Greater Kailash Part-Ii Welfare ... vs Union Of India & Ors.
2012 Latest Caselaw 4136 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 13th July, 2012

+                      W.P.(C) No. 2008/2012

GREATER KAILASH PART-II WELFARE ASSOCN. ...Petitioner
               Through:  Mr. Preetesh Kapur,       Ms.
                         Seema Bengani, Mr. S. Rumnong,
                         Advs.

                                 versus

UNION OF INDIA & ORS.                                   ..... Respondents

                  Through :          Mr. Jatan Singh, CGSC for R-1.
                                     Mr. N. Waziri, Adv. for GNCTD
                                     with Ms. Versha Sharma, Addl.
                                     DCP, Licensing and Mr. Somvir
                                     Singh, Fire Officer.
                                     Mr. Ajay Arora, Adv. for MCD.
                                     Ms. Shobhna Takiar, Adv. for
                                     DDA.
                                     Mr. Rajiv Nayyar, Sr. Adv. with
                                     Mr. Pravin Bahadur, Mr. Amit
                                     Agarwal, Ms. Kanika Gomber &
                                     Ms. Nimita Kaul, Advs. for R-11.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW,J

1. This petition filed as a public interest litigation impugns the permission and clearances given by the various departments in the year 2008-2009 to the owner of Savitri Cinema, New Delhi. Besides the said relief coupled with the interim relief of staying the running of the said

Savitri Cinema, the petition also claims mandamus for formulating appropriate guidelines to deal with the traffic congestion problem in and around cinema halls and commercial complexes and a declaration that the renewal every 10 years of the licence of the Cinema should be denied unless the Cinema conforms to the guidelines then in force. The petition also impugns the decision dated 25th October, 2011 of respondent no.10 Unified Traffic and Transportation Infrastructure (Planning and Engineering) Centre (UTTIPEC).

2. On the statement of the counsels for the appearing respondents that no counter affidavits are required to be filed, arguments were finally heard in the writ petition.

3. It is not in dispute that there has been a previous round of litigation qua the said Savitri Cinema at Greater Kailash-II, New Delhi. Though the petitioner has not filed the judgments in the said earlier round of litigation but the counsel for respondent no.11 DLF Universal Limited being the owner of the said Cinema has handed over copies thereof as also copies of certain other documents forming part of those proceedings.

4. The learned Single Judge of this Court, then on a petition filed by Greater Kailash Welfare Association and others representing the residents of Greater Kailash, had vide judgment reported as Greater Kailash Welfare Association vs. MCD 124 (2005) DLT 550 held that the authorities had mechanically proceeded to grant sanction for the Cinema without considering the relevant facts and had made the sanction so granted in-operational and referred the matter back to the authorities for decision

afresh including as to the appropriate parking standards, having regard to all relevant factors such as location, size of the plot, entry and exit points etc. M/s DLF Universