Resident Welfare Asscn. Guru ... vs M.C.D. & Ors.
2011 Latest Caselaw 446 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 25th January, 2011

+                              W.P.(C) 9077/2005

RESIDENT WELFARE ASSCN. GURU NANAK PURA ..... Petitioner
                Through: Mr. Gurpreet Singh Sethi, Advocate.

                                      Versus
M.C.D. & ORS.                                              ..... Respondents
                           Through:      Mr. O.P. Saxena & Mr. Mithilesh
                                         Kumar, Advocates for MCD.
                                         Ms. Renuka Arora, Advocate for
                                         DDA.
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 petition was filed impugning the Resolution no.713 dated 13th

November, 2002 of the Standing Committee of the respondent no.1 MCD by

which two residential plots bearing no.E-73 & E-72 were incorporated in the

Layout Plan of colony of Guru Nanak Pura, Jail Road, New Delhi, on land

which in the earlier layout plan sanctioned vide Resolution no.198 dated 16 th

August, 1979 was shown as a park. The petitioner also sought the relief of

restraining the respondents MCD and DDA from sanctioning any building

plan for construction on the two plots so carved out.

W.P.(C) 9077/2005

2. Notice of the petition was issued and the respondents directed to

ensure that the use of the two plots in question is maintained as per the

Layout Plan. The order dated 23rd November, 2005 records that construction

was in progress on the two plots.

3. The respondent no.1 MCD filed a counter affidavit dated 28 th

November, 2005 stating that Guru Nanak Pura is an unauthorized

regularized colony; the respondent no.2 DDA had referred the case of

adjusting/incorporating the revised sizes of the two plots in the approved

Layout Plan of the colony; that as per the Layout Plan of the Guru Nanak

Pura the land use of the two plots is residential; that

adjustment/incorporation of the two plots was accordingly approved vide

Resolution no.713 dated 13th November, 2002 (supra). Particulars of the

persons who were raising construction on the two plots with the sanction

accorded by the respondent no.1 MCD were also disclosed. It was

contended that no interference was called for. An affidavit dated 13th

September, 2007 was filed by the respondent no.2 DDA stating that since

the area stood de-notified and handed over to the respondent no.1 MCD, the

respondent no.2 DDA had no role to play in the matter.

4. This Court vide order dated 13th November, 2006 impleaded the

owners of the two plots as parties and issued notice to them. The respondent

no.2 DDA was also directed to file a counter affidavit disclosing whether as

per the Layout Plan of the colony when it was handed over to the respondent

W.P.(C) 9077/2005

no.1 MCD, the two plots were earmarked for use as a park.

5. None appeared for the owners of the plots (respondents no.3&4) . The

counsel for the petitioner states that they were proceeded against ex parte.

6. Another affidavit dated 7th May, 2008 was filed by the respondent

no.2 DDA informing that the land use of the site was Residential Group

Housing as per the Layout Plan and Zonal Plan of Guru Nanak Pura. Yet

another affidavit dated 24th February, 2010 has been filed by the Director

(Planning) of the respondent no.2 DDA stating that in the Zonal

Development Plan only the parks of the Zonal level are indicated while the

parks of the Residential areas are shown in the Layout Plan; that the land use

in the Zonal Plan had been indicated as residential and no park on

neighbourhood land is indicated in the Zonal Plan. In response to the

specific direction of this Court in the order dated 18 th April, 2009, it is

informed that at the time when the area was handed over by the respondent

no.2 DDA to the respondent no.1 MCD no such plots were indicated as

proposed to be used for plotted residential development.

7. An additional affidavit dated 15th September, 2010 has been filed by

the respondent no.1 MCD reiterating that the Layout Plan was amended vide

Resolution no. 713 dated 13th November, 2002 in pursuance to the letter

dated 3rd May, 2001 of the Director (Land & Management) of the

respondent no.2 DDA.

8. The only challenge by the petitioner to the Resolution dated 13 th

W.P.(C) 9077/2005

November, 2002 is on the ground that the same changes the land use from

park to plotted residential development. However from the affidavits of the

respondent no.2 DDA and the respondent no.1 MCD, what emerges is that

the land use prescribed of the entire area is residential. However the

respondent no.1 MCD in the Layout Plan earlier sanctioned carved out a

park where vide subsequent Resolution the residential plots were carved out.

The counsel for the petitioner has not been able to show any material that

the prescribed land use of the area is as of a park only. Once the prescribed

land use as per the Zonal Development Plan and the Master Plan is

residential, no error capable of interference is found in the Resolution dated

13th November, 2002 sanctioning residential plots where earlier a park

existed.

9. Layout Plans are sanctioned by the respondent no.1 MCD in exercise

of powers under Section 313 of the Delhi Municipal Corporation Act, 1957.

Any person aggrieved from order according sanction, under Section 347 B

(1) (a) has the remedy of appeal to the Appellate Tribunal. The writ petition

is not maintainable for this reason also.

There is no merit in the petition, the same is dismissed. No order as to

costs.

RAJIV SAHAI ENDLAW (JUDGE) JANUARY 25, 2011 pp ..

W.P.(C) 9077/2005