Shri Ramesh Asija And Ors. vs Dda And Ors.
2002 Latest Caselaw 1872 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioners are resident of Nirman Vihar and are aggrieved by the allotment of land measuring 0.25 acres situated within the colony to respondent No. 4 for nursery school.

2. The land was made available by respondent No. 1 DDA to the housing building society known as Ministry of Works Housing & Supply Coop. House Building Society Limited which was developed by the society and allotment made to different persons including petitioners. All the petitioners are member of the said society.

3. Learned counsel for the petitioners contends that the land in question cannot be used or a school as the same would amount to violation to the provisions of the Master Plan. In this behalf learned counsel for the petitioners has referred to the requirements of pre-primary/nursery school requiring such schools to be located near a park and that one school is meant for 2500 population.

4. Learned counsel for the petitioners also states that the allotment made in favor of respondent No. 4 is not in conformity with the requirements of making such an allotment as respondent No. 4 is really not an educational society and was not carrying on educational activity since on their inspection it was found that the school which was stated to be running earlier at a different place and had to be shifted to the land in question was in fact not so running and even a show cause notice was issued by the DDA on 8.3.2000 but no action was taken in pursuance thereto for cancellation of the allotment in favor of respondent No. 4.

5. Learned counsel for respondent No. 4 on the other hand submits that present petition has only been set up by the same society in view of the failure of the said society to obtain interim orders in a previous writ petition bearing No. 5083/1997. It is thus stated that the petition suffers from concealment of material facts inasmuch as only the factum of filing of the said petition has been disclosed but not of interim orders having been initially granted, subsequently vacated and the appeal having been dismissed against the same.

6. Learned counsel for respondent No. 1 has referred to the lay out plan of the society which has been produced in Court and the land in question is earmarked for a nursery school. It is also pointed out that provisions for the said nursery school on the land in question is not violation of the master plan since its specifications are given in the lay out plan and the requirement of location near a park is met since there is a park at some distance away at the end of 30 feet wide road. This is apparent from the lay out plan. It is further stated that there is no violation of requirement of provisions of school viz.a.viz the population.

7. Insofar as the issue of the allotment in favor of respondent No. 4 is concerned, I am of the considered view that it is not open to the petitioners to challenge the same. It is not a case where the petitioners were wanting an allotment in their favor for school and someone else has been given the allotment. It is not a case of competing interests. The verification about the antecedents of respondent No. 4 society have to be carried out by respondent No. 1 and in their counter affidavit respondent No. 1 has categorically stated that respondent No. 4 society is entitled to allotment. In this behalf a reference was also made to the letter of the Directorate of Education dated 12.1.2000 in respect of the allotment of the land in favor of respondent No. 4 since same was verified by the Directorate of Education and forwarded to the DDA. It is stated in the letter that school in question was inspected in May-June 1999 and it was found that respondent No. 4 society had closed its primary school bout two years back at the original site but due to some dispute between the residents of Nirman Vihar and respondent No. 4, the construction work could not be completed.

8. Insofar as the issue of the allotment being contrary to the master plan is concerned in my considered view no fault can be found with respondent No. 4 society in this behalf since litigation has been goving on between the respondents of the locality and respondent No. 4 and interim orders have been passed with the result that no construction has been possible. The scrutiny of the show cause notice dated 8.3.2000 also shows that the school at the original land at Raghubar Pura had been shut down, and a garment shop was running. A show cause notice was issued asking respondent No. 4 to dis-continue the same within period of 15 days from the receipt of notice. Admittedly thereafter no action has been taken against respondent No. 4. The plea of the petitioner is based on the fact that the basis of allotment was the shifting of the school and since a garment shop was running at the said site and not a school the basis of the allotment is bad in law. I am unable to agree with the contentions of the learned counsel for the petitioners. The school would have been shifted but for the continuous litigation by the residents of the locality and though the school was initially closed at the original site, the same could not be shifted. The fact that during this period of time the land of the original school was used for sometime as a garment shop would not in any way disentitle respondent No. 4 to the allotment made in respect of the land in question.

