Delhi Northern Railway Accounts ... vs Lt. Governor
1997 Latest Caselaw 667 Del

JUDGMENT

Devinder Gupta, J.

(1) The petitioner which is a Co-operative Group Housing Society of the Delhi Northern Railway Accounts Employees in this writ petition filed under Article 226 read with Article 227 of the Constitution of India has prayed for quashing the order of Lt. Governor, Delhi as conveyed to it by the Director (Land), Dda, through letter dated 4.5.1992 (Annexure Y).

(2) The facts in brief are that on 12.2.1976 an agreement (Annexure R-21/A) was entered into, amongst the petitioner and the President of India under which 29 bighas and 16 biswas of land situated at village Khureje Khas and Mandavali Fazalpur, Delhi was handed over to the petitioner Society initially for the purpose of development. It was further agreed that after development is completed by the petitioner to the satisfaction of the Chief Commissioner of Delhi a lease would be executed in petitioner's favour in respect of such residential plots out of residential plots to be carved out as may be determined in his absolute discretion by the Chief Commissioner for the purpose of sub-leasing the same to the members of the petitioner Society.

(3) After the petitioner had developed the land perpetual lease (Annexure R-21) was executed in petitioner's favour on 4.7.1991 with respect to the residential plots containing by ad-measurement a total area of 14572.97 sq. yards except plots No.9, 10, 11 & 12.

(4) As per the terms of the agreement annexure R-21/A and lease deed the petitioner Society, on execution of the perpetual lease was left with no claim on any part of the land except the residential plots for which perpetual lease was granted in its favour and that also for the purpose of sub-leasing the residential plots to its members. Clause 8 of agreement annexure R-21/A had provided that the President of India may dispose of the remaining parts of the land, in any manner and to whomsoever he thinks proper and the Society shall not be entitled to claim refund of any amount or any part thereof paid towards premium or expended by it on the development of the land. As such the petitioner Society could not and has no right, title or interest on any part of the land other than the residential plots, which had been carved out for which perpetual lease Annexure R-21 was granted in its favour.

(5) Respondent No.3 is an educational society duly registered under Societies Registration Act, 1860. On 5.4.1988 through communication annexure R-2, the Manager of respondent No.3 Society was informed that a plot of land ad-measuring 0.255 acres has ben allotted to it on perpetual leasehold basis by respondent No.2 for the purpose of a school building only for running nursery school at Shanker Vihar, namely, within the colony, which had been developed by the petitioner Society. Pursuant to this allotment, respondent No.3 on 12.5.1988 through receipt annexure R-3 deposited the requisite premium and lease-money. Document annexure R-5 evidences handing and taking over of possession of the plot of land on 22.7.1988. In the meanwhile on 22.6.1988 the petitioner Society through its letter annexure R-3A addressed to the Vice Chairman, Dda requested for allotment of a plot of land inside the Society's park for Nursery School stating that the Society had decided to start a nursery school of its own in this area to cater the needs of their children as well as of the area. In response to this request through letter annexure R-4 dated 18.7.1988 the Deputy Director (Institutional), Dda advised the petitioner Society to fulfilll some basic conditions and complete some formalities as specified in the said letter and was also apprised in the said letter that its request would be considered only on completion of the formalities and depending upon the availability of land in the locality. Again, on 25.7.1988 the petitioner through its letter annexure R-6 reiterated its request for allotment of a space for nursery school inside the Society's Park measuring 400 x 120 ft. as follows:

"SUB:Allotment of space for 'Nursery School' inside the Society's park measuring 400' x 700'

DEARSir,

YOUR kind attention is invited to this Society's earlier letter dated 22-6-1988 (copy enclosed for ready reference) addressed to the Vice Chairman D.D.A., copy endorsed to the Director City Planning.

WE had requested therein not to allot this small piece of land measuring 185' x 60' earmarked for 'Nursery School' to any other Private/Regd. Body as this Society vide their resolution dated 18-6-1988 had decided to start a Nursery School of its own in this area to cater to the needs of our children and residents.

YOU are therefore requested to kindly look into the matter personally and communicate your kind approval for running the Nursery School by this Society itself."

