Harish Verma And Ors. vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 1187 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Respondent No.3 in WP(C) 3888/98 is Pragati Educational Society. It is respondent No.6 in WP(C) 2685/98. Prayer made in WP(C) 3888/98 is to quash the allotment made by DDA in favor of Pragati Educational Society in respect of as site in Block-A of New Friends Colony, Mathura Road. Similar relief is prayed against Pragati Educational Society in WP(C) 2685/98, in that, it is prayed that DDA be restrained from using or permitting use of the site for a purpose other than a park. It may be noted at the out set that name of the society is 'Pragati Educational and Welfare Society' and not 'Pragati Educational Society'.

2. WP(C) 3888/98 has been filed under the signatures of Shri M.L.Jaggi who claims to be the President of New Friends Cooperative House Building Society Ltd. Supporting affidavits in WP(C) 3888/98 have been deposed to by said Shri M.L.Jaggi.

3.Case of the petitioners is common. It is stated that New Friends Cooperative House Building Society Ltd. purchased 828 bighas and 15 biswa land in the revenue estate of Village Kilokri, Jogabai and Khizrabad to be developed as a residential colony, plots to be carved out were for allotment to the members of the society. In the meanwhile, Union of India came out with the Policy of Large Scale Acquisition, Development and Disposal of Land,1961. Under the said policy, these lands were acuired by the Government and re-allocated to the society. On 13.2.1963, a memorandum of agreement was executed between the President of India and the society whereunder the said 828 bighas and 15 biswa of land was allotted to the society for develoment and allotment to its members. Society paid Rs.41,82,456.61 as premium for the land. Society applied for and obtained sanction of the lay out plan from the MCD. It is stated that as per the said lay out plan, provisions were made for Dhobi Ghat and service personnel block at site marked 'X' and 'Y' in the lay out plan. It is further the case of the petitioners that on the society making representation, site of dhobi ghat and service personnel block was shifted toi another site arked 'Z'. The sites originally marked 'X' and 'Y' were converted into parks by MCD. It is stated that the site in dispute falls where dhobi ghat and service personnel block were originally earmarked.

4. It is further the case pleaded that the society was the owner of the land, be it developed or undeveloped. After allotting residential plots to the members, all other open land is claimed to be the property of the society.

5. On the pleadings aforesaid, action of DDA to allot the land in question to Pragati Educational and Welfare Society has been questioned.

6.defense of DDA and Pragati Educational and Welfare Society is that even as per the pleadings of the petitioners, the site was never earmarked as park. When original lay out plan was sanctioned, the site was earmarked for construction of a dhobi ghat and service personnel block. It meant that the site could be constructed upon. Dhobi ghat and service personnel block got shifted to another site resulting in the site in question being available for being constructed upon. On the issue of ownrship of the society, it is stated that the society was never the owner of the land. Central Government acquired the land. It was placed at the disposal of the DDA. In turn, DDA entered into an agreement with the society empowering the society to develop the land. Residential plots were to be demised in perpetuity to the members of the society and all other lands were to be the property of the president of India. They could be disposed of by the President of India in any manner and to whomsoever he thinks proper. It is further the case of the DDA that the petitioners cannot question allotment of land to Pragati Educational and Welfare Society because adjoining site, at the asking of the New Friends Colony Arya Samaj wa allotted to it with the consent of New Friends Co-operative House Building Society. When said allotment was made, Shri M.L.Jaggi who was then acting as a Secretary of the society had consented. It is stated that original site where dhobighat and service personnel block was proposed included the site where allotment was made to Arya Samaj Society.

