Rishi Nagar Residents' Welfare ... vs Delhi Development Authority And ...
2002 Latest Caselaw 949 Del

JUDGMENT

S.B. Sinha, C.J.

1. Whether in a public interest litigation, a right of easement can be enforced is the question involved in this writ petition.

2. The basic fact of the matter is not in dispute. The first petitioner is an Association registered under the Societies Registration Act, the object and purpose whereof was welfare and well being of the residents of Rishi Nagar. The population of the said Rishi Nagar is said to be in between 60000 to 80000. Allegedly a lay-out plan had been prepared for the petitioner's colony and other neighbouring colonies by respondent No. 1., i.e., Delhi Development Authority ( in short, 'DDA') in the year 1979 wherein a land admeasuring 0.4 hectares had been shown as a park, which was meant for use of the residents of Rishi Nagar.

3. According to the petitioners, other parks in the area had been encroached upon and only the present park in question is left use of the residents. The respondent No. 5 allegedly approached DDA for allotment of land for construction of community hall. A land measuring 660 sq. mtrs. out of the said park and been allegedly allotted to respondent No. 5 and a community hall allegedly is being constructed.

The petitioners contend that as the said community hall is to be used for marriage and other purposes, the same should not be permitted to be constructed within the park area.

4. The respondent No. 2 DDA in its counter affidavit, however, contends that an unauthorized colony under the name of Rishi Nagar came up on a part of land, which was acquired and handed over to DDA. The land in question had remained vacant and the Screening Committee of DDA had approved the construction of the community hall in the year 1995 by reason of a resolution adopted in this behalf. The director of Social Welfare, Delhi Administration recommended the name of respondent No. 5 for construction of building for multi-purpose training center in Shankar Basti area, but no land thereafter was available. As necessity of a community hall was felt, a detailed survey was conducted and the unused area was found to be suitable for the said purpose wherefor a proposal was made with certain alternative sites. The Screening Committee of DDA, when the case of respondent No. 5 was proposed, approved allotment of an area measuring 660 sq. mtrs.

5. However, it was discovered that in the year 1979, the Horticulture Development of DDA transferred the said land to Horticulture Department of MCD by way of a mistake on a wrong impression that the said area was a green area.

6. According to the respondents, in the Master Plan or in the Zonal Development Plan or in the Layout Plan, the area was not shown as green area or park.

7. In that view of the matter, by a letter dated 26.09.2000, the Commissioner MCD was requested to transfer the said land, which was complied with and possession of the said land was handed over by DDA to respondent No. 5 upon taking over the same from MCD on 08.02.2002.

8. The respondents contended that such transfer was made upon following the procedure laid down therefore. The respondent No. 5 also filed a counter affidavit supporting the said statement.

9. Mr. Sood, the learned counsel appearing on behalf of the petitioners, would submit that having regard to the fact that the land in question had all along been used as a park, DDA, which is a statutory authority, cannot in violation of the statutory provisions use the same for purposes other than the park.

The allotment of the said land for construction of a community hall, the learned counsel would contend, must thus, be held to be illegal.

It was contended that even if it be assumed that the land in question had not been shown as a park in the layout plan, on equitable ground this Court should interfere and issue appropriate directions.

10. Ms. Gita Mittal, the learned counsel appearing on behalf of the respondent DDA, has taken us through the counter affidavit and submitted that change of user is permissible in law.

The learned counsel would contend that in a situation of this nature, a public interest litigation would not be maintainable inasmuch there had been no breach or violation of any statute and in any event, it is not a case where allotment of the land had been made upon non- application of mind.

The learned counsel would contend that a mistake committed can always be rectified and the petitioners cannot be said to have any legal right in this regard.

11. Mr. Shiv Kumar, the learned counsel appearing on behalf of the respondent MCD, adopted the contention of Ms. Mittal.

12. Ms. R. Veena, the learned counsel appearing on behalf of the respondent No. 5, would submit that the land in question had never been a park.

13. The petitioners have initially filed a plan, which was contained as Annexure P/2 of the wit petition alleging that the same was a layout plan. A copy of the Zonal Development Plan has been filed before us by DDA, from a perusal whereof it appears that the said area had not been shown as park. It has been pointed out that the plan annexed by the petitioner is not a Zonal Development Plan, but is a General Development Plan. However, it is accepted that the said development plan is a part of the

14. The question, which falls for consideration in the writ petition, is as to whether the statutory provisions of the Delhi Development Act ( in short, 'the said Act') are required to be complied with, if a change of user in the aforementioned situation is permissible.

15. Chapter III of the said Act speaks of Master Plan and Zonal Development Plans.

In terms of Section 8, Zonal Development Plans are prepared together with the preparation of the Master Plan.

Section 9 of the said Act states that a plan would mean, for the purpose of the said Section as also Sections 10, 11 and 14 of the said Act, as the Zonal Development Plans as well as the Master Plan.

Section 11A speaks of modifications to the Master Plan and the Zonal Development Plans.

Thus, except in a case where a Zonal Development Plan or a Master Plan is required to be amended, the provisions of Section 11A are not required to be taken recourse to.

16. Had the land been earmarked for park or for green area, it is trite, the user could not have been converted for any other purpose except in terms of Section 11A of the said Act.

