ORDER Arun Kumar, J.
1. Civil Writ Petition No. 6666 of 1999 has been filed by BU-Block Residents Welfare Association and 18 other residents by way of Public Interest Litigation.
2. There is a plot measuring 2.5 acres (approx.) located in BU/CU Block Pitampura, New Delhi (hereinafter referred to as the disputed plot, for short). This plot has been allotted to respondent no.8, namely Akhil Bhartiya Samajodhan Samiti for purposes of running a school. The petitioners have challenged the allotment of this disputed land to respondent no.8 by the Delhi Development Authority (hereinafter referred to as DDA, for short) primarily on the ground that as per the Zonal Development Plan (hereinafter referred to as ZDP, for short), the disputed land falls under the "Recreational Zone" namely, "Neighborhood Park/Green Belt". Civil Writ Petition No. 5862 of 1999 is filed by CU-Block Residents' Welfare Association praying for identical relief. Accordingly, both these writ petitions were heard together and are being disposed of by common judgment.
3. Factual background which led to the allotment of the aforesaid disputed land to respondent no.8 is substantially undisputed and may be narrated at this stage. As per the lay out Plan of the area in question, as it existed in the year 1995, two higher secondary schools (hereinafter referred to as HSS, for short) and one primary school were earmarked in the plan and the land was to be allotted for this purpose. Land was allotted to Shree Agarwal Dharamshala Trust near DU-Block, Pitampura. Since, DU-Block site for the said HSS already contained a large number of grown-up fruit trees and other trees, objections were raised by the Horticulture Department of DDA not to allot the said site for school purposes as it would result in cutting of 169 grown up trees. In view of these objections raised by Horticulture Department of the DDA, the matter was considered by the Vice Chairman, DDA who deputed concerned officers to inspect the site and submit their report. After receiving the report, Vice Chairman, DDA felt it necessary to replan the entire area and provide alternative site for HSS. A decision was taken to the effect that an adjustment plan should be prepared. Based upon physical survey, an adjustment plan was prepared. It was decided to retain the area where there were grown up trees as green area and not to cut the trees and instead an alternative site was earmarked for allotment to HSS which was originally earmarked for "Neighborhood park/green belt" and it was ultimately this site (i.e. the disputed site) which has been allotted to respondent no.8. Thus there is a swapping of the two sites. The site which was originally meant for "Neighborhood park/green belt" was allocated for the purpose of HSS and the site which was originally meant for school was allocated for the purpose of green belt. This change in the lay out plan has been carried out by the DDA.
4. Challenging this course of action adopted by the DDA and consequentially allotment of disputed site to respondent no.8, Mr. Parag Tripathi, learned senior counsel for the petitioner submitted that the change of site in the aforesaid manner amounts to violation of Delhi Master Plan - 2001 (hereinafter referred to as DMP-2001, for short) as well as ZDP and there fore it could not be done without complying with the procedure contained in Section 11-A of the Delhi Development Act, 1957 (hereinafter referred to as the Act, for short) for which the competent authority is the Central Government.
5. He further referred to para 9.1.3 of the draft ZDP of the area in question which reads as under:-
"According to MP-2001 norms, 204 H.S.S. are required for this zone whereas in all 123 sites have been provided. These sites identified in the zonal plan and are as per details given below:-
S. SUB-ZONE Required Area (Ha) No. as As per ZDP
No. Nos. per DP Area (Ha)
1. H-1 9 14.40 8 9.057
2. H-2 15 24.00 11 10.980
3. H-3 17 27.20 11 21.160
4. H-4 9 14.40 7 11.978
5. H-5 27 43.20 24 46.381
6. H-6 17 27.20 15 24.29
7. H-7, H-8,
H9 *
Rohini & 110 176.00 47 79.56
Mangolpuri
Total 204 326.40 123 203.406
6. Pitampura area falls in sub-zone H-5. His submission was that the area earmarked for HSS as per DMP-2001 is 43.20 hectares and the area as per ZDP is 46.381 hectares. Thus the area provided in the ZDP was already more than the area earmarked for HSS for sub-zone H-5 as per the DMP-2001. Therefore, his submission was that if in the original site earmarked for school there were existing trees because of which HSS could not come up in that area, there was no necessity of giving another site for the school as schools had already been given more than there due share in the ZDP. On the other hand, referring to para 9.1.4 of the ZDP which relates to neighborhood park and play area, it was submitted that as per the DMP-2001 standards total area required for parks and play ground was 40.3 hectares and as per the ZDP there was a provision of only 31.20 hectares. Thus a better course was to convert the school site also into "Neighborhood Park" and at the same time continue to keep disputed land also for "Neighborhood Park" which would have been more in conformity with the DMP-2001. By not doing so, the DDA has violated the DMP-2001 standards without complying with the mandatory procedure as mentioned in Section 11-A of the Act.
7. Learned counsel for the petitioner also relied upon the judgment of Supreme Court in the case of Dr. G.N. Khajuria and others Vs. Delhi Development Authority and others in support of his submission that where the land reserved for park in residential colony was allotted by DDA for nursery school it amounted to change in the user as mentioned in the ZDP which was impermissible. He also sought support from the judgment of Andhra Pradesh High Court entitled M/s. Ushodaya Publications Private Ltd. Vs. Smt. M.Ramanamma and others in support of his above submission.
8. Relying on the same set of facts, his further submission was that it was a case of non-application of mind by the DDA inasmuch as it was not at all considered by the DDA authorities that there was deficiency in the area available for neighborhood parks and play ground and the area already allotted in the quota for HSS was in excess of the Master Plan norms 'for sub-zone H-5. The DDA only took into consideration the existence of trees in the area earlier earmarked for school and the aforesaid factors which were also relevant were not considered at all and this vitiated the decision making process.
