Joint Committee Of Residents ... vs Delhi Development Authority ...
2005 Latest Caselaw 450 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The Joint Committee of Residents Welfare Associations of Pitampura has filed this writ petition styling it as a Public Interest Litigation seeking quashing of the allotment/sale of what is claimed to be a public park to respondent No. 3 for running a school.

2. The petition sets out that a public park known as a neighborhood park measuring 1.63 hectares is situated in Pitampura, which has been maintained as such. A parcel of land earmarked for a private Primary School showing an area of 0.8 hectares is adjoining the park which is separated by a boundary wall. In December, 2001, the representatives of respondent No. 3 came to the park and started demolishing the wall between the park and the school. It is at that stage the petitioner found out that the park had been sold by respondent No. 1 DDA to respondent No. 3, the private party. The petitioner association made representations to various authorities. The Expert Committee is stated to have been appointed by respondent No. 2/Government of National Capital Territory of Delhi for examination of the matter which found merit in the representation of the petitioner and went as far as to suggest that even the area originally shown for construction of primary school be converted into a green area. The petitioner claimed that already large chunks of green area has been lost in Pitampura on account of construction of metro rail. There are stated to be sufficient number of schools functioning in the area.

3. It is stated that despite the recommendations of the Expert Committee, the allotment was not cancelled which has resulted in filing of the present writ petition.

4. On the counter affidavits being filed, the factual matrix which emerges in respect of the allotment of respondent No. 3 is that respondent No. 3/Trust applied for land to DDA which allotted 8,000 sq. mtrs. of land vide allotment letter dated 19.09.2000 for running a Senior Secondary School. The Trust made payment of Rs. 1,67,21,567/- to DDA on 11.10.2000 and the physical possession was handed over on 30.10.2000. The proof of the physical possession being handed over is certified by the lay-out plan containing the endorsement of delivery of possession. However by the subsequent communication dated 26.03.2002, DDA informed the Trust that the land allotted to the Trust had been restricted to 7,200 sq. mtrs. instead of 8,000 sq. mtrs. The NOC for sanction of building plans was issued on 03.05.2002, but soon thereafter the residents filed the present writ petition where interim orders were granted.

5. In so far as the stand of DDA is concerned, it is stated that the problem has arisen on account of the fact that the total area including the school sites and the neighborhood park was earmarked as 3.23 hectares. This consisted of two school sites of 0.8 hectares each and the neighborhood park of 1.63 hectares. However on survey by the Planning Wing, the availability of the area was found to be only 2.76 hectares resulting in a shortfall of 0.47 hectares (4,700 sq. mtrs.). It is this 4,700 sq. mtrs. which had to be adjusted. There was already an existing school known as Ravindra Public School. The result was that there were certain limitations on inspection of the site resulting in the area of the said Ravindra Public School being redetermined as 7,192 sq. mtrs., area for respondent No. 3/Trust for the school to 7,200 sq. mtrs. and the area of neighborhood park for 13,218 sq. mtrs. It is submitted that, thus, the area had to be withdrawn from the different categories, though it may not be the same exact percentage. This readjustment was approved by the Lieutenant Governor on 1.5.03.2002.

6. The petitioner subsequently amended the writ petition also to raise the plea that a neighborhood park should not be less than 1.5 hectares and, thus, submitted that there was violation of the Zonal Development Plan. DDA has, however, resisted this plea on the ground that there has been no change in the Zonal Development Plan or the Master Plan and DDA is well within its rights to readjust the boundaries as the lay-out plan can be changed which is not statutory in character.

7. DDA has also sought to explain the issue of formation of the Expert Committee on the ground that the land stood already allotted to respondent No. 3/Trust a couple of years before even the Expert Committee came into being and the allotment had been made as per the permissible user. The allotment was made as per the recommendation of the Institutional Allotment Committee and the pre-requisite is Sponsorship of the Education Department. Thus, proper scrutiny took place before the decision was taken to make allotment to respondent No. 3/Trust. There are stated to be sufficient green areas and parks available in the vicinity.

