S.S. Jain Sabha Regd. Thr. Its ... vs Govt. Of Nct Of Delhi
2006 Latest Caselaw 102 Del

JUDGMENT

Markandeya Katju, C.J.

1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 26.08.2004.

2. Heard learned counsels for the parties and perused the record.

3. By means of the writ petition, the petitioner prayed for a writ of mandamus directing the respondents to sanction the site plan/proposed plan for the construction of a Community Hall in the plot of land being Site No. 4, NS, B-Block, Ashok Vihar, Phase-I, Delhi by adopting the norms and conditions applicable to the construction of a Community Hall.

4. The petitioner is a charitable Society registered under the Societies Registration Act. The petitioner applied to the respondent No. 2, D.D.A. for allotment of land for constructing a Community Hall for the purposes of religious and social functions in the vicinity of Ashok Vihar, Delhi-52. The land in question, bearing Site No. NS-4 in B-Block, Ashok Vihar, Phase I, Delhi-52, measuring 2447 sq. meters had been earmarked for setting up a Nursery school, but it was lying vacant and there was no request pending for allotment of the site for a Nursery school.

5. Under the Master Plan of Delhi, development controls are user specific. Special development controls are prescribed for different uses of the land allotted. Until 1995, on the plots of land allocated for a Nursery school, only a Nursery school and Kindergarten school could be established. The aforesaid land in question had been earmarked for setting up of a Nursery School. However, by Notification No. K.13011/21/93-DDIB dated 20th September, 1995, the Ministry of Urban Affairs & Employment, Government of India, notified an amendment in the Master Plan, Delhi 2001, according to which the Master Plan was modified and certain other facilities were permitted in sites which had been allocated for Nursery Schools. In this connection, the letter of the Joint Director, D.D.A. dated 28th April, 1998 reads as follows:-

DELHI DEVELOPMENT AUTHORITY

F.1 (7)80-MP/461 NEW DELHI: 28 APR 1998

P.V. MAHASHABDEY

JOINT DIRECtor (MP)

1.Town Planner

Municipal Corporation of Delhi

Nigam Bhawan,

Kashmere Gate,

Delhi.

2. Chief Architect

NDMC, Palika Kendra,

Parliament Street,

New Delhi.

3. Director (Bldg.)

D.D.A., Vikas Sadan,

New Delhi.

Sub: Development control norms for nursery school plots proposed to be utilized for other community facilities.

Sir,

The Ministry of Urban Affairs & Employment vide notification No. K-13011/21/93-DDIB dated 20.9.95 notified the amendment in MPD 2001 vide which the following neighborhood facilities are permissible in nursery school sites according to the layout plan, where no such facilities are available in the vicinity:-

i)Post office

ii)Community Hall-cum-Library

iii)Dispensary

iv)Health Centre

v)Creche and Day Care Centre

vi)Electric Sub-Station (11 KV)

vii)Cooperative Store

viii)Milk Booth

ix)Fine Arts School

x)Maternity Home

xi)Child Welfare Centre (Charitable)

The matter regarding development control norms for nursery school plots proposed to be utilised for such community facilities was considered by the Authority resolution No. 158/97 dated 23.12.97 (copy enclosed). According to this, development control norms of nursery schools are applicable for such plots which are as below

Maximum ground coverage 33.33%

Maximum floor area ratio 66.66

Maximum height 8.0 M

Basement below ground floor and to the maximum of ground coverage shall be counted in FAR.

Thanking you,

Yours faithfully,

Sd/-

(P.V.MAHASHABDEY)

JOINT DIRECtor (MP)

Encl: as above

Copy to Commr. (LD) with a copy of Authority Resolution No. 158/97 dated 23.12.97. Attention is invited that while handing over possession it will be specifically stated that plot is carved out from the plot of nursery school and development control applicable are as nursery school.

JOINT DIRECtor

6. Thus after the Notification dated 20th September, 1995, a site allocated for a Nursery school could also be used for construction of a Community Hall-cum-Library or other facilities mentioned in the aforesaid Notification.

7. In view of the aforesaid Notification dated 20th September, 1995, issued by the Ministry of Urban Development, Government of India, the Officer on Special Duty (Area Planning) in the D.D.A. recommended allotment of the site in question to the petitioner for construction of a Community Hall and the matter was referred to the Commissioner (Planning). The Commissioner (Planning) approved the proposal and issued a No Objection Certificate for allotment of the said plot in question to the petitioner for construction of a Community Hall vide order dated 13th September, 1999.

8. The matter was then placed before the IAC of the D.D.A. and was also referred to the Ministry of Urban Development, Government of India, and the Hon'ble Minister was pleased to approve the proposed allotment of land to the petitioner for construction of a Community Hall and the same was informed vide letter dated 19th December, 2000. (Annexure `C') to the writ petition.

9. Thereafter, the DDA made a sub-division of the said plot of land measuring 2447 sq.meters into three divisions i.e., (a) area for the Nursery school of 800 sq.meters (b) area for the Community Hall of 700 sq.meters and (c) area reserved for future planning of 947 sq. meters.

10. Thus, the plot of land measuring 700 sq.meters was allotted to the petitioner for construction of a Community Hall vide allotment-cum-demand letter dated 10th January, 2001 (Annexure `D') to the writ petition. By this letter, the petitioner was asked to deposit a sum of Rs. 29,25,360/-.

