Encroachment of land: India
This is a collection of articles archived for the excellence of their content. |
Contents |
Eviction of Encroachers
Encroachers on govt land not entitled to prior notice: HC
Abhinav Garg, October 8, 2020: The Times of India
Delhi High Court refused to stay an ongoing drive by Delhi Development Authority (DDA) to remove encroachments in the Yamuna floodplain at Dhobi Ghat.
A bench of justices Hima Kohli and Subramonium Prasad also ticked off the land owning agency for “keeping its eyes shut” and allowing encroachments to crop up on its land for long. “DDA ought to have protected its land, but the less said the better,” the bench remarked, while declining to stay the eviction drive. The court, however, asked it not to take any coercive action for the next ten days, allowing those affected to approach National Green Tribunal (NGT) on whose directions the Authority has begun clearing Yamuna floodplain of encroachments, or the Supreme Court.
The high court was hearing a petition filed by two residents of the area who sought an immediate stay on the demolition drive and claimed that the agency didn’t give prior notice to the locals who face the threat of being rendered homeless.
But the bench made it clear that encroachers on government land are not entitled to prior notice and pointed out that NGT’s orders can only be assailed before the Supreme Court, with the high court having no role to play. It refused to examine if the residents are eligible for rehabilitation, leaving it to Delhi government’s urban shelter board (DUSIB) and DDA, even as it gave ten days time to the petitioners to move NGT or SC if they wish.
The high court also directed a reluctant DDA, represented through senior advocate Rajiv Bansal, to coordinate with DUSIB and conduct a joint survey of the area in Jamia Nagar. It said the agencies can use drone for videography and for further mapping of the area.
Taking note of the court’s stand, the petitioners withdrew their plea for stay and also the writ petition filed before a single judge challenging the encroachment drive, after the bench said it won’t allow parallel proceedings before NGT and court to continue. Last week, DDA had demolished 100s of jhuggis in a drive to remove encroachments in the Yamuna floodplain.
Earlier this year, the Yamuna monitoring committee had told the green tribunal that almost 959 hectares of the river’s floodplain were encroached on and needed to be secured by DDA. In its final report, it stated that an area of 954.2 hectares was encroached on or in agricultural use, while another 5.26 hectares were currently under litigation. It added that the Millennium Park bus depot, which was under the Supreme Court and NGT’s scanner, was indeed a part of the river’s “O” zone where construction and commercial activities were prohibited.
‘No alternative site, no removal’ policy promotes encroachment: HC
August 1, 2022: The Times of India
Madurai:The Madras high court does not endorse the government policy of not removing encroachments till the time squatters are given alternative sites, saying such a decision amounts to promoting encroachment.
The court has made the observation while hearing recently a PIL filed by Peter Swamy Dhas before its Madurai bench in 2021. The petitioner sought a direction to the authorities to remove encroachments from Parakkai channel to Suchindram Kulam at Nagercoil in Tamil Nadu’s Kanyakumari district.
The state submitted that action has been taken to remove encroachments in the water body. It said 388 encroachments have been removed and the remaining 131 would be done away with after making alternative sites available to the people living there. A division bench of Chief Justice Munishwar Nath Bhandari and Justice S Ananthi (since retired) expressed surprise at the half-baked action regardless of the court’s direction.
Saying such attitude is not acceptable, the judges noted that that they do not support the government policy of letting encroachments be until the encroachers are given alternative sites.
The judges directed authorities to remove lawfully the remaining 131 encroachments within four months. They said Tamil Nadu has been saddled with encroachments because of official inaction or for other reasons.
Superior courts, orders of
Omkar Gokhale, May 2, 2023: The Indian Express
A Bombay High Court bench led by Justice Gautam S Patel recently reiterated the remarks made by another bench earlier that “assurance of free housing (to encroachers) is nothing but a premium on illegality”.
The HC made the remarks while holding that the Slum Rehabilitation Authority (SRA) should hold the process to allot redevelopment rights of a project at Marol, Andheri, to a developer who would comply with procedures and had the consent of society members Justice Patel and Justice Neela K Gokhale were last month hearing two pleas filed by developer Sapphire Enterprises and Udaynagar Rahivasi SRA Co-op Housing Society consisting of slum-dwellers.
Senior advocate Mukesh P Vashi claimed the developer was the original owner of the land on which the slum existed, which was acquired by the SRA. The developer claimed it was entitled to priority right to develop the project as a slum scheme and had the consent of the requisite majority. However, the society of slum-dwellers opposed the developer’s petition and stated that Sapphire Enterprises did not exercise its rights in accordance with law, and that there is a divesting of ownership.
Advocate Mayur Khandeparkar, representing the society, argued that the developer was not entitled to bring a second proposal outside the time-frame stipulated for owner developer and also did not have the necessary consent of the required majority. Advocate Jagdish Aradwad (Reddy), representing the SRA, told the bench that consent that the developer claimed to have obtained had not been verified. He also submitted that 51 per cent majority of eligible slum-dwellers and not the entire body was required to decide on the developer.
“There may have been an acquisition under the Slum Act, but Sapphire Enterprises is differently positioned from an outside developer with no history of land ownership. The society claims ‘rights’ over this very land and its development. But we cannot lose sight of the fact that every single one of the society’s members is an encroacher, one whose initial entry on the land is not juridical, i.e., not one that the law recognizes,” the bench said.
The bench also referred to a “binding” verdict of a bench led by then Chief Justice Dipankar Datta of February last year in a suo motu PIL related to building collapses and illegal construction. The HC had observed that “policies which confer premium illegality in favour of encroachers by granting them a windfall of state largesse” should be done away with. It had added that such policies were implemented under the garb of slum rehabilitation merely because such slums turn into “potential vote banks.”
In light of the verdict, Justice Patel noted, “It is under the Slum Act that encroachers are, as a matter of welfare, given benefits of rehabilitation; and, specifically, what is held out to them is the promise of ‘free housing’. There is clearly an inherent disjunct or connect, trespass yielding a free-of-cost high-value real estate asset, and division benches of this court have often been moved to remark that this assurance of free housing is nothing but a premium on illegality.”
The HC directed the SRA to conduct a fresh survey and invite developers including the petitioner, who could not be excluded to participate in the open and transparent bidding process. It also said the CEO of SRA will ensure stipulated procedure is followed and he will also decide whether requisite numbers of majority have been met or not before issuing Letter of Intent (LOI) to a successful bidder. The bench posted further hearing to July 28.
See also
Encroachment of land: India
