JUDGMENT S.K. Mahajan, J.
(1) The plaintiff Society, engaged in educational activities, is running a school in the premises at C-258, Vikas Puri, New Delhi-110 018. Delhi Development Authority [in short referred to as the "Authority"] had formulated a scheme for allotment of Nazul land for different purposes including for schools and the plaintiff consequently applied for allotment of a plot of land for establishing a nursery school in the area. In March, 1994 the Authority on perpetual lease hold basis allotted a plot of land admeasuring 800 sq.mtrs. to the plaintiff Society for running a nursery school. As per requirement of the Authority, a sum of Rs.9,ll,787.00 was deposited by the Society and it requested for possession of land. After actual measurement at site, the plot of land came to be of 822.9 sq.mtrs. and an additional sum of Rs.26,100.00 was thereafter deposited on May 17, 1994 by the plaintiff Society. Possession of the plot is stated to have been handed over to the Society on May 20, 1994. It is stated that ever since handing over possession, the plaintiff Society is in actual physical possession of the plot in question, It is alleged that on July 6, 1994 when the Society was in the process of fencing the plot so as to prevent any unauthorised encroachment and threat to its possession, defendants 2 to 6 along with some other persons claiming to be the members of the Association of the Residents of the colony, threatened the workers of the Society and did not allow it to carry out its work of fencing the plot. The user of the plot is stated to have been specified as a nursery school and was allegedly earmarked for being used for the purpose of construction of a nursery school building in the master plan and the zonal development plan of the area. The present suit was, therefore, filed to restrain defendants 2 to 6 from in any manner interfering with the rights of the Society in the peaceful use, occupation, possession and enjoyment of the aforesaid plot of land.
(2) The case of defendants 2 to 6 in the written statement is that under the approved zonal plan of the area, the park in question is not at all meant for running a nursery school and any action of defendant No.7 to convert the user of the park into a nursery school will be illegal and contrary to the zonal plan. Mr.S.N.Kumar, Sr.Advocate, appearing on behalf of defendants 2 to 6 in support of his case, placed reliance upon the judgment reported as Dr.G.N.Khajuria VS.DDA, 1995 (5) Scale 172.
(3) In Dr.G.N.Khajuria Vs.DDA, 1995 (5) Scale 172, it was held that the land which was allotted to the school in that case was part of a park and it was not open to Delhi Development Authority to carve out any space meant for park for a nursery school. The allotment in favour of respondent No.2 was, therefore, held to be mis-use of park and the said allotment was cancelled. It was further observed by the Supreme Court that in the zonal plan land user for nursery school may not be indicated as a distinction was permissible to be made between the high school and the primary school on the one hand and nursery school on the other. Even so the Court was of the firm view that any lay out plan for residential colony like that of Sarita Vihar has to indicate space reserved not only for nursery school but for park and that followed from what had been stated in Sections 8(2)(a) and 8(2)(d)(ii) of the Delhi Development Act and Rule 4(3)(g) of the rules. The Court also observed that in the lay out plan of Sarita Vihar which is put on record, they did not find mention about reservation of space for the park which was simply inconceivable to the Court. It was on these facts that the Court had held that they had no doubt that at the site at which the school was allowed to be opened, was a park which was apparent from the report submitted by the Director (Monitoring) to the Vice-Chairman of Delhi Development Authority pursuant to his order dated 26th October, 1992 based on a reference being made to him by the Chief Secretary on 23rd October, 1992. The report had categorically mentioned that in the original lay out plan there was no provision for a nursery school in the park in question. Subsequently, however, some portion of the parks was carved out for the nursery school. That such a park existed was sought to be proved by producing certain photographs as well, one of which contained a sign board mentioning about Dda park.
(4) It was .in these circumstances that the Court held that the land which was allotted to the Society for running a school was part of the park and it was not open to Dda to car OBt any space meant for park for a nursery school and that the allotment in favour of the Society was mis-use of power for reasons which need not be adverted to and the Court, therefore, directed the cancellation of the allotment in favour of the Society.