7.On the issue of title to the site in question, agreement dated 13.2.1963 between the President of India and the New Friends Cooperative House Building Society Ltd. requires to be considered. The said agreement shows that 828 bighas and 15 biswa of land of Village Kilokri, Jagobai and Khizrabad falling in Zone F-1 was licensed to the society. The society was to develop the same at its own cost and expense and as per approved lay out plan. Upon completion of the development in accordance with lay out plan, residential plots were to be demised in perpetuity in favor of the members of the society. The remaining land was to be taken possession of by the President of India who had the power to dispose of the same in any manner and to homsoever he thought proper. Important and relevant covenants of the said agreement are as under :

''I.The President hereby grants, for a period of three years commencing from the thirteenth day of February, one thousand nine Hundred Sixty Years (and the time so specified shall be of the essence of the contract) a license to the society to enter upon the said land only for the purpose of making surveys and taking measurements and levels for preparing a lay out ................. and the society hereby undertakes to carry out and complete within the said period of three years, to the satisfact on of the Chief Commissioner at its cost and expense, development including metalling of streets, provision of sewers and drains ................. in accordance with the directions of the Chief Commissioner which he made in accordance with his absolu e discretion issued in this behalf.

VIII.Upon the completion of the development of the land in accordance with the provisions contained herein and to the satisfaction of the Chief Commissioner and issue by him of a certificate to that effect and provided that the other conditions of this Agreement have been duly observed, the President will, in consideration of the expenses incurred by the Society on the development of the land the payment of the premium and of yearly rent as herein provided and of the covenants on the art of the society to be contained in the lease, grant to the society and the society shall accept a lease, of such of the residential plots as may be determined by the Chief Commissioner in his absolute discretion, in perpetuity in the form of leae attached hereto and referred to in Clause X hereof.

The President may dispose of the remaining pasts of the said land, in any manner and to whomsoever he thinks proper, and the society shall not be entitled to claim the refund of any amount or any part thereof paid towards premium or expended bit on the development of the land.

XII. Nothing in these presents contained shall be construed as a demise at law of the said land or any part thereof so as to give to the society any interest therein but the society shall only have the license to enter upon the said land for the purpose of performing this Agreement.''

8.It is apparent from a perusal of the covenants noted above that the society never became the owner of any land under the agreement. Society acted on behalf of its members to develop the land. Beneficiaries were the members who had a right to obtain a perpetual lease of the residential plots. All other lands remained the property of the President who was free to dispose of the remaining land in any manner and to whosoever he thought proper.

9. Submissions made by counsel for the petitioners that if read so, President of India could start selling the roads. He urged that once developed, all vacant land was to be held in trust.

10. Logic of an argument cannot be reduced to absurdity. If the President of India were to sell roads, action would be challenged on the ground of perversity and challenge would succeed on the ground that action is perverse. Further, if the President of India were to deal with land contrary to the specified land use, a court of law would question the same as it would be violative of the provisions of Delhi Development Act,1957. But the position here is entirely different. The site in quest on was never shown as a site for a park.

11.Pleadings of the petitioners contained admission that the site of the land as also the adjoining site allotted to Arya Samaj Mandir were originally earmarked for dhobi ghat and service personnel block. In other words, these two sites were earmarked for being built upon. It is not the case of the petitioners that when the service personnel block and dhobi ghat were shifted to another site, land use for these two sites was changed to that for a park. The petitioners only state tha MCD was maintaining the sites as a park.

12. If that be so, it is surprised that Shri M.L.Jaggi himself recommended that the adjoining site be allotted to Arya Samaj Mandir.

13. When the adjoining site was allotted to the New Friends Arya Samaj Society, Shri M.L.Jaggi, as an honorary Secretary of the Society wrote a letter on 18.12.1983. The letter reads as under :

The President,

New Friends Arya Samaj Society,

91, Ram Lall Jaggi,

New Friends Colony,

Mathura Road, New Delhi.

Sub: Allotment of land for Temple in New Friends Colony for Arya Samaj.

Dear Sir,

This has reference to your letter dated 15th December,1983 in which you asked us to issue no objection certificate and also suggest site suitable for temple.

There is no doubt that no site is earmarked for religious purposes which is the draw back in lay out plan of New Friends Colony which must have. We have no objection if the DDA allot you site which is lying vacant. We would also suggest a few stes which are as under :-

The site marked A and B in the lay out plan enclosed herewith. Both the sites are not plots.

We hope that this will meet your requirement. We are separately writing a letter to DDA in this respect.

