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2008 DIGILAW 526 (DEL)

MANOJ KUMAR v. DELHI DEVELOPMENT AUTHORITY

2008-05-19

KAILASH GAMBHIR

body2008
JUDGMENT Kailash Gambhir, J.:- By way of the present writ petition the petitioners who are Kashmiri migrants seek directions in the nature of writ of certiorari against respondent No.3 for setting aside communication dated 24.1.2006 and similar other communications, whereby the application of the petitioners for allotment of flat was rejected. A writ of mandamus has also been claimed seeking directions against respondent No.1 to allot a flat to each of the petitioners under the housing scheme launched by respondent No.1 for rehabilitation of J &K migrants on the terms and conditions as applicable under the scheme. A writ of certiorari has also been claimed for quashing/ cancelling allotment of flats made by respondent No. 1 in favour of respondents 5 and 7, which as per the petitioners are ineligible to get the flats under the rehabilitation scheme. Compensation has also been claimed by the petitioners for their forcible eviction from Palika Dham Camp on 7.11.2003. 2. Before delving upon the contentions raised by the parties, it would be appropriate to give brief summary of the facts of the present case. 3. The present writ petition has been filed by 8 Kashmiri migrants who were earlier the residents of J&K and were migrated to Delhi under the forced circumstances arising out of the militancy in J&K State which erupted in the year 1990. The petitioners were forced to leave their State due to threat to their lives and migrated to the State of Delhi with a hope that they will return to their homes after the situation gets normalized in their home State. Along with other Kashmiri migrants, the petitioners were given a place in one of the migrant camps, i.e., Palika Dham Camp, situated at Tagore Market, New Delhi, where these petitioners resided from the year 1990 till 7.11.2003. It is further stated in the petition that all the Kashmiri migrants were requested to apply for allotment of the flats under the housing scheme launched for the rehabilitation of J&K migrants. As per the said scheme, only 237 families were found entitled for allotment of such flats who were residing in 14 camps including Palika Dham Camp, where 13 families were fond entitled for allotment of the flat. As per the said scheme, only 237 families were found entitled for allotment of such flats who were residing in 14 camps including Palika Dham Camp, where 13 families were fond entitled for allotment of the flat. Out of these 13 families, three families had already shifted out of the camp due to the prevailing unhygienic conditions, while two other families were earlier allotted flats leaving behind only 8 families, the petitioners herein. Due to some stringent condition existing in the said housing scheme, a writ petition bearing W.P. (C) No. 448/2002 was filed by J&K Migrants Camp Welfare Association and in the list of 230 Kashmiri migrants names of the present petitioners also appeared. 4. The said writ petition filed by the said Association was disposed of by the Honble Supreme Court vide order dated 27.1.2004, after the respondent No.1 agreed to relax the rate of interest from 12.5% p.a. to 11 % p.a on the total instalment towards the purchase of flat. Pursuant to the said decision of the Supreme Court these Kashmiri migrants found themselves entitled for allotment of flats as per the scheme and, accordingly, the present petitioners submitted their application in the prescribed form and on payment of stipulated charges for allotment of the said flat under the scheme. In the meantime on 7.11.2003, the present petitioners who were staying at Palika Dham Camp were forcibly evicted from the camp by the respondent No.4 after removing the belongings of these petitioners in their absence and after locking the aforesaid camp in a most illegal manner. The petitioners had informed the local police station about the said accident vide PCR complaint No. 19A at 7.35 p.m. and a representation was also made to respondent No.4 as well as to the Director (J&K Affairs) Ministry of Home on 10.11.2004 and 14.11.2003. Even the monthly ration which was being provided to these migrants for the last 13 years was stopped. It is also stated that before carrying out the said forcible eviction of the petitioners from Palika Dham Camp, the respondent No. 3/the Deputy Commissioner, GNCT had undertaken survey to verify genuineness of migrants residing in Palika Dham Camp. In the said survey carried out by the office of respondent No.3, the petitioners were found to be residing in the said camp. Report to this effect was submitted by the Area SDM vide Report dated 4.11.20003. In the said survey carried out by the office of respondent No.3, the petitioners were found to be residing in the said camp. Report to this effect was submitted by the Area SDM vide Report dated 4.11.20003. The respondent No.3, vide letter dated 27.7.2004 and 10.8.2004 sought to know the status of the petitioners residing in Palika Dham Camp amt in response to the queries raised by the respondent No.3, respondent No.4 vide communication dated 6.12.2004 informed the office of respondent