*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 7th JULY, 2016
+ W.P.(C) No.7487/2010 & CM No.14793/2010 (for stay).
HANUMAN ROAD RESIDENTS
WELFARE ASSOCIATION ..... Petitioner
Through: Mr. J.S. Bakshi, Mr. A.S. Bakshi, Mr.
Abhishek Mohan Sinha and Mr.
Chaitanya Jain, Advs.
Versus
GOVT. OF NCT OF DELHI AND ORS ..... Respondents
Through: Mr. Yash S. Vijay, and Ms. Pratishtha Vij, Advs. for Mr. Sanjoy Ghose, Adv. for R-1&2/GNCTD.
Ms. Malvika Trivedi and Mr. Jitendra Kumar Tripathi, Adv. for R-3/NDMC Mr. Ruchir Mishra, Mr. Mukesh Kumar Tiwari and Mr. Sanjiv Kumar Saxena, Advs. for R-4/L&DO CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J
1. The controversy entailed in this petition can be gauged from the following order dated 2nd November, 2010 passed when the petition came up first before this Court:
"1. The petitioner objects to the proposal of the respondent No.3 NDMC to set up its electric sub-station in a portion of the park in the W.P.(C) No.7487/2010 Page 1 of 18 locality. The counsel for the respondent No.3 NDMC appearing on advance notice states that the respondent No.3 NDMC is not the land owning agency of the area and the land belongs to Land & Development Office (L&DO) and the L&DO has handed over a portion of the park to the respondent No.3 NDMC on payment of consideration for setting up of the electric sub-station. It is stated that even though the alternative sites suggested by the petitioner prior to the filing of the petition did not belong to the respondent No.3 NDMC and belonged to the L&DO only but the same were nevertheless inspected but not found suitable. It is yet further informed that the park is constructed over one acre of land and the electric sub-station would take only 350 sq.mtrs. of space. It is urged that the electric sub-station is necessary to meet the future demands of electricity in the area and the tender therefor has already been floated and accepted.
2. The respondents 1 & 2 Govt. of NCT of Delhi has been impleaded for the reason of the same providing financial assistance for the maintenance of the park. The counsel for the respondents 1&2 appearing on advance notice states that they are not the necessary parties.
3. In view of the statement of the counsel for the respondent No.3 NDMC and on the oral request of counsel for the petitioner, the L&DO of the Ministry of Urban Development, Government of India is impleaded as the respondent No.4. Amended memo of parties be filed within 10 days and petitioner to serve the newly impleaded respondent No.4 by all modes including dasti.
4. The competing demands of electricity and open green space and parks are required to be balanced. It is deemed expedient that a meaningful dialogue takes place between the representatives of the petitioner and the concerned officials of the respondent No.3 NDMC so as to mutually satisfy each other as to whether the proposed electric sub- W.P.(C) No.7487/2010 Page 2 of 18 station which cannot be wished away, can be installed / set up at any other more convenient location and or in a smaller place than as disclosed. The petitioner to also inform the officials of the respondent No.3 NDMC whether any other technologies qua electric sub-station are available and the costs thereof be also worked out. The said exercise be done before the next date of hearing. The first meeting of the representatives of the petitioner with the concerned official of the respondent No.3 NDMC to take place on 8th November, 2010 at 1100 hours at Palika Kendra, New Delhi.
List on 13th December, 2010."
2. On 13th December, 2010, it was informed that the meetings directed to be held did not bear fruit as the alternative sites examined were not found to be feasible. Notice of the petition was accordingly issued and pleadings ordered to be completed.
3. The petitioner filed CM No.1847/2015 for amendment of the writ petition and which was on 3rd February, 2015 allowed un-opposed and the petitioner filed amended petition. Thereafter on 20th July, 2015, the following order was passed:
"1. The residents of Hanuman Road through their association seek to restrain the respondent No.3 New Delhi Municipal Council (NDMC) from constructing an electric sub-station over an area of 350 sq. mtrs. carved out from a public park admeasuring 1.25 acres in the said colony. W.P.(C) No.7487/2010 Page 3 of 18 According to the petitioner Residents Welfare Association (RWA), alternate sites are available for the said sub-station.
2. The matter has been languishing for the last five years.
3. The counsels for the respondent No.3 NDMC and respondent No.4 Land & Development Office (L&DO) have stated that the land underneath the park belongs to the respondent No.4 L&DO and the respondent No.4 L&DO has vide letter dated 23rd April, 2002 vested 350 sq. mtrs. of land therefrom in the respondent No.3 NDMC, for the purposes of electric sub-station. It is also informed that the alternate sites have not been found feasible.
