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Delhi High Court Rejects Writ Petition on Rehabilitation Post-Demolition by Delhi Development Authority: Delay and Laches Highlighted

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Delhi High Court Rejects Writ Petition on Rehabilitation Post-Demolition by Delhi Development Authority: Delay and Laches Highlighted

Case title: MD. SHAMIM VS DELHI DEVELOPMENT AUTHORITY (DDA) & ORS.

Case no.: W.P.(C) 3659/2023

Dated on: 22nd   May 2024

Quorum:  Hon’ble MR. JUSTICE DHARMESH SHARMA.

FACTS OF THE CASE

The genesis of the present petition lies in the petitioner’s claim that he is a daily wage labourer and had been residing in T-huts at Block A-70, Jhuggi No.770, Kanchan Puri, Rajghat Power House, New Delhi-02 since decades with his family. The petitioner claims that he has been holding a valid ration card, voter id card and a BPL card on the said address issued by the Government of India. Aiming at the Master Plan of Delhi 2021, the Delhi Development Authority was carrying out surveys since 1998 and areas were demarcated and individuals were identified for rehabilitation and resettlement, which process was completed in 2006, involving relocating the residents in exchange for the demolition of their existing dwellings, subject to the payment of a license fee. As part of this effort, the Petitioner was instructed to vacate the above-mentioned T-Huts for redevelopment and rehabilitation purposes. On 15.04.2006, the DDA issued an “Alternative Allotment cum- Demand Letter” to the petitioner, who claims that subsequent to such offer he demolished his T-huts and submitted the required documents along with an affidavit within the prescribed timeframe as per the letter’s directives and made a payment of Rs. 14,000/- to the respondent No. 1, which was duly acknowledged by them. However, despite receiving an advance license fee, the DDA/respondent No.1, who is the land-owning agency under Government of National Capital Territory of Delhi, failed to fulfil its obligation to rehabilitate and re settle them by providing alternative housing. Delhi Urban Shelter Improvement Board/respondent No. 2 is the nodal agency for relocation/rehabilitation of Jhuggi Jhopri7 Bastis in respect of lands belonging to the NCT of Delhi, who is also the respondent No. 3 herein. Before filing the present writ petition, the petitioner claims that he visited the DDA office multiple times, running pillar to post, but to no avail. He also filed an RTI8 dated 05.02.2015 having office No. RTI/29/LM/EZ/15/91, in reply to which the petitioner received a letter from the DDA, stating that the no plot had been allotted against the said Jhuggi no. and that allotment would be done only to eligible Jhuggi residents by the constituted committee. On 31.03.2015, in response to the RTI application regarding information about the allocation of an alternative plot, the Deputy Director, PIO for Land and Management at DDA declined to provide the information, citing that it falls under the prohibition outlined under Section 11(3) of the RTI Act. It is stated that the petitioner, experiencing housing difficulties, made repeated visits to the respondent’s office in the year 2020, 2021, and 2022, yet did not receive any assistance, and therefore, they resorted to avail the legal remedy due to the inaction of the respondents through the present petition.

 ISSUES

  1. Whether the petition should be dismissed on the grounds of delay and laches, considering that the petitioner waited approximately 17 years to file the writ petition after the cause of action arose in 2006.
  2. Whether the petitioner’s right to shelter, as guaranteed under Article 21 of the Constitution of India, has been violated by the failure of the Delhi Development Authority (DDA) to provide alternative housing after demolishing the petitioner’s T-huts.
  3. Whether the response received by the petitioner under the Right to Information Act (RTI) in 2015 and 2020 has any bearing on the present petition, especially regarding the eligibility and allocation of an alternative plot.
  4. Whether the Delhi Urban Shelter Improvement Board (DUSIB) or the DDA is the appropriate agency responsible for the petitioner’s rehabilitation under the prevailing policies and schemes, including the Pradhan Mantri Awas Yojna (PMAY).
  5. Whether the DDA and other respondents fulfilled their obligations under the Master Plan of Delhi 2021 and relevant rehabilitation policies, particularly in providing alternative housing to the petitioner after the demolition of his dwelling.
  6. Whether the High Court should exercise its discretionary power under Article 226 of the Constitution of India to issue a writ of mandamus or any other appropriate writ in favor of the petitioner, despite the significant delay in filing the petition.

