JUDGMENT Devinder Gupta, J.
(1) PETITIONER'S grievance is that in an area earmarked as a park, godown has been constructed by respondent No.l by destroying all kinds of trees, bushes, plants etc. and consequently a direction is sought against D.D.A. for maintaining the same as Park. The area has been described as an area namely Khasra No-211/200/17, Jhandewalan Revenue Estate located near the Crossing of Faiz Road, Near Rohtak Road shown in the site plan as godown.
(2) On behalf of the D.D.A., reply was filed on the affidavit of N.K. Aggarwal, Director (Planning), D.D.A. wherein it is stated that land in question forms part of Khasra No.211/200/17Min. of Jhandewalan Revenue Estate, New Delhi. As per the Master Plan Development-2001 (Special Area Plan) and Draft Zonal Plan of Zone- A (other than walled city) as approved by the Authority for inviting objection/ suggestions (not yetpublished), the site in question forms part of the District Park. As per the Master Plan Development 2001 godown is not permissible in the District Park. It was placed at the disposal of Delhi Development Authority by virtue of Nuzul agreement. Since the land is under the control and management of the Delhi Development Authority, the Delhi Development Authority is within its right to protect the land.
(3) An additional affidavit was filed on 26th July, 1995 in which also it was stated that as per' the Master Development Plan, 2001 (Special area plan) and Draft Zonal Plan of Zone-A (other than walled city), approved by the Authority, the site in question forms part of the District Park and as per the Master Plan godown is not permissible in the District Park. It is also stated that Zonal Plan of Zone-A (other than walled city) has now been published as on 1.4.1995, for inviting objection/suggestions from the public.
(4) RESPONDENT-M-C.D. in its reply filed on 3rd July, 1995 on the affidavit of S.K. Jain, Executive Engineer stated that godown is in existence for the last ten years. In a subsequent affidavit I.M. Arora, Executive Engineer Iii, dated 24.11.1995 stated that the said godown comes within the road widening scheme of the Zonal Master Plan, which was sanctioned Hide Drawing No.DCP/TT/B-l/82/P-15-MCD. It is stated that the said godown will be removed at the time of widening of the road. It is also stated that the existence of the godown will be helpful at the time of widening of the road otherwise a fresh godown will have to be constructed at the tune of widening the road, which will be an extra expenditure of the public fund. The affidavit further says that the existence of godown is not fusing any hindrance. Municipal Corporation of Delhi is maintaining 20 parks. Incase godown is ordered to be removed similar godown will have to be constructed for maintaining other parks.
(5) Having considered the facts and circumstances of the case, we are of the view that the stand taken by respondent, M.C.D., in the light of the stand taken by the D.D.A., is not at all justified that it is entitled to continue having its godown in a public park. When an area has been earmarked for a public park, it will not be permissible for any authority to change its user and to use it as a godown. The mere fact that from the godown other parks are being maintained also cannot be an excuse in permitting the M.C.D. to continue using the park for the purpose of godown. In case the Master Zonal Plan has earmarked the area to be maintained as park and respondent No.l also states that it is its responsibility to maintain the park, the same has to be maintained as such. Reference may be made to the decision of the Supreme Court in Bangalore Medical Trust v. S. Muddappa and Others, . While considering the provisions of Bangalore Development Act, 1976, the Court held that to carry out the purposes of the Act, development scheme was framed by Improve- ment Trust, which was adopted by the Development Authority. Any alteration in this scheme could have been made, as provided in the Act, only if it resulted in any improvement in any part of the scheme. Otherwise no deviation could be made therein and it was not permissible for any one to make changes therein.
(6) In the instant case, D.D.A. has taken a specific stand, which is also fortified by the stand taken by M.C.D. that the area is earmarked for a park. In case an area has been earmarked for District Park, in which it is not permissible to have a godown, there is no reason why the park should not be maintained and godown removed from the area. The fact that at a later date, as and when widening of the road will take place, there will be necessity to have a godown, also can be no ground to permit Municipal Corporation of Delhi in continuing the godown at the site.
(7) Consequently, the writ petition is allowed. The M.C.D. is directed to make alternate arrangement for its godown, which should be removed from the area in question within a period of six months from today. On removal of the godown within this period D.D.A. will maintain the same as per the user specified in the Development and Zonal plans.