIG and EWS categories.

(c) The petitioners who undeniably belong to the EWS categories and who have eben living, at the time of filing the petitions, in the informal dwelling units in the JJ Cluster at Arjun Camp, were entitled to be considered for allotment of EWS housing.

(d) Notwithstanding the fact that the JJ Cluster in question has already been demolished on May 19, 2003, that would not disentitle the petitioners from seeking the relief of resettlement in accordance with the MPD 1962 and 2001 norms pertaining to low income housing.

(e) The respondent DDA is under a statutory obligation in terms of the Act and the MPD 1962 and 2001 to provide EWS and LIG housing and in particular in the zone in which the petitioners are residing. Thus the petitioners can enforce their entitlements under the MPD 1962 and 2001 to housing against the respondent DDA which owes them a statutory duty. In other words the petitioners have an enforceable right against the respondent DDA in terms of the Act and the MPD 1962 and 2001.

(f) The facts brought on record by the petitioners and the details provided by the respondent DDA show that there is an implementation backlog in the area of low income housing in F Zone and that respondent DDA is squarely responsible for this failure on its part to fulfil its statutory obligation.

(g) The respondent DD has also permitted the misuse of the LIG flats constructed by it by persons not eligible in that category and has also failed to check encroachments in the areas earmarked for EWS and LIG housing. The responsibility for this failure must be borne by the respondent DDA itself.

(h) The respondent DDA will have to be issued directions to evolve a meaningful scheme in a time bound and transparent manner for resettling the petitioners consistent with the MPD 1962 and 2001 norms. The basis of eligibility of persons to low income housing is required to be evolved in a transparent manner with the participation and consultation of the persons who are to benefit from such a scheme.

63. Now I come to the question of what reliefs can be granted to the petitioners. As already held, the petitioners have succeeded in showing that they are owed a statutory duty by the respondent DDA and that there has been a failure on the part of the respondent DDA to perform that statutory duty.

64. This is clearly a case where notwithstanding the demolition of the JJ Cluster, the petitioners would certainly be entitled to be considered for allotment of EWS and LIG if they satisfy the criteria for that purpose. The respondent DDA despite the order of his Court dated 12.11.2003 has failed to indicate when it proposes to achieve the MPD targets as regards EWS and LIG housing in the F zone area. This is indeed unfortunate since the matters have been delayed considerably as a result of respondent DDA’s inaction. It therefore becomes necessary to direct the respondent DDA, to now evolve a time bound scheme for resettlement of the petitioners. The scheme must be evolved in a transparent manner and after consulting the petitioners or their authorized representatives. As part of the scheme the respondent DDA is bound to formulate the criteria for determination of such eligibility for allotment of an EWS plot or LIG housing unit. It has also to show a degree of flexibility in devising such norms consistent with ground realities where the poor face a lot of hardship in being able to demonstrate their identity and their residence at a particular place. The approach should be to enable and facilitate to enforce their entitlement rather than to exclude them.

65. In the present case, it is likely that the petitioners are all no longer residing at the same pace since after the demolition of their dwellings and may have dispersed throughout the city. Therefore, the respondent DDA will have to give sufficient publicity to make known the formulation of a draft scheme which will be finalized after consulting such of those petitioners who come forward and/or their representatives.

66. Accordingly, these two writ petitions are allowed in part and it is directed as under:

A writ of mandamus is issued to the respondent DDA to take the following steps:

(i) Within period of six weeks from today the respondent DDA will prepare and file in this Court a draft scheme for the resettlement of the petitioners in both writ petitions consistent with the MPD norms as explained in this judgment.

(ii) The draft scheme will also contain the criteria for determination of the eligibility of the petitioners for allotment of an EWS plot or a LIG housing unit. The criteria should be reasonable.

(iii) The draft scheme will be published within a period of one week of its preparation and be given wide publicity and will also be published at the site where some of the petitioners are said to have been relocated.

(iv) The petitioners and/or their authorized representatives will be permitted to file their objections to the draft scheme within a period of thirty days after such publication of the draft scheme. The petitioners will also, within a period of fifteen days thereafter, be afforded an opportunity of being heard through their representatives on their objections to and suggestions for improving the draft scheme.

(v) Within a period of two weeks after the conclusion of the hearing, the respondent DDA will finalise the scheme for resettlement of the petitioners and give it adequate publicity apart from giving copies to the petitioners and their representatives to enable such of them who wish to avail of the benefit, within a period of four weeks, to make applications for allotment of EWS or LIG housing as the case may be.

(vi) The respondent DDA will thereafter, without unreasonable delay and in any event not later than four weeks after the last date for the receipt of the claim applications of the petitioners, process them and prepare a list of all persons eligible to be allotted EWS or LIG category housing, as the case may be, in terms of the resettlement scheme.

(vii) The respondent DDA will file an interim compliance report along with the affidavit of its Vice Chairman within a period of two months indicating the progress in the implementation of the above directions and therafter further interim reports as may be directed by this Court till all the above directions are complied with.

(x) In the first interim compliance report to be filed within a period of two months from today, the respondent DDA will place the complete details of the exact shortfall/backlog in providing low income housing in the f Zone in general and F12 sub zone in particular. It will also indicate the exact time frame, which should be reasonable, within which it will make available to the petitioners found eligible the EWS and LIG housing in the F12 sub zone and when it proposes to make up the shortfall in the F Zone area in conformity with MPD 1962 and 2001 and the steps it proposes to take in that regard.

67. These two writ petitions will now be listed on 22^nd September, 2006 for reporting compliance and consequent directions.

(MUKUL MUDGAL)

JUDGE

July 14, 2006