LEGAL PROVISIONS

Article 21 of the Constitution of India: This article guarantees the protection of life and personal liberty. The Supreme Court has interpreted this to include the right to shelter as a fundamental right under the right to life.

Article 226 of the Constitution of India: This article empowers High Courts to issue certain writs, including writs of mandamus, for the enforcement of fundamental rights and for any other purpose. It is a discretionary power that can be exercised in cases of clear injustice, but may be denied in cases of undue delay or laches

CONTENTIONS OF THE APPELLANT

The learned counsel for the petitioner has relied on the judgement passed in the cases Olga Tellis v. Bombay Municipal Corporation and Chameli Singh Vs State of U.P., where the Apex Court has laid down that right to shelter is a fundamental right under the umbrella of Article 21 of the Constitution of India and the said right to life is not a right of mere animal existence. Further, in the case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, Apex Court has held that even poverty-stricken persons on public lands have a fundamental right to housing and laid down that when a slum-dweller has been at a place for some time, it is the duty of the government to make schemes for housing of the jhuggi dwellers.

CONTENTIONS OF THE RESPONDENTS

The learned counsel for the respondent No. 2 has pleaded that though DUSIB has been nominated as the Nodal Agency for the implementation of policy for relocation/ rehabilitation of JJ Basti upon the land belonging to MCD and Delhi Government and its Department/Agencies, as per the Delhi Slum and JJ Rehabilitation and Relocation Policy of 2015 which has now been renamed as “Mukhya Mantri Awas Yojna‟, however the current matter is out of its purview. Further, they have submitted that it is the DDA which is the state level nodal agency for in-situ rehabilitation of slum dwellers in respect of land belonging to Central Governments and its agencies under Pradhan Mantri Awas Yojna- Housing for All (Urban) [PMAY FIFA(U)] in Delhi, as per order issued by urban Development Department, GNCTD dated 20.09.17. The learned counsel for the respondent No.1/ DDA has submitted that the present petition is barred by delay and latches. They argued that the petitioner has been evasive about stating the details about the payment of the license fee and that the cause of action in the present matter, if at all, arose in the year 2006, whereas the petition has been filed after an inexplicable delay of 17 years in 2023. Further, it was submitted by them that on a bare reading of the said letter, it would show that it prescribed a limited license to 12.5 square meter plot to the petitioner, for a period of 5 years only, that to subject to payment of the due license fee, therefore, the terms of the license already stand exhausted. They allege that the petitioner has failed to show payment of any license fee on receipt of the said allotment letter.

 COURT’S ANALYSIS AND JUDGEMENT

The petitioner is invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India for issuance of a writ of Mandamus or any other appropriate writ. I have given my thoughtful consideration to the submissions advanced by the learned counsels for the rival parties. I have also perused the record of the case. At the outset, the instant petition is hopelessly barred, so as to disentitle the petitioner of any relief by virtue of having been filed after inordinate delay and latches. Evidently, the hutment of the petitioner was demolished way back in the year 2006 and the ultimate allotment-cum-demand letter issued by the DDA dated 15.04.2006 merely conferred a limited right upon the petitioner to get licence at some demarcated site for a period of five years only, and that period has since lapsed. Assuming for the sake of convenience, that the petitioner after paying the sum of Rs.14,000/- in terms of the aforesaid offer dated 15.04.2006, evidently, he slept over his rights and did not take any action within a reasonable period of time. It appears that he only woke up sometime in the month of January, 2015 when he chose to file an RTI on 05.02.2015. It is well settled that the writ jurisdiction in terms of Article 226 of the Constitution of India, is a discretionary relief that can be denied on account of delay and latches on the part of the petitioner in approaching the Court. Avoiding the long academic discussion, in a recent decision by the Supreme Court in the case of Mrinmoy Maity v. Chanda Koley, it was reiterated that delay defeats equity and if there is laxity on the part of the petitioner to assert his legal rights thereby allowing the cause of action to drift away, the High Court in exercising writ jurisdiction should not rekindle the lapsed cause of action. In view of the foregoing propositions of law, reverting back to the instant matter, at the cost of repetition, the offer made to the petitioner vide proposal dated 15.04.2006 lapsed long time back and the present petition deserves to be dismissed on account of delay and latches. Accordingly, the instant Writ Petition is hereby dismissed.