No.3 that these petitioners lived in the said Palika Dham Camp from the year 1990 to 2000, whereafter, they left the camp on their own except two families. This stand was reiterated by respondent No. 4/NDMC vide letter dated 24.3.2006, addressed to the office of Divisional Commissioner, Delhi and this very stand of the respondent No.4 created havoc in the lives of these petitioners. Various letters were written by petitioners against the stand taken by the NDMC with the help of some documentary evidence. The petitioners claimed that they were continuously residing in the said migrant camp before their illegal removal on 7.11.2003. The petitioners claim that they are eligible for allotment of flat under the rehabilitation scheme as they were duly included in the list of 237 migrant families who were found eligible for the said allotment. The petitioners also claim that they were very much residing in the camp till 7.11.2003 and absolutely false information was given by the NDMC that these petitioners resided in the said camp only till 2000. The petitioners have also been drawing their monthly ration continuously and also receiving payment @ Rs. 2,400/- by the Government as a monetary help. The petitioners also claim that flats have been allotted by the respondent No.1 DDA in favour of respondents 5 to 7 who never resided in the said Palika Dham Camp, and therefore, these respondents were not eligible to get the flats under the housing scheme. 5. In the counter affidavit filed by respondents 2 and 3, the stand has been taken that as per their office records, these petitioners stayed in the said Palika Dham Camp till 7.11.2003. 5. In the counter affidavit filed by respondents 2 and 3, the stand has been taken that as per their office records, these petitioners stayed in the said Palika Dham Camp till 7.11.2003. In the counter affidavit filed by respondent No.4, the stand has been taken that vide letter dated 6.12.2004 the NDMC had informed the Divisional Commissioner, GNCT that only 10 members of J &K migrant families were staying in the Camp from 1990 till 2000 and thereafter these migrants left the designated camp on their own. The NDMC denied the allegation of the petitioners that they were illegally removed from the camp on 7.11.2003. It is also stated that the petitioners have not shown any document which could reveal that families of the petitioners resided in the said community centre after 2000. 6. As against the said position, Counsel appearing for the petitioners very strongly placed reliance on the verification report submitted by the SDM to the office of Deputy Commissioner, GNCT, wherein the names of those petitioners duly appeared in the list of Palika Dham Camp. The contention raised by the Counsel for the petitioners is that once their names appear in the survey carried out by the office of respondent No.3, then the stand taken by the NDMC is absolutely untenable. Pointing out to the letter dated 3.6.2004 sent by the office of the SDM to the DDA stating that these migrants are not residing in the designated camp, Counsel for the petitioner contended that the said position was conveyed by the office of the SDM as it existed on 4.11.2003. Counsel thus stated that on the one hand office of the respondent No.4 had illegally removed the petitioners on 7.11.2003 and on the other hand the right of these petitioners to the allotment of the flats is being denied on the ground that they were not found residing in the said camp as on the date of filing of the application after the decision of the Apex Court. Inviting my attention to the minutes of nodal cell held on 25.10.2004, the Divisional Commissioner, Delhi discussed all the issues relating to J&K migrants. The Counsel contended that the reference in the minutes were made to the allotment of these eight petitioners and request was made by the Divisional Commissioner to the DDA to consider their request for allotment of flats. The Counsel contended that the reference in the minutes were made to the allotment of these eight petitioners and request was made by the Divisional Commissioner to the DDA to consider their request for allotment of flats. Counsel for the petitioner sought to urge that the petitioners are the migrants from J&K amongst those 237 families enlisted as J&K migrants who were found residing in the said Palika Dham Camp continuously till 7.11.2003 when they were forcibly evicted and they had applied for the allotment of the flats after the decision of the Apex Court vide order dated 27.1.2004. Their names were duly verified in the survey carried out by the office of the Dy. Commissioner, and there cannot be raised any suspicion or doubt on the eligibility or entitlement of the petitioners to the allotment of the flats under the said scheme commenced by the Government specifically meant for J&K migrants. Counsel thus contends that decision taken by the office of Dy. Commissioner vide communication dated 24.1.2006 declining their request for allotment of flat is ex facie illegal, arbitrary and in violation of fundamental rights of the petitioners. 