Shanti Janak Sachdeva ... vs Dda & Ors.
2011 Latest Caselaw 5208 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 24th October, 2011
+                              W.P.(C) 10080/2009

         SHANTI JANAK SACHDEVA EDUCATIONAL
         SOCIETY                                  ..... Petitioner
                      Through: Mr. Ajay Monga, Adv. for Mr.
                               Sumit Bansal, Adv.

                                     Versus
         DDA & ORS.                                        ..... Respondents
                            Through:      Ms. Geeta Mehrotra, Adv. for DDA.
                                          Mr. G.B. Sewak, Adv. for R-2.
                                          Mr. Yashish Chandra, Adv. for Ms.
                                          Maninder Acharya, Adv. for MCD.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                   Yes.

2.       To be referred to the reporter or not?            Yes.

3.       Whether the judgment should be reported           Yes.
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the communication dated 3 rd July, 2009 of the

respondent no.1 DDA cancelling the allotment earlier made in favour of

the petitioner of an additional strip of land ad measuring 111.65 sq. mtrs.

abutting the land ad measuring 997 sq. mtrs. still earlier allotted to the

petitioner for the purpose of a Nursery School in Pocket-D, Dilshad

Garden, Delhi.

2. Notice of the petition was issued and recovery of possession from

the petitioner of the said 111.65 sq. mtrs. of land stayed vide order dated

14th July, 2009. The Residents' Welfare Association (RWA) of Pocket-D,

Dilshad Garden, Delhi applied for impleadment and was impleaded as

respondent no.2 vide order dated 1st June, 2010. Counter affidavits have

been filed by the respondent no.1 DDA and the respondent no.2 RWA.

Rule was issued in the petition on 4 th April, 2011 and the interim order

earlier granted made absolute.

3. It appears that the petitioner, after the allotment of 111.65 sq. mtrs.

land in its favour, applied for and obtained sanction from MCD for raising

construction on the entire land i.e. 997 sq. mtrs. plus 111.65 sq. mtrs. Upon

cancellation of allotment with respect to 111.65 sq. mtrs., MCD revoked

the said plans. The petitioner applied for impleadment of MCD as

respondent no.3. Interim order restraining the MCD from taking any action

was also sought. MCD was on 7th July, 2011 impleaded as the respondent

no.3 and on the condition that the petitioner shall not raise any construction

and not do anything in pursuance to the sanction which had been revoked,

respondent no.3 MCD restrained from revoking the plans for construction

already sanctioned.

4. The counsel for the respondent no.1 DDA was directed to produce

the layout plan of the colony as well as the original record which has been

submitted for the perusal of this Court. The counsels have been heard.

5. There is a history of litigation. Upon allotment in or about the year

2003 by the respondent no.1 DDA to the petitioner of land ad measuring

997 sq. mtrs. in Pocket-D, Dilshad Garden for the purpose of a Nursery

School, the respondent no.2 RWA filed W.P.(C) 585/2005 impugning the

said allotment. It was the case of the RWA that the said land in the layout

plan of the colony was meant for a park and had been wrongly allotted for

the purpose of a Nursery School. Status quo with respect to the land was

directed to be maintained vide interim orders in the said earlier writ

petition. The said earlier writ petition was dismissed vide judgment dated

4th April, 2005. This Court on examination of the original file produced

then also by DDA including the original layout plan, held the plot in

question (obviously referring to plot measuring 997 sq. mtrs.) to be for the

purpose of a Nursery School only and not as a park. The contention of the

RWA of the plot being meant for a park was thus found to be erroneous.

RWA preferred LPA No. 905/2005 which was dismissed on 25th April,

2005 and an SLP (Civil) No. 18578/2005 preferred to the Apex Court also

did not meet with any success and was dismissed on 16th September, 2005.

6. The plot ad measuring 997 sq. mtrs. was situated at end of Pocket-D

of Dilshad Garden, with 111.65 sq. mtrs. of land situated between the

boundary of the said plot and the boundary of the colony and across which

boundary of the colony is an 18 mtr. wide road.