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Judgement Reviewed by – HARIRAGHAVA JP

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Difficulty in collating the information is not a ground under RTI Act for refusing information:Delhi High court

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CASE TITTLE: GOVT OF NCT OF DELHI AND ANR. V  MR PRABHJOT SINGH DHILLON

CASE NO: W.P.(C) 6034/2024 & CM APPL. 25029/2024

ORDER ON: 02nd MAY, 2024

QUORUM:  JUSTICE SUBRAMONIUM PRASAD

FACTS OF THE CASE:

The present petition challenges the Order dated 06.11.2023, passed by the Central Information Commission (“the CIC”).

The facts, in brief, leading to the present Writ Petition is that, the Respondent herein filed an RTI application seeing information as to in how many cases the Aided School Branch, Department of Education has taken action against the teachers for taking private tuitions in the State of Delhi. Later the Department of Education transferred the application to the concerned Public Information Officers (PIOs) of all districts.As the information was not been given to him within the stipulated time, the Respondent filed a first appeal before the Appellate Authority, but was disposed of, A second appeal was filed by the Respondent which was disposed of , with a direction to the PIOs to seek clarification from the Respondent about the information and the specific time period for which the information is sought, later On 09.06.2023, the Respondent wrote a letter to the PIO (ASB) stating that the Respondent requires 10 years information but, the Respondent sought information only for five years, Since no action was taken, proceedings under Section 18 read with Section 20 of the Right to Information Act, 2005 was initiated by the Respondent. On 06.11.2023, the CIC has passed the impugned Order directing the PIO of the Aided School Branch to provide the relevant information to the Respondent within 60 days from the date of the said Order. Aggrieved by the said Order, the Petitioner has approached this Court.

LEGAL PROVISIONS:

Section 18 of the Right to Information Act, 2005: talks about the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person,.

Sec 20 of the right to Information Act,2005: talks about penalties

CONTENTIONS OF THE PETITIONERS:

 The Petitioner through their legal counsel submitted that the Department of Education has no control over unaided Schools and, therefore, it cannot provide for the information regarding action taken by the unaided Schools against their teachers for taking private tuitions. The counsel  further submitted  that there is no direction from the Vigilance Department of the Department of Education to maintain a list of cases of misconduct.the counsel  also placed reliance on a Circular dated 01.11.2017 by which an application made under the RTI Act cannot be sent to private unaided schools as they are not public authorities amenable to the RTI Act. The counsel further states that since private schools are not under the RTI Act, the Respondent cannot seek for any information regarding unaided private schools.

CONTENTIONS OF THE RESPONDENT:

The respondent through their learned Counsel submitted that under the Delhi School Education Rules, 1973, if a private school intends to take major penalty against a teacher then it must be authorization from the Department of Education and, therefore, the counsel contended that it cannot be said that the Department of Education does not have the requisite information.

