Gurmeet Singh & Ors vs Mcd & Ors.
2010 Latest Caselaw 3715 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 10th August, 2010.

+        W.P.(C) 5124/2010, CM No.10106/2010 (for interim relief) & CM
         No.10623/2010 (for early hearing)

%

GURMEET SINGH & ORS.                                   ..... PETITIONERS
                Through:                  Mr. N.P. Singh, Advocate

                                       Versus
MCD & ORS.                                            ..... RESPONDENTS
                            Through:      Ms. Mini Pushkarna, Advocate along
                                          with Mr. Sandeep Sharma, AE, MCD.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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            No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The fourteen petitioners, claiming to be the residents of Block-8 & 8-

C, W.E.A., Karol Bagh, Delhi, have preferred this petition impugning the

decision of the respondents 1 & 2 MCD to construct an automated Stack

Parking on Sri Kishan Dass Marg, opposite Block-8 and 8C adjacent to the

boundary wall of the MCD school on Satbhrawan Marg, Karol Bagh, New

Delhi. The contractor to whom the work of construction of the Stack

Parking has been awarded has been impleaded as respondent no.3.

2. The petitioners challenge the decision aforesaid of the respondents

1&2 MCD and seek to restrain the respondents no.3 from the proposed

construction on the following grounds:

(i) The provisions of Sections 298, 299, 305(3), 320 of the DMC

Act are cited; it is urged that all the public streets and

pavements vest in the MCD and are to be maintained,

controlled and regulated by the MCD in accordance with the

Bye-Laws made in this regard; that construction or re-

construction of any building or construction of any nature

whatsoever on the public streets is prohibited.

(ii) Attention is also invited to the Delhi Municipal Corporation

Street Bye-Laws, 1958 whereunder notice in the prescribed

manner is required to be given "where the whole or any part of

a public street is intended to be closed permanently". It is

urged that no such notice has been given and that the petitioners

are likely to be affected by closure of part of the street by

construction of Stack Parking having been allowed.

(iii) It is urged that utilization of the part of the street for Stack

Parking will create a lot of impediment in the movement of

traffic on the road which is the main connecting road from Pusa

Road to Padam Singh Marg, Arya Samaj Road, Hardhyan

Singh Marg & Deshbandhu Gupta Road. It is also stated that

the road is also connected to as many as 14 schools and the

school buses of the said schools ply on the said road.

(iv) That the respondents 1&2 MCD has not paid any heed to the

representations of the petitioners and falsely assured them that

the Stack Parking is in their interest.

(v) That Multi-Level Parking has been proposed under the Master

Plan at Rajinder Nagar & Shastri Park; that there is a plot

reserved for the Multi-Level Parking barely at a distance of

about 200 mtrs. from the impugned proposed Stack Parking site

and it does not make sense to provide for Stack Parking on the

said road instead of on the plot earmarked therefor.

(vi) That Karol Bagh has been declared as a special area under the

Master Plan and the proposed Stack Parking would interfere

with the movement of traffic in the area and will be a nuisance.

3. The counsel for the petitioner besides relying on the provisions of the

Bye-Laws aforesaid, at the time of hearing has also invited attention to page

47 of the paper book being the extract of the Zonal Development Plan of the

area for the year 2001; from Clause 7.3 thereof, it is contended that no

parking is to be allowed on streets of up to 18 mtrs. or on roads identified

for mixed use. It is contended that the proposed parking is contrary to the

Zonal Development Plan. It is further contended that the total width of the

road in question is 18 mtrs. only and that upon 6 mtrs. out of the same being

taken up for Stack Parking, the traffic on the said road will be interrupted.

4. The counsel for the respondents 1 & 2 MCD appearing on advance

notice has at the outset contended that the reliance on the Zonal

Development Plan of the year 2001 is misconceived. Attention is invited to

Clause 15.4 of the Master Plan Delhi - 2021 in Sub Clause (vi) whereof

common parking areas are to be earmarked on notified mixed use street and

for preference to be given to Multi-Level Parking. The counsel for the

respondents 1&2 MCD during the hearing has also handed over a plan

showing the proposed area and the portion where the fabricated structure to

provide Multi-Level Parking is to be installed. Attention is also invited to

Clause 5.2, 10.0 & 12.3 of the Zonal Development Plan notified on 8 th

March, 2010 with respect to the said area of Karol Bagh to demonstrate that

the said Multi Level Parking can, by no stretch of imagination, be said to be

contrary to the Master Plan. It is further contended that the respondents 1&2

MCD has other plans for Multi-Level Parking and the proposed parking is in

addition thereto. The counsel for the petitioner has not been able to

controvert the said position. Thus the ground of the proposed Multi-Level

Parking being contrary to the MPD-2021 fails.

5. The decision as to the location of parking spaces, the required width

of the street, whether a part of the street should be used for parking or not

are executive decisions, subject matter of policy and with which this Court

would not ordinarily interfere unless any ground of mala fide, irrationality

apparent on the face etc. are made out. This Court is not equipped to

overrule the decision which the Municipality under the law is entitled to take

and which it is expected to have taken after taking all the relevant factors

into consideration and in the normal course. No case of mala fide or of such

irrationality is made out. Though the counsel for the petitioner at the fag end

had sought to urge that the contract has been wrongfully awarded to the

respondent no.3 but the said argument is without any basis or pleading.

Rather the counsel for the respondents 1&2 MCD has contended that the

shops along the said road are inhabited by used car dealers who have been

using the said road for the purposes of parking and exhibition of the vehicles

and have filed this petition for their own gain and not in any public interest.

6. That leaves only the aspect of the Bye-Laws. The counsel for the

respondents 1&2 MCD has not urged that any notice as required to be given

under the Bye-Laws for "permanent closure of street" has been given. The

counsel for the respondents 1&2 MCD has however contended that there is

an acute problem of parking in the area; the portion of the street where the

Stack Parking is intended to be installed is in any case used for parking; that

instead of part of the street being blocked by such single row of vehicles, the

Stack Parking is intended to be installed there for accommodating many

more cars and to alleviate the parking problem in the locality to an extent. It

is also contended that the said project is a part of the development for the

ensuing Commonwealth Games; that the respondent no.3 Contractor has

already fabricated the structure for Stack Parking and the same now only

remains to be installed. It is contended that the petitioners have approached

this Court belatedly when the work of Stack Parking is nearing completion.

7. In my view, utilization of a portion of public street for parking would

not fall within the meaning of "permanent closure of a part of a public

street". A public street besides for movement of the traffic is also to be

utilized for parking. The counsel for the petitioner also has not been able to

urge that allowing vehicles to be parked on one side of the street amounts to

permanent closure of the public street requiring notice to be issued. In my

opinion, installing a fabricated structure to provide Stack Parking instead of

parking on the street only, would not change the position. The Bye-Law

aforesaid is thus not attracted and it cannot be said that the street is being

permanently closed so as to invite the notice required to be given

thereunder.

8. There is no merit in the petition. The same is dismissed in limine. No

order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 10th August, 2010 gsr