Delhi High Court
Masjid Moth Residents Welfare ... vs Union Of India (Uoi) Ministry Of ... on 3 October, 2005
Author: M B Lokur
Bench: B Khan, M B Lokur
JUDGMENT
Madan B. Lokur, J.
Page 1529
1. The Petitioner is an association of residents of Masjid Moth, Phase-I, New Delhi. The association is aggrieved by the decision of Respondent No. 2 (Delhi Development Authority-DDA) to allot a large portion measuring approximately 2.5 hectares of a park-cum-playground in the colony to Respondent No. 3 for constructing a 220 KV Grid Station. The association prays for a direction to DDA to allot an alternative site to Respondent No. 3 for this purpose.
2. According to the Petitioner the park-cum-playground is used by children in the area and also by other residents for having a stroll, walk or even for jogging purposes. Consequently, the residents of the area were shocked to read an item in the newspaper on 1st December, 2004 that the park has been allotted to Respondent No. 3 for setting up a 220 KV Grid Station.
3. Feeling aggrieved, the association made representations to a large number of authorities including the Chief Minister of Delhi, Minister of Health, Delhi, the Lt. Governor, the Vice-Chairman of Respondent No. 2, the Union Minister for Urban Development, the Chief Secretary of Delhi, etc. etc. but not unsurprisingly, not one of the authorities bothered to look into the grievance of the Petitioner. Faced with a stoic silence from the authorities who are expected to be concerned, the Petitioner approached this Court by filing a Writ Petition (C) No. 18415/2004 with the same prayers as have been made in the present writ petition. By an order dated 1st December, 2004, the writ petition was disposed of with a direction to DDA to treat the writ petition as representation and reply to the same within 48 hours.
Page 1530
4. The DDA obeyed the order passed by this Court and gave a detailed response dated 2nd December, 2004
5. Surprisingly, the response of the DDA was rather articulate. It was stated that the park was allotted to Respondent No. 3 for construction of a 220 KV electric sub-station because Respondent No. 3 had repeatedly pointed out that the existing transmission infrastructure in the said area could not keep pace with the increasing power demands, resulting in frequent power cuts, shortage and power tripping. It was also pointed out that Respondent No. 3 was unable to cater to the needs of vital institutions like All India Institute of Medical Sciences, Videsh Sanchar Nigam Limited, etc.
6. The letter dated 2nd December, 2004 sent by the DDA further goes on to say that a different site had earlier been selected but that came within the prohibited zone of the Archaeological Survey of India and also had thick vegetation including trees with thick girths. It was stated that certain other options were also looked into but none of them appeared to be viable and the DDA was faced with limited options and forced into allotting the park to Respondent No. 3 due to constraint optimisation of the available options and in the wider interest of the public.
7. It appears that the Petitioner had also raised a grievance about the fact that the land use of the park, which was "Recreation", had been changed contrary to the Master Plan. This was denied by the DDA on the ground that public utility of all types were permitted in all areas including parks, without necessitating a change of land use.
8. The Petitioner then made further representations to the authorities protesting against the change of user of the park and objecting to the construction of an electric sub-station. But since the Petitioner did not get any response, let alone any suitable response from any of the authorities, the present writ petition was filed.
9. On 10th August, 2005, in response an application filed by the Petitioner for maintenance of status-quo with regard to the park-cum-playground, learned counsel for Respondent No. 3 made a statement at the Bar that his client would not go ahead with digging operations at the disputed site.
10. Rather than prolonging the dispute between the parties, we passed an order on 19th September, 2005 directing the concerned authorities to inspect the alternative site suggested by the Petitioner, namely, Chirag Nursery and to explore the possibility of installing a Grid Station at that location. On 19th September, 2005, we were told by learned counsel for the DDA that the site at Chirag Nursery is not suitable in view of the greenery / vegetation in that area and because trees would have to be felled for constructing the electric sub-station. On that date, we directed another survey of the area for better information with regard to the felling of trees.
11. Learned counsel for the Respondents have handed over two notes to us, one signed by the Manager (T) of Respondent No. 3 and the other signed by the Assistant Director (Survey) Institutional Land of the DDA indicating the result of their visit. Since we had requested learned counsel for the parties to make a comparative statement of the two disputed sites, the notes/reports are essentially in the form of a chart.
Page 1531
12. As per the report furnished by DDA, Chirag Nursery houses a rich variety of trees of which many may have to be cut down if a direction is given to Respondent No. 3 to construct an electric sub-station in Chirag Nursery. The comparative chart prepared by DDA reads as follows:
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S. No. Chirag Nursery Masjid Moth
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1. Approximately 4000 trees / plants are existing along with 7500 herbs and shrubs.
The central part is vacant and trees are existing on the periphery of the site.
