Judgment:
Pradeep Nandrajog, J.
1. Yet another problem of relocation of jhuggis has been brought before this Court by way of the present petition. Petitioners claim to belong to socially and economically backward classes. They state that they are poor and illiterate. They claim to work as washerman (Dhobi) at Dhobi Ghat No. 15, Clive Road, South Avenue, now known as Tyagraja Marg. Petitioners claim that their ancestors migrated from the territories of Pakistan after partition and built temporary structures for their residence at the site. They claim that NDMC charged license fee from the petitioners and previously from their ancestors, to reside and carry on trade of washerman at the site.
2. As per the petitioners, the trade of washerman requires residence and place of work to be at the same site. If separated in residence from the place of work it would be difficult for the washerman to keep round the clock vigil on the clothes given to them by their customers for washing and ironing. They claim that they paid the entire cost when NDMC constructed permanent huts/rooms with asbestos sheets at the place in question. They claim not to have encroached upon any land other than the site allotted to them. In para 6 of the petition it is averred that NDMC constructed similar structures at Sunehri Bagh Lane, Dhobi Ghat No. 18 as also at Darbhanga Ghat No. 23.
3. Offence taken in the petition is to an action proposed by the Slum and JJ Wing of the Municipal Corporation of Delhi to relocate the slum dwellers. Decision to this effect is stated to have been taken under cover of office order dated 9.10.1995 (Annexure P-1).
4. Petitioners rely upon a decision taken on 2.1.1974 by New Delhi Municipal Committee as per which washerman engaged in the trade at dhobi ghats would be resettled in residential accommodation within NDMC area. They claim that 2.326 acres of land at 7 different sites was made available by Land DO to NDMC. According to the petitioners as per the said decision of NDMC a right has accrued in their favor to get tenements constructed by NDMC within areas comprised in the territorial jurisdiction of NDMC.
5. Response of NDMC is that when it took the decision to relocate the dhobis within NDMC areas it was envisaged that 425 dhobis would require resettlement but the actual number, when survey was carried out rose to 780. It is accordingly stated that it was not possible to relocate all dhobis within NDMC area. It is stated that accordingly, since NDMC is not a land owning agency, it had no option but to fall back upon the Slum Clearance Schemes framed by the Government of India and as adopted by the Slum and JJ Wing of the Municipal Corporation of Delhi.
6. It is additionally pleaded that the location of the slums is within the proximity of the residence of Ministers, Parliamentarians and other persons holding high constitutional and Government position. Threat perception requires the slums to be relocated.
7. How the slum came up has been explained by stating that NDMC constructed dhobi ghats and constructed sheds with asbestos sheets where the dhobis could iron the clothes which they had washed. These dhobis occupied land adjoining the dhobi ghats and constructed jhuggis wherein they started residing with their families. It is denied by NDMC that it charged any money from the petitioners or their ancestors for constructing temporary huts for residence. The license fee and other money charged is explained as having been received for permitting the petitioners and their ancestors to carry on trade from the dhobi ghat and to use the temporary sheds erected by NDMC with asbestos sheets for ironing clothes.
8. Though not pleaded in the counter affidavit, but at the hearing learned Counsel for NDMC produced a resolution passed by the Committee on 6.4.1971 as per which some dhobis from a few dhobi ghats were relocated in tenements constructed for Class-IV employees working with NDMC.
9. Counter affidavit filed by NDMC highlights the following:-
a. Acting under the Slum Relocation Policy of Government of India having cut- off date 31.1.1990 a decision was taken to allot alternative site/plots to those who resided in the jhuggis prior to 31.1.1990.
b. Apart from unhygienic conditions created by the jhuggis, security consideration of the VIPs living in the vicinity was an additional reason to relocate the slum dwellers.
c. Temporary hutments provided were to facilitate the working i.e. ironing of clothes which were washed at the dhobi ghats and were never meant for residential purposes.
d. Ancestors of the petitioners were unauthorised encroachers on government land and thereforee had no right to claim resettlement at the site.
e. Scheme of rehabilitation had to be carried out through coordinated efforts of three agencies, namely NDMC, MCD and DDA.
f. To the extent land was not available with NDMC, to accommodate the excess eligible persons alternative site had to be outside NDMC area and this relocation had to be under the supervision of Slum and JJ Wing, MCD.
g. License granted by the NDMC to the dhobis was to carry on trade.
h. Tenements constructed on Bapu Dham, Chanakya Puri and Moti Bagh were by aid given by Government of India. NDMC had no policy on this issue. Those who were found eligible were resettled at the tenements constructed.
10. During arguments letter No. D/63/DIR(W)/05 dated 3.5.2005 from the Director (Welfare), NDMC was produced which explained how residential accommodation was provided to dhobis at three places and why similar accommodation could not be provided to other dhobis. In a nutshell what was explained was that the tenements allotted to dhobis at Hailey Lane were originally meant for Safai Karamcharis employed by NDMC but under orders of the Lt. Governor were allotted to dhobis. This land was provided by Land DO. FAR at Hailey Lane stands fully exhausted and there is no scope for further construction.
11. Nobody has a right to trespass upon public land. A trespasser cannot create a right in his favor to be allotted an alternative site. However, nothing prevents the State from framing policies beneficial for the down trodden more so in a welfare State. Assuming that at some stage NDMC took a policy decision to relocate within its own areas dhobis who had constructed jhuggis on public land but that would not mean that NDMC cannot change its policy.
