Jankalyan Sudhar Sangathan And ... vs Delhi Development Authority And ...
2006 Latest Caselaw 788 Del

JUDGMENT

Pradeep Nandrajog, J.

1. First petitioner claims to be a society registered under the Societies Registration Act having as its object the betterment of quality of life of the residents of Village Naraina. Second and third petitioners are residents of Village Naraina. They pray that DDA be restrained from converting the site of 0.232 hectares land from a park to a residential purpose. They pray that the site in question was earmarked as a park in a re-development plan of Village Naraina approved by the Vice-Chairman, DDA on 14.4.1986. DDA be directed to conform to the said re-development Plan.

2. A note dated 9.9.1985 signed by the Deputy Director (Planning) DDA has been relied upon to justify the plea that the site in question was a park.

3. Annexure P 3 and P 4 being lay out plans prepared in the year 1986 have been relied upon. Decision dated 12.9.2002 in WP (C) No.4121/02 B Block, Residents Welfare Association, Naraina Vihar, New Delhi v. DDA and Ors. reported as 2002 VIII AD (Delhi) 656 has been relied upon.

4. Sh.V.K.Shali, learned Counsel for petitioners urged that decision dated 12.9.2002 recognised the fact that the site in question was in a residential area and could not be put to a commercial use. Counsel urged that said writ petition filed by the Residents Welfare Association related to the instant site and succeeded when land use was sought to be converted from a park to commercial shops. Relying upon approval granted to the lay out plan of Naraina Village in the year 1986 counsel stated that as per the approved lay out plan site was earmarked as a park. Placing reliance upon a notification dated 9.12.1987, counsel urged that 55 urban villages including Naraina Vihar were transferred from DDA to MCD.

5. Counsel urged that the site in question which was developed as a park was transferred to MCD way back in the year 1987. As a consequence, Sh. Shali urged that DDA had no jurisdiction to deal with the land, much less put it to a use other than a park. Counsel further urged that once a Plan is finalized it can be modified only after following the procedure prescribed under Section 11(A) of the Delhi Development Act.

6. Counsel urged that under no circumstances can DDA utilize the site for a purpose other than a park.

7. Decision of the Supreme Court reported as Dr. G.N. Khajuria v. DDA was relied upon.

8. Grievance of the petitioners is to the proposed action of DDA to use the site in question for a Group Housing Scheme.

9. Sh.Anil Sapra, learned Counsel for DDA states that the nothings relied upon and the lay out plans relied upon by the petitioner were the proposed plans and the nothings clearly record that plans existing then were proposed plans. Counsel urged that the lay out plan, in conformity with the Zonal Development Plan for the area was finalized on 4.6.1999. Counsel urged that the Zonal Plan for Naraina Vihar was approved on 17.6.1996. Counsel for DDA additionally urged that when the Residents Welfare Association had filed WP(C) No. 4121/02 plans were produced before the Court wherein it was reflected that the proposed site has been earmarked as to be used for group housing. Counsel urged that for said reasons Division Bench allowed WP(C) No.4121/02 and mandated that DDA could not utilize the site for settling the 400 shopkeepers by constructing 400 shops.

10. On 19.4.2006 while issuing notice in the writ petition it was directed that response to the notice would be production of the record.

11. From the rivalry submissions of the parties and the record produced it has transpired that on 9.9.1985 after survey of the Village Naraina Vihar a mini Sub Technical Committee held a meeting on 12.7.1985 wherein following factual data was noted :-

  Total areas of the Scheme    29.500 Hect.  100% Residential 19.867 Hect. 67.35% 
Existing Village - 19.867 
Community Facilities 0.848 Hect. 2.88% 
Municipal Dispensary/ Maternity Centre - 0.287 
O.C.F. - 0.331 Chopal + Temple - 0.213 
D.E.S.U. - 0.017 
Schools 3.657 Hect. 12.48% 
Govt.Girls Hr.Sec.School(one) - 2.864 
MCD Primary School (one) - 0.793 Commercial 0.940 Hect. 3.18% 
Local Shopping Centre - 00940 
Parks and Open Spaces 0.481 Hect. 1.63% Parks (4 Nos. ) - 0.481 
Circulation 3.707 Hect. 12.56% 
Path 5 mt. Wide - 3.112 
Path 3 mt. Wide - 0.073 
Road 9 mt. Wide - 0.522
 

12. Based thereon a draft plan was approved showing 4 parks having a total area of 0.481 hectares. Further, as contented by Sh.V.K. Shali, site in question was shown as a park having 0.232 acre spread.

