* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10437-41/2006
Date of decision : 05.05.2009
IN THE MATTER OF :
AMRIT ROAD TRANSPORT CORP. & ANR. ..... Petitioners
Through: Mr. Ghanshyam Vasisht, Advocate
versus
MCD & ORS. ..... Respondent
Through: Mr. Sanjeev Sabharwal, Adv. for MCD
Ms. Reeta Kaul, Advocate for Mr. B.L. Wali,
Advocate for R3.
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may be allowed to see the
Judgment? No.
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be reported in the Digest? No.
HIMA KOHLI, J. (ORAL)
1. The present writ petition is filed by the petitioners praying inter alia for directions to the respondents to refrain from using the areas allocated for parks and community Centre in Sanjay Gandhi Transport Nagar, for the purposes of running a paid parking site for vehicles in terms of the notice issued by Respondent No. 3, enclosed with the writ petition as Annexure-P2, at page 36.
2. Counsel for the petitioners submits that based on the aforesaid notice, the respondent No. 3, who was awarded the contract by respondents WP(C) 10437-41/2006 Page 1 of 4 No. 1 and 2, has put barricades for taking possession of the area allocated to it for running a paid parking site for vehicles and is demanding parking fee from the petitioners. The contention of the petitioners is that the land in question is earmarked for parks and community facilities and cannot be appropriated for any other use. It is further stated by the petitioners that they have a proprietary right over the land on which, they park trucks and cars as the said land is abutting the plots allotted to them.
3. A counter affidavit was filed by the respondent no. 1, MCD on 09.11.2006 wherein it was stated that an open auction was held in respect of the parking sites with the approval of the competent authority and the truck parking site at Sanjay Gandhi Transport Nagar, Delhi -110042 was allotted to respondent No. 3, for a period of one year, ending on 12.06.2007. However, in view of the order dated 04.07.2006 whereunder, the respondents were directed not to give effect to or raise any demand pursuant to the impugned notice (Annexure P2), no amount was demanded from the petitioners and other transporters for parking. The respondent admitted that though the land in question was to be used for community facilities and parks but till the time the community centre would be constructed and the parks be developed, the area is being used for the purpose of parking alone.
4. A subsequent affidavit was filed by the respondent in view of an order dated 12.02.2008, wherein it was noted that the counter affidavit filed WP(C) 10437-41/2006 Page 2 of 4 by the respondent/MCD did not clarify as to whether the layout plan had been changed by it. In the additional affidavit filed by the respondent/MCD on 13.02.2009, it is admitted that four plots were earmarked for community facilities in the Sanjay Gandhi Transport Nagar. A copy of the layout plan is enclosed with the additional affidavit. The said layout plan indicates the plots earmarked community facilities and green area in Sanjay Gandhi Transport Nagar. It is clearly established from the layout plan that the aforesaid areas cannot be used by the MCD as parking sites. The said position is not denied by the Respondent/MCD. However, it is submitted on its behalf that to avoid the plots from being encroached upon and for the purposes of generating revenue for undertaking the construction of community facilities, the said earmarked areas are temporarily being put to use for parking purposes, with the approval of the competent authority.
5. Considering the fact that the layout plan of the area has not been changed, there is no question of the MCD putting the said land to a use which is contrary to the permissible layout plan. The plea of putting the area for use for parking purposes to generate revenue for construction of community facilities, is unacceptable as the MCD cannot be permitted to put the land to a use which is contrary to that prescribed in the layout plan. The MCD is as much bound by the Master Plan, the Zonal Plan and the layout plan as any other ordinary citizen is. It is for the MCD to look for other permissible avenues to generate funds to construct community centres WP(C) 10437-41/2006 Page 3 of 4 in the area, or develop parks.
6. In these circumstances, the impugned notice enclosed as Annexure P2 to the Writ Petition is quashed as being contrary to the land use prescribed in the layout plan of the area, which has remained consistent and has neither been changed nor modified in the MPD-2021.
7. At the same time, the claim of the petitioners that they are entitled to use the area for parking of trucks/vehicles merely because the land abuts their plots, is turned down as misconceived, as the land can only be used for community facilities and parks. Merely because the land in question abuts the plots allotted to the petitioners cannot vest any special privilege upon them to use the same contrary to the permissible user. Hence, neither the petitioners, nor the respondents can be permitted to use the land in question for any other purpose except that which is stipulated in the layout plan. In case, the respondent apprehends that the land in question shall be encroached upon, it shall be open to it to safeguard the same and prevent encroachment, by enclosing it, till the time, the same is put to use for the purpose of which it is designated under the Statute.
8. The writ petition is disposed of with no order as to costs.
HIMA KOHLI,J MAY 05, 2009 rkb WP(C) 10437-41/2006 Page 4 of 4