Delhi High Court
Mukteshwar Marbles & Ors vs Chairman Dda & Anr. on 29 August, 2012
Author: G. S. Sistani
$~16.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7824/2010
% Judgment dated 29.08.2012
MUKTESHWAR MARBLES & ORS ..... Petitioners
Through : Mr.G. Umapathy, Adv.
versus
CHAIRMAN DDA & ANR. ..... Respondents
Through : Ms.Shobhana Takiar, Adv. for DDA.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
1. Present writ petition has been filed by five petitioners under Article 226 of
the Constitution of India seeking a direction to the respondents to permit
change of land use of the area allotted to the petitioners in the marble
market, Sector 20, Stage-I, Dwarka, in accordance with the Master Plan of
Delhi, 2021, and also in accordance with Lease Deed executed by the
respondents. The petitioners also seek a direction to quash the letter dated
21.7.2010 issued by respondent no.2, by which, respondent no.2 has
rejected the request of the petitioners for change of land use of the marble
market in Sector 20.
2. Rule. With the consent of counsel for the parties present writ petition is
set down for final hearing and disposal.
3. As per the petition, petitioners are engaged in the trade of marble in
Mehrauli area prior to 1996. The petitioners were allotted plots in Sector
20, Dwarka, Delhi, on the basis of a Perpetual Lease Deed and
Conveyance Deed executed by the DDA. As per the Perpetual Lease Deed
the plots were earmarked for marble trade for accommodating the Marble
traders at Dwarka.
4. Learned counsel for the petitioners submits that petitioners have made a
representation to the DDA for change of land use, however, the said
application of the petitioners has been rejected without any application of
mind in the following manner:
"With reference to your letter dated 22.3.10 on the subject cited
above, it is to inform you that your request has been examined by
the Planning Deptt. but it is regretted that the same cannot be
acceded to."
5. Learned counsel for the petitioners submits that the order is devoid of any
reasons, it is a cryptic order and does not show any application of mind on
the part of the DDA. Counsel further submits that in various other cases
the DDA has allowed change of land use, however, the petitioners are
being discriminated against. Counsel also submits that the petitioners
made an application under the Right to Information Act to ascertain the
reasons for rejection. Since the DDA did not provide the necessary
information an appeal was filed and in the appeal the following reasons
for rejection have been stated:
"i) The layout plan of Sector - 20, Service Centre was prepared
on the basis of overall ground coverage and FAR for the scheme as
per provisions for Service Centre in MPD-2001. In view of
integrated scheme, ground coverage/FAR suggested for other
office/shops plots, showroom/shops and building material plots
were different.
ii) The development control suggested were keeping in mind the
requirement of the heavy bulky marble which needs more open
space for storage.
(iii) As per the information available in this office, the scheme
was prepared for allotment of plots to the Marble Traders which are
located in the alignment of flyover at Raja Garden Chowk."
6. Learned counsel for the petitioners submits that the petitioners had
requested that they be allowed to carry out allied trade in the building
activities although at this stage they even wish to change the land use into
commercial activities.
7. I have heard learned counsel for the parties, considered their rival
contentions and also perused the material placed on record. It would be
useful to refer to Clause 14 of the Lease Deed dated 28.11.1997 executed
by the DDA in favour of the petitioner. Clause 14 reads as under:
"14. The plot and building thereon or any part thereof shall not be
used for the purpose other than as specified in the Control
conditions and drawings. The lessee and all other persons claiming
title shall not use or cause to be used the said premises or part
thereof for the purpose whatsoever other than that as specified in
the control conditions and drawings and not use or cause to be used
any portion or the unit in such a manner which may or is likely to
cause nuisance or annoyance to the neighbours or occupiers of any
other units in the building or to the owners and occupiers of any
other adjoining and neighbouring property. No part of the demised
premises or any unit thereof shall be used for any illegal immoral
purposes or for any residential purposes.
PROVIDED that, if the lessee desirous of using the said plot or the
building thereon for a purpose other than that shop for marble trade,
the Lessor may allow such change of user on such terms and
conditions, including payment of additional premium and
additional rent, as the Lessor may in his absolute discretion
determine."
8. Reading of the aforesaid clause 14 would show that an allottee is not
entitled to use the plot and building for any other purpose other than the
specified in the condition of the lease, however, in case the allottee is
desirous to use the plot and building for a purpose other than the purpose
notified, he has to approach the lessee of seeking permission for such a
change.
9. The request of the petitioner for change of land use is to be considered by
the DDA in the light of Clause 14 of the Lease Deed.
10. Reading of the rejection order filed at page 105 shows that the order is
completely without any reasons, the same is cryptic in nature and does not
show application of mind. Accordingly, present writ petition is allowed.
Letter dated 21.7.2010 is quashed. Let the petitioners made a
representation to the DDA in view of change of circumstances. DDA will
consider the request of the petitioners in accordance with law and pass a
reasoned order within ten weeks from the date of the receipt of the
representation.
11. Accordingly, present writ petition stands disposed of in view of above.
CM APPL. 20237/2010
12. Application stands disposed of in view of the order passed in the writ
petition.
G.S.SISTANI, J
AUGUST 29, 2012
msr
