The Delhi High Court has held that the Municipal Corporation cannot usurp land from the owners for the purpose of road widening without acquisition as per law and payment of compensation..The Court has also held that the ownership of land in a colony would not depend on whether the colony is authorized or unauthorized and the owner could not be divested of title merely because the land is in an unauthorized colony..The Judgment was passed by a Single Judge Bench of Justice Anup Jairam Bhambhani in a batch of petitions challenging the Delhi Municipal Corporation’s move to carve-out and take-over a parcel of land owned by the petitioners for the purpose of widening a road without acquiring such land or paying compensation to the owner..The parcels of land were situated in a colony which was initially an ‘unauthorized’ colony but was subsequently regularised under a Regularisation Scheme for Approval of Unauthorised Colonies in Delhi in February 1977 framed by the Ministry of Works & Housing, Government of India..The petitioners then acquired title over their respective plots after regularization through separate sale deeds..Further, it was the admitted position that as per the record before the Additional District Magistrate (Land Acquisition), Delhi, there was no notification for acquisition of the land under section 4 or section 6 of the Land Acquisition Act, 1894..It was thus the petitioner’s grievance that Municipal Corporation was proposing to demolish certain portions of their dwelling houses or otherwise subsume land abutting their dwelling houses, in order to widen one of the roads running through the colony and increase the width of the road from the existing 65 feet to 100 feet..The petitioner argued that a private party could not be divested from its land for vesting it the State without following the applicable law for acquisition of land and paying compensation..Municipal Corporation, on the other hand, contended that municipal law i.e. The Delhi Municipal Corporation Act permitted vesting of land with the State for certain purposes, including for road widening. It further argued that since the colony in which the land is situated was an unauthorized colony that was regularized only in 1977, the rights of the owners were limited by the lay-out plan for the colony which included carving-out of roads of requisite width..Thus, in terms of the plan, the existing 65-foot road, as well as the parts of the road sought to be widened, automatically vested in the Municipal Corporation for being a “public street” by reason of operation of sections 298 and 299 of the DMC Act, it was argued..After hearing the parties, the Court concluded that the road widening could not be an excuse for summary usurpation of private land by a State entity..“..If that be the legal position, then road widening would be an exercise in utter and complete unilateralism, which would not require even informing private parties which own land that may be required for road widening, much less would it be necessary to pay any compensation. Such position, in my view, would be anathema to all tenets of the rule of law, not to mention basic notions of justice and fairness. Road widening cannot be an excuse for summary usurpation of private land by a State entity.”.The Court placed reliance on Supreme Court’s decision in Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd (2007) to emphasize on the right to property as a constitutional right and human right, though not a fundamental right..Rejecting the contentions of “automatic vesting”, the Court stated that although once a street is declared to be a ‘public street’, it shall vest in the corporation but that does not imply that land for building or widening a public street shall automatically vest in the corporation without need for acquiring it..“..dwelling houses, owned by or belonging to the petitioners, to widen the road. A public street vests in the municipal corporation by operation of law ; but the subject land is not part of the public street and therefore does not vest in the Municipal Corporation. Vesting of land in the Municipal Corporation follows such land being part of a public street; vesting does not precede it being so..”.The Court further iterated that a municipality has the power to remove unauthorized encroachment and construction on a public street, even if such encroachment is in the nature of the private property..However, in the present case, it was an admitted position that the land belonged to the petitioners and comprised dwelling houses or abuts dwelling houses with no allegations of already being used as a public pathway or being an unauthorized construction on a public street etc..The Court also took the opportunity to clarify that the issue of the petitioners’ land “vesting in the Municipal Corporation” had nothing to do with them having carried-out any unauthorized construction on such land..“Land belonging to the petitioners cannot vest in the Municipal Corporation merely on account of the petitioners having undertaken unauthorized construction if any, thereupon..”.It thus added that the ownership of the land in a colony would not depend on whether the colony is authorized or unauthorized..“An owner cannot be divested of title merely because the land is situated in an unauthorized colony. The Municipal Corporation cannot usurp land merely because it is situated in an unauthorized colony..”.The Court also rejected the arguments with respect to the automatic vesting of land pursuant to the Regularization. It clarified that in order to regularize structures of an unauthorized colony, it could not be inferred that the land upon which such structures stand, shall automatically vest in the Municipal Corporation without acquisition and without payment of any compensation to the owners..“Once the Regularisation Scheme itself provides that land required for community facilities shall be acquired, then nothing warrants the inference that there is no need for acquiring land required for building or widening roads.. It must be borne in mind that the Regularisation Scheme is a policy document and not a statutory instrument. The Regularisation Scheme must therefore not be interpreted literally or pedantically but in a practical, purposive, just and fair manner so as to be in consonance with the statute, not as a statute..”.As far as the present case was concerned, the Court noted that the lay-out plan prepared for the colony post its regularization was never even prepared and finalised in accordance with the mandate of section 313 of the DMC Act..In view of the above, the Municipal Corporation was restrained from disturbing the peaceful, physical possession of the petitioners over their respective parcels of land..The petitioners were represented by Advocates Ankur Mittal, Karan Setiya. .Senior Advocate Sanjay Poddar with Advocate Pooja Kalra appeared for MCD..Read the Judgement:
