Star Residents Society (Regd.) ... vs Delhi Development Authority
2004 Latest Caselaw 889 Del

JUDGMENT

Pradeep Nandrajog, J.

1. While reserving for judgment, on 16.8.2004, following order was passed:-

"Arguments heard. Judgment reserved.

Counsel appearing for the DDA clarified that he has obtained instructions from DDA. His instructions are that the original lay out of the colony Rajouri Garden was approved by the Municipal Corporation of Delhi. DDA is not in possession of any approved lay out plan of the said colony. MCD has taken a stand that the approved lay out plan was with the DDA. Matter has accordingly been argued by the parties treating the lay out plan filed by the petitioner being Annexure 'C' to the writ petition as the original lay out plan of the colony."

2. Prayer made in the writ petition is as under:-

"a. To issue a writ of mandamus or any other appropriate writ order or direction, directing the respondents to remove all encroachments from the park and to direct respondents nos. 1 to 3 not to permit/allow the construction of any community centre or any other construction at J-9/ 36A, Rajouri Garden Extension, New Delhi, and

b. to direct respondents nos. 1 to 3 to revoke sanction of respondent no.5 and direct the respondents to maintain the said park properly, and

c. direct the respondents not to allow any future encroachments in or around the above said park."

3. Petitioner No.1 is a society registered under the Societies Registration Act 1860 formed by the residents of Block J-9 and J-11, Rajouri Garden Extension, New Delhi. Petitioner No.2 is a resident of house No.40 in Block J-9, Rajouri Garden Extension, New Delhi.

4. Rajouri Garden Extension was developed by a private colonizor, Delhi Land Finance Company (D.L.F), after approval obtained from the Municipal Corporation of Delhi in the year 1969. As noted in para 1 above, since neither D.D.A nor M.C.D produced the official approved lay out plan, the one filed by the petitioners as Annexure 'C' to the writ petition was taken to be the approved lay out plan of the colony.

5. Lay out plan shows that land on the southern side of Block J-9 and J-11 is vacant land.

6. As per the petitioners, the vacant land was developed as a park, bisected into 3 parts due to 2 roads being laid. The three segments are reflected in the site plan annexed as ANNEXURE 'E' to the writ petition.

7. Grievance in the writ petition is that 1 of the 3 segment, towards block J-9 has been craved upon into two resultant plots by D.D.A. 1 plot has been given to Delhi Electric Supply Undertaking for setting up an electric sub station and the 2nd plot has been allotted to respondent no.5 for use as a Community Centre. Petitioners plead tht land has to be used for a purpose of the land use prescribed as per the lay out plan. Thus, neither DESU, nor respondent No.5 could be allotted a plot each for erecting an electric sub station and a Community hall respectively.

8. Plot allotted to respondent No.5 has been given Municipal number J-9/36A, Rajouri Garden Extension.

9. Elaborating the plea aforenoted, petitioners state that the Zonal Development Plan of the zone where the colony falls shows sites for a community centre. Site of plot J-9/36A is not shown for Community Centre. It is pleaded that if an electric sub station is permitted to be erected, it would be a fire hazard. If a Community Centre is allowed to be constructed it would cause public nuisance.

10. Unfortunately, D.D.A has not filed any counter affidavit. Stand of M.C.D is that it sanctioned the building plans in favor of respondent No.5 since D.D.A had allotted to it the plot being J-9/36A, Rajouri Garden Extension for constructing a Community Centre. Stand of DESU is that the electric sub-station was erected long back. Its erection is for benefit of the residents since it is being put to a public utility use.

11. Stand of respondent No.5 is that it is a social and cultural organization established in the year 1980. It was allotted plot No.J-9/36A admeasuring 328.8 sq.meter for Rs.3,65,604.12, vide allotment letter dated 2.9.1993 by the D.D.A. Said sum was paid on 25.9.1993. Physical possession was taken in December 1993. Plans were got sanctioned on 23.8.1996.

12. Writ petition was filed in April 1997. On 23.4.1997 an interim order was passed directing respondent No.5 to maintain status quo.

13. Photographs filed with the writ petition show that an electric sub station stands constructed by DESU. Photographs show the building to be old, at least not recently constructed. Site allotted to respondent No.5, photographs show it to be excavated.