7. On the other hand Counsel for respondent No.4 contended that these petitioners have failed to furnish any proof so as to show their continued occupation in the said Palika Dham Camp and, therefore, these petitioners are not en titled for allotment of the flat which were meant solely for the migrants of J&K state. Moreover, these petitioners had voluntarily left the camp in the year 2000, therefore, these petitioners also lost the status of being called as migrants. Counsel for the respondent further contended that either these petitioners have already gone back to their home State or they have become so self dependent to be given the status of migrants. 8. This housing scheme for migrants was launched by the DDA and the said scheme remained open from 1.7.2001 to 31.7.2001. In the said scheme launched by the DDA, it was specifically mentioned that the said scheme was meant for those Kashmiri migrants who were residing in 14 camps and one of those camps was Palika Dham Camp where these petitioners were residing along with their respective families. In the said scheme launched by the DDA, it was specifically mentioned that the said scheme was meant for those Kashmiri migrants who were residing in 14 camps and one of those camps was Palika Dham Camp where these petitioners were residing along with their respective families. The said scheme could not take off as serious grievance was raised by these migrants on the initial deposit and also on the exorbitant rate of interest which led the migrants to approach the Hon’ble Apex Court, by way of filing writ petition through their welfare association. The Hon’ble Apex Court vide order dated 27.1.2004 disposed of the said writ petition after the DDA agreed to reduce the rate of interest from 12.5% to 11% p.a. After the decision of the Apex Court the said scheme was again reopening of the scheme, the present petitioners filed their respective applications along with requisite bank draft/pay order and the relevant documents. The case of the petitioners was rejected through communication dated 24.1.2006 and the ground taken in the said rejection letter was that these petitioners were not residing in the designated camp of Palika Dham on the relevant date of the scheme. This approach of the respondent No. 3 and other respondents is quite shocking. It is a complete depiction of mindless exercise of all these authorities who have little concern or respect for the rights of the citizens. The use of word migrant with our own citizens of J&K State in itself is a shocking factor and heart goes out for these hapless citizens who had to face such wrath leading to their exodus due to the terror unleashed in the said state by few militants. These citizens under such a terror stricken conditions had to become migrants in their own country after they ran from their homes leaving behind all their belongings, business, jobs and carriers. The grim situation was that these kashmir is became refugees in their own country and acquired the status of migrants. The stark effect of this was that they were placed by the Court in some camps to live in slum like conditions, the situation they never even dreamt of. On one side they are being referred as migrants in their own motherland and on the other hand in a most insensitive manner they were denied the facilities as should have been provided to them as migrants. On one side they are being referred as migrants in their own motherland and on the other hand in a most insensitive manner they were denied the facilities as should have been provided to them as migrants. In Delhi they were placed in some of the camps and one of them is Palika Dham, Gale Market, NDMC. It is beyond comprehension as to when once in the survey carried out by the office of the Dy. Commissioner itself these petitioners were found residing in the said Palika Dham Camp as on 4.11.2003, then, on what basis the respondent No. 4/NDMC or any other office of the Government could say that these petitioners were not residing in the camp at the time of launching of the said housing scheme. If it is assumed that the petitioners had themselves left the camp in the year 2000 then how these petitioners were given the monetary relief @ Rs. 24001- per month and the ration. It is also mind-boggling to notice that if these petitioners had left in the year 2000, then why the office of NDMC did not then report this fact to the office of the Divisional Commissioner/Dy. Commissioner, Delhi. These authorities have also ignored another important aspect that the Association of J&K Welfare has approached the Apex Court against some stringent conditions laid down by the DDA for allotment of the flats and due to the pendency of the said petition, the petitioners could approach the authorities after the scheme was reopened in the year 2004. Pursuant to the directions given by this Court, the records were produced by the NDMC which contains an order dated 25.9.2007 passed by the Office of the Dy. Commissioner, New Delhi In the said order, Dy. Commissioner has observed that based on the guidelines of the DDA for allotment of these migrants these petitioners were not campers either in July 2001 when the scheme commenced or in 2004 when the scheme was reopened, therefore, they were found ineligible to claim allotment of flat under the special scheme meant for J&K migrants. It is also observed that if as per the case of the petitioner, they were removed on 7.11.2003, then why they did not take any remedy by filing civil suit against such illegal act of the said agency. It is also observed that if as per the case of the petitioner, they were removed on 7.11.2003, then why they did not take any remedy by filing civil suit against such illegal act of the said agency. Stress is also laid in the said order on the fact that the focus of the rehabilitation scheme was for the campers only and once a camper has left the place on his own then the scheme would not be applicable. 