Delhi High Court

'B' Block Residents Welfare ... vs Delhi Development Authority And ... on 12 September, 2002

Author: S Sinha

Bench: S Sinha, A Sikri

JUDGMENT

S.B. Sinha, C.J.

1. The writ petition, which is in the nature of public interest litigation, has been filed by the petitioner herein, which is an association of the residents of 'B' Block, Naraina Vihar, New Delhi. The petitioner has inter alia questioned the action of the respondents from converting a residential area into a commercial area by reallocating the shopkeepers, who were encroachers in the Ring Road, Naraina Vihar. According to the petitioner, the said encroachments had been removed for widening the Ring Road in Naraina Vihar. The petitioner contended that once the land use had been shown in the Zonal Development Plan (hereinafter for the sake of brevity referred to as, 'ZDP') as residential area, the same cannot be changed except in accordance with Section 11A of the Delhi Development Act, 1957 (hereinafter for the sake of brevity referred to as, 'the said Act').

2. The contention of the respondents, on the other hand, is that the petitioner itself has wanted to construct a Community Hall on the land in question. The respondents would urge that in Master Plan, Delhi - 2001, which has been issued in supersession of the earlier Master Plan, 1960, Delhi had been divided into eight urban planning zones from Zones 'A' to 'H'. Naraina found spot in Zone 'B'. In this connection, our attention has bee drawn to the statements made in the written submission to the effect that the said land is contained in Sub-Zone 'B-7'.

3. The land use in terms of the Master Plan, Delhi - 2001 has been categorized into nine major uses, i.e., Residential, Commercial, Manufacturing, Recreational, Transportation, Utility, Government, Public and Semi-Public and Agriculture & Water Body.

4. In the residential use zone, the respondent would contend, several activities would be permissible, e.g., residential plots, group housing, hotels, guest-houses, convenience shopping, local shopping centre, etc.

'Shopping' is defined to include, retail, service, repair, informal shops, commercial officers, etc.

5. It has further been the contention of the respondents that ZDP as approved by the Central Government on 04.06.1999 in exercise of its powers conferred under Section 9(2) of the said Act, the said ZDP would supersede other ZDPs.

The respondents would further contend that so far as the disputed land is concerned, the prescribed user thereof is 'Group Housing'.

According to the respondents, they were extremely concerned with the removal what is known as chicken- neck traffic bottleneck on the main Ring Road. At the said point, traffic jams and extreme inconvenience to the road users as well as the people in the vicinity is caused owing to tremendous collection of vehicles resulting in traffic jams.

The occupiers of the area are required to be uprooted. With a view to rehabilitate them, a decision was taken that small plots should be allotted, which will have low intensity mixed land-use permitted under the Master Plan under which the aforementioned activities in the area are permitted. The respondents would contend that by reason thereof there would not be any impact on the adjoining environment. Such a decision allegedly had been taken at the highest level of the Authorities and has been approved by the Planning Department and the Vice-Chairman, DDA, as also the Lieutenant Governor of Delhi. The respondents would contend the proposal in question amounts to a mere modification in the lay-out plan, which has been approved by the competent authority.

6. Mr. V.K. Shali, the learned counsel appearing on behalf of the petitioner, would submit that the land use cannot be changed, except in accordance with law. Reliance in this connection has been placed on Virender Gaur and Ors. v. State of Haryana and Ors.,

It was further submitted that assuming that the land use could be changed, the same would amount to land use pertaining to a ZDP and not lay-out plan and the same could be done only after following the procedure contemplated under Section 11A of the said Act, which has not been done in the instant case. Reliance in this connection has been placed on Banglore Medical Trust v. B.S. Muddappa and Ors.,

The learned counsel would further submit that the tress- passers should not be reallocated any land on account of

widening of the Ring Road near Naraina Vihar. In the instant case, the question of balancing the interest would not arise inasmuch as the interest of a law-abiding citizen with the law-breakers is not comparable. If the same is permitted, it was urged, that would amount to putting up of the premium in the deviant behavior of the encroachers on the public land. Reliance in this connection has been placed on Almitra H. Patel and Anr. v. Union of India and Ors.,

It has further been pointed out that DDA had not placed on record any policy decision taken by the Authority under the provisions of the said Act to allot land to the tress- passers and encroachers and, thus, the said action is without the authority of law.

It has further bee contended that there exists a shopping complex wherein more than 100 shops are lying locked. If such shops are to be allotted, these vacant shops could be allotted to the encroachers in stead and place of setting up more than 300 new shops in the land in question, which would not only disturb the ecological balance of the locality but also create other problems of noise pollution, traffic congestion, etc. for the residents of the locality.

