Pawan Bhasin vs M.C.D. And Ors.
2004 Latest Caselaw 71 Del

JUDGMENT

Vikramajit Sen, J.

1. The Petitions be given their separate numbers corresponding to the number of Petitioners.

2. The grievance of the Petitioners is that the Navjivan Cooperative House Building Society Limited (the 'Respondent Society' in these cases) is intending to carry out construction of the Community Centre in Plot No.50, Navjivan Vihar, New Delhi. The Petitioners apprehend that since the colony road is a cul-de-sac, there will be rampant parking by persons who are not residents of Plot No.45-49 or their visitors. It is further complained of that there are likely to be numerous celebrations in the Community Centre causing noise pollution and other nuisances. It is also contended that although plot No.50 had originally been designated for a community centre in the Layout Plans, another plot bearing No.130 had been permitted by the D.D.A. to be used by the Society for the purpose of the Community Centre, in lieu of plot No.50. It is not in dispute that the Office of the Society is presently located in plot No.130. The stand of the Respondent Society is that the plot is a small one and is insufficient for use as a Community Centre. It is also not in dispute that on being permitted to use plot No.130 as the Society's office, the Society had specifically given up its rights to the use of plot No.50 as a Community Centre. These events transpired in Circa, 1982.

3. The Petitioners contend that in September, 1983 the D.D.A. rejected the request of the Respondent Society to allot plot No.50 also for the purpose of community facilities. In 2001, the D.D.A. (Institutional Branch) proposed the allotment of plot No.50 ad measuring 644 sq.yards but without alluding to the said number. The possession of the plot was handed over to the Society which thereafter presented its construction Plans for sanction by the Authorities. The Delhi Fire Service granted its No Objection Certificate to the Plans in June, 2001 and the M.C.D. sanctioned the Plans in November, 2001.

4. Civil Writ Petition No.947/2002 came to be filed in these circumstances, praying that the permission granted by the D.D.A. and the No Objection granted by the Delhi Fire Service, and the sanctioning of the Plans be quashed and the Respondent Society be restrained from raising any construction on plot No.50. Subsequent thereto Civil Writ No.4660/2003 has been filed praying for the issuance of appropriate Orders declaring as arbitrary and illegal the change of user of plot No.50 and the grant of permission by Respondent's Authorities to the Society to establish community facilities. The allotment of the plot and the sanction of the Plans as well as the NOC was also assailed in these Petitions.

5. The following extract from the judgment rendered by the Division Bench in LPA No.375/2003entitled as Panchshila Cooperative House Building Society Limited v. Delhi Development Authority & Ors., would be advantageous to peruse which read as follows:

"Thus, after the land was developed as per the layout plan, only the plotted area, i.e. the area developed as residential plots was given in the appellant Society. It is for this reason that area mentioned in the Lease Deed is much less than the area mentioned in the Agreement and further that the area now shown is coloured red and blue. In view of the aforesaid provisions of the Agreement and Lease Deed, the irresistible conclusion which would be drawn is that the land in question which was shown as office complex in the layout plan did not vest in the appellant Society as it was not leased out to the appellant Society. The appellant Society, therefore, would have no right on this part of the land. We, therefore, agree with the finding of the learned Single Judge that it is only residential plots which were leased out to the appellant Society and appellant Society would have no right over the disputed land.

Once this finding is arrived at all other contentions of the appellant go into pale of insignificance as the appellant Society had no right over the land. It is not open to the appellant Society to contend that DDA did not have any right over the said land and could not do constructions without permission from MCD. As noted above, it was argued with much vehemence that notification dated 3.1.68 purported to have been issued under Section 22(1) of the Delhi Development Act was never published in any Gazette and it was argued that the respondent-DDA could not produce gazette copy.

Although respondent-DDA has tried to explain that in the records of the DDA it is the certified copy which is on record, fact remain that Gazette notification is not produced. However, that would be of no consequences as once it is held that the appellant Society has no right over the disputed land, whether it is L&DO or DDA which has the authority to construct over the land is for those authorities to decide and is of no concern tot he appellants. It may be mentioned that although Ministry of Works and Housing (Union of India) was imp leaded as respondent in the writ petition as well as in this appeal, it has not come forward to deny the right of DDA to develop the disputed land for the purpose for which it is earmarked in the layout plan. It appears that in so far as respondent authorities are concerned, they are acting on the purported notification dated 3.1.68. We are of the opinion that, in a situation like this, appellant has no locus standi to challenge the act of the DDA when the basis of entire writ petition was that the land in question belongs to the appellant Society but it is found that such basis is ill-founded.