(6) As noticed above, respondent No.3 on 5.4.1988 had already been allotted a plot of land in the Colony in question and on 22.7.1988 had also been put in possession thereof. It appears that when respondent No.3 Society sent invitations for the foundation laying stone ceremony for 17th August, 1988, the petitioner becoming aware of the allotment in respondent No.3's favour; projected its grievance to the Lt. Governor, Delhi through letter dated 8.8.1988 (annexure R-7) to the effect that a request had been made by the petitioner's Society but allotment had been made in favour of respondent No.3. It was also pointed out in the complaint that opening of a school was likely to disturb the ecological balance and air pollution control in the area besides disturbing the existing small park. On this representation of the petitioner Lt. Governor proceeded to make an order cancelling the allotment of which respondent No.3 Society was informed on 18.10.1988 through communication annexure R-9 that allotment has been cancelled and possession stands resumed. Simultaneously information was sent to Sho (East), Police Station Preet Vihar that no construction be allowed on the plot. On 20.10.1988 Lt. Governor also sent a communication to the Minister of Parliamentary Affairs and Information & Broadcasting, New Delhi that allotment had since been cancelled and instructions had been issued to maintain the site as a park. Feeling aggrieved, respondent No.3 Society filed a suit and also challenged the action of the Lt. Governor by filing writ petition No.2410/88. Parties were directed to maintain status quo as regards possession and nature of the plot. Both proceedings were pending. In the meanwhile separate representations were also made to Lt. Governor and others by respondent No.3 for revoking the order passed on 18.10.1988. One of such representations is dated 22.11.1989 (annexure R-12). On 13.3.1990 respondent No.3 also approached the Prime Minister for redressal of its grievance. On 11.6.1990 Deputy Director (Institutional), Dda through communication annexure R-14 informed respondent No.3 that Lt. Governor has decided to restore the allotment of plot of land measuring 0.2555 acres for construction of nursery school in Shanker Vihar, which earlier had been cancelled through order dated 18.10.1988, subject to withdrawal of court cases filed by respondent No.3 Society. Through subsequent letter dated 19.6.1990 (Annexure R-15) respondent No.3 was required to deposit the difference in the amount towards land price due to revision of the land rates by Government of India and also the ground rent, which respondent No.3 society deposited on 20.6.1990. Respondent No.3 thereafter through annexure R-16 applied for sanction of building Plan on 26.6.1990. Building Plan was sanctioned on 25.7.1990 which was valid for a period up to 24th July, 1992 as conveyed through annexure R-18. In the meanwhile the petitioner Society feeling aggrieved against the order, which had been passed by the Lt. Governor on 11.6.1990 revoking the cancellation of the allotment preferred Cw 1940/90 in this court. Noticing the fact that cancellation of allotment at the behest of the petitioner on 18.10.1988 was without any notice to respondent No.3 and revoking the order dated 18.10.1988 at the best of respondent No.3 had also been without any notice to the petitioner by the Lt. Governor through his order dated 11.6.1990; the writ petition was disposed of on 4.2.1992 by setting aside the order dated 11.6.1990 with direction to the Lt. Governor to hear the petitioner as well as respondent No.3 as also the Dda and to pass fresh orders in accordance with law. Parties were directed to appear before the Lt. Governor on 26.2.1992 at 2.30 P.M. In the meanwhile status quo was directed to be maintained.

(7) Pursuant to the aforementioned directions made on 4.2.1992 in Cw 1940/90 Lt. Governor passed fresh order holding that allotment of land in favour of respondent No.3 was justified. The order of Lt. Governor was conveyed to the petitioner and respondent No.3 Society by the Director (Lands), Dda through communication (Annexure Y) dated 4.5.1992, which is under challenge in this writ petition at the behest of the petitioner. The order reads: "SUB:Allotment of land to Bal Hakikat Shiksha Samiti for running a Nursery School in Delhi Northern Railway A/cs Employees Chbs Shankar Vihar, Delhi-92.

(8) As per direction issued by Hon'ble High Court of Delhi on 4.2.92 in Cw No.1940/90 the Hon'ble Lt. Governor, Delhi after hearing the Delhi Northern Railway A/cs Employees Co- operative House Bldg. Society, The Bal Hakikat Shiksha Samiti and Dda has been pleased to pass the following orders: 'THEallotment was made to the Samiti after the case was properly scrutinised and it was found to be fulfillling all conditions of eligibility for the allotment of land. In fact, I find that the Northern Railway Society had themselves asked for the allotment of this site for running a Nursery School themselves. It was only after the site had been allotted to the Samiti that they started representing against the allotment & pressing for cancellation of it and use of the areas as a park. The claim of the Nr Society for using this site as a park cannot be sustained as there exists another area adjacent to it which is earmarked as a park in the layout plan. Therefore, I am of the considered opinion that the allotment of the land to the Bal Hakikat Shiksha Samiti is justified. Parties be informed accordingly.'