7. Before us, the learned counsel appearing on behalf of the respondents had produced a land-use plan, from a perusal whereof, it appears that a portion of 'B' Block is situated by the side of the Ring Road. On a major portion of the Ring

Road, the shops are sought to be constructed. The area in question has been shown as residential density PPH. The land use, therefore, is admitted.

8. For changing the zonal use indisputably, provisions have been made in the said Act. It is beyond any cavil of doubt that the land use can be changed only in terms of the provisions of the said Act. The Master Plan in terms of the said Act defines various zones into which the National Capital Territory of Delhi has been divided for the purpose of its development. It further indicates the manner in which the land in zone is required to be used. By reason of Section 8 of the said Act, the Authorities are required to proceed with the preparation of ZDP for each of the zones into which Delhi may be divided and provides as to what may be contained therein. Sub-section (2) of Section 8 thereof provides for the use of ZDP, which is in the following terms:-

"8. Zonal developmental plans.

(2) A zonal development plan may-

(a) contain a site-plan and use-plan for the development of the zone and show the approximate locations and extends of land- uses proposed in the zone for such things as public buildings and other public works and utilities, roads, housing recreation, industry, business, market schools, hospitals and public and private open spaces and other categories of public and private uses;

(b) specify the standards of population density and building density;

(c) show every area in the zone which may, in the opinion of the Authority, be required or declared for development or redevelopment; and

(d) in particular, contain provisions regarding all or any of the following matters, namely:--

(i) the division of any site into plots for the erection of buildings;

(ii) the allotment or reservation of land for roads, open spaces, gardens, recreation grounds, schools, markets and other public purposes;

(iii) the development of any area into a township or colony and the restrictions and conditions subject to which such development may be undertaken or carried out;

(iv) the erection of buildings on any site and the restrictions and conditions in regard to the open spaces to be maintained in or around buildings and height and character of buildings;

(v) the alignment of buildings on any site;

(vi) the architectural features of the elevation or frontage of any building to be erected on any site;

(vii) the number of residential buildings which may be erected on any plot or site;

(viii) the amenities to be provided in relation to any site or buildings on such site whether before or after the erection of buildings and the person or authority by whom or at whose expense such amenities are to be provided;

(ix) the prohibitions or restrictions regarding erection of shops, workshops of a specified architectural feature or buildings designed for particular purposes in the locality;

(x) the maintenance of walls, fences, hedges or any other structural or architectural construction and the height at which they shall be maintained;

(xi) the restrictions regarding the use of any site for purposes other than erection of buildings; and

(xii) any other matter which is necessary for the proper development of the zone or any area thereof according to plan and for preventing buildings being erected haphazardly in such zone or area."

9. We may also notice some other relevant provisions of the Act as well, which read thus:--

"9. Submission of plans to the Central Government for approval.

(1) In this section and in Sections 10, 11, 12 and 14 the word "plan" means the master plan as well as the zonal development plan for a zone.

(2) Every plan shall, as soon as may be after its preparation, be submitted by the Authority to the Central Government for approval and that Government may either approve the plan without modifications or with such modifications as it may consider necessary or reject the plan with directions to the Authority to prepare a fresh plan according to such directions."

"10. Procedure to be followed in the preparations and approval of plans.

(1) Before preparing any plan finally and submitting it to the Central Government for approval, the Authority shall prepare a plan in draft and publish it by making a copy thereof available for inspection and publishing a notice in such form and manner as may be prescribed by rules made in this behalf inviting objections and suggestions from any person with respect to the draft plan before such date as may be specified in the notice.

(2) The Authority shall also give reasonable opportunities to every local authority within whose local limits any land touched by the plan is situated, to make any representation with respect to the plan.

(3) After considering all objections, suggestions and representations that may have been received by the Authority, the Authority shall finally prepare the plan and submit it to the Central Government for its approval.

(4) Provisions may be made by rules made in this behalf with respect to the form and content of a plan and with respect to the procedure to be followed and any other matter, in connection with the preparation, submission and approval of such plan.

(5) Subject to the forgoing provisions of this section the Central Government may direct the Authority to furnish such information as that Government may require for the purpose of approving any plan submitted to it under this section."

"11A. Modifications to plan.

(1) The Authority may make any modifications to the master plan or the zonal development plan as it thinks fit, being modifications which, in its opinion, do not affect important alterations in the character of the plan and which do not relate to the extent of land-users or the standards of population density.

(2) The Central Government may make any modifications to the master plan or the zonal development plan whether such modifications are of the nature specified in Sub-section (1) or otherwise.