4. The counsel for the petitioner Association has argued that the land underneath the park also belongs to the residents who have paid therefor and thus the respondents NDMC or L&DO cannot be allowed to construct a sub-station thereon to serve the purpose, not of the residents but of commercial establishments in the neighbourhood. It is also argued that no reason has been given for the alternate sites suggested by the residents having not been found feasible or for the existing sub-station servicing the area being not upgraded.
5. The petitioner, in support of its claim of the land underneath the park belonging to the residents, has not placed any document. The colony of Hanuman Road was not developed by any Housing Society. The entire land of the Colony was not leased out, for it to be said that the park carved out therefrom also belongs to the Housing Society and to the residents members thereof. Perpetual leases of separate plots of land were granted to different persons and no lease of land underneath the park granted to anyone. Now, 350 sq. mtrs. thereof has been given to NDMC for electric sub-station. There is thus no merit in contention of petitioner of the residents being owners thereof. The residents can only be concerned with maintenance thereof as a park. W.P.(C) No.7487/2010 Page 4 of 18
6. It has however been enquired from the counsel for the respondent No.3 NDMC, as to what is the user prescribed for the said 1.25 acres of land in the Layout / Zonal / Master plan and whether in the Master Plan / Layout Plan / Zonal Plan, the said user has since been changed to that of an electric sub-station.
7. Prima facie, it appears that without the said user being changed in the Layout Plan / Zonal Plan, even the respondent No.3 NDMC would not be in a position to unauthorizedly change the use of the said land, if shown as a park, to that of electric sub-station.
8. Though the counsel for the respondent No.3 NDMC states that it would have been changed, but without any basis.
9. Last opportunity is given to the respondent No.3 NDMC to produce documents and to file an affidavit in this regard before the next date of hearing, failing which it shall be assumed that the user has not been changed.
10. The respondent No.3 NDMC to, on the next date of hearing also disclose, as to why the existing sub-station of the area cannot be upgraded to serve the purpose which the new sub-station is to serve. List on 31st August, 2015."
4. In pursuance to the above, on 31st October, 2015, the counsel for the respondent no.3 New Delhi Municipal Council (NDMC) informed that the possibility of upgrading the existing electric sub-station was being explored and instructions regarding change of land use were also awaited. W.P.(C) No.7487/2010 Page 5 of 18
5. The counsels were heard on 11th February, 2016 and order reserved. The counsel for the petitioner has also handed over written arguments which have been perused.
6. The counsel for the petitioner:
i) relied on various orders passed by the Division Bench of this Court in W.P.(C) No.2345/2014 titled Courts on Its Own Motion Vs. Union of India decided on 6th May, 2015 with respect to the deplorable state of affairs in the Children Park near India Gate and the Lake Park near Sarojini Nagar, Opposite Laxmi Bai Nagar, Type IV Quarters;
ii) referred to the order dated 22nd August, 2016 of this Court in WP(C) Nos.10546-51/2006 titled EC Pocket Maya Enclave Residents Welfare Association Vs. Delhi Development Authority emphasising the importance of public parks and preservation thereof and directing the Delhi Development Authority (DDA) to re-consider the proposal of changing the use and character of a green area ad-measuring 300 sq. mtrs. of a public park in the light of the provisions of the Master Plan, W.P.(C) No.7487/2010 Page 6 of 18 the likely impact of shrinking of the green area and the putting of the proposed CNG Mega Bus Filling Station on the areas in vicinity;
iii) referred to Haji Ikram Ul Hassan Vs. Municipal Corporation of Delhi 69 (1997) DLT 384 in which the Municipal Corporation of Delhi (MCD) was directed to remove its godown at the site of a public park and to maintain the land as per the user specified in the development and zonal plans;
iv) relied on judgment dated 18th November, 2009 of this Court in W.P.(C) No.6950/2009 titled Paryavaran Avam Januthan Mission (Regd. Society) Vs. Lt. Governor wherein a Division Bench of this Court issued directions for constitution of a high level committee to re-examine the issue of letting out of parks for community functions and to ensure that there is no environmental damage in any manner caused by the letting out of such parks for community functions;
v) referred to the order dated 10th August, 2010 of the Division Bench of the High Court of Madras in W.P.(C) No.4647/2010 W.P.(C) No.7487/2010 Page 7 of 18 titled R. Chandran Vs. State of Tamil Nadu restraining the respondents therein from constructing an underground car park in the playground or from converting the playground for any other purpose;
(vi) argued:
a) that the construction by the NDMC of the electric sub-
station in the subject park is to the detriment of the residents of Hanuman Road at the behest of few commercial establishments being run illegally from few of the residences on Hanuman Road;
b) that the constructions of the sub-station would deface and defile the beauty, ambiance and environment of the park;
c) that rejection by the NDMC of alternative sites suggested by the residents for the electric sub-station is whimsical and without proper consideration;
W.P.(C) No.7487/2010 Page 8 of 18
d) that there exists technology for up-gradation of electric sub-station for increasing their output, obviating the need for a new electric sub-station;
e) that the land underneath the park belongs to the petitioner;
f) that the prescribed user of the park cannot be changed;
g) that the erection of a transformer in the park will further shrink the play area for the children apart from raising the safety issue;
h) that the construction of electric sub-station is not necessitated by the exigencies of public welfare;
i) that the construction of electric sub-station right in the midst of the only park for children and elders in the locality is mala fide and for oblique considerations;
j) that experts with technical background need to be appointed for studying the necessity of another electric sub- W.P.(C) No.7487/2010 Page 9 of 18 station and / or of having the electric sub-station at an alternative site.