17. It is not dispute that the land use proposals in terms of the Master Plan and Zonal Development Plan would include for (a) residential areas; (b) work centers; (c) community facilities like health, education, recreational;

(d) provision of compatible mixed use activities; (e) transportation system including major transportation routes; bus terminals, MRT routes, cycle tracks and pedestrian pathways; and (f) development of major 'green areas' and 'neighborhood parks' to enhance the quality of the zone.

18. Before us a copy of the resolution being item No. 25 of 1994 passed in a meeting held on 31.05.1995 has been placed, from a perusal whereof as regards community facilities, it appears that therein, it was stated:-

"6(ii) Community Facilities: (a) In this zone, there are deficiencies in the community facilities such as hospitals, colleges, schools, police station etc. The eara of the District Centre in the development plan of Rohini scheme is 73 hect. Against 45 hect. provided in MPD-2001 and 24 hects for Mangolpuri District Centre Site against 21 hect. Land is in excess of the normal size earmarked for commercial activities forming part of the district centre.

It was recommended that part of the land for district centre in excess of what is provided in MPD-2001, may be used for providing such facilities. If still, there remain deficiencies for such facilities provisions be made for in the adjoining Urban extension schemes. Similarly reduction of recreational area in this zone be compensatated in the adjoing zone in the urban extension.

(b) It was also observed that in Rohini Scheme, Community facilities were provided in the layout plan for the population based on the norms of 1962 provisions, therefore in the text this point may be elaborated indicating the reasons for the deficiencies compared to the requirement as per norms provided in MPD-2001."

19. It is not in dispute that allotment of 660 sq. mtrs. of land had been made out of a total land of 0.40 acres, i.e., 1600 sq. mtrs. of the land and the respondent No. 5 for the aforementioned purpose and already paid a sum of Rs. 18,38,814/-.

20. Mr. Sood, the learned counsel appearing on behalf of the petitioner, has placed strong reliance upon a decision of the Apex Court in Virender Gaur and Ors. v. State of Haryana and Ors. . In that case, in terms of a scheme, the owner of the land surrendered 25% of the total land to the municipality. The said land vested in the municipality. The land in question was earmarked for open spaces and allotment of the said land was made in favor of Punjab Samaj Sabha, which began construction. The Apex Court in that case held that the Stockholm Declaration of United Nations on Human Environment, 1972 had observed and stated that both aspects of environment, namely, natural and man-made, comes within the purview thereof, as a result whereof such a protection becomes essential to a man's well being and to the enjoyment of basic human rights, i.e., the right to life itself. In terms of the provisions of the Haryana Municipal Act, 1973, it was held that having regard to the scheme the said open space could not have been used for any other purpose(s). Such is not the position here.

21. In Bangalore Medical Trusts v. B.S. Muddappa and Ors. , whereupon also the learned counsel has placed reliance, the Apex Court was considering a case where a public park was sought to be converted into a private nursing home, which was found to be contrary to law.

22. Similarly in T. Damodhar Rao and Ors. v. The Special Officer, Municipal Corporation of Hyderabad and Ors. 1987 AIR ANDHRA PRADESH 171, it was observed:-

"... It is undoubted that under the common law ownership, which is a bundle of rights carries with it the right to put the property to any use the owner choose. Under the common law, therefore, the purchaser could not have been restrained from constructing residential quarters on the plot. The purchaser would have been well within their legal powers as owners of their properties to build residential houses. But that ownership right is now curtailed by a statutory provision contained in the developmental plan. Putting the plot to residential use would be clearly contrary to the restrictions, which the developmental plan had imposed on the above land. Developmental plan had forbidden any user of that land except as recreational zone. The common law rights of the owners must give in to the statutory restrictions. The common law use and enjoyment of these ownership rights should, therefore, be subject to the requirements of the statutory law of the developmental plan. The declarations regarding demarcations of land user contained in a developmental plan published under statutory authority are neither pious aspirations nor empty promises. Such declarations are legally enforceable. Those declarations imposed legal obligations on the land owners and the public authorities. The public authorities should enforce those obligations. If they do not, it becomes the solemn duty of the Court to compel those authorities to perform their mandatory obligations."

Thus, there cannot be any doubt whatsoever that in a case where the land has been earmarked for any statutory plan or scheme to be a green area or park, the doctrine of public trust will have to be applied.

23. In that view of the matter, there cannot further be any doubt that in deviation of a policy decision or a statutory plan, no allotment can be made of the park or a portion thereof for construction of a community hall. That park being a property, which is vested in a statutory authority, should be maintained and developed by the same.

However, in a case where an area has not been earmarked as a park, the said principles would not apply. A layout plan can be modified. In the instant case, the respondents have assigned sufficient reasons for modification of the plan. By reason of the impugned action, DDA had not reduced the area of the neighborhood park.

These aspects of the matter had also been considered by a Division Bench of this Court ( or which one of us, A.K. Sikri, J., was a Member) in BU Block Residents Welfare Association and Ors. v. Delhi Development Authority and Ors. 87 (2000) DLT 603 (DB).

24. The petitioners in the name of public interest litigation, in our opinion, cannot enforce an easementory right nor in such matters any equitable relief can be granted, as has been prayed for.

However, the other grievances of the petitioners may be considered by the statutory authorities in their proper perspective.

25. For the reasons aforementioned, we do not find any merit in this writ petition, which is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.