(3) Before making any modifications to the plan, the Authority or, as the case may be, the Central Government shall publish a notice in such form and manner as may be prescribed by rules made in this behalf inviting objections and suggestions from any person with respect to the proposed modifications before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the Central Government.

(4) Every modification made under the provisions of this section shall be published in such manner as the Authority or the Central Government, as the case may be, may specify and modifications shall come into operation either on the date of the publication or on such other date as the Authority or the Central Government may fix.

(5) When the Authority makes any modifications to the plan under Sub-section (1) it shall report to the Central Government the full particulars of such modifications within thirty days of the date on which such modifications come into operation.

(6) If any question arises whether the modifications proposed to be made by the Authority are modifications which affect important alterations in the character of the plan or whether they relate to the extent of land-uses or the standards of population density, it shall be referred to the Central Government whose decision thereon shall be final.

(7) Any reference in any other Chapter, except Chapter III, to the master plan or the zonal development plan shall be construed as a reference to the master plan or the zonal development plan as modified under the provisions of this section."

"12. Declaration of development areas and development of land in those and other areas.

(1) As soon as may be after the commencement of this act, the central Government may, by notification in the Official Gazette, declare any area in Delhi to be a development area for the purposes of this Act;

Provided that no such declaration shall be made unless a proposal for such declaration has been referred by the Central Government to the Authority and the Municipal Corporation of Delhi for expressing their views thereon within thirty days from the date of the receipt of the reference or within such further period as the Central Government may allow and the period so specified or allowed has expired.

(2) Save as otherwise provided in this Act, the Authority shall not undertake or carry out any development of land in any area which is not a development area.

(3) After the commencement of this Act no development of land shall be undertaken or carried out in any area by any person or body (including a department of Government) unless,--

(i) where that area is a development area, permission for such development has been obtained in writing from the Authority in accordance with the provisions of this Act,

(ii) where that area is an area other than a development area, approval of, or sanction for, such development has been obtained in writing from the local authority concerned or any officer or authority thereof empowered or authorised in this behalf, in accordance with provisions made by or under the law governing such authority or until such provisions have been made, in accordance with the provisions of the regulations relating to the grant of permission for development made under the Delhi (Control of Building Operations) Act, 1955 (53 of 1955) and in force immediately before the commencement of this Act:

Provided that the local authority concerned may subject to the provisions of Section 53A amend those regulations in their application to such area.

(4) After the coming into operation of any of the plans in any area no development shall be undertaken or carried out in that area unless such development is also in accordance with such plans.

(5) Notwithstanding anything contained in Sub-section (3) and (4) development of any land begun by any department or Government or any local authority before the commencement of this Act may be completed by that department or local authority without compliance with the requirements of those sub-sections."

10. The petitioner in the writ petition has contended that there exists a park in the area in question. The said contention, as noticed hereinbefore, has been denied or disputed by the respondents.

11. In the writ petition, in view of the submissions made by the respondents themselves, the questions, which would arise for consideration, are :--

i) Whether in a Group Housing 400 shops can be located?

ii) Whether for the purpose of rehabilitation of the encroachers, the impugned decision could be taken?

12. The fact that the Ring Road is required to be widened is not in dispute. Widening of the Ring Road for smooth inflow of traffic would be in public interest, but the question, which arises for consideration would be as to whether for the said purpose, the respondents can be permitted to violate the legal provisions contained in the said Act.

13. Permission of selected use premises in use zones in the said Master Plan inter alia is as under :--

S.No.

Use Premises

Use Zones

Residential Plot - Plotted Housing

Residential Plot - Group Housing

Residence-cum-Work Plot

Hostel

GuestHouse,BoardingHouseand Lodging House

(i) Government and Semi-Government Departments, Public and Private Ltd. Companies for transit accommodation of their employees

(ii) All others

Convenience Shopping

Local Shopping Centre

Wholesale Trade

...

14. Five tier system of commercial area have been shown as :--

III

Central Business District and Sub Central Business District

District Centre

Community Centre

Local Shopping Centre

Convenience Shopping Centre

Activities in a District Centre would include shopping (retail, service, repair & limited wholesale), informal shopping, commercial offices, cinema, hotel, guest house, nursing home, etc.

15. It is not in dispute that a shopping centre in the area already exists. The said shopping centre consists of a large number of shops and out of the, 100 shops are already lying vacant. The respondents intend to build a large commercial complex of 300 more shops of the purpose of rehabilitating some encroachers. Such a huge commercial complex in the opinion of this Court would not come within the purview of "convenience shopping centre" in a residential area. If such a large number of shops are allowed to operate, for all intent and purport the area in question would be converted into a commercial area.

