Amrit Road Transport Corp. & Anr. vs Mcd & Ors.
2009 Latest Caselaw 1882 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) 10437-41/2006

                                           Date of decision : 05.05.2009
IN THE MATTER OF :

        AMRIT ROAD TRANSPORT CORP. & ANR.       ..... Petitioners
                      Through: Mr. Ghanshyam Vasisht, Advocate

                      versus

        MCD & ORS.                                      ..... Respondent
                           Through: Mr. Sanjeev Sabharwal, Adv. for MCD
                           Ms. Reeta Kaul, Advocate for Mr. B.L. Wali,
                           Advocate for R3.

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may be allowed to see the
        Judgment? No.

     2. To be referred to the Reporter or not? No.

     3. Whether the judgment should be reported in the Digest?     No.

HIMA KOHLI, J. (ORAL)

1. The present writ petition is filed by the petitioners praying inter

alia for directions to the respondents to refrain from using the areas

allocated for parks and community Centre in Sanjay Gandhi Transport

Nagar, for the purposes of running a paid parking site for vehicles in terms

of the notice issued by Respondent No. 3, enclosed with the writ petition as

Annexure-P2, at page 36.

2. Counsel for the petitioners submits that based on the aforesaid

notice, the respondent No. 3, who was awarded the contract by respondents

No. 1 and 2, has put barricades for taking possession of the area allocated to

it for running a paid parking site for vehicles and is demanding parking fee

from the petitioners. The contention of the petitioners is that the land in

question is earmarked for parks and community facilities and cannot be

appropriated for any other use. It is further stated by the petitioners that

they have a proprietary right over the land on which, they park trucks and

cars as the said land is abutting the plots allotted to them.

3. A counter affidavit was filed by the respondent no. 1, MCD on

09.11.2006 wherein it was stated that an open auction was held in respect

of the parking sites with the approval of the competent authority and the

truck parking site at Sanjay Gandhi Transport Nagar, Delhi -110042 was

allotted to respondent No. 3, for a period of one year, ending on

12.06.2007. However, in view of the order dated 04.07.2006 whereunder,

the respondents were directed not to give effect to or raise any demand

pursuant to the impugned notice (Annexure P2), no amount was demanded

from the petitioners and other transporters for parking. The respondent

admitted that though the land in question was to be used for community

facilities and parks but till the time the community centre would be

constructed and the parks be developed, the area is being used for the

purpose of parking alone.

4. A subsequent affidavit was filed by the respondent in view of an

order dated 12.02.2008, wherein it was noted that the counter affidavit filed

by the respondent/MCD did not clarify as to whether the layout plan had

been changed by it. In the additional affidavit filed by the respondent/MCD

on 13.02.2009, it is admitted that four plots were earmarked for community

facilities in the Sanjay Gandhi Transport Nagar. A copy of the layout plan is

enclosed with the additional affidavit. The said layout plan indicates the

plots earmarked community facilities and green area in Sanjay Gandhi

Transport Nagar. It is clearly established from the layout plan that the

aforesaid areas cannot be used by the MCD as parking sites. The said

position is not denied by the Respondent/MCD. However, it is submitted on

its behalf that to avoid the plots from being encroached upon and for the

purposes of generating revenue for undertaking the construction of

community facilities, the said earmarked areas are temporarily being put to

use for parking purposes, with the approval of the competent authority.

5. Considering the fact that the layout plan of the area has not

been changed, there is no question of the MCD putting the said land to a use

which is contrary to the permissible layout plan. The plea of putting the

area for use for parking purposes to generate revenue for construction of

community facilities, is unacceptable as the MCD cannot be permitted to put

the land to a use which is contrary to that prescribed in the layout plan.

The MCD is as much bound by the Master Plan, the Zonal Plan and the

layout plan as any other ordinary citizen is. It is for the MCD to look for

other permissible avenues to generate funds to construct community centres

in the area, or develop parks.

6. In these circumstances, the impugned notice enclosed as

Annexure P2 to the Writ Petition is quashed as being contrary to the land

use prescribed in the layout plan of the area, which has remained consistent

and has neither been changed nor modified in the MPD-2021.

7. At the same time, the claim of the petitioners that they are

entitled to use the area for parking of trucks/vehicles merely because the

land abuts their plots, is turned down as misconceived, as the land can only

be used for community facilities and parks. Merely because the land in

question abuts the plots allotted to the petitioners cannot vest any special

privilege upon them to use the same contrary to the permissible user.

Hence, neither the petitioners, nor the respondents can be permitted to use

the land in question for any other purpose except that which is stipulated in

the layout plan. In case, the respondent apprehends that the land in

question shall be encroached upon, it shall be open to it to safeguard the

same and prevent encroachment, by enclosing it, till the time, the same is

put to use for the purpose of which it is designated under the Statute.

8. The writ petition is disposed of with no order as to costs.

HIMA KOHLI,J MAY 05, 2009 rkb