COURTS ANALYSIS AND JUDGEMENT:

The court on hearing both the parties, opined that A Public Authority cannot take a stand that, the information is not available in one place and it will take a long time to collate the same, therefore, the information cannot be provided under the RTI Act.the court further observed the Rules of the Delhi School Education Rules, 1973, which stipulates that if a School intends to take a major penalty against a teacher then the approval of the Director of Education is necessary and without such approval any action of major penalty cannot be imposed on the teacher. Therefore, the court opined that, information related to teachers of private unaided schools can be collated from the records of major punishment imposed by such schools. Therefore, the court considered that, the Petitioner must have the information regarding the penalty taken against a teacher for taking private tuition in both Government and private schools. hence, the court opined that, Efforts have to be made by the Department to collate the information and then give it to the Respondent. The court further opined that the object of the RTI Act is to ensure transparency in the functioning of the Departments and this cannot stop by the State Government on the ground that voluminous information is being sought and, therefore, the information cannot be provided. The Government also cannot deny information on the grounds that it will take time to collate the information.

 From all of the above analysis and considerations , the Court dismissed the present Writ Petition with a direction to the Petitioner to provide the information sought by the Respondent in respect of both Government and aided schools and in respect of private schools, the Petitioner is directed to provide information of all such cases where major penalty has been imposed on the teacher for taking private tuitions.

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judgement reviewed by SOWMYA.R

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STRIKING THE BALANCE: UPHOLDING EDUCATIONAL RIGHTS AMIDST ADMISSION CHALLENGES AND REGULATORY HURDLES – BOMBAY HIGH COURT

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INTRODUCTION:

The High Court of Bombay passed a judgement on 18 April 2023. In the case of SHRI KRISH RAJENDRA CHORDIYA Vs THE STATE OF MAHARASHTRA THR ITS MINISTRY OF SCHOOL EDUCATION AND ORS IN CRIMINAL REVISION APPLICATION NO. 131 OF 2022 which was passed by a division bench comprising of HONOURABLE SHRI JUSTICE G.S. PATEL and DR. NEELA KEDAR GOKHALE. Education is a fundamental right that paves the way for a bright future. However, there are times when students find themselves entangled in complex situations that threaten their educational journey.

FACTS OF THE CASE:

The petitioner, a diligent 17-year-old student, had successfully completed his 10th standard examination under the ICSE Board. Due to the COVID-19 pandemic and subsequent lockdown, he was unable to immediately enroll in a college. During this period, he took the initiative to develop a digital app related to COVID-19 tracking, showcasing his technical and scientific abilities.

Later, when the petitioner sought admission to a junior college for the 11th and 12th standard Science stream, he applied to the 5th Respondent college, as it was closer to his residence. The petitioner and his father followed the college’s instructions, filled in the online application form, and indicated their choice as the 5th Respondent college. Subsequently, the petitioner received an allotment letter from the Deputy Director of Education, confirming his seat in the Science stream of the 5th Respondent college.

The petitioner successfully completed his 11th standard, performed exceptionally well in examinations, and even secured provisional admission to prestigious engineering and technical colleges through competitive entrance exams. However, to his utter dismay, just before the HSC examination, the 5th Respondent college informed him that his admission had been cancelled by an order from the 4th Respondent, the Maharashtra State Board of Secondary and Higher Education.

LAWS INVOLVED:

Several crucial laws come into play in this case:

  1. Maharashtra Secondary and Higher Secondary Boards Act, 1965: This act establishes the framework for secondary and higher secondary education in Maharashtra, including the powers and functions of the state boards and admission regulations for junior colleges.
  2. Regulation 16 of the Maharashtra State Board: This regulation stipulates the eligibility criteria for admission to the Science stream in junior colleges. It requires candidates to secure a minimum of 40% marks in science subjects in the SSC examination or its equivalent.
  3. Right to Education Act, 2009: While not directly applicable in this case, this legislation emphasizes the importance of providing equal educational opportunities and safeguarding the rights of students.
  4. The principle of natural justice: This principle, derived from common law, ensures fair treatment and procedural fairness in administrative and judicial proceedings. It requires that individuals be given an opportunity to be heard and to present their case before any adverse decisions are made.
  5. Constitutional rights: The Indian Constitution guarantees certain fundamental rights, including the right to education (Article 21A) and the right to equality (Article 14). These rights play a significant role in shaping educational policies and ensuring that students are not arbitrarily denied admission or subjected to unfair treatment.

ANALYSIS:

Examining the facts of the case and the relevant laws, it becomes evident that the petitioner’s situation raises compelling questions. The 4th Respondent argues that the petitioner is ineligible for admission, citing the applicable regulations. However, it is crucial to consider the coordination and responsibility of both the 4th and 5th Respondents in informing the petitioner of his ineligibility before granting him admission.

Furthermore, the petitioner’s exceptional academic performance, completion of 11th and 12th standards, and success in competitive entrance exams highlight his commitment and aptitude for studying Science. The rigidity and tardiness of the 4th Respondent’s approach appear incongruent with the evolving National Education Policy, which emphasizes flexible learning options and nurturing individual potential.

The principle of natural justice demands that students be given a fair opportunity to present their case. Additionally, constitutional rights, such as the right to education and equality, serve as guiding principles in shaping educational policies and safeguarding students from arbitrary denials and unfair treatment.

JUDGMENT:

Considering the facts, laws, and principles at hand, the court could not disregard the petitioner’s plight. Recognizing the petitioner’s exemplary performance, the court found no plausible reason to exclude him completely from pursuing Science education. The court held that cancelling the petitioner’s admission on the eve of his HSC examination would be a grave injustice.

The court directed the 4th Respondent to reconsider the petitioner’s case, considering his academic achievements, provisional admission to prestigious institutions, and the paramount importance of his educational rights. The court emphasized the need for a fair and expeditious resolution to ensure that the petitioner’s prospects were not unduly jeopardized.

CONCLUSION:

The case highlights the crucial role of laws, regulations, and principles in safeguarding students’ educational rights. It underlines the need for educational institutions and regulatory bodies to balance regulations with flexibility, fairness, and consideration of individual circumstances. Upholding the petitioner’s right to education paves the way for a more inclusive and progressive educational system, where every student’s potential can be nurtured, regardless of procedural intricacies.

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JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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A Public information officer is not liable to disclose personal information if it warrants a clear breach of privacy of the individual: Gujarat High Court

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High Court Of Gujarat vs Gujarat Information Commission on 17 January, 2023

Bench: Honourable Justice Biren Vaishnav

R/SPECIAL CIVIL APPLICATION NO. 18152 of 2016

FACTS

The respondent no: 2 who is a Judicial Officer submitted an application seeking information in reference to

  • Details of Home town, place of practice, personal data form, relation with any Judicial Officer/Advocate
  • Decisions of Hon’ble High Court of Gujarat on the representations for transfer submitted by the judicial officers of his batch
  • Certified copy of representations for transfer submitted by the judicial officers of his batch

Among other things.

The application along with the money order was received by the Public Information Officer. Thereafter, the Public Information Officer initiated a correspondence with the concerned department for collecting the information as sought for by the respondent that involved a considerable time. He provided all the information requested by respondent no: 2 except the above mentioned information sought by the respondent. Aggrieved by the action of the Public Information Officer, the respondent filed First Appeal No.37 of  2014  on  11.04.2014 before the Appellate Authority. He contended  that information with regard to certain items viz. items had not been provided. On hearing the parties, the Public Information Officer addressed a reply to the respondent providing the details of the information sought by him. In reference to some of the points for which the information was not provided, the public information officer stated that the information was highly personal and hence he could not provide it.

The Appellate Authority after examining the case rejected the appeal of the respondent. While rejecting  the appeal the Appellate Authority observed that since some of the information was personal in nature, it could not be provided

Aggrieved by the order of the First Appellate Authority, the respondent no: 2 filed an appeal before the respondent no.1. By the impugned order dated  23.06.2014, the Appellate Authority has passed a judgement directing  the Public Information Officer to provide the remaining information available to the respondent no.2 within 15 days from the receipt of the order. It is on this ground that the petition has been filed.