2. In case of allotments, all plants / trees have to be uprooted including the
curajia trees which is a rare species in Delhi.
In case of allotment 80 to 100 trees to be cut.
3. The land use is green.
The land use is play field / recreational use.
4. In case of allotment the trees have to be located in the alternative
plot which is difficult to identify.
In case of allotment the nursery can be used for walking and playing
purposes.
5. The site is 10 minutes walkable
from Masjid Moth. The site is 10 minutes walkable
from Chirag Nursery.
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13. The report submitted by Respondent No. 3 also states that there is heavy vegetation in the area and a large number of trees would have to be cut down. The chart given by Respondent No. 3 is as follows:
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S. No. Item Masjid Moth Chirag Nursery
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1. Loss of vegetation/ Approx. sixty trees need to be cut.
Trees There are existing approx. 4000 trees and
approx. 7500 nos. of Herbs and shrubs.
(As per DDA's letter dt. 22.09.2005)
2. Action Plan The substation work has already commenced and shall
have been ready in thirteen months time as per
contract agreement with BHEL. However, the work has been held
up presently due to present proceedings.
Revised planning and statutory clearances
will delay the project.
3. Statutory clearances DERC has accorded investment approval on 24.06.2005.
DDA will have to arrange for ASI and other Statutory
clearance before handing over the site which will further
delay the project.
Fresh DERC approval would be required.
4. Land use Necessary required area is available. There are
various parks available in the vicinity.
Plot is uneven and the land use is green. In case
land is allotted for substation. DDA has informed
that an alternative plot for plantation
is difficult to identify.
5. Cost factor Project cost if Rs. 19,86,74,518.00. 10% advance has
been paid to BHEL. Material is ready at BHEL works
as can be seen from letter dt. 13.09.2005 of BHEL
(copy enclosed) who cannot initiate site activity due to
Court's order.
Project cost will increase by more than two
crores if order is revised as on date which is not
possible due to statutory clearance requirement.
Therefore this figure will further increase.
And this increase will further reflect in Tariff.
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Page 1532
14. On a comparative evaluation of the two sites, that is, the area at Chirag Nursery and the park, we have no doubt that if the concerned authorities, who are in the know of things, are of the view that it is not advisable to construct an electric sub-station in Chirag Nursery, we have to defer to their opinion. Quite apart from this, we also find that the Chirag Nursery area has as many 4,000 trees out of which a large number may have to be cut down as compared to about 60 trees that may have to be cut down for constructing an electric sub-station in the park.
15. In addition, directing Respondent No. 3 to construct the electric sub-station at Chirag Nursery will not only involve a delay due to statutory clearances being required, but would also increase the cost of the project. There is no dispute about the fact that South Delhi needs a much improved supply of electricity than is made available. The controversy, therefore, narrows down only to the location of the electric sub-station. Considering the reports given by the authorities, we are of the view that there is nothing irrational or arbitrary in their deciding to construct the 220 KV electric sub-station in the park at Masjid Moth rather than at Chirag Nursery. We may note that none of the above broad facts have been controverter by the association, whose learned counsel also handed over a note during the hearing of the case.
16. The other controversy raised by learned counsel for the Petitioner was that land use of the park was illegally changed from "Recreational". Without going into the question whether there is any procedure laid down for change of land use and whether that procedure was followed or not, we invited learned counsel for the Petitioner to tell us how he could independently justify his prayer that an electric sub-station should not be constructed in the park in Masjid Moth.
17. Learned counsel for the parties took us through the relevant portions of the Master Plan. There is no dispute about the fact that the park is shown as "Recreational" in the Master Plan. However, pages 61 and 68 of the Master Page 1533 Plan tell us that a public utility is permitted in all use zones and wherever needed. Quite clearly, therefore, a public utility is permitted in a park such as the site in dispute.
18. The next question is, what is a public utility? Page 64 of the Master Plan tells us what a public utility is and that includes, amongst other things, an electric sub-station.
19. The sum and substance of the relevant pages of the Master Plan makes it quite clear that an electric sub-station can be set up anywhere, regardless of the use zone, including in a park. Since this is specifically permitted by the Master Plan, there is no question of any change of land use. Consequently, there is no question of giving any notice to the Petitioner with regard to any alleged change in land use as is sought to be contended by learned counsel. Change of land use does not arise in the present case and it continues to be a recreational park, but since it is permissible to construct an electric sub-station thereon, the DDA has a right to do so without inviting any objections from the Petitioner or anybody else.
20. On a review of the position on facts and in law, we cannot find any fault with the decision of the Respondents to go ahead with the construction of an electric sub-station in the park in Masjid Moth, Phase-I.
21. There is no merit in the writ petition. It is dismissed.