7. Per contra, the counsel for the respondent no.3 NDMC argued:
i) that in pursuance to the order dated 2nd November, 2010 supra in this petition, a team of officers of NDMC along with representatives of Residents Welfare Association (RWA) inspected the alternative sites but the same were not found technically suitable due to insufficient space, location and being far away from the load centre etc.;
ii) that a number of multi-storied buildings have come up in the NDMC area including Hanuman Road area and to meet the increase in demand for electricity it has become incumbent to create additional infrastructure to ensure reliable uninterrupted power supply in the area;
iii) that the suggestion for up-gradation of the existing power supply was also examined but not found feasible; W.P.(C) No.7487/2010 Page 10 of 18
iv) that the claim of the petitioner of ownership of land is not only frivolous but cannot be the subject matter of present petition;
v) that park land ad-mesuring 350 sq. mtrs. where construction of electric sub-station is proposed has been allotted to NDMC by the Government of India, Ministry of Urban Development, Land and Development Office (L&DO) vide letter dated 23rd April, 2002 and vacant possession of the land was taken over on 23rd August, 2002 from L&DO by NDMC and payments thereof made on 13th June, 2002, 2nd April, 2004 and 13th April, 2005;
vi) that pursuant to the order dated 20th July, 2005, the matter of up-gradation was re-considered but not found feasible as the existing sub-station has no extra space for additional transformers and its associated equipment like HT/LT panels etc.;
vii) that the area of 350 sq. mtrs. allotted by L&DO to NDMC is very small compared to the overall size of the park of 4950 sq. mtrs.;
W.P.(C) No.7487/2010 Page 11 of 18
viii) that due to latest technology transformers and the attached equipment now being used, the space required has been reduced to 216 sq. mtrs. only;
ix) that the proposed sub-station is in the alignment of existing garbage station and will therefore not impact the aesthetic and usage of the park also;
x) that the sub-station is completely enclosed system and is absolutely safe in every manner;
xi) that numerous committees have been set up since the year 2010 to explore the feasibility of alternative space and up-gradation etc. and in deliberations whereof the RWA has also participated;
xii) that the up-gradation is for the benefit of the residents;
xiii) that there is no change of land user involved in setting up of the electric sub-station as there is no change of land use; as per Zonal Development Plan the said plot of land for the sub- W.P.(C) No.7487/2010 Page 12 of 18 station as allotted by L&DO is a part of the area earmarked as recreational park and open spaces;
xiv) that as per the Master Plan for Delhi (MPD) 2021 electric sub-
station building is a utility premises and public utility are permitted in all zones;
Needless to state, the pleas aforesaid regarding allotment, ownership, provisions of the Master Plan and Zonal Development Plan are supported by affidavits on behalf of NDMC and documents filed therewith.
8. I have already in the order dated 20 th July, 2015 reproduced hereinabove negatived the plea of the petitioners of ownership of the land. The counsel for the respondent no.3 NDMC is correct in his contention that the claim of ownership raised as an afterthought by way of amendment of the writ petition cannot otherwise also be adjudicated in a writ proceeding.
9. Else, I am satisfied that there is no violation of any law including the Master Plan in construction of a electric sub-station in a park. Note to Table 9.4 (titled "Permission of Use Premises in Sub Use Zones") of the MPD 2021 provides that structures of Toilet blocks, Pump Room, Electric Room, Guard Room and Equipment Room are permissible in the Green Belt, W.P.(C) No.7487/2010 Page 13 of 18 Regional Park, City Park, District Park, Community Park and Multi-purpose Park. Similarly, Note to sub-clause 8(2) titled "Permission of Use Premises in Use Zones" of the "Development Code" in Chapter 17 of MPD-2021 also states that public utilities are permitted in all zones including in parks and playgrounds, amusement parks and electricity is included in public utilities.
