Parveen Kumar And Ors. vs Mcd And Anr.
2005 Latest Caselaw 427 Del

JUDGMENT

S.Ravindra Bhat, J.

ECHO is on.

1. In this petition, under Article 226 of the Constitution, the relief claimed is quashing of a decision of the Municipal Corporation of Delhi (MCD) declining a request for permission to construct a Motel, based upon a letter dated 17.01.2003 issued by the Delhi Development Authority (DDA).

2. The petitioner owns 14 bighas and 16 biswas of land in Village Mundka, Delhi. On 16.06.1995, DDA issued a notification allowing construction of Motels in rural zones/green belt subject to certain conditions. The petitioner applied for sanction of plans for construction of a Motel on the basis of that notification. It is claimed that as per the guidelines contained in that notification of 1995, the petitioner s lands fall in the rural zone and are otherwise eligible for inside ration in terms of the notification; and that it fulfillls all the conditions necessary for approval of building plans for the purpose.

3. MCD issued a notice under Section 333 of the Delhi Municipal Corporation Act to the petitioner for compliance of various conditions spelt out. It is averred that these conditions were complied with. MCD thereafter wrote on 17.10.2002 to the DDA eliciting a response from the latter whether there existed any approved scheme of DDA covering the lands on which the Motel was sought to be constructed /put up.

4. On 17.01.2003, the DDA responded to the MCD informing it that the plot of the petitioner falls between NH-1 and the Railway Line abutting Rohtak Road for which an Urban Extension Plan was prepared. It was also stated that a detailed plan of Rohtak Road Scheme was prepared and notified by the Union Government, inviting objections. The DDA also intimated that it was contemplating the initiation of land acquisition proceedings. In the light of this information, the MCD declined the request for grant of sanction to the construction of a proposed Motel. The letters of MCD, declining permissin, have been impugned.

5. The petitioner avers that in fact, there is no scheme of DDA, either pending or approved which includes the lands and that since it is otherwise eligible for consideration in terms of the notification of 1995, the plans have be sanctioned. The stand of DDA has been questioned as being without any bases.

6. The DDA, in its return, has stated that the Rohtak Road Scheme was formulated by it; the total area of the scheme was 556 hectares of land. It is alleged that the land in question is part of that scheme. It is averred that on 30.08.1997, a public notice was issued calling for objections in respect of that scheme which proposed modification to the Master Plan. The documents relied upon by the DDA, which have been filed in these proceedings, show that on 16.01.1998, is was felt that the area should be first declared as a development area. The correspondence between DDA and the National Capital Region Planning Board shows that while the former proposed change of land use to an extent of 556.5 hectares, including 63.3 hectares for commercial (warehousing use), the latter, namely, the NCR Board by its letter dated 03.10.2002, took the decision that since the Master Plan MPD-2021 and RP-2021 were both under finalization, the decision of change of land use for the entire area of 556.5 hectares would be taken up after such finalization. The correspondence between DDA and the local authorities also shows that a survey was proposed sometime in March 2004 for the area of 556.5 hectares. The last document in this regard is a letter written by the National Capital Region Planning Board, which coordinates the development in the entire region covering Delhi and the immediate National Capital Region. It wrote to the DDA on 08.10.2004 to the following effect :-

Regarding the land use change proposal measuring for 556.5 HA Rohtak Road Scheme in between Rohtak Road and Railway Line, it may be mentioned that the Board has already communicated vide letter dated 30.09.2002 (copy enclosed) that since the MPD-2021 and RP-2021 are both under finalization, the review of the decision of change of land use would be taken up after the RP-2021 and MPD-2021 have been finalized.

7. Mr. Ravinder Sethi, learned senior counsel for the petitioner, submits that withholding of sanction in the present case, is unreasonable and not supported by law. He has relied on the judgment reported as Pritam Singh Maki Vs. Municipal Corporation of Delhi, to the effect that merely because the land forms subject matter of acquisition proceedings, there can be no refusal to grant permission to construct since the construction can be subject to the final outcome of acquisition proceedings. It was held that when acquisition proceedings were merely under contemplation and nothing had happened for quite some time, it would be unreasonable on the part of the authorities to not consider the plans submitted or putting up constructions. The Court had relied upon a Division Bench judgment in Union of India Vs. Delhi Auto and General Finance Ltd., LPA 6/85 decided on 16th September 1985.

8. Shri Anil Sapra, learned counsel for the DDA submits that in view of the pending proposal, to finalize the Rohtak Road Scheme, in which the petitioner plot admittedly is located, there can be no question of any right being claimed to put up constructions merely because of the existence of a policy to permit the opening of Motels in rural zones. He also submits that once the scheme is approved, the necessary declarations under the Delhi Development Act would ensue; there would be need to acquire the land. That, it is submitted is not conjectural but a real possibility, in which event the claims of the petitioner would be academic.

9. The judgment in Pritam Singh case (supra) proceeds on the footing that the existence of a proposal for acquisition, or for declaring any area as a development area, is not an impediment to the lawful use for which any land can be p t to. There, the issue was whether sanction to construct could be withheld on the ground of pendency of a proposal for land acquisition. It was held that having regard to Section 337 of the Delhi Municipal Corporation Act the judgment in Delhi Auto and other decisions, mere contemplation of land acquisition proceedings could not bar the legitimate use of land by its owner.

10. In the present case, the facts on record disclose that for the last 7 years, the issue of whether to frame the Rohtak Road Scheme has remained a mere proposal. The finalization or approval of such a proposal has been deferred till the finalization of the new Master Plan, namely, MPD-2021. Likewise, there has been no positive move towards acquisition of any part of that land. I am, therefore, of the opinion that the ratio in Pritam Singh s case squarely applies to the present situation. The stand taken by the DDA through its letter dated 17.01.2003 cannot, therefore, be upheld.

11. It has not been contended on behalf of the DDA that apart from the proposal that there are any serious objections to the request of the petitioner. The basis of the MCD s stand rejecting the plans of the petitioner, is the DDA letter dated 17.01.2003.

12. In view of the foregoing discussion, an appropriate writ is issued quashing the impugned letter/decisions of the MCD and DDA dated 19th September 2003 / 25th September 2003 (Annexure P-7) to the petition. A further direction is issued to the MCD to process the plans submitted by the petitioner, in accordance with law without being inhibited by the advise of the DDA given through its letter dated 17.01.2003. A formal decision on the plan of the petitioners shall be taken by the MCD and communicated to them within six weeks.

13. The Writ petition is allowed in terms of the above directions. All inter locutary applications are disposed 0off in terms of this judgment.

14. No costs.