7. The petitioner after succeeding in the writ petition aforesaid, instead

of raising construction on the said 997 sq. mtrs. of land, approached DDA

for allotment of the said 111.65 sq. mtrs. of land also to it. Approval

thereof on payment of additional premium of `9,75,304/- was

communicated by the respondent no.1 DDA vide letter dated 28 th

February, 2007 to the petitioner. Upon deposit of the said amount, a

perpetual lease deed dated 16th July, 2007 of the entire 1108.65 sq. mtrs.

of land i.e. 997 sq. mtrs. allotted originally plus 111.65 sq. mtrs. allotted

subsequently was executed in favour of the petitioner. The petitioner, as

aforesaid, thereafter approached the respondent no.3 MCD for sanction of

construction plans on the entire land.

8. The petitioner upon so acquiring lease of the entire 1108.65 sq. mtrs.

of land sought to include the additional 111.65 sq. mtrs. within its

boundary and to open access to the school plot from the 18 mtr. wide road

by breaking the boundary wall of the colony. A suit before the District

Court was filed by the respondent no.2 RWA in this regard but which was

subsequently withdrawn.

9. However the respondent no.2 RWA thereafter approached the

respondent no.1 DDA and other authorities for cancellation of the

allotment of additional 111.65 sq. mtrs. of land to the petitioner. It was the

contention of the respondent no.2 RWA that the said 111.65 sq. mtrs. of

land in fact was a part of a continuous running passage around the entire

block and by allotment and inclusion thereof in the school plot, the passage

had been blocked.

10. On such representations of the respondent no.2 RWA, the

respondent no.1 DDA vide communication dated 21st October, 2008 to the

petitioner, cancelled the allotment of 111.65 sq. mtrs. of land to the

petitioner and restored the same as passage to the public.

11. Aggrieved therefrom W.P.(C) No. 7546/2008 was preferred by the

petitioner. It was inter alia the contention of the petitioner that no

opportunity of hearing was given to it. The said writ petition was disposed

of with a direction to the respondent no.1 DDA to consider the matter

afresh after hearing the petitioner.

12. A show cause notice was issued by the respondent no.1 DDA in

pursuance thereto and to which a reply was submitted by the petitioner. It

was the case of the petitioner in the said reply that in the layout plan of the

colony, land ad measuring 1108.65 sq. mtrs. had been shown as a Nursery

School site; however the respondent no.1 DDA allotted only 997 sq. mtrs.

of land; the petitioner had subsequently applied for allotment of the

remaining 111.65 sq. mtrs. of land also; that the Planning Wing of the

respondent no.1 DDA had on the said application opined that the land

which had been handed over to the petitioner was not in accordance with

the possession plan as the possession plan clearly showed the school site as

abutting the main 18 mtrs. wide road; that if the school had access from the

18 mtrs. wide road, the residents of the colony would also not be disturbed;

that accordingly a decision had been taken to allot the said 111.65 sq. mtrs.

also to the petitioner for inclusion thereof in the land already allotted for

the Nursery School. It was also the plea of the petitioner that the perpetual

lease of the entire land having already been executed, the respondent no.1

DDA was not left with any right of cancellation of allotment.

13. The respondent no.1 DDA vide letter dated 3rd July, 2009 impugned

in this petition, in the light of the difficulties being faced by the public and

the residents owing to closure of the said passage between two blocks of

DDA flats through the said 111.65 sq. mtrs. of land and further in the light

of the land usually allotted to nursery schools being 800 sq. mtrs. only and

the petitioner already being in possession of excess land, reiterated its

earlier decision of cancellation of allotment and restoration of the said land

as a public passage.

14. The petitioner in the writ petition relies upon the reply dated 6th

September, 2006 of the Housing & Urban Projects Wing of the respondent

no.1 DDA to an RTI query of the petitioner, to the effect that the subject

plot is abutting the main 18 mtr. wide road as per the possession/layout

plan No. 183-L and it was envisaged at the planning stage that the entry to

the school will be from the 18 mtr. wide road and that it was not

understandable as to how the strip of land ad measuring 111.65 sq. mtrs.

remained from allotment to the school. The petitioner also relies upon the

written statement filed by the respondent no.1 DDA in the suit aforesaid

filed by the respondent no.2 RWA where also the respondent no.1 DDA

justified the allotment of 111.65 sq. mtr. by pleading that the possession

plan i.e. the plan as per which possession of 997 sq. mtrs. had been

delivered to the petitioner in 2003 showed the school site as abutting the 18

mtr. wide road, that by doing so the access to the school could be provided

from the 18 mtr. wide road without disturbing the residents; that the said

111.65 sq. mtrs. belonged to the respondent no.1 DDA and the respondent

no.1 DDA could so allot it to the petitioner.