(5) Authority in this case has filed an affidavit of its Additional Commissioner (Area Planning) slating that the site in question was earmarked for a nursery school and was temporarily converted into a park in 1986. It will be useful to reproduce the affidavit of the Additional Commissioner (Area Planning), as under :- "It would be appropriate to explain here the background in which the site in question was temporarily converted into a 'park' in 1986. It may be explained that there were a large number of unallotted nursery school sites, many of which, were prone to encroachment. After detailed discussions on the use of surplus nursery school sites in Vikaspuri Residential Scheme and the pros and cons on various points, it was decided, that to protect the sites from encroachments, out of 37 nursery school sites in Vikaspuri 12 would be converted into parks/tot-lots. The same was to be only a temporary arrangement to protect immediate encroachment of the said sites by protecting the sites in question by fencing and planting of some plants with the help of the Horticulture department of the Dda, This would not only help to prevent encroachment but also keep the area clean and green. The said proposal was submitted for the approval of the competent authority in pursuance of the above decision taken in the meeting held with the Vice Chairman Dda on 21.10.1986 and the approval for modification of the lay-out plan of 12 Nursery schools sites into parks was given by the Vice-Chairman, Dda on 13.12.1986. The said approval of the Dda was then recorded on the lay-out plan of Vikaspuri. That it is very pertinent to note that it was only the lay-out plan which was modified temporarily in pursuance of the above decision of the Vice-Chairman, Dda and not the Zonal Plan. The land use of the said sites neither was nor has been changed in the Zonal Plan/ Master Plan and still remains the same i.e. for a nursery school. That in view of the aforesaid explanation it is clear that the conversion of the 12 nursery school sites in Vikaspuri including the site allotted to the plaintiff society into park was only a temporary measure to avoid encroachments on the said plots. The land use of the said plots remains for a nursery school and as soon as the same could be allotted for the use for which they were meant i.e. nursery school allotment was made by the competent authority. Thus it is clear that the land in question was allotted to the plaintiff society validly by the DDA. The site in question is earmarked for a nursery school and the plaintiff society is entitled to proceed with the construction of the school building."
(6) Pursuant to the directions, of the Court, another affidavit was filed by the Authority on 6th December, 1995. Along with the affidavit, the zonal plan of the area was also filed by the Authority. The relevant portion of this affidavit of the Authority is as under:- "It may be explained that as per the Master Plan of Delhi there is no provision for specifically showing nursery school sites in the Zonal Plan. The details of the requirements that have to be shown in the Zonal Plan are annexed hereto as Annexure A-l. A perusal of the same would show that no separate head of Nursery School is shown in the Zonal Plan. The Nursery school sites are showing under the head "Residential" in the Zonal Plan. Depending upon the no. of families/population certain basic features have to be provided for in a residential area. A copy of a chart showing the same is annexed hereto as Annexure A-2. It would be seen from the chart that for a population of 5,000 with the number of families as 1000 there is a requirement of providing two nursery school sites and so on. It is only in the lay out plan that the nursery school sites are specifically shown. In the instant case also, the nursery school site in question is shown under the head of 'Residential' under the Zonal Plan. The specific site is marked in red therein. It is in the lay out plan that the site was specifically shown as a nursery school. However, as already explained in the Additional Affidavit filed by Dda in May, 1995 the site in question was temporarily converted into a 'park' in 1986 by an amendment in the lay out plan to prevent the unallotted nursery school sites from being encroached. The said amendment was carried out with the approval of the Vice-Chairman who is the competent authority to carry out a modification in the lay out plan. A copy of the resolution empowering the Vice-Chairman to carry out the modification is annexed hereto as Annexure A-3. The land use of the said plots remains for a nursery school in the lay-out plan and the conversion was only a temporarily measure to avoid encroachment. As soon as the site could be allotted for the use for which it was meant i.e. nursery school, the allotment was made by the competent authority to the plaintiff society. It is important to note that the land use of the site in question neither was, nor has been, changed in the Zonal Plan and still remains the same i.e. under the broad head of 'Residential' under the Zonal Plan and more specifically for a 'Nursery School' in the lay-out plan. That it would thus clear that there has been no irregularity in the allotment made by the Dda to the plaintiff society which is an absolutely valid allotment."
