Delhi High Court
B Block Yojana Vihar Resident ... vs Union Of India (Uoi) And Ors. on 17 January, 2006
Equivalent citations: 129 (2006) DLT 508
Author: M Katju
Bench: M Katju, M B Lokur
JUDGMENT
Markandeya Katju, C.J.
1. This Writ Appeal has been filed against the impugned judgment of the learned Single Judge dated 05.09.2005 by which he has dismissed the writ petition.
2. Heard learned counsels for the parties and perused the record.
3.The facts of the case have been set out in detail in the judgment of the learned Single Judge, and hence we are not repeating the same except where necessary.
4. The Appellant is a Resident(tm)s Welfare Association and it had filed a Writ Petition for a writ of certiorari for quashing the allotment of Nursery School Plot to Respondent to Respondent No. 5. The allegation in the Writ Petition is that the said allotment violates Article 21 of the Constitution, as establishment of the school would cause a nuisance to the residents of the locality, thus adversely affecting the quality of their life. It is alleged in paragraph 5.3 of the Writ Petition that there are already many schools in the surrounding and there were no need of establishing another nursery school. In Paragraph 5.4 of the Writ Petition it is alleged that the plot allotted to the Resident(tm)s Welfare Society is located in the middle of B-Block, surrounded by houses and serviced by only a 30 ft. road which is not conducive to heavy vehicular movement. The problem is aggravated because of functions held in the adjacent community hall. It is alleged that there is already a problem of movement of traffic and parking, and the school will aggravate the problem.
5. No violation of any statutory rule has been pointed out by the appellant. However, learned counsel for the Appellant has submitted that the allotment of the plot for a nursery school is violative of a decision taken by Union Government in 1989 reproduced in paragraph 7.5 of the Guidelines on Land Management Vol-I, brought out by the DDA in 1992 that henceforth no plot of land shall be allotted for a Nursery School.
6. A counter-affidavit was filed in the Writ Petition by the DDA and we have perused the same. In Paragraph 1 of the Preliminary Objection, it is stated that there has been no violation of the provisions of the Delhi Development Act. A plot which was earmarked for a nursery school has been allotted to the respondent for setting up a nursery school in accordance with the layout plan and the master plan.
7. In paragraph 2 of the counter-affidavit, it is stated that the plot in question was not allotted to the Respondent No. 5 under any political pressure. The plot was always earmarked for the purpose of a nursery school and had been allotted in accordance with the plan and rules and regulations of the Delhi Development Authority.
8. As regards the petitioner(tm)s complaint that the allotment was in violation of the guidelines of DDA, a reference in this connection was received from a Member of Parliament by the Hon(tm)ble Minister of Urban Development, Union of India, which was forwarded to the DDA. The said request was examined by the Planning Department of the DDA. The Commissioner (Planning), DDA personally examined the said request and noted that the authority resolution item No. 5 of 2002 decided on 21.1.2002 for utilization of the nursery school site earmarked in the layout plan has already been implemented. In accordance with the authority resolution it has been decided that the allotment already made could not be cancelled. In the present case, the request for change of the nursery school to a park could not be acceded to by the answering respondent Delhi Development Authority, as acceding to such a demand would lead to loss of revenue to the organization, deficiency in facilities, as per norms and breach of fundamental rights of the society to whom this plot had been allotted and payment by them have been deposited with the DDA.
9. From a perusal of the counter-affidavit it is evident that the representation of the petitioner was examined by the DDA through the Commissioner (Planning), DDA, and it was found that in accordance with Resolution No. 5/2002, dated 21.01.2002, a policy of utilization of the nursery school site earmarked in the lay out plan existed. However, the authority resolution itself stated that it would not be applicable to an allotment made before passing of this authority letter, i.e., it would be applicable only prospectively. In the present case, the allotment had already been made to the allottee and he had deposited the amount demanded by the answering respondent. In these circumstances, the demand for change of the site from nursery school to park could not be acceded to.
10. A counter-affidavit has also been filed by the Respondent No. 5 and we have perused the same. In Paragraph 2 it is stated that admittedly the plot of land in question earmarked for a Nursery School, has been allotted to the respondent No. 5 which is an Educational Society. It is stated that it is not understood how the allotment thereof is going to cause nuisance to the peaceful living of the residents and how it would violate Article 21 of the Constitution. All these are nothing but self-induced and unnecessary, unfounded fears and imaginations.
11. The allotted plot is admittedly earmarked for nursery school as per the layout plan of the colony and it has been allotted to the answering respondent for starting a nursery school. It is denied that it is allotted to a private politically associated commercial organization.
12. In paragraph 6 of the counter-affidavit it is stated that possession has been given to the answering respondent DDA and the boundary walls have been raised over the allotted land by the respondent No. 5.
13. On the facts of the case, we find no merit in this appeal. The land was earmarked for a nursery school and it has been allotted for a nursery school. There is no violation of any statutory rule. Hence the Writ petition and Appeal are not maintainable. The Appeal is, therefore, dismissed.
