Residents Welfare Association vs Union Of India (Uoi) And Ors.
2005 Latest Caselaw 1254 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Petitioner, Residents Welfare Association B Block Yozna Vihar seek directions to quash the allotment of a nursery school site by DDA to respondent No. 5.

2. It is stated in the petition that the said allotment violates the right of life and liberty of the residents of the area for the reason, establishment of a nursery school at the site would cause nuisance to the residents thereby adversely affecting the quality of their life. It is stated that the respondent No. 5 in all probability would violate terms of the lease.

3. A cooperative society named Planning Commission Cooperative House Building Society was allotted 54 acres of land. It carried out development as per the notified and sanctioned lay out plan. The colony was called Yozna Vihar. 540 residential plots were carved out. They were allotted to the members of the society. A nursery school site located in Block-B i.e. site in question, was one, amongst various sites for public utility which was ear marked in the sanctioned lay out plan.

4. As per the terms of allotment of the land to the said society, save and except the residential plots which were to be allotted to members of the society, other land including the site of the nursery school stood reverted to DDA.

5. It is stated in the petition that the site in question is serviced by 30 ft. wide road. A community hall stands constructed adjacent to the plot. In the past, DDA had allotted the land to a third party. This was objected to by the residents.

DDA found merit in the grievance of the residents that establishing a school at the site woulds create nuisance and as a consequence withdrew the allotment.

6. It is accordingly stated in the petition that having taken conscious decision in the past not to allot the site to a third party for establishing a school, notwithstanding that the site stands earmarked as a nursery school in the sanctioned lay out plan, DDA cannot allot the same to respondent No. 5.

7. There are vague averments made in the petition that previous allotment was tainted and as a consequence thereof CBI enquiry was ordered.

8. As regards CBI enquiry, save and except an assertion, no material has been placed on record to show that matter was ever referred to CBI.

9. Ms.Neelam Grover, counsel for CBI had appeared in the present proceedings on 21.2.2005. She stated that there was no reference made to CBI and as a result, nothing was being investigated pertaining to allotment of the plot in the past to a third party.

10. Plot of land in question was allotted to respondent No. 5 in the year 2003. Evidenced by the possession letter dated 20.6.2003, respondent No. 5 paid the full premium to DDA and took possession of the site.

11. When construction was commenced at the site by respondent No. 5, present petition was filed.

12. Since it is not in dispute that the plot of land was earmarked as a nursery school site in the original lay out plan, only issue which requires to be decided is, whether in view of the past allotment and its revocation, can it be said that DDA has bound itself not to allot the plot to any third party for establishing a nursery school? Additionally, question arise whether on the basis of apprehension of the members of the petitioner that establishment of a nursery school would cause nuisanc, can the allotment be cancelled ?

13. Annexure P-9 is an order dated 23.1.2001 passed in CW.No. 422/01 beingh a writ petition filed where the site in question was allotted to M/s Bharat Vikas Parishad. Grievance of the petitioner herein has been noted by this Court as under :"

The petitioner's main grievance in the writ petition is that in the land allotted to Planning Commission Co-operative House Building Society is earmarked for a Nursery School. The site plan of the plot in question is part of the Zonal Plan.

The petitioner's grievance is that user of the plot is sought to be illegally converted for manufacturing and industrial purposes by making an allotment of the same to respondent No. 5. As such the the petitioner claims that the said action iscontrary to the existing policy and directions of respondent No. 2. Repeated representations have not yielded any result.(tm)"

14. A perusal of the order passed by this Court shows that it was projected that the allotment was to a society which was intending to use the plot for manufacturing and industrial purpose. Grievance of the petitioner in the said petition was thatthe user was contrary to the prescribed user of the plot.

15. Present allotment stands on a different footing.

16. Be that as it may, record of WP(C) 422/01 shows that DDA allotted an alternative plot to M/s Bharat Vikas Parishad and as a consequence petition became infructuous.

17. It was urge by counsel for the petitioner that allotment to M/s Bharat Vikas Parishad was to establish a school for handicapped children where technical education was to be imparted and it was in that sense that this court used the words 'manufacturing and industrial purpose'(tm)' while passing the order dated 23.1.2001.

18. I need not go into the issue of allotment in favor of M/s Bharat Vikas Parishad and withdrawal of allotment for the reason, said proceedings became infructuous and did not result in any judicial decision.

19. Petitioner never sought change of land use. Planning policies are a mixture of ground realities, demand of land as a result of urbanization, aesthetics and requirement for maintaining environment. These often exercise contradictory pulls.

When the colony was planned, the cooperative society to which raw land was allotted agreed to do development as per sanctioned lay out plan. The lay out continues to remain unaltered. If due to passage of time, anyone felt that deterioratingground situation in the form of excess flow of traffic required a change in the prescribed user of the land, remedy was to draw the attention of the planning authorities calling upon them to effect change in the plans as per the procedure precribed by law. This has not happened in the present case.

20. The main question is accordingly answered by holding that there being no representation from DDA that it was permanently withdrawing the site as a school site, it cannot be said that DDA cannot allot the site to respondent No. 5 for the purposeof establishing a nursery school.

21. On the second issue, relief cannot be granted on mere apprehensions.

22. Be that as it may, as opined above, remedy was to seek change of land user. None has been sought.

23. I find no infirmity in the allotment of land in favor of respondent No. 5. Consequently, the writ petition is dismissed.

24. No costs.