Furthermore, there is nothing on record to show that the local administration had taken policy decision that the encroachers should be rehabilitated. If the shopkeepers of the Ring Road are mere encroachers, they can be removed in accordance with law. However, if they are not encroachers, indisputably their eviction must take place in accordance with law. But even for rehabilitation of such shopkeepers, the respondents cannot be permitted to violate the provisions of the said Act, whether it is in public interest or not. Moreover, one public interest cannot be crucified for achieving other purported public interest, that too in violation of law. If the purported policy is to widen the Ring Road and for that purpose to remove the encroachers, their rehabilitation at some other place has to be as per law. Even the lands in question can be acquired under the said Act and the emergency provisions laid down therein can be invoked.

We are also not aware as to what impelled the respondents in taking the said decision, namely, construction of over 300 shops in a residential area apart from the shopping complex, which already exists there. Convenience shopping centre, as notice hereinbefore, would mean a retail service, repair or informal shopping. A huge shopping complex is not contemplated in a residential area, which can be located in a commercial area alone. Thus, the Association, which has filed this writ petition, in our opinion, is correct in contending that in a residential zone whether it is meant for 'Group Housing' or otherwise, such a large number of shops should not be allowed to construct and if the same is allowed, it would be contrary to the provisions of the said Act. Construction of such a large number of shops would further disturb the ecological balance of the locality and create various problems such as noise pollution, traffic congestion, etc. The law to the effect that for changing the land use provisions of Section 11A of the said Act has to be complied with is beyond ay dispute.

16. The Apex Court in M.C. Mehta v. Union of India and Ors., which has been followed in M.C. Mehta v. Union of India, and Ors., has held:--

"2. So far as the first contention is concerned, learned Additional Solicitor General has taken us through the order of

this Court in M.C. Mehta v. Union of India[ ]regarding land use along with the order dated 8-7-1996 (M.C. Mehta v. Union of India regarding relocation of 168 industries. The intention of this Court is clear that the order regarding land reuse was both for relocating industries as well as those which decide to close down and not to relocate. The learned counsel for the industries have not disputed this interpretation. We, therefore, accept the contention of learned Additional Solicitor General. Nothing more need be said on this point.

3. We see considerable force in the contention of the learned Additional Solicitor General on the second point also. The existing hazardous industries having been closed, what remains is the plot, superstructure and the workmen. The occupants of the plots and the owners of the industries which have been closed down shall have to undertake fresh procedure for setting up of a new industry. Needless to say that no industry can be set up which is not permitted under the Master Plan. The procedure required for setting up of a new industry shall have to be followed in every case. W make it clear that government permission and the consent from the Pollution Control Board / Committee, if required under law, shall have to be obtained. Even fresh electric connection and water connection shall have to be applied for and obtained in the changed circumstances. We have no doubt when approached for necessary permission / license / water / electric connection the authorities shall expedite in dealing with the applications."

(emphasis supplied)

17. In Virender Gaur's case (Supra), it has been held :--

"11. It is seen that the open lands, vested in the Municipality, were meant for the public amenity to the residents of the locality to maintain ecology, sanitation, recreation, playground and ventilation purposes. The buildings directed to be constructed necessarily affect the health and the environment adversely, sanitation and other effects on the residents in the locality. Therefore, the order passed by the Government and the action taken pursuant thereto by the Municipality would clearly defeat the purpose of the scheme. Shri D.V. Sehgal, learned Senior counsel, again contended that two decades have passed by and that, therefore, the Municipality is entitled to use the land for any purpose. We are unable to accept the self-destructive argument to put a premium on inaction. The land having been taken from the citizens for a public purpose, the Municipality is required to use the land for the protection or preservation of hygienic conditions of the local residents in particular and the people in general and not for any other purpose. Equally acceptance of the argument of Shri V.C. Mahajan encourages pre-emptive action and conduct, deliberately chartered out to frustrate the proceedings and to make the result fait accompli. We are unable to accept the argument of fait accompli on the touchstone of prospective operation of our order."

18. Only because there exists a so-called public interest, the same by itself would not be enough to avoid compliance of the statutory provision. Once it is held that in the ZDP, the are in question has been shown to be meant to be used for residential purpose, the same by itself would not mean that user thereof can be changed. An area with 400 shops would be more than a market complex and the same, for the reasons stated hereinbefore, in our opinion, cannot be allowed. The respondents, however, would not be debarred from allotting the vacant shops to some of the holding of the shops. It would also be open to them to take over possession of the land in accordance with law. For the view we have taken, it is not necessary to examine the other contentions raised in the writ petition.

19. This writ petition is disposed of with the aforementioned observations and directions. However, in the facts and circumstances of the case, there shall be no order as to costs.