13. But the question is, what is the sanctity of the said plan and the nothings on the file relied upon by Sh. V.K. Shali.

14. Unfortunately, Sh.V.K.Shali, learned Counsel for petitioner lost site of the fact that planning process is a continuing process and indeed existing plans can be changed. Not only can lay out plans and Zonal Development Plans be changed, even Master Plan can be changed.

15. First Master Plan for Delhi promulgated in the year 1960 was followed by the Master Plan for Delhi promulgated in the year 1980. Third Master Plan was promulgated in the year 1990. This Master Plan is in force even today. Each Master Plan was promulgated after inviting public objections to the draft plans i.e. after following the procedure under Section 10 of the Delhi Development Act 1957.

16. What was conceived for planning in the First Master Plan underwent a change when the Second Master Plan was promulgated. What was conceived of and planned under the Second Master Plan underwent a change when the Third Master Plan was promulgated. Issue therefore has to be decided in the context of the Delhi Master Plan promulgated in the year 1990 and the Zonal Development Plans prepared there under.

17. The Village Naraina falls in Zone Division B. As noted above the Zonal Development Plan for the area was finalized on 4.6.1999 under the Delhi Master Plan promulgated in August, 1990.

18. A copy of the said Plan is available in the file of WP(C) No.4121/02. The site in question can be roughly identified in the said Plan. Unfortunately, for the petitioners it does not show the site as a park.

19. In this connection, I cannot lose sight of the fact that Division Bench of this Court which decided WP(C) No.4121/02, in Para 5 noted the stand of DDA that the disputed site had a prescribed user of group housing. Further, in Para 15 it was observed :-

Thus the association, which has filed this writ petition, in our opinion, is correct in contending that a residential zone whether it is meant for group housing or otherwise, such a large number of shops should not be allowed to construct and if the same is allowed, it would be contrary to the provisions of the said Act.

20. It may be true that while disposing of WP (C) No.4121/02, it was enough for the Division Bench to hold that the site in question being not earmarked for a commercial use, it could not be put to commercial use and disposed of the writ petition wherein question was whether 400 shops could be constructed at site.

21. Mr.Shali may be correct when he urged that the said decision cannot be construed as a finding by the Court that the site was earmarked as a group housing site.

22. But what is relevant is that the Division Bench decided the matter in the context of a Plan furnished to the Court by DDA. Writ petitioners of said petition never informed the Court that the site was not even and could not be used for group housing purposes.

23. Be that as it may, Plan relied upon and nothings relied upon by Sh. Shali pertain to the year 1986. The same record a proposal. Petitioners have not placed on record conclusive and finalized Plans. As against that, Plan of the area i.e. the Zone Division Plan for Zone Division B in which Naraina Village falls authenticated by Ministry of Urban Development vide letter No.K- 13011/1-94-ddib on 4.6.1999 has been perused by me for the reason it is lying in the file of WP(C) No.4121/02.

24. As noted above, when successive Master Plans were promulgated, changes in land use vis-?-vis earlier Master Plans were notified. In the instant case issue has to be determined in the context of the current Master Plan for Delhi and the Zonal Plan finalized there under. Since neither Master Plan for Delhi promulgated in the year 1990 nor Zonal Development Plan framed there under and notified have been amended, question of following the procedure prescribed under Section 11(A) of the Delhi Development Act 1957 does not arise.

25. Decision in G.M.Khajuria's case does not apply for the reason site meant for a park was sought to be used for a nursery school. Secondly, lay out produced before the Supreme Court showed that the colony in question i.e. Sarita Vihar had no space reserved for a park.

26. In the instant case as projected by the petitioners themselves 3 parks exist in Village Naraina Vihar.

27. On the issue of right of DDA to use the site for Group Housing, it may be noted that in the year 1987 only services were transferred to MCD as also maintenance of public utility sites. ownership was never transferred to MCD.

28. I find no merits in the writ petition.

29. The writ petition is dismissed.

30. However, there shall be no order as to costs.