14. In the counter affidavit of respondent No.5, in para 4 it is averred:

"The DDA considered the request of the Sabha and by letter No.F.8(49)83/ Institutional/ 856 dated 21.4.1993 informed the Sabha that it may submit bank balance certificate to the tune of Rs.3,75,000/- so that their request for allotment may be considered. A true copy of the said letter is being produced marked Annexure R-4 to this counter affidavit. Subsequently by their allotment letter No.F.8(49)/83/IL/1667 dated 1/2.9.1993 the DDA required the Sabha to pay Rs.3,74,744.22 so that a plot of land measuring 328.80 sq.metres in Rajouri Garden be transferred to Sabha on perpetual lease. The said allotment letter contained several other terms and conditions. The Sabha accepted the said terms and conditions and also gave the requisite undertaking to the DDA. A True copy of the allotment letter is being produced marked Annexure R-5. A true copy of the undertaking and letter of acceptance of the Sabha is being produced marked Annexure R-6 (collectively) to the counter affidavit.

The respondent sabha paid a sum of Rs.3,74,744.22 to the DDA vide payees A/c cheque no.003952 dated 25.9.1993 as demanded by the DDA for the allotment of plot. A true copy of the cheque is being produced marked Annexure R-7 to this counter affidavit.

The physical possession of the plot was handed over on or about December 1993. A copy of the letter No.F.8(49)/83 instl/. 26779 dated 9th December, 1993 is being produced marked Annexure R-8 to this affidavit."

15. Petitioners reply in the rejoinder to the pleadings of respondent No.5 is :

"In reply to paras 3 & 4 of the counter affidavit, it is submitted that Respondent Nos. 1 to 3 have wrongly and erroneously carved out a plot bearing No.J-9/36A from the vacant land meant for park and has allotted the same to respondent no.5. According to the original lay-out plan of Rajouri Garden Extension, there exists no plot at the place where now plot no.J-9/36A is shown and has been allotted to respondent no.5. The said plot was not a part of the original lay-out plan. Respondents Nos. 1 to 3 have unlawfully and illegally allowed encroachments by changing the user of land in contravention and violation of master plan and layout plan of Rajouri Garden Extension. Change in user and allotment of the said plot of land to respondent no.5 contrary to and in violation of master plan and layout plan does not confer any right on respondent no.5. Allegations made in the rest of para 3 & 4 of the counter affidavit are wrong and denied."

16. Petitioners have not denied the plea of respondent No.5 that it took possession of the land in December 1993.

17. Electric sub station was constructed well before the writ petition was filed. Respondent No.5 went into possession in December 1993. Writ petition filed in the month of April 1997 would be hit by delay and laches.

18. Laches is commonly used in two senses. Firstly it simply refers to delay in pursuing relief. Secondly it refers to a position that the delay in pursuing relief has brought about a position where the defendant would be adversely affected if relief is granted. Generally, when facts are known to a person it would be presumed that he knows of his right. Thus, it would be obligatory for every person to pursue his remedies within reasonable time because defendant may bonafide do certain acts which would make it unacceptable to set the clock back. In the case of land, a defendant may incur expenditure on the land, bonafide believing that he is so entitled to do. In the instant case, when part of site in question was allotted to DESU, DESU took possession of the site and constructed a sub-station thereon. All along, petitioners kept silent. Even qua respondent No.5, possession was taken over in December, 1993 by said respondent. Petitioner took no action to question the allotment till the stage was reached when respondent No.5 got the plans sanctioned and completed excavation work. Respondent No.5 has spent money on engaging the services of an architect. Respondent No.5 has spent money on obtaining sanction of the building plans. Respondent No.5 has spent money on excavation.

19. Even as per law, position would be that when the lay out plan of the colony was sanctioned, no land use for the two plots in question i.e. the plot in possession of DESU and the plot in possession of respondent no.5 was prescribed. The lay out plan does not indicate the land use to be a park.

20. Section-6 of Delhi Development Act, 1957 defines the objects of the Delhi Development Authority as "to promote and secure the development of Delhi according to plan and for that purpose the Authority shall have the power to acquire, hold, manage and dispose of land and other property, to carry out building, engineering, mining and other operations, to execute works in connection with supply of water and electricity, disposal of sewage and other services and amenities and generally to do anything necessary or expedient for purposes of such development and for purposes incidental thereto."

21. Section-7 of the Act empowers the DDA to prepare Master Plan for Delhi as per the following requirements:

(a) define the various zones into which Delhi may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used ( whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out;

(b) Serve as a basic pattern of frame-work within which the zonal development plans of the various zones may be prepared.

22. Section-8 of Delhi Development Act stipulates the preparation of Zonal Development Plans with the following provisions:

(a) Contain a site-plan and use-plan for the development of the zone and show the approximate locations and extents of land-uses proposed in the zone for such things as public buildings and other public works and utilities, roads, housing, recreation, industry, business, markets, 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 re-development;

(d) Other stipulations given in the Delhi Development Act & Master Plan.

23. Section 9(1) clarifies that the word plans means the master plan as well as zonal development plan.

24. Development Code of MPD-2001 notified in the Gazette of India dated 1.8.90 stipulates the following:

"2(3) Layout plan means a sub-division plan indicating configuration and sizes of all use premises. Each use zone may have one or more than one layout plan depending upon the extensiveness of the area under the specific use zone and vice-versa."