9. Mr. Rajiv Nayyar, learned senior counsel appeared for the DDA and was ably assisted by Mr. P.C. Sen, Advocate. Mr. Ravinder Sethi, learned senior counsel argued on behalf of respondent no.8. It was the contention of respondents that the petitioner could not rely upon the draft ZDP as it was only a draft and had not been finalised so far. There was no approval of the Central Government which was a condition precedent as per Section 10 of the Act and even after the approval by the Central Government it was necessary for the DDA to publish the Plan and only on the publication of the said Plan, it could come into operation. Without prejudice to this contention, it was further submitted that in any case there was no violation of any DMP-2001 or ZDP in alloting the disputed site for school which was originally meant for recreation park i.e. reallocating the site originally meant for school, for the purpose of "Recreation Park". It was submitted that the user of the two sites was mentioned only in the lay out Plan of Pitampura Residential Scheme and Vice Chairman, DDA was competent authority empowered to modify the lay out Plan as per Resolution No. 161 dated 21st October, 1978. It was further submitted that on 17th June, 1996 these powers have now been further delegated to Commissioner, Planning. Referring to the facts which occasioned change in the lay out Plan it was submitted that once it was found that the site earlier earmarked for HSS contained a large number of grown up trees and other trees it was decided, in public interest, to change the lay out Plan by swapping the two sites. This modification was finalised on 5th September, 1995. It was highlighted that the modified lay out Plan was in complete conformity with the DMP-2001. DMP- 2001 clearly shows that the entire Pitampura Residential Scheme is a "residential area". DMP-2001 shows only the gross use of land. The Master Plan itself details the facilities which are to be provided in residential area and these facilities include provision of HSS and neighborhood park, amongst other facilities. It was also submitted that modified lay out Plan was best suited for the area since it preserves the "Neighborhood Park" in the said area and at the same time, adequate steps have been provided for the senior secondary schools. Rather with the modified lay out Plan, more area became available for "Neighborhood Park" inasmuch as area of two HSS had been reduced from 8 acres to 6.5 acres.
10. There is no dispute that there cannot be any change in the DMP-2001 or the ZDP without complying with the procedure laid down in Section 11-A of the Act. Such a modification can be made only by the Central Government. Therefore, if the action of the DDA amounts to change in ZDP or DMP-2001, the same having been not approved by Central Government, it cannot be permitted. However, it is this big if which is the hurdle to be crossed by the petitioners before they can succeed in this writ petition. In our considered opinion petitioners have miserably failed on this count. We have serious reservations in accepting even this submission of the petitioners that draft ZDP can even be relied upon because before a Plan comes into operation, mandatory provisions of Section 10 and 11 are to be fulfillled. Not only there has to be approval by the Central Government, it has to be published also in the manner prescribed under Section 11 of the Act. However, it is not necessary to decide this question because even if the said draft ZDP is treated to be in operation, it cannot be said that there is any violation of that Plan or the DMP-2001. Para 9.1.3 of the draft Plan, only mentions the norms as per the DMP-2001. Moreover, as per these norms 204 HSS are required whereas for this zone a total of 123 sites have been provided. Thus the said draft ZDP has not been able to meet the norms prescribed in MP-2001. Even when we examine the specific position relating to sub-zone H-5, as per the norms, against the required 27 HSS only 24 schools are provided in the ZDP. Moreover, from para 9.1.3 and 9.1.4, it cannot be discerned that the disputed land was earmarked for "Recreational Park" which has been now allotted for school. There is no such user prescribed in ZDP or the MP-2001. We are inclined to accept the stand of the DDA that this user was prescribed only in the lay out Plan and it is this lay out Plan which has been modified. The reasons which are given for modification of the lay out Plan are also bonafide and rather, in the public interest. It is explained in the counter affidavit filed on behalf of the DDA that there are more than 169 trees in the area which was originally earmarked for HSS. Out of these 169 trees, there are 165 eucalyptus trees and remaining four trees are of other species which includes one banyan tree. It was not in public interest to cut these trees. It was more in public interest to keep these trees intact and for that reason to convert the use of the site which was originally meant for HSS for the purpose of "Neighborhood Park" and allocating other site for HSS. Both portions of land are in the same area. The user has been interchanged in order to save the trees. The area meant for "Neighborhood Park" in the same locality has not been reduced and has rather increased. In the original lay out Plan site was earmarked for HSS. It has only been changed to a different place in the same layout Plan for genuine and germane reasons. The relocation of sites has resulted in another public benefit. Earlier the parks were located at two separate places. Now the entire park will be at one place which means that the size of the park will be more than double. This best balances the interest of 'public at large'. It is, therefore, totally unfounded plea of the petitioners that the decision in question is a result of non-application of mind. In any case, we find no breach or violation of DMP-2001 or the ZDP. It cannot be disputed that if there is a change in the lay out Plan only, no approval or sanction of the Central Government is required. Still, if any authority for this proposition is required, one may usefully refer to Division Bench judgment of this Court in the case of Shanti Devi Gupta Vs. DDA and others .
11. We would like to mention before we conclude that these petitions though styled as Public Interest petitions, appear to be motivated by individual interests of some of the plot holders who had earlier a park in front of their plots but now they find that instead of a park they have to put up with a HSS opposite their houses. No public interest is involved. Rather as noted earlier, as a result of the impugned action, green area under neighborhood park has increased, which is more in public interest.
12. These writ petitions accordingly fail and are hereby dismissed. There shall be no order as to costs.