Eb Pocket Welfare Association And ... vs Delhi Development Authority And ...
2003 Latest Caselaw 386 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioners are the Welfare Association and residents of EA, EB and EC Pockets of the SFS Flats, Rajouri Garden Extn. constructed and developed by respondent No. 1.

2. The SFS scheme was published in April, 1981 by respondent No. 1. It would be relevant to reproduce Clause 2 and Clause 17(i) which are as under:

"2. The allotment under the scheme will be on the terms and conditions contained in this Brochure and the Delhi Development Authority (Management and Disposal of Housing Estates) Regulations, 1968.

 

 17. General   
  (i)    The DDA reserves the right to increase or decrease the number of flats
and scooter garages depending upon the actual feasibility at site prior
or during the course of construction. Similarly, the DDA also reserves
the right to change the facilities and specifications shown in the various
plans and the text. There may also be some variations in the sizes of the
individual rooms and overall covered area as per actual construction.
The various plans as given in the Brochure are for the general information
and guidance of the intending purchasers of these flats, and as such, do
not guarantee the exact reproduction at site while undertaking the
construction."  
 

 3. Along with the aforesaid brochure of the scheme, a plan of the area was also annexed showing a neighborhood park. A detailed lay-out plan of Rajouri Garden was also annexed to the brochure. 
 

4. The grievance of the petitioner arises on account of a decision of respondent No. 1 to allot land measuring 600 sq. yds. to respondent No. 2 for a community centre and to respondent No. 3 measuring 500 sq. yds. for a church. The petitioners have thus prayed for a writ of certiorari for quashing the change of the user of the neighborhood park where the said allotment was stated to be located and for maintaining the park as it is.

5. The contention of the learned Senior Counsel for the petitioner is that the petitioner herein applied under the scheme looking into the plan of the area providing for a neighborhood park and are now prejudiced by the conversion of the neighborhood park, at least partially, into a community centre and a church. The learned Senior Counsel further submits that the said allotments could not have been made without following the due process of law of modification of the plan under Section 11A of the Delhi Development Act, 1957 (hereinafter referred to as 'the said Act').

6. Learned Senior Counsel further contends that the parks are the breathing spaces for a colony in the congesting urbanisation taking place. It is thus contended that the petitioners have a vested right and interested in continuation of the parks. Learned Senior Counsel has relied on the judgment of the Supreme Court in Bangalore Medical Trust v. B.S. Muddappa, where the allotment of the land meant for a public park for construction to privately owned and managed institutes was quashed. It was observed as under;

"22....These documents leave no doubt that the action of the Government and the BDA resulting in the Resolution dated 14th July, 1976 have been inspired

by individual interests at the costs and to the disadvantage of the general public. Public interest does not appear to have guided the minds of the persons responsible for diverting the user of the open space for allotment to the appellant. Conversion of the open space reserved for a park for the general good of the public into a site for the construction of a privately owned and managed hospital for private gains is not an alteration for improvement of the scheme as contemplated by Sections 19 and the impugned orders in that behalf are a flagrant violation of the legislative intent and a colourable exercise of power. In the circumstances, it has to be concluded that no valid decision has been taken to alter the scheme. The scheme provides for a public park and the land in question remains dedicated to the public and reserved for that purpose. It is not disputed that the only available space which can be utilised as a public park or playground and which has been reserved for that purpose is the space under consideration."

7. Learned Senior Counsel has then referred to the Division Bench of the Allahabad High Court in DD Vyas & Ors. v. Ghaziabad Development Authority & Anr., AIR 1983 Allahabad 27 where in para 9 it was observed as under:

"9. ..The legislative intent has always been the promotion and enhancement of the quality of life by preservation of the character and desirable aesthetic features of the town. No town is known for sky-scrappers, for myriad industries, for big commercial centres, for big monumental building, but for the attractive lay out of the town, for good land-scapes, for beautiful parks and lawns, for expansive verdant cover, and for perfect social ecology. Good parks expansively laid out are not only for aesthetic appreciation, but in the fast developing towns having conglomeration of buildings, they are a necessity. In crowded towns where a resident does not get anything but atmosphere polluted by smoke and fumes emitted by endless vehicular traffic and the factories, the efficacy of beautifully laid out parks is no less than that of lungs to human beings. It is the verdant cover provided by public parks and greenbelts in a town, which renders considerable relief to the restless public. Hence the importance of public parks cannot be under estimated. Private lawns on public parks are not a luxury, as they were considered in the past. A public park is a gift of modern civilization, and is a significant factor for the improvement of the quality of life. Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surrounding was a privilege of few, but now in a democratic set up, it is a gift from the people to themselves. Open space for a public park is an essential feature of modern planning and development, as it greatly contributes to the improvement of social ecology."

8. Learned Counsel for respondent No. 1, DDA on the other hand contends that the plan submitted with the brochure only showed the general lay-out of the area and Clause 17 (i) specifically provided that the DDA reserves the right to change the facilities and specifications shown in the various plans and text.

9. Learned Counsel further contends that Section 11-A of the Act only refers to the master plan and the zonal development plan which undoubtedly have a statutory character and are required to be modified in terms of the Act. It is, however, submitted that the plan in question annexed to the brochure is not such a plan and was only alay-out plan which does not require any such procedure under the Act to be followed for modification of the same. The learned Counsel has referred to the counter-affidavit filed by the said respondent wherein it is stated that the lay-out plan can be modified with the approval of the Vice Chairman who has been delegated powers vide Resolution No. 161 dated 21.10.1978.

10. Learned Counsel for respondent No. 1 further submits that there is no change of the master plan or the zonal development plan as there is no change of land use requirement. The area is earmarked under the master plan for residential use and the allotment sought to be made to respondent Nos. 2 and 3 falls within the permissible land use of residential area. It is thus submitted that such area can be used for community centre, for neighborhood park and for facilities like community hall, post office, dispensary etc. as also provisions for religious sites.

11. Learned Counsel for respondent No. 1 has further contended that the present case is not one where the green area is sought to be utilised and converted into residential apartments. It is stated that the lay-out plan of the area including the park in question and other play areas meets the requirements of the residential population as specified in the master plan for such open areas to be kept as park. Learned Counsel submits that at the stage when the brochure is issued, only a broad lay-out plan is indicated and when detailed planning is done, the areas are earmarked for specific uses in terms of the master plan. In this behalf learned Counsel has referred to the "Use zone" designated under the master plan and in reference to the residential use zone community hall, library and religious activities are permissible.

12. Learned Counsel has also perused the revised plan of the religious/social cultural institutional area which shows the green areas preserved as also three sites marked for religious purposes as R/1, R/2 and R/3 as also sites earmarked for respondent No. 2, the post office and the site for the dispensary. The site R/3 is for respondent No. 3.

13. Learned Counsel submits by reference to the master plan, 2001 that a total area for community facilities is earmarked depending on the level of the population. In case of a population of 5,000, the total community facility required is 1.63 hectares out of which 0.5 hectares is kept for the park and 0.5 hectares is to be kept as the play area. For a population of 15,000, one neighborhood park on 1.5 hectares and a play area of 1.5 hectares is provided. It is thus stated that all these parameters are fulfillled.

14. In so far as the religious sites in question are concerned, it is stated that the same do not even fall within the park.

15. Learned Counsel for the respondent, however, fairly states that the stand taken in the counter-affidavit by respondent No. 1 that the neighborhood park in question falls outside the scheme boundaries of Pockets EA, EB and EC of Rajouri Garden, is not correct in view of the plans produced.

16. I have considered the submissions advanced by learned Counsel for the parties and have perused the record.

17. There can be no doubt about the proposition that open areas and parks are essential for the survival of the urban population. It is not permissible for the town planning authority to eliminate and remove the open areas and such authorities must act within the parameters of the master plan. It has-been observed so in the DD Vyas' case (supra). Further, it is not permissible for open areas to be converted into areas of private construction as held in Bangalore Medical Trust case (supra). The question, however, remains as to whether in the present case, such a conversion is taking place.

18. At the time of the issuance of the brochure, the broad contours of the areas are specified. There is no doubt that an area in the said plan is designated for a neighborhood park. However, Clause 17 (i) prescribes and gives right to the DDA to change the facilities and specifications shown in the various plans and text. The reading of the Clause 17(i) itself shows that in respect of the plan, the matter is not final. Thus, it cannot be said that a representation was made to the petitioners and that the respondent No. 1 is resiling from the same. Thus the plea of promissory estoppel is not available to the petitioners.

19. Clause 17 (i) of the brochure, however, cannot give authority to respondent No. 1 to act contrary to the master plan, the zonal development plan and the lay-out plan of the area in question. However, by reference to the master plan, it is shown that the area designated for residential use can be utilised for various purposes. It is in this context that the area earmarked for neighborhood park has to be considered. It is not a case where the complete neighborhood park is sought to be converted into constructed area. The parameters required in the master plan for such neighborhood park and open areas are still being observed and adhered to. Thus, there is no violation of the master plan or the Zonal Development Plan.

20. I am unable to accept the contention of the learned Counsel for the petitioner that Section 11-A of the Act will also apply to the lay-out plan. The section itself makes it applicable only to the master plan and the zonal development plan. The lay-out plan of the area has been amended in accordance with law and in pursuance to the powers vested with the Vice-Chairman of the DDA.

21. It is also relevant to note that the plans produced which have been modified show the large green area still maintained. It is only three specific sites which are earmarked for religious purposes: one site for the post office, one site for the respondent No. 2 for community hall and one site for the dispensary. The post office is stated to be functioning. Further, the three sites meant for religious purposes fall outside the area earmarked for the park. Once the requirements under the master plan and the zonal development plan are adhered to, it cannot be said that the respondent No. 1 is trying to remove the green area. The master plan itself provides as to how much green areas and open areas are to be maintained taking into consideration the quantum of the population and the area in question. The master plan also shows the designated users of such area which include the community hall and the religious sites.

22. In view of the aforesaid, I am of the considered view that the allotment made in favor of the respondent Nos. 2 and 3 cannot be faulted on the ground of conversion of designated open area of user to constructed areas. Further, there is no violation of the master plan or the zonal development plan and the lay-out plans stand modified. The norms laid down for such urban development and planning as per the master plan have been adhered to.

23. I find no merit in the writ petition.

24. Dismissed.

25. Interim orders stand vacated.