10. The jurisdiction of this Court in exercise of powers under Article 226 of the Constitution of India is confined to ensure that the actions of the State / State Authorities are in accordance with law and the said jurisdiction does not extend, inspite of finding the action to be in accordance with law, to interfere therewith only for the reason that the view or opinion of this Court may be different. It is not the role of this Court to take decisions as to whether the additional electric sub-station for the locality is required or not or as to where it should be located. Once it is found that the construction of a electric sub-station in a public park is with the sanction of the land owing agency and is not violative of the Master Plan or any other law, howsoever much this Court may think that the land of the public parks should not be eaten up for such facilities, the Court cannot override the assessment made in this regard by the respondent NDMC whose municipal function includes ensuring electric supply to the residents. As I have observed W.P.(C) No.7487/2010 Page 14 of 18 in the very first order dated 2nd November, 2010 supra, the competing demands for electricity and public parks have to be balanced and once the municipal authorities entrusted with both the said functions have in their wisdom concluded that there is a need for an additional electric sub-station and that the same can be most conveniently located in a public park, it is not for this Court to go any further than it already has done in the last six years by directing the authorities to reconsider. I may in this regard notice that in a number of judgments / orders cited by the counsel for the petitioners also and noted hereinabove, the Court has issued directions only for re- consideration and which exercise has already been done in this petition. I may also notice that the other judgments / orders cited were of cases in which the public park was totally done away with by changing the use thereof to that not permitted by law and which is not the case here.
11. Supreme Court, in Sooraram Pratap Reddy Vs. District Collector, Ranga Reddy District (2008) 9 SCC 552 held that it is a settled proposition of law that in absence of illegality or violation of law, a Court of law will not interfere in policy matters; development of infrastructure was held to be a legal and legitimate public purpose and government was held to be the best judge thereof and it was held that normally in such matters a writ Court will W.P.(C) No.7487/2010 Page 15 of 18 not interfere by substituting its judgment for the judgment of the Government. Judicial interference therein was held to be permissible only where the power was shown to have been exercised mala fide or for collateral purpose or irrationally or unreasonably. The said view was recently reiterated in State of Haryana Vs. Eros City Developers Pvt. Ltd. MANU/SC/0045/2016.
12. Mention may also be made of the fact that petitioner does not deny coming up of multi-storied buildings on some of the plots in the erstwhile residential locality of Hanuman Road. It is not the case of the petitioner that the said constructions are illegal or without permissions. The petitioner also did not object thereto when the same were coming up or even now. The reason is obvious. Hanuman Road is in the midst of the commercial city centre of Connaught Place and construction of multi-storied building enhances the value of the property. The real dispute appears to be between the owners of properties on Hanuman Road who continue to use it for residential purpose and those who are using it for commercial or other permitted purposes and which necessitates additional demand for electricity. In fact there is nothing to show that the petition has the mandate of the majority of the owners of properties on Hanuman Road. The petition W.P.(C) No.7487/2010 Page 16 of 18 appears to be pursued by owners of properties in the immediate vicinity of the park and residing therein, more for their own benefit than for the benefit of the larger body of residents. It is always easy to blame the public authorities but the petitioner should also realize that its members as citizens also owe a duty towards the city. If they feel that the additional sub-station should not come up then they should arrange their affairs in a manner that the demand for electricity is reduced and brought within the confines which can be met by the existing electric sub-station. This was suggested to the counsel for the petitioner during the hearing but obviously there was no response thereto. The owners of properties of Hanuman Road cannot on the one hand demand more electricity or make a grievance of non supply thereof and on the other hand also object to the coming up of the electric sub- station; of course the electric sub-station has to come up on some land. I had during the hearing also suggested that if the residents do not want the electric sub-station to come up in the park, they should carve out the land needed therefor out of their own properties. The said suggestion was met only with the plea that other public sites available. However it shows that the members of petitioner are neither willing to pool and offer land from their own properties for the installation of the additional electric sub-station W.P.(C) No.7487/2010 Page 17 of 18 required nor willing to allow the same in the public park in their locality. They, while wanting the sub-station, want respondent NDMC to locate it near someone else‟s property. In all probability, even if respondent NDMC was to identify such a site, the owner(s) of properties adjacent thereto will object thereto.
13. I am neither competent nor empowered to make an assessment of the most suitable site for the sub-station and thus cannot interfere in the site selected by respondent NDMC especially when no illegality is shown in installation of sub-station there at.
14. There is thus no merit in the petition.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
JULY 07, 2016 „gsr‟..
W.P.(C) No.7487/2010 Page 18 of 18