(7) The only point for consideration, therefore, is whether in the original lay out plan of the area of the colony, the plot in question was shown as a site reserved for nursery school and what is the effect of the said site having been converted into a park in 1986 and whether such conversion was only temporary or could the Authority reconvert the same into a site for nursery school and allot it to the plaintiff.
(8) The stand of the Authority is that the site for nursery school was temporarily converted into a park to protect immediate encroachment of the sites by protecting the same by fencing and planting of plants with the help of the Horticulture Department of the Delhi Development Authority and that the proposal to temporarily convert the said site into park was approved by the Lt.Governor and there was no impediment in the Authority allotting the same to the plaintiff society for the purposes of running a nursery school.
(9) The defendants, however, have filed an affidavit indicating that in the block where the site has been allotted to the plaintiff society for running a nursery school, there were already two schools namely Kamal Public School and New Delhi Public School covering about 1000 sq.yds. and 3000 sq.yds. respectively and both the said schools were having nursery classes. The total number of plots in 'A' Block, according to defendant No. 1, were 370 which were presently accommodating 486 families. As per the Master Plan, taking the norms of five members per family, the total number of residents will be around 2430. The contention of the defendant, therefore, is that even as per the criteria laid down in the Master Plan, there was no need of establishing another public school when two are already being run in the block.
(10) The Authority has brought in the court the original files showing as to how the site for nursery school was initially converted into a park and how it was allotted to the plaintiff society. A perusal of the File shows that in July 1986, the proposal was put up for change of land use from 'institutional' to 'residential' on the vacant land in Vikas Puri, Bodela, Delhi. There were initially 37 sites earmarked for nursery schools in Vikas Puri, New Delhi. It was brought to the notice of the Vice Chairman of the Authority that a number of nursery school sites were remaining unallotted and as per the standard of draft of Master Plan for Delhi 2001, a standard of six sites for 15000 population each were provided. It was also brought to the notice of the Vice Chairman that there was problem of unauthorised encroachment on the said sites. The matter was considered by the Authority and in a meeting held on 21st October 1986, the following resolution was passed:- "Out of the total nursery school sites, which are at the rate of one for each 1500 population, l/3rd sites may be used for the purpose of public and semipublic facilities namely police post, dispensary, milk booth, community hall, Barat Ghar, electric sub-station etc. Decision of the resolution was sent to the Ministry of Urban Development who instructed that the decision about reduction of sites by l/3rd may be taken along with PDP-2001. In the modified Draft Master Plan, it has been established that an area of 11 sq.mtr. per person is required for public and semi-public facilities (along with parks, playgrounds, open spaces) against sliding scale of provision of area for these facilities given in the Master Plan-1962. It was clarified in the meeting that whatsoever reduction in number and area in nursery school has to be there, has to be utilised for the provision of public and semi-public facilities and not for the purpose of residential use. The view of the engineers is also very much correct that many of these sites are being encroached upon and there are hardly few takers. As in case of Vikas Puri only one site of nursery school has been constructed upon. Director (PPW) explained that as per 1981 census, only 15000 people were living in Vikas Puri against 50,000 now and holding capacity of 1,06,000. So, ultimately all these facilities will be required. After discussions, pros and cons on various points, following decisions were taken for sites in Vikas Puri, to take this as a test case. 1) Out of 37 sites of nursery schools in Vikas Puri, 12 will be converted into parks/totols after distributing them uniformally taking into consider- ation density, location etc. These sites will be properly fenced (if not only done) and for this necessary action will be taken by Engineering Department, Director (Horticulture). Action to be taken: i) Within 2 months - Chief Engineer(West) ii) Within 2 months - Director(Horticulture) iii) Within 3 days - Director (City Pig.) 2) Balance 25 sites will be disposed of by Commissioner (Lands) after inviting applications through newspapers by giving details of the system and conditions of allotment namely registration of the society, financial position, recommendation by Directorate of Education etc. and other details of zoning regulations etc. will also see if some earlier pending cases of allotment of land to nursery schools in this colony are pending, then those may be taken on priority basis.