9. Insofar as the issue of allotment being contrary to the master plan is concerned, a perusal of the lay out plan shows that a nursery school is provided on the land in question. Thus the allotment conforms to the lay out plan. The perusal of the lay out plan shows that there is park in existence at the end of the 30 feet wide road and the school is located at one end of the road while the park is located at the other end of the road. Thus there cannot be said to be violation of the master plan. The mere allegation of the petitioner that since there are three other nursery schools in the vicinity, therefore there is no requirement for a nursery school as the same would be in violation of the master plan cannot also be sustained. The stand of the DDA is that the land has been earmarked for a school taking into consideration the overall lay out of the area as also the habitation of the area.

10. Last and the most material aspect to be considered is the factum of an earlier writ petition having been filed by the society of which the petitioners are the members. This was civil writ petition No. 5083/1997 in which interim orders were granted. The petition was filed by the society claiming that the land was of the society and it is the society which should be entitled to the school and not respondent No. 4. The interim orders were vacated on 18.1.1999 and the appeal filed by the society being LPA No. 106/1999 was also dismissed on 8.5.2000. It is also relevant to note that after the vacation of the said order on 18.1.1999, respondent No. 4 school still could not carry out any construction due to obstruction by the residents of the area which resulted in a criminal Writ petition No. 417/1999 being filed and orders were passed on 9.2.2000 to ensure that an access is provided to respondent no. 4 herein to carry out the construction. Directions were even passed that police will act in accordance with the law in a case the blocade is made by the public.

11. In the present writ petition a reference has been made to the earlier writ petition and it is stated that the same does not safeguard the interest of the petitioners. However, details of these orders passed have not been set out or disclosed. Learned counsel for the petitioners has however referred to the fact that the petitioners herein had filed an application in the criminal writ petition being Criminal Misc. No. 4595/1999 since they were aggrieved by the action of respondent No. 4. On 2.9.1999 orders were passed in the criminal writ petition directing that respondent No. 4 should remove the unauthorised construction and should not cover more than 0.25 acres of land and that no interference should take place with the construction. Learned counsel for the petitioners thus contends that in view of this direction as also the direction passed on the same date, specially on the application of the petitioners that the petitioners shall not take law into their own hand and that the issue of legality of allotment of the premises has not been dealt with in the said petition, the petitioners were constrained to file the present writ petition.

12. I am unable to accept this submission of learned counsel for the petitioners. The petitioners are the members of the society which was the petitioner in the earlier writ petition. The petitioners have relied upon various letters written by the said society. The petitioners waited till the interim application of the society was decided against it and only intervened in the criminal writ petition seeking to ensure that no obstruction is caused by the members of the society. The present writ petition has been filed on 28.2.2000 which is after the dismissal of the appeal by Division Bench against the order of the learned Single Judge. The only difference is that while the society wanted to claim that society should construct the school on the land, the petitioners are now claiming that no school should be constructed on the land. In my considered view, the present writ petition has been filed by the petitioners only to circumvent the effect of the orders passed at the interim stage against the society where respondent No. 4 has been permitted to construct of the land in question. The society having failed to achieve its object of getting the interim orders against respondent No. 4, the petitioners have now come up before the Court to claim that the land should not be used for a school at all.

13. The petitioners were fully aware of the litigation earlier of which reference has been made in the present petition. Despite this fact the petitioners have chosen not to disclose the orders passed by the learned Single Judge on 18.1.1999 and by the Division Bench on 8.5.2000 dismissing the appeal in the earlier writ petition. After making an averment that a writ petition was filed by the society earlier and that the same is not safeguarding the interest of the petitioners, the petitioner have been silent on the subsequent developments in the writ petition which, in my considered view, had a material bearing on the present writ petition. Interim orders have been obtained in the present writ petition at the first stage itself on 28.8.2000 without disclosing the orders passed earlier by the learned Single Judge and the Division Bench the effect is that respondent No. 4 even after having succeeded before the learned Single Judge and the Division Bench in the earlier petition filed by the society has still not been able to construct on the land in question along with orders passed in the present writ petition. In my considered view, the petitioners have concealed the material facts and have failed to disclose the complete facts. The present writ petition, in my considered view, is an abuse of the process of Court.

14. I find no merit in the writ petition and the same is dismissed with costs of Rs. 10,000/- to be paid to respondent No. 4.

C.M.No. 7340/2000

15. Dismissed.

C.M.No. 8473/2000

16. No further orders are called for in this application for vacation of stay in view of the dismissal of the writ petition.

17. Application stands disposed of.