15. Two questions arise for consideration. Firstly, whether the

respondent no.1 DDA after the execution of the perpetual lease could

cancel the allotment and secondly what is the scope of the judicial review

over such decision of the respondent no.1 DDA.

16. Unfortunately, the emphasis during the hearing remained on the

position as existing in the layout plan. Thus, though the first of the

aforesaid questions has been taken in the writ petition, no arguments were

addressed thereon. However it is the case of the petitioner in the writ

petition that the title of the said land after execution of the perpetual lease

is governed by the terms of the perpetual lease only and the petitioner

cannot be deprived of the said title in a manner contrary thereto.

17. I have perused the perpetual lease deed. The same permits re-entry

in several situations but not in the situation as the present one. Though one

of the grounds of re-entry is, if the petitioner in the matter of obtaining the

lease had misrepresented or mis-stated and/or suppressed any fact or acted

fraudulently but that is also not the case. The perpetual lease therefore does

not permit the respondent no.1 DDA to so effect the cancellation.

18. However, the same in my opinion would be irrelevant. The

respondent no.1 DDA as a Public Body, even though the custodian of the

said land (the land being Nazul land belongs to the Government of India)

could not deal with it as per its ipse dixit. The respondent no.1 DDA itself

is equally bound by the layout plans sanctioned by it and cannot act in

contravention thereof. Thus the respondent no.1 DDA could allot the

subject 111.65 sq. mtrs. of land to the petitioner only if the same as per the

layout plan were to be for a Nursery School. If the same were not to be for

a Nursery School, even though vesting in the respondent no.1 DDA, the

respondent no.1 DDA could not have allotted the same for the purpose of

Nursery School. The principle that a person cannot convey a title better

than he himself has, would equally apply here; if the title of the respondent

no.1 DDA with respect to the said 111.65 sq. mtrs. of land were for

Nursery School then the allotment thereof would be justified; else if it is

not for a Nursery School, the cancellation of the allotment would be in

order.

19. Ordinarily, such cancellation would be effected by the Court, as

done by the Apex Court in Dr. G.N. Khajuria v. DDA (1995) 5 SCC 762.

In the present case, the respondent no.1 DDA has done it itself. Even if the

respondent no.1 DDA were to be held to be not entitled to itself do it, the

fact remains that the respondent no.2 RWA is challenging the decision of

the respondent no.1 DDA of allotment of the said 111.65 sq. mtrs. of land

to the petitioner. Thus even if the present petition were to be allowed, the

challenge of the respondent no.2 RWA would remain. Now that this matter

has been allowed to brew for the last two years and the controversy is at

large before this Court, it is not deemed expedient to for the sake of

technicalities allow this petition with liberty to the respondent no.2 RWA

to challenge the allotment in favour of the petitioner.

20. Thus the only question which really falls for consideration is as to

the position qua the said land in the layout plan.

21. Reliance by the petitioner and earlier by the respondent no.1 DDA

while making the allotment in favour of the petitioner on the possession

plan to contend that the land of the school has to be abutting the 18 mtr.

wide road without the said 111.65 sq. mtrs. strip of land in between is also

misconceived. The possession plan cannot determine the use of the land

and cannot change the nature of the land than as shown in the sanctioned

layout plan. For the same reason, the argument of the respondent no.2

RWA of the said 111.65 sq. mtrs. of land being a passage and the allotment

thereof causing inconvenience to the residents is of no avail. If the land

were to be not a passage in the layout plan, howsoever inconvenient it may

be to the residents, so be it. We are a society governed by law, in this case

the layout plan and not by the changing perceptions of the officials of the

respondent no.1 DDA.

22. No plan with the area of the Nursery School plot shown as 1108.65

sq. mtrs. has been produced by any of the parties. In fact no dimensions

qua plots marked for parks or other plots for schools are also found on the

plans before this Court. Doubt is cast with respect to the possession plan

showing the school land as abutting the 18 mtr. wide road in as much as

notwithstanding the matter having been thrashed out before this Court in

the earlier round of litigation and the layout plans having been produced

before this Court, it was the case of neither party that the land was abutting

the 18 mtr. wide road or was originally shown as ad measuring 1108.65 sq.

mtrs. Rather the parties proceeded on the premise that as per the layout

plan, the land meant for school had no other access except through the

colony. Once the judgment of this Court has recorded that the files had

been summoned and the layout plans had been examined, it is presumed

that in the layout plans then before this Court, no access to the land from

the 18 mtr. wide road was shown.

23. A layout plan bearing scheme no. 183-L of 960 LIG at Dilshad

Garden Pocket D certified on 30th September, 2010 by Archana Maini,

Asstt. Director (Architect) HUPW, DDA has been produced. The same

shows the Nursery School plot as extending till the boundary wall of

Pocket-D. i.e. till the 18 mtr. wide road. However I find on the files of the

respondent no.1 DDA another drawing of the entire DDA Housing at

Dilshad Garden, which in Pocket-D shows the nursery school site as not

extending till the boundary wall of the pocket -D and shows a strip of land

(which must be corresponding to the strip of land ad measuring 111.65 sq.

mtrs.) between the Nursery School site and the boundary wall of the

colony. The layout plan certified by Ms. Archana Maini though shows a

passage running all around the Pocket, shows the Nursery School plot as

abutting the 18 mtr. wide road. There is thus no clarity. The counter

affidavit of the respondent no.1 DDA also though states that land

measuring 997 sq. mtrs. only has been shown in the layout plan for

Nursery School site, neither supports the same with the layout plan nor

answers whether as per the layout plan the said 997 sq. mtrs. is to be

abutting the boundary wall of the Pocket or to be at a distance from the

said boundary wall. This Court therefore feels handicapped to decide.

Unfortunately the respondent no.1 DDA has not passed a detailed order.

24. There is thus no option but to remand the matter to the respondent

no.1 DDA to, after hearing the petitioner as well as the respondent no.2

RWA and in accordance with the layout plan and in terms of the

observations made herein above decide the matter.

25. This Court is also of the opinion that even if the layout plan shows

the area of the said plot to be 997 sq. mtrs. only, as is contended by the

respondent no.1 DDA, and even if the said 997 sq. mtrs. is located as

originally allotted to the petitioner, since the respondent no.2 RWA had

earlier objected to the Nursery School plot inter alia on the ground of

causing disturbance to the residents, the respondent no.1 DDA to in such

eventuality explore the possibility of amendment of the layout plan to allot

the said 997 sq. mtrs. of land abutting the 18 mtr. road and with no access

to the Nursery School plot from within Pocket-D. It appears that the

aforesaid would provide a via-media to all parties concerned.

26. However since the utilization of the land for the purpose of Nursery

School for which it is meant is held up for the last nearly seven years, the

respondent no.1 DDA is now directed to do the needful on or before 31st

January, 2012.

27. The petition is accordingly disposed of with the following

directions:-

A. The matter is remanded to the respondent no.1 DDA for decision

afresh after hearing the petitioner, the respondent no.2 RWA and in

terms of observations herein.

B. If as per the layout plan the petitioner is entitled to 1108.65 sq. mtrs.,

with opening from the 18 mtr. wide road, the respondent no.2 RWA

shall have no right to object thereto save that in such case the said

Nursery School plot shall have no opening from within the Pocket-D

of the colony.

C. If as per the layout plan the size of the Nursery School plot is 997 sq.

mtrs. only and at a location as originally delivered, the allotment of

additional 111.65 sq. mtrs. in favour of the petitioner shall stand

cancelled and the passage earlier in existence shall stand restored.

However, in such eventuality the respondent no.1 DDA to consider

whether the layout plan can be amended so that the 997 sq. mtrs. of

land abuts the 18 mtr. wide road and the Nursery School thereon has

egress and ingress from the said road only and not from within

Pocket-D of the colony.

D. The aforesaid exercise be completed on or before 31 st January, 2012.

E. Till the decision aforesaid, respondent no.3 MCD to not take any

further action. In the event of the petitioner being held entitled to

1108.65 sq. mtrs. of land, the notices issued by the respondent no.3

MCD to the petitioner shall stand quashed. However, if the petitioner

is not found entitled to 111.65 sq. mtrs., the petitioner would be

required to have the plans for construction re-sanctioned from the

respondent no.3 MCD. Similarly, in the event of the petitioner being

found to be entitled to only 997 sq. mtrs. abutting the 18 mtr. wide

road also, the plans for construction will need to be altered/re-

submitted.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) OCTOBER 24, 2011/pp..