(11) The said decision was thereafter sent for approval to the Vice Chairman, D.D.A. for modification in the plan so that the same could be incorporated in the plan and issued to the various concerned agencies. The Vice Chairman approved the modification of the layout plan on 24th December 1986 and instructed the Authority to take steps to get compliance report for conversion of 12 sites to park and let the Director (Horticulture) be informed and given details to carry out works and maintain them.
(12) In 1988, a decision appears to have been taken by the Authority to allot certain sites for running schools and pursuant to the same, the plaintiff society applied for allotment of a plot of land for setting up a nursery school in 'A' Block, Vikas Puri, New Delhi. The case of the plaintiff society was considered by the Institutional Allotment Committee of the Authority which in its meetings held on 6th December 1988 and 21st April 1989 recommended the allotment of the site in Vikas Puri to the plaintiff society. This allotment was Finally approved by the Lt.Governor on or about 25th April 1989. After completing the necessary formalities of payment for the land and demarcation at site, possession of the land was handed over to the plaintiff society on 20th May 1994.
(13) While, in the first instance, when a decision was taken to change the layout plan of the area, prior approval of the Vice Chairman was taken, for re-converting the sites from parks to nursery schools so as to modify the layout plan, which was changed in 1986, no permission has been given. From the file, I find that it was not even brought to the notice of either the Vice Chairman or to any other officer of the Delhi Development Authority that the land which was being allotted to the plaintiff society had been already earmarked as a park in the layout plan of the area. There is no note whatsoever on the file which could indicate that the Authority had at any time taken a decision to modify the layout plan so as to re-convert the said sites from parks to nursery schools.
(14) As held by the Supreme Court in Dr.G.N.Khajuria Vs. Delhi Development Authority and others, 1995 (5) Scale 172, it will not be permissible for the Authority to allot the land which has been earmarked for a park in the layout plan to a school.
(15) The contention of Mr.Rohtagi is that once the Authority including the Vice Chairman and the Lt.Governor had decided to allot the site to the plaintiff society for the purpose of running a school, there is implied sanction for modification of the layout plan. There might have been force in the contention of Mr.Rohtagi in cage it had been brought to the notice of the Authority or the Vice Chairman that the land which was being allotted to the plaintiff society had been earmarked for a park in the layout plan and even then the Vice Chairman had decided to allot the same to the plaintiff society.
(16) I am unable to make myself agreeable to the contention of Mr.Rohtagi as a perusal of the file of the Authority shows that at no point of time, any decision was taken to modify the layout plan or the area so as to convert the site for the park to that for a nursery school. Prima facie, therefore, I am of the opinion that without change of the layout plan of the area, it was not open to the Authority to allot the site to the plaintiff society for running a nursery school.
(17) The Authority may not have to go into the detailed exercise for modification of a layout plan as it is required to do in the case of modification of Zonal Plan or the Master Plan. However, there has to be something on the record to show that the Authority had modified the layout plan. From the file of the Authority, it is evident that after the decision which had been taken in 1986 for conversion of the site from nursery school to park, the Authority had, in fact, taken steps to convert the same into a park. A boundary wall had been earmarked and even the eucalyptus trees had been planted in the said park. As the site was being used as a park since 1986, it is unconceivable as to how the same could have been allotted for running a nursery school without the authorities taking steps to modify the layout plan.
(18) From the file, I also find that the plaintiff society was aware of this dilemma and it had approached the Authority to allot it an alternative site which request of the Society appears to be still pending with the Authority and no final decision has been taken thereon.
(19) For the above seasons, I am prima facie of the view that the site in question could not have been allotted to the plaintiff society for running a nursery school and consequently the plaintiff is not entitled to any relief in the application. The application of the plaintiff is, therefore, dismissed leaving the parties to bear their own costs.