Thanking you,

Yours faithfully,

(Maqsudan Lall Jaggi)

Hony.Secretary

14. There is another letter dated 11.2.1992 in the file of DDA. The said letter has been signed by Shri M.L.Jaggi acting in his capacity as Secretary of New Friends Arya Samaj Society. The letter reads as under :

''The Deputy Director Institutional,

D.D.A., I.N.A. Market,

New Delhi.

Sub : Extension of time for construction of building of New Friends Arya Samaj Society Ltd., New Friends Colony, New Delhi.

Dear Sir,

We submit as under :

1. That the DDA allotted a piece of land to the above said society a plot No.R-1 measuring 500 sq.yards. That the basement have digged and some construction have been done due to unavoidable circumstances we could not complete the construction.

No we are quite in position to complete the construction. We, therefore, request you to kindly extend the time for construction till 31.3.1993, as the job is pure religious, therefore, kindly take sympathetic consideration.

We hope that you will be kind enough to allow the extension.

Thanking you,

Yours faithfully,

New Friends Arya Samaj Society

SD/-

President) (Secretary)

Gian Parkash M.L.Jaggi

Retd. I.A.S. Officer''

15. I am rather surprised that this very person Shri M.L.Jaggi had deposed to the correctness of the pleadings of the petitioners New Friends Cooperative House Building Society Ltd.

16.It is obvious that the office bearers of New Friends Cooperative House Building Society have affiliation to New Friends Arya Samaj Society. They were happy when one of the two plots was allotted to Arya Samaj. They had no objection to the Arya Samaj Society being given a plot to be constructed upon.

17.The core issue remains whether the site in question is a park. Pleadings of the petitioners evidence that the site was never earmarked as a park. The site along with the adjoining site was shown to be used for being constructed upon. No doubt, original decision was to construct dhobi ghat and service personnel block. While shifting the sites of dhobi ghat and service personnel block, it is not the case of the petitioners that the plan was modified in a manner that these two sites have tbe used for a park. Position would be that no specific user got identified for these lands.

18. Record of DDA which was produced in Court shows that how the land where originally dhobi ghat and service personnel block were to be built, should be utilised, came to be decided by the DDA.

19.File starts with a noting that New Friends Arya Samaj Society requested for allotment of a religious site where building of Arya Samaj should be constructed. Note records that five religious sites could be identified in the lay out plan of the society. Two of the sites were identified and numbered as R-1 and R-2. Matter was considered. Office bearers of the Society attended various meetings. Ultimately, it resulted in plot R-1 being allotted to the Arya Smaj Society.

20.The other site numbered as R-2 remained vacant. It was this site which was finally allotted to the Pragati Educational and Welfare Society. At no point of time, prior thereto, society ever stated that the land was to be used as a park. Obviously, the society was then interested in getting the land for the Arya Samaj. Be that as it may, nothings on the file of DDA did not record the site to be a park, and rightly so.

21.Mr.Ramesh Chandra, learned senior counsel made a last ditch argument. Argument was that at best, it was a case where the site had to be used either as a dhobi ghat or a service personnel block. He argued that in no case it could be allotted to a Educational and Welfare Society.

22.Argument misses the basic point. Neither the Master Plan nor the Zonal Development Plan identifies the site to be used for a particular purpose. The Master Plan and the Zonal Development Plan do not specify the land use. In this scenario, the development code would require preparation of a lay out. This lay out plan would have conformed to the requirement of the purpose for which New Friends Colony came up. Development Code shows which are the permissible activities and impermiss ble activities. Development Code would reveal that where the designated use zone of an area is residential, permissible land usage would be the ones specified in sub-clause 8(ii) of the Development Code. To illustrate, a residential use zone of n area would not mean that it would have no shopping centre, commercial offices, cinemas etc. These would be concomitant requirements in a residential area. Sub-clause 8(ii) of the Development Code shows that it is permissible to earmark plotsn a residential colony for religious purpose.

23.Lay out plan has to be finalized by DDA or the local authority. It can be amended. It is not a statutory plan. Delhi Development Act,1957 imparts statutory character to only the Master Plan and Zonal Development Plans. In my decision of even date rendered in WP(C) No.1768/2004 I have discussed this issue in detail, my reasons are to be found therein.

24. I find no merits in the two petitions. Dismissed.

25. No costs.