11. The petitioner deposited this amount and physical possession of the aforesaid land was handed over to the petitioner No. 1 by respondent No. 2. The petitioner applied for No Objection Certificate from respondent No. 2 for getting the building plan sanctioned and respondent No. 2 issued a No Objection Certificate vide letter dated 21st January, 2001 for construction of a Community hall vide Annexure `F'.

12. The petitioner applied for a revised No Objection Certificate which was also issued vide letter dated 20th May, 2002 (Annexure `H').

13. The petitioner then submitted the proposed plan on 23rd May, 2002 vide Annexure `I' and the respondent No. 3, the MCD asked the Additional Commissioner (Area Planning) of the DDA to provide the approved modified authenticated layout plan of Ashok Vihar, Phase I, so that the sanctioning of the plan of the petitioner could be expedited. True copy of the said letter is Annexure `J'. The Assistant Director (AP-II) vide letter dated 1st October, 2002, sent a copy of the approved modified layout plan of Ashok Vihar, Phase I to the Senior Town Planner of MCD vide Annexure `K'.

14. It is alleged in paragraph 19 of the writ petition that though the petitioner had applied on 23rd May, 2002 for sanction of the plan of the Community Hall to be constructed on the land in question allotted by the DDA for construction of a Community Hall, the MCD did not approve the plan alleging that the norms of a Nursery School shall be applicable and not the norms of a Community Hall.

15. Thereupon, the petitioner sought a clarification from the D.D.A. regarding the development control norms as applicable to the land in question allotted to the petitioner vide Annexure `N'. The respondent No. 2 vide letter dated 20th February, 2003, clarified that the development control norms for Community Hall are applicable to the land in question vide Annexure `O'. However, the MCD rejected the proposed plan submitted by the petitioner for construction of a Community Hall vide Annexure `P'. The rejection was on the ground that the norms of a Nursery school are applicable to the land in question and not of a Community Hall.

16. The petitioner made a representation against the decision vide Annexure `P'. but to no avail.

17. Aggrieved, the petitioner filed a writ petition which was dismissed by the impugned judgment and hence this appeal.

18. A counter-affidavit was filed in the writ petition by the MCD and we have perused the same. The stand of the MCD is that the norms of a Nursery school are applicable to the land in question and not those of a Community Hall.

19. In our opinion, this writ appeal has to be allowed. It may be noted that by Notification of the Central Government, Ministry of Urban Development, dated 20th September, 1995, the land allotted for a Nursery school can be allotted for some other purposes also. By the said Notification, the plot identified for a Nursery school could be allotted for a Post office, Community Hall, Dispensary, Health center, Creche, Electric sub-station, Cooperative Store, Milk booth, Fine Arts School, Maternity Home or Child Welfare Centre.

20. It may be noted that by this amendment dated 20th September, 1995, the development control norms have not been amended. Hence, in our opinion, the original development control norms separately provided for Nursery school and for Community Hall remain intact. Consequently, where land is allotted for a Community Hall, the development norms for Community Halls will apply.

21. In our opinion, if the stand taken by the respondent is accepted, it will lead to strange results. The norms of a Community Hall are very different from that of a Nursery school. Hence, if we apply the norms of a Nursery school, a proper Community Hall cannot be constructed.

22. To take an illustration, the Notification dated 20th September, 2005 has permitted the land originally allotted for a Nursery school to be used for constructing an Electric Sub station. Obviously, if a building is to be constructed for an Electric Sub station, it will be a very different kind of building than a building meant for a Nursery school.

23. It is also significant that neither the original Master Plan nor the amendment carved out any exception that even for additional uses permitted for a Nursery school plot, the development controls of Nursery school shall apply. Therefore, the plea of the respondent, D.D.A. in the impugned communication and before this Court that the Nursery school norms shall apply for the appellant's Community Hall is contrary to the provisions of the Master Plan which is the law on the subject by virtue of Section 7 of the D.D.A. Act.

24. The respondent's contention that they have passed some resolution for allowing only Nursery school norms for a Community Hall is of no consequence in the face of the clear provisions of the Master Plan. The D.D.A. has no jurisdiction to resolve contrary to the Master Plan and, therefore, the resolution relied on by the D.D.A. is unauthorized and illegal. Needless to add, the power and authority to amend the Master Plan is conferred exclusively in the Central Government by virtue of Section 11A of the Delhi Development Act, and the D.D.A. has no jurisdiction in that behalf.

25. Even otherwise, in our opinion, it is only logical and rational that a Community Hall should be constructed and used as per norms of a Community Hall and not as per norms of a Nursery school. The D.D.A. having considered it appropriate that on the particular plot of land there should be a Community Hall, it is only rational that the same is constructed and used as per norms provided for a Community Hall. Pursuant to Section 7 of the Delhi Development Act the experts have framed the Master Plan and prescribed as per their wisdom a particular set of norms for a Community hall. A fortiori it has to be held that the said norms should meet the requirement of an appropriate Community Hall. The D.D.A's contention implies that a Community Hall must run in a Nursery school building. This is wholly illogical, irrational and unintelligible.

26. In view of the above, this appeal is allowed. The impugned judgment of the learned Single Judge is set aside and the prayer in the writ petition is granted.