(9) The decision of the Hon. Lt. Governor, Delhi in pursuance of orders of Hon. High Court of Delhi in the matter of allotment of plot of land measuring 0.255 acres made to Bal Hakikat Shiksha Samiti for running a Nursery School in Dnr A/cs Employees Chbs and its restoration made vide this office letter dt. 11.6.90 & physical possession dt. 22.7.88 is therefore being hereby communicated to all the concerned parties."

(10) The impugned order is under challenge by the petitioner on numerous grounds but the points urged were, inter alia, (a) in the Zonal Plan marked A no space was shown as reserved for nursery school. Only provision was for primary school. Subsequent showing of the park site for nursery school in the lay out plan is illegal and in contravention of Section 11-A of the Delhi Development Act. There will be congestion in the Colony consequent upon the allotment of the site in favour of respondent No.3 as hardly any space will be left out for recreational activity of residents of the colony. (b) No nursery school is required in the Colony. It is also not in public interest to allot a site to respondent No.3 when the residents do not need it. Respondent No.3 could be allotted a site in another colony. (c) petitioners were not given full opportunity to represent their case. Principles of natural justice have been violated. Lt. Governor did not consider all the points, which were raised before him. (d) Petitioners have a vested right as also legal right in the sites in the colony as they had paid its costs. Plot, if it had to be allotted, had to be allotted to petitioner Society for recreation activities etc., the same could not be allotted to anyone else without petitioner's consent. Demarcation of a site for nursery school in a portion of public park being without petitioner's consent is in contravention of Zonal Plan in which there is no provision for nursery school. In the Zonal Plan this area has been shown for park. There is another site for school where New Bharti School has come up and nursery classes are being held. .pl 11.5"

(11) The only grounds urged to challenge to the impugned order during hearing by learned counsel for the petitioner with the help of the provisions contained in the Master Plan for Delhi, are that on the allotment of plot of land within the park reserved for the colony, there has been violation of the Master Plan and the Zonal Plan. It was vehemently contended that when allotment is made for a particular purpose, the purpose must serve the community for whose benefit the land has been reserved. Another point urged was that there are certain parameters laid down in the Master Plan and there cannot be any compromise with those parameters by reducing the open area. Society in question is of lower and middle income group persons, who do not require high profile nursery school in the area. Mandatory requirements of open area in the Master Plan and Zonal Plan are sought to be compromised by making allotment of a nursery school within the green area reserved for recreation purposes. Site plan cannot override Zonal Plan or master Plan. Even if it is sanctioned and is found to be contrary to mandatory requirements of open space the same is liable to be set aside. Reliance has been placed by learned counsel for the petitioner on the two decisions of the Supreme Court, namely, Bangalore Medical Trust v. B.S. Muddappa and others, , and Virender Gaur and others v. State of Haryana and others, . Learned counsel for the petitioner took pains to take us through various paragraphs of the decisions of Supreme Court to bring home his points that there cannot be compromise with the parameters laid down in the Master Plan. The lay out or site plan cannot override the Master or Zonal Plan. Even if such site Plan is sanctioned and is found to be contrary to the mandatory requirements of open space, the same will be liable to be set aside.

(12) Having gone through the decisions cited at the bar and considering the submissions made, we are of the considered view that there is no substance in the writ petition and the same is liable to be dismissed.

(13) There cannot be any dispute with the principle sessions laid down in the two decisions aforementioned that the open spaces reserved for public park in the development scheme duly approved and published under the provisions of Delhi Development Act cannot be converted into civil amenities sites for other purposes. Any deviation would be ultravires. The point for determination, however, question would be that whether as a matter of fact there is any deviation in this case from the Master Plan or from Zonal Plan in the sanctioning of the lay out plan/site plan. Before we take up that question, we will take up the other question first.

(14) Facts, as noticed above suggest that on 18.6.1988 general body of the petitioner's society passed a resolution and decided to start a nursery school of its own in a part of the space reserved for the park for which purpose a formal request was made to respondent No.2 through letters dated 22.6.1988 (annexure R-3-A) dated 25th July, 1988 (annexure R-6). Before such requests were made by the petitioner, allotment had already been made on 5.4.1988 in favour of respondent No.3 for the same purpose, namely, for a nursery school and on 12.5.1988 respondent No.3 had deposited the requisite amount required for the purpose.