"2(4) Zonal Development Plan means a plan for one of the zones (divisions) of the Union Territory of Delhi containing detailed information regarding provision of social infrastructure, parks and open spaces and circulation system.

"2(5) Land Use Plan means the plan indicating all the use zones as defined in clause 2(1)."

25. According to MPD-2001, the Union Territory of Delhi is divided into 9 categories of uses comprising of 37 use zones and 136 use premises. Each use zone is further divided into required number of Use Premises which are indicated on a layout plan.

26. MPD-2001 under clause 3(4) of Development Code stipulates the layout already approved by the Authority or any Local Authority concerned in accordance with the law shall be deemed to have been approved under this code. The layout plans are approved by the Local Bodies and Authority in their areas of jurisdiction.

27. Master Plan for Delhi indicates 37 use zones to be detailed out in the Zonal Development Plan. Various uses of premises within the use zone such as open spaces, community facilities, roads etc., are prescribed in the Master Plan for Delhi 2001 in the Chapter of Hierarchy. The lay out plan further indicates each and every land use (use premises) in a given area within the frame-work of a Master Plan/Zonal Development Plan. Therefore, land use (use premises) is a part of the lay out plan. So long as the lay out plan conforms to the land use as per Master Plan, it would not attract modification of the Master Plan or the Zonal Development Plan.

28. The position would be that where no land use is prescribed under the lay out plan of a colony, use premises could be any one within the parameters of the Zonal Development Plan. To clarify, if an area is shown as residential in the Master Plan or in a Zonal Development Plan, and while preparing the lay out, use premises have to be specified, they would have to be of a category falling within the category of a permissible use as per sub-clause 8(ii) of the Development Code. Further, while preparing a lay out if no specific use premises is specified, it would be permissible to so specify, provided the specified use conforms to sub-clause 8(ii) of the Development Code.

29. A Division Bench of this Court in the decision , Shanti Devi Gupta, vs. DDA, vide para 16 held that the Delhi Development Act, 1957 in general and Section 9 of the said Act in particular, only refer to the Master Plan and Zonal Development Plan and not the lay out plan. The lay out plan was held to be a sort of working drawings prepared by the DDA. Any departure from the lay out plan was held as not to be equated with the violation of the Master Plan or the Zonal Development Plan which are statutory.

30. The learned Single Judge of this Court in the decision , Smt. Maya Devi vs. UOI held that a lay out plan could be administratively modified by the Delhi Development Authority without resorting to the process of modification envisaged to a Master Plan and a Zonal Development Plan as per the mandate of Section 11A of the Delhi Development Act. In para 11 it was observed:-

"If this is the situation, in that eventuality there is only a lay out plan of the area in question. A careful scrutiny of the provisions of the Act reveals that Chapter 3A deals with the modification of Master Plan. Section 11A(i) to (iv) deals with the modification of the said plan. There is no other provision in the entire act which deals with the modification of the lay out plan. It implies thereby that the lay out plan can be modified by the Vice Chairman of the DDA."

31. Another Division Bench of this Court, in the decision , Triveni Educational & Social Welfare Society vs. DDA & Another took a view similar to the one taken by a learned single Judge of this Court in Mayadevi's judgment. Another Division Bench of this Court, in the judgment reported as 87(2000) DLT 603, B.U Block Residents Welfare Association vs. DDA held:-

"9................In any case, we find no breach or violation of MPT-2001 or the 2DP. It cannot be disputed that if there is a change in the lay out plan, no approval or sanction of the Central Government is required."

32. Admittedly, even as per the case of the petitioner, lay out plan of the colony when sanctioned in the year 1969 did not specify any land use for the two sites with which we are concerned in the present petition. It is not the case of the petitioner that the use to which the two sites have been put is impermissible under sub-clause 8(ii) of the Development Code.

33. I may only note that the site allotted to respondent No.5 is a meagre 328.8 sq.m. What park can exist on such a similar piece of land?

34. Counsel for the petitioner had relied upon the decision of the Supreme Court Dr. G.N.Khajuria & Ors. vs. DDA to urge that a park has to be maintained in every colony.

35. ANNEXURE-D to the writ petition filed by the petitioner would reveal that there are already two parks in the colony. In Dr. G.N.Kajuria's case, what was found objectionable by the Lordships of the Supreme Court was that in the lay out plan of Sarita Vihar put on record, their Lordships could not find any reservation of space for a park. It was under those circumstances that their Lordships held that the site in question which was being used a park should be maintained as such. In the present case, situation is different. Two parks already exist.

36. The writ petition is accordingly dismissed. No costs.