12. As noted above, when NDMC took decision to relocate the dhobis within its own area who had illegally set up jhuggis on public land, it envisaged 425 jhuggis to be relocated but actual survey revealed that 780 persons required to be relocated. It is but natural that if NDMC failed to find land within its own area it would look elsewhere. I do not find anything arbitrary in the said decision of NDMC.
13. It is settled law that the State has a right to change its policy from time to time under changing circumstances. Wisdom of policy cannot be judicially scrutinized except on principles of arbitrariness, unreasonableness or malafide.
14. State obligation to provide housing to the poor is not an enforceable right as it would depend upon the resources of the State, and for the decision, the executive has to decide whether money can be spared for housing the poor. In the discharge of public duties, reasonableness of State action has to be considered not from the stand point of interest of an individual but from the stand point of interest of public in general. As observed by their Lordship of the Supreme Court in the decision reported as : 1996(86)ELT3(SC) , P.T.R. Exports (Madras) Pvt. Ltd. v. Union of India and Ors.:
The power to lay policy by executive decision or by legislation includes power to withdraw the same unless in the former case, it is by mala fide exercise of power or the decision or action taken is in abuse of power. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive pollicy or under law. The court leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is a settled law that the court gives a large leeway to the executive and the legislature.
15. Policy decision relied upon by the petitioners is minuted in the meeting held on 2.1.1974 under the chairmanship of the Minister of State for Works and Housing. The same reads as under:-
The representatives of the Dhobies requested that arrangements should be made for accommodating the Dhobies, who were at present staying in Jhuggies, in tenements to be constructed in the NDMC and DMC areas. Shir Gujral mentioned that, so far as the NDMC area was concerned, land should be provided by the Ministry of Works and Housing to the NDMC for building tenements for the Dhobies. Since it would not be possible to solve the accommodation problem of all the Dhobies simultaneously, he suggested that the problem might be tackled in the following order of priority:
a) Dhobies living in Jhuggies on public land and figuring in the list drawn up in 1969 may be provided tenements in the same areas;
b) Dhobies occupying jhuggies on public land but not figuring in the list drawn up in 1969, should not be provided alternative accommodation in the same area but elsewhere as in the case of Jhuggi-Jhonpri Removal Scheme;
c) Dhobies occupying accommodation in out-houses and bungalows etc. should not be covered for some time as the problem in their case was not so acute. Drawing up of a separate scheme for their rehabilitation could be considered at a later stage.
2. Shri Gujral added that for construction of tenements by the NDMC, land should be provided by the Ministry of Works and Housing on certain conditions such as (i) the tenements would be allotted only on rent; (ii) proper arrangements for maintenance would be made; and (iii) the property would continue to be of the Government and the NDMC.
3. It was decided that the President NDMC would settle the list of eligible Dhobies with the Delhi State Dhobi Mahasabha and also liaise with the Ministry of Works and Housing (Land Br) for further processing of the proposal.
4. As regards the Dhobies similarly placed in the area of the Municipal Corporation of Delhi, Shri Tamta clarified that they had neither a scheme for the funds to construct tenements for this category of persons. The question whether the DDA could be entrusted with the work of building the tenements was then considered. Shri Jagmohan stated that the DDA would have no objection to undertake this work on the pattern applicable to the scheme drawn up by the NDMC. Shri Gopalswamy, however, pointed out that the implications of the DDA taking up this work would have to be examined carefully, in the light of the DDA's unhappy experience in the construction of tenements for the East Bengal Refugees as also in the light of the commitments already made by the DDA with regard to housing for the general public.
5. It was decided that the question whether the DDA could undertake the scheme would be examined more closely and steps taken expeditiously to determine the areas to be cleared in consultation with the Delhi Municipal Corporation.
16. It is no doubt true that the decision records that dhobis living in jhuggis on public land whose name figure in the list drawn up in 1969 may be provided tenements in the same area and that those whose names do not figure in the said list be not provided alternative accommodation in the same area, however, I cannot lose sight of the fact that the word used is 'may'. Thus, argument of the learned Counsel for the petitioner that the petitioners have to be relocated in the same area cannot be accepted. Be that as it may, nothing prevents NDMC to change its policy if NDMC is unable to identify land within its own area.
17. The three decisions relied upon by the learned Counsel for the petitioners are of no help. Decision reported as AIR 1994 AP 35, Secunderabad Bunks (KIOSKS) owners Association v. The Commissioner, Municipal Corporation of Hyderabad required the Municipality to frame a scheme for rehabilitating the members of the petitioner association. It was held that if not rehabilitated, members of the petitioner association would be deprived of livelihood. Decision reported as : (1988)2CALLT159(HC) , Manindra Nath Mukherji v. Union of India is also of no help as the petitioners therein were found to be licensees under the Railways in respect of land owned by the Railways. Notice impugned were issued by the State Government. The third decision reported as : AIR1986SC180 , Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors. is also of no help as the said decision also dealt with issue of rehabilitation.
18. It is not the case of the petitioners that they are being rendered roofless. Stand of the respondent is that the petitioners would be offered a plot as per resettlement policy. I do not find any in firmly in the action of the respondent.
19. Writ petition is dismissed but after taking on record the stand of respondent and binding the respondent to the same that before disturbing the possession of the petitioners from the present site, alternative plot would be offered to them as per the slum relocation policy.
20. No costs.