The advocate for the petitioner submitted that the Information Commission could not direct the respondent to  provide the information which it itself could not provide as it pertained to third party and in view of the embargo imposed in Section 8(1)(j) of the Act, it was rightly not provided. Section 8(1) (j) of the RTI Act, 2005 encapsulates that information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual, unless the CPIO or SPIO or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information should be exempted from disclosure

Judgement

The Gujarat High Court after considering representation from both the parties held that the above mentioned information sought by respondent no: 2 was evidently personal and the appellate authority rightly rejected such information under section 8(1)(j) of the RTI Act.

The Honourable judge also held that any information between the employer and employee solely governed by the service rules and falls within the ambit of ‘personal information’ and the disclosure of which would cause unwarranted intrusion of privacy need not be disclosed.

The Court held that since the above mentioned information is highly personal and warrants a clear breach of privacy, it is not liable to be disclosed.

JUDGEMENT REVIEWED BY AMIT ARAVIND

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The purpose of the Right to Information Act of 2005 is to facilitate the free flow of information: Gujarat High Court orders the commissioner of police to make the rules established by Section 33 of the Gujarat Police Act, 1951, public.

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Swati Rajiv Goswami vs Commissioner Of Police, … on 17 January, 2023

Bench: Honourable Justice Biren Vaishnav

R/SPECIAL CIVIL APPLICATION NO. 11826 of 2020

Facts

The petitioner asked for permission to peacefully protest the Citizenship Amendment Act of 2019, but the police inspector turned it down. The petitioner requested information from the Commissioner of Police (the “Respondent”) regarding the rules established under Section 33(1)(o) of the Gujarat Police Act, 1951 (the “Act”), which were used to process the petitioner’s permission. The information request was turned down. Later, the petitioner filed this Article 226 of the Indian Constitution petition in an effort to have the respondent’s rules made public under Section 33 of the Act.

The counsel of the petitioner contended that not publishing the rules and orders framed under Section 33(1) of the Act are in violation of Section 33(6) of the Act as well as Section 4 of the Right to Information Act, 2005 (“RTI Act”). Section 4 imposes an obligation on a public authority to maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act

Rules made in accordance with Section 33(1) of the Act must be published in the local gazette and in the affected locality, according to Section 33(6) of the Act. The public authority is required by Section 4(1)(b) of the RTI Act to proactively publish 17 types of information, including the decision-making process it used, the standards it set for performing its duties, and the rules and regulations it controls or that its employees used to perform their duties.

Judgement

The Court noted that “Reading the preamble of the RTI Act, indicates that the Constitution of India has established a democratic republic. Democracy requires an informed citizenry and transparency of information which are vital to its functioning and to contain corruption and to hold Government and their instrumentalities accountable to the governed. There must be a harmonization of conflicting interest while preserving the paramountcy of the democratic ideal, in as much as, when revelation of information in actual practice is likely to conflict with other public interest including efficient operations of the government, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information certain information sought for by the citizen who desire to have it must be provided.”

The petitioner is entitled to know the rules established under Section 33 of the Act and to know the grounds upon which the petitioner was denied permission, the Court found, and the respondent is legally required to publish the information provided in Section 4 of the RTI Act. Since the petitioner will be unable to challenge the permit without this knowledge, it would be a blatant violation of his fundamental right and a statutory right to know and access the law of the land that she infringed.

The Court also stated that the petitioner is entitled to a writ of mandamus for a directive to seek such information, particularly the rules framed under Section 33 of the Act, especially when doing so will help what is obviously the purpose of the RTI Act, i.e., to receive information so as to know what is the procedure followed in the decision-making process and the rules and regulations empowering such decision-making process.

Hence, the Court allowed the petition and directed respondent to publish all the rules and orders framed under Section 33 of the Act on the website.

JUDGEMENT REVIEWED BY AMIT ARAVIND

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