(15) The petitioner Society has not produced on record any other lay out plan other than the one, which has been produced on record by respondent No.3 (Annexure R-19 at page 209 of the paper book). By the side of the park and play-ground, a plot of 0.255 acres or in other words 180 x 60 ft. is shown as reserved for nursery school. Thus, on making allotment of this plot in respondent No.3's favour there has been no deviation from the lay out plan. Grievances made on behalf of the petitioner, thus, are wholly unjustified and the very act of filing of the writ petition is nothing but a malafide attempt on the part of the petitioner to have the allotment made in favour of respondent No.3 cancelled.

(16) In case the petitioner has taken the benefit of this lay out plan (Annexure R-19) it is not open now to the petitioner to raise any grievance against the respondents or to challenge this lay out plan on the grounds urged. The question, which still survives for consideration would be that whether the lay out plan is contrary to the Zonal or Master Plan or not or in other words whether it deviates in any manner from the Master Plan.

(17) Copy of the Set Back and Development Plan of the petitioner's Society and that of the Zonal General Development Plan are available on the record of this petition at page 231 and 232 (Annexures R-22A and 22B). The Zonal Plan does not reflect the exact lay out of a particular area or colony. It only contains statement of areas, analysis of gross residential area, Facilities to be provided therein, density and population and the analysis of the area to be developed. It makes a provision for 37 nursery schools in the entire zone with a total area of 3.700 hectares as per the density and population. On combined analysis of the Zonal Plan with lay out plan, no deviation is shown or pointed out by the petitioner. Lay out plan also states that the details therein have been worked out for various facilities as per the approved Zonal Plan. Zonal Plan in turn refers to the Master Plan and states that it is as per the parameters laid down in the Master Plan. The Master Plan of 1961 to which was reference was made during course of arguments states that for planning purposes Delhi has been divided into eight Planning Divisions. These Divisions are too large and portions of the same may not be developed for 10-15 years, therefore, the planning divisions have been further divided into 136 development Zones. It further says that after the Master Plan is sanctioned all new development shall take place according to the Zonal development plan, which shall show the following feature in broad outline:

(A)Approximate boundaries of Residential Planning Areas or neighborhoods along with the gross residential density of each neighbourhood.

(B)Major internal roads and trunk services;

(C)Community Centre and Residential Planning Area Centre.

(D)Approximate location of high Schools and Primary Schools.

(E)Neighborhood parks.

CLAUSE5 of Chapter II-B states that standards are provided for 15,000 population in the urban Delhi and that for 10 pre-primary schools sites will have to be reserved ranging from 0.2 to 0.75 acre each, according to the density varying from 200 to 250 persons per acre. The optimum size of schools is 75 students. There will be four basic primary schools for the age group 6 to 14. The optimum size being 600 students. The size of area for each school may vary from 1.5 to 2.5 acres for density varying from 200 to 250 persons per acre with total covered area of about 15,000 sq. ft. As regards District parks, the Master Plan says that the same have been shown in the Land Use Plan and in additional local parks and play-grounds will have to be shown in Zonal and detailed plans. Standards are on sliding scale and vary with density. Neither the Master Plan nor the Delhi Development Act require that the site reserved for the play-grounds, nursery schools or the local parks is to be reflected or shown in the Master Plan or in the Zonal Plan. The Master Plan says that the same will have to be shown and reflected in the detailed plan, namely, the lay out plan as per the standards mentioned therein which is of sliding scale according to density and population. Lay out plan (Annexure R-19), which was sanctioned in petitioner's favour do suggest that keeping in view the density as regards population an area of 0.2555 acres is reserved in the locality for a primary school. The Zonal Plan also reflects that as many as 37 nursery schools are to be provided in this particular zone. It is not shown or pointed out on behalf of the petitioners that by alloting the land to respondent No.3 the number of nursery schools in the Zone have increased from 37. The entire foundation by the petitioners as regards deviation of Master Plan is on hypothetical basis for which there is no factual matrix brought on record. Otherwise also, as per the stand taken by D.D.A. (respondent No.2) in its affidavit the area allotted to respondent No.3 has been shown in the lay out plan as reserved for nursery school and has rightly been allotted in favour of respondent No.3.

(18) Having gone through the impugned order, we find no illegality or irrationality in the decision making process. The same has been arrived at by negativing petitioner's contention on cogent reasons and also taking note of the fact that the petitioner itself had applied for the same area for purposes of a nursery school as such it cannot raise any grievance that the allotment of the area for nursery school in favour of respondent No.3 deserves to be cancelled. There being no deviation from the Zonal Plan or the Master Plan, the decision was rightly arrived at by the Lt. Governor and no interference is called for therein.

(19) The petition, which has no force, is liable to be dismissed, which is hereby dismissed with costs quantified at Rs.10,000.00 .