8. The Govt. of NCT of Delhi itself has explained the issue of formation of the Expert Committee. It is stated that the Bhagidari Cell had asked a group of Officers to meet and look at the proposal, but the same would have required the approval of DDA, especially since it had an impact on the land use which is determined under the Master Plan. It was, thus, not possible to implement or accept the recommendation of the Expert Committee which could at best be only advisory to DDA. The DDA has also filed an affidavit explaining the issue of availability of the green area and the number of schools provided for. As per the Master Plan, 2001, 27 schools excluding nursery schools were to be provided in Pitampura and actually also 27 schools have been so provided. The allocation of green/recreational area prescribed in the Master Plan is as under:

(i) Tot Lot: 0.75 hectares for 15,000 persons.

(ii) Play Area: 2.25 hectares for 15,000 persons.

The lay-out plan of Pitampura area gives the available recreational area as under:

  "Total No. of neighbour park            = 2
Total No. of neighbour park + play area = 1
Total No. of Play Ground                = 1
Total No. of parks                      = 7
Total No. of tot lots                   = 39
Total                                   = 50"

 

This is apart from a District Park of 57.38 acres which included the play area.
 

9. On the basis of the aforesaid parameters in so far as the actual utilisation area is concerned, it has been stated in the affidavit of DDA that the area required for tot lots is 10.08 hectares and for play area 30.24 hectares in Pitampura. The total area, thus, required for is 40.32 hectares. The parameters are stated to have been met in view of the following data:

  "Area under tot Lots + Play Area + N.H. Park        = 27.76 HA
Area under tot Lots + Play Area in Group Housing    = 14.16 HA
Total recreational Area                             = 41.92 HA"

 

10. It is in view of the aforesaid pleadings and submissions that the controversy has to be analyzed.
 

11. The first aspect, which has to be kept in mind, is the shortage of land found at site. Once the land was short at site, DDA took the decision for rearranging the same. This decision cannot be said to be arbitrary or illegal thereby calling for any interference. There is no doubt that there could be more than one possibilities for rearranging the position at site. The DDA in its wisdom has adopted the methodology of reduction from all the sites, though the exact percentage may not be the same. Such a decision cannot be said to be in violation of Wednesbury Principle. The Supreme Court in Tata Cellular v. Union of India, (1994) 6 SCC 651 dealt with the issue of the scope of judicial review in matters of contract. The Supreme Court referred to the Wednesbury Principle enunciated in the Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1947) 2 All ER 680, which is as under:

"Wednesbury Principle: A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it."

The Supreme Court, thus, concluded in para 94 that the Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. It is not the function of the Court to substitute its own decision with that of the administrative body unless no reasonable person/authority could come to the said conclusion.

12. The second aspect to be considered is the grievance made about alteration of the Zonal Development Plan and the Master Plan. The Master Plan and the Zonal Development Plan have a statutory character under Section 11-A of the Delhi Development Act, 1957. However, the lay-out plan does not have a statutory flavour. This has been settled in various judgments of this Court. The petitioner can, thus, have no grievance about the modification of lay-out plan which has the approval of the Lieutenant Governor.

13. The Division Bench of this Court in BU Block Residents Welfare Association and Ors. v. Delhi Development Authority and Ors., had an occasion to consider a similar situation. In fact, the facts are apposite to the present case inasmuch as the issue involved was of change of lay-out plan for a High School and that too happened in Pitampura. The Division Bench held that consent of the Central Government was not required for change of lay-out plan as it was not statutory in character. In fact, the Division Bench also dealt with the grievance of a similar nature as in the present case. One of the pleas raised herein is that when the plot-owners of the colony purchased the plots opposite the park, they were assured that the same shall remain a park and, thus, the plea of promissory estoppel would be available to them. The Division Bench held that there was, in fact, no public interest involved in such a matter and the same were motivated by individual interest of some plot-holders who had earlier a park in front of the plots. It is observed in para 11 as under:

"11. We would like to mention before we conclude that these petitions though styled as Public Interest petitions, appear to be motivated by individual interests of some of the plot holders who had earlier a park in front of their plots but now they find that instead of a park they have to put up with a HSS opposite their houses. No public interest is involved. Rather as noted earlier, as a result of the impugned action, green area under neighborhood park has increased which is more in public interest."