9. The said stand taken by the office of Deputy Commissioner and acted upon by the NDMC has been too shocking and perturbing. On the one hand, there was a report of the office of the Deputy Commissioner through its SDM certifying that these petitioners were found residing in the said camp as on 4.11.2003 and on the other hand finding them ineligible on the ground of their having left the camp on their own in the year 2000. Not only this, even the petitioners are being blamed for not taking any civil remedy against their forcible removal from the camp on 7.11.2003. With such kind of approach taken by the respondents that too with the Kashmiri Migrants, one can only say that these Govt. Authorities have no respect for their own citizens and also for the Rule of Law. Once in the survey conducted by the office of the Deputy Commissioner these petitioners were found residing in the said camp then how, it could be said that these petitioners and their families were not living in the camp in the year 2000. No basis have been given or disclosed by the respondents in support of their contention that these petitioners had left the camp in the year 2000. 10. In paras 12 and 3 of the counter affidavit filed by respondent Nos. 2 and 3, it has been duly admitted that as per their office records, these 9 petitioners stayed in the camp up to 7.11.2003. 11. The stand taken by respondent No.2 i.e., NDMC stating that these migrants families had left designated camp on their own in the year 2000 but no such information was ever given by the office of NDMC to the office of Deputy Commissioner at least prior to the letter dated 6.12.2004 sent by h the NDMC to the office of Divisional Commissioner supplying the said information. 12. 12. In para 11 of their counter affidavit, respondent NDMC has admitted that it has no relevant record pertaining to allotment/placement of these J&K Migrants in the NDMC camp as these migrants were residing in the camps as per the directions issued by the office of Divisional Commissioner, Delhi and financial assistance was also provided to them by the office of Divisional Commissioner. Once no such records were being maintained by the office of NDMC, then it is beyond once comprehension as to on what basis the NDMC could say that these migrants resided in the camp only up to the year 2000. These J&K migrants certainly needed better treatment. The authorities instead of extending a helping hand to these citizens who became migrants in their own motherland caused more trouble and trauma in their lives. 13. These authorities remained totally insensitive and unconcerned with the woes of these helpless petitioners, who were made to suffer firstly at the hands of militants then at the hands of these authorities, who are least concerned with the miseries, traumas and humiliation undergone by these citizens after they were uprooted with lock, stock and barrel from their home land. These authorities have really committed a great sin in not considering the case of the petitioners sympathetically and instead of wiping out their tears they made them weep more in their struggle to get the allotment of flats under the scheme which was exclusively meant for the Kashmiri migrants. These authorities did not appreciate that once living in a paradise on earth surrounded by mountains, cool breeze and meadows the petitioners were thrown out from their sweet homes and jobs and were placed in an inhabitable camp. The situation which these citizens would have never dreamt of but instead of assuaging their feelings these authorities have not only thrown them out from their camps but also inflicted another major blow in their lives by discarding their claims for allotment of a flat under the scheme. 14. The situation which these citizens would have never dreamt of but instead of assuaging their feelings these authorities have not only thrown them out from their camps but also inflicted another major blow in their lives by discarding their claims for allotment of a flat under the scheme. 14. In the light of the above discussion, the present writ petition is allowed with the directions to the respondents to immediately allot the flats in question to all these petitioners without insisting upon their proof of residence in the camp as in the year 2001, but subject, however to fulfilment of all other conditions as laid down under the said scheme of allotment to the Kashmiri migrants by these petitioners. The respondent shall carry out these directions within a period of one month from the date of this order. 15. With these directions, the writ petition is disposed of. Writ Petition allowed.