No other argument was addressed before us. As we do not find any merit in this appeal, the same is hereby dismissed. There shall, however, be no order as to costs."

6. Unlike in the Panchshila case (supra), the submission of the Respondent Society in these cases is that the entire land of the colony had been leased out to it, including plot No.50 and 130. This assertion has not been controverter. It has also not been contested that the use of plot No.50 as a community centre would not tantamount to its user changing from Residential in nature. Learned counsel for the DDA, however, has clarified that in the case of a Community Centre or Facilities, some extra activities are permissible when compared with residential plots.

7. If it is assumed that the plot is vested with the Society, the Petitioners cannot be heard to object to its user by the Society in any manner permitted by law. There seems to be some controversy as to when the price of the land had been paid. But since the consideration was a nominal charge of Rupee One, it lends credence to the contention that the Society had already paid for the price of the land. In these circumstances the permission of the Authorities firstly for the use of plot No.130 in lieu of plot No.50 and the subsequent decision to permit the use of plot No.50 disregarding the previous commitment not to use plot No.50 if permission was granted in respect of plot No.130, pales into insignificance. It would certainly be arguable that D.D.A. or M.C.D. had no jurisdiction to impose any limitations contrary to the Layout Plan or the land user as per the Master Plan.

8. If it is considered that the Authorities retain domain and jurisdiction over the said plot then the rigour of the Judgment in Panchshila case (supra) would immediately get attracted with the consequence that the Petitioners would cease to have any locus standi to object to the actions and decisions of the D.D.A. It is, therefore, my considered conclusion that the action of the Authorities in permitting a Community Centre to be constructed at plot No.50 is not legally assailable.

9. What remains to be considered is whether the Respondents are estopped from using plot No.50 in any manner which is different from the user when the Petitioners had purchased their respective properties. It is trite to state that for the principles of estoppel to apply, there must be a holding out or assurance or representation of a certain position by the Respondents to the Petitioners themselves in respect of which there is a subsequent turnaround. It is also essential that these representations should have been acted upon by the Petitioners. I find that there is no such estoppel, nor has it been pleaded in clear terms. It is too fanciful and sanguine to assert that the Petitioners had purchased their flats on the assurance of the Society or the Authorities that plot No.50 would remain unutilised and in the state in which it then was, for all time to come.

10. The question that remains to be cogitated upon is about the anticipated nuisance from the use of the plot as a Community Centre or Facility. Mr.Bhasin, learned counsel appearing for the Respondent Society has stated that the vehicles of persons intending to visit the Community Centre will not be permitted to be parked on the 30 ft. road in front on the plot Nos. 45 to 49. He has also assured the Court that the plot will be used by the Society strictly for the purposes permitted by the Authorities. These statements are noted and accepted by the Court. In addition it is ordered and directed that the Respondent Society shall take every care to ensure that there is no garbage etc. left or disposed off outside Plot No.50 and that noise pollution shall be avoided in all circumstances. The Respondent Society cannot be expected to use plot No.50 for a Community Centre Facility to the detriment of residents in the contiguous and adjoining plots.

11. Mr. Bhasin had also strongly contended that the Orders passed by this Court on 12.9.2003 have not been complied with. In that hearing the M.C.D. had been directed to carry out an inspection of the property of the Petitioners. This was for the reason that it had been argued that these Petitions have been filed because the Respondent Society had objected to widespread unauthorised constructions carried out by the Petitioners in their Flats. In view of the dismissal of these Petitions, I do not think it necessary to venture down this path. If illegal and unauthorised construction has been carried out the aggrieved parties may initiate their remedies. With the dismissal of these Petitions, it is hoped that a quietus shall be achieved in the neighborhood of the warring parties.

12. The Petitions are disposed of in these terms with no Order as to costs. It is clarified that if any public nuisance is caused to Petitioners they may take appropriate legal steps.