14. At this stage, it may be relevant to deal with even the plea of promissory estoppel claimed by the petitioner. The fact that the park alone was not to be there is obvious even from the earlier lay-out plan. The park was held in between the two schools. All that has been done is the adjustment of the area, which was found short. Thus, even the persons located in front of the park knew that there was area earmarked for school. There cannot, thus, be any claim based on promissory estoppel.

15. In so far as the plea of the petitioner about the size of the park is concerned, there is no doubt that in the Master Plan, it is mentioned that the desirable area is 1.5 hectares. At the same time, it cannot be lost sight of that land is a scarce commodity in Delhi. It is also a commodity which cannot grow. Thus, if at a particular site the area is found to be short in total, the necessary adjustments had to be made between the different prescribed land use for the total area. The aspect of the requirement of reducing the norms as a well-considered decision was considered by a learned Single Judge of this Court in Mount Abu Education Society (Read.) v. Delhi Development Authority and Anr. where the norms for schools were reduced for allotment and the schools were claiming allotment as per the original norms. It was held that DDA was within its rights to reduce the area to be allotted for purposes of setting up of schools.

16. In so far as the issue of the Expert Committee is concerned, the affidavit filed by the Govt. of NCT of Delhi itself has explained that the recommendations could not have a binding force and the Expert Committee was set up as a part of the Bhagidari Scheme. It was the DDA alone which had to examine the matter and at best the report of the Expert Committee could be recommendatory. The DDA considered the matter, especially taking into consideration the fact that the allotment had already been made in favor of respondent No. 3 more than a year and a half ago prior to setting up of the Expert Committee for which full consideration had been paid and the only practicable solution was to adjust the area at site.

17. The last aspect to be considered is the plea of the petitioner based on the higher plain of the effect on ecology and environment. There can be no doubt that every endeavor should be made to preserve the green areas. However, the data filed by DDA shows that the norms for green areas are not being violated in Pitampura as a whole. There are a number of parks and tot lots in the area. This is apart from the District Park of 57.38 hectares. The total recreational area is well above the prescribed norms. Thus, there is no shortage of green areas in Pitampura.

18. It appears that the real grievance may be of the persons who are living opposite the park. In one of the plots, no school was constructed earlier which has now been allotted to respondent No. 3. Such persons may be even utilising the area. That, however, cannot give them a legal right. Such persons knew that as per the lay-out plan, there were two schools provided for. All that has been done is adjustment of the area. The area withdrawn from the park in terms of percentage is a little more than that withdrawn from the school. This is, however, a matter which was considered by DDA on the basis of the site position. The Division Bench of this Court in BU Block Residents Welfare Association's case (supra) has, in fact, observed that in such matters there is less of public interest and more of private interest of persons facing the park.

19. The requirement for the school is also an essential part and is in public interest. The petitioner cannot determine as to how many schools should be there in the area. The allotment for the schools is as per the lay-out plan. In fact, the population has grown and the occupation per sq. ft. area has also increased. In such a case, it can hardly be said that the school is not required.

20. The procedure for allotment to respondent No. 3 is stated to have been followed by DDA whereby the recommendation was made by the Institutional Allotment Committee after the recommendation of Directorate of Education.

21. We are of the considered view that in view of all the aforesaid reasons, this petition styled as Public Interest Litigation is not liable to be entertained.

22. Dismissed leaving the parties to bear their own costs.

23. Interim orders stand vacated.