Delhi High Court
Eb. Pocket Residents Welfare ... vs Delhi Development Authority & ... on 3 November, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : November 03, 2009
+ LPA NO.397/2003 & CM No.5957/2006
EB. POCKET RESIDENTS WELFARE ASSOCIATION & ORS.
...........Appellants
Through: Mr.Raman Kapur, Advocate
Versus
DELHI DEVELOPMENT AUTHORITY & ORS.
...........Respondent
Through: Ms.Sangeeta Chandra, Advocate for
Respondent No.1.
Mr.R.K. Watel, Advocate for Respondent
No.3.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the
Digest?
PRADEEP NANDRAJOG, J
1. Vide impugned judgment and order dated 3.4.2003,
the writ petition filed by the appellant has been dismissed.
2. The grievance of the appellant in the writ petition
was that DDA had constructed SFS Flats in Rajouri Garden and
as per a brochure, had held out that amongst other facilities, a
neighbourhood park would be maintained in the area in
question. This, as per the appellant is a promise held out to
the allottees of the SFS Flats at Rajouri Garden and thus,
alleges the appellant, that DDA could not use any portion of
the park, much less transfer right therein, in favour of any
third party permitting use thereof for a religious purpose.
3. We may note that two plots have been carved out,
on what the appellant alleges as the land earmarked for a
neighbourhood park, one of which has been allotted by DDA
for community services and the other for erecting a church.
4. The plea of the appellant has been negated by the
learned Trial Judge inter alia on the ground that the SFS
scheme in question, vide clause-17(i), clearly held out that
DDA reserved the right to change the facilities and
specifications shown in the layout plan. The second reasoning
of the learned Single Judge is that the Master Plan did not
specifically provide for any land use of specific lands. Under
the Master Plan the area as a whole was earmarked for
residential use. As per the learned Single Judge, in conformity
with the land use prescribed in the Master Plan, for the area in
question, specific use of different parcels of land was
permissible with reference to the prescribed land use in
residential areas. The learned Single Judge, in para 11 of the
impugned order, has specifically referred to the use zones
which are permissible under the Master Plan and has held that
there is no prohibition from earmarking sites in residential
areas, to be used for community purposes and religious
purposes. The learned Single Judge has held that within the
Master Plan, specific land use of different sites is as per the
layout plan which can be amended at any time by the Vice
Chairman, DDA.
5. Learned counsel for the appellant concedes that in
matters pertaining to layout plans, the Vice Chairman, DDA or
any other officer to whom said power is delegated, can take
decisions pertaining to layout plans.
6. We may note that this Court has taken a consistent
view in various judicial pronouncements that the procedure
prescribed to amend a Master Plan and a Zonal Development
Plan has not to be followed with reference to a Layout Plan for
the reason only the Master Plan and the Zonal Plan have a
statutory flavour.
7. The view taken by the learned Single Judge is
perfectly legal. We may only expand by penning down further
that the Master Plan has a development code, which is an
integral part of the Master Plan and vide sub-clause 8(iii)(A) of
the Development Code, use premises in use zones have been
stipulated. The same show as to what categories of activities
are permissible in areas designated as residential areas,
industrial and manufacturing areas, commercial areas etc.
Pertaining to residential use zones the category assigned is RD
and permissible uses specified are 31 in number. Use as a
religious premises, qua land in a residential use zone as also
erection of social welfare centres are two of the thirty one
permissible uses. The reason is obvious. A residential colony
would require some site earmarked for religious purposes,
some site earmarked for community purposes, some site
earmarked for nursing home, schools, bus terminals etc. In
other words services both material and which satisfy human
wants which are an integral part of a residential colony need to
be provided to the residents of the area and hence some land
has to be earmarked for said purpose. Thus, we are in
complete agreement with the view taken by the learned Single
Judge.
8. We may note that the learned Single Judge has
noted that as per the Master Plan, for a population of 15,000
one neighbourhood park covering 1.5 hectares is the
stipulated norm. Though not noted by the learned Single
Judge, we note that in the instant case, excluding the two
small parcels of land in dispute, the remaining green area for
the neighbourhood park is 3.342 hectares for 1070 dwelling
units. Assuming that there are eight inhabitants in every
dwelling unit, the available area of the neighbourhood park is
much more than the prescribed norm.
9. We note that the area of the two disputed plots is
600 sq.yards and 500 sq.yards and applying the 'de Minimis
Principle', with reference to the total area of the
neighbourhood park, so negligible an interference is liable to
be ignored.
10. We may note that the learned Single Judge has
additionally noted that the plot allotted for a church, even
otherwise falls outside the area of the neighbourhood park.
11. The appeal is dismissed.
12. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
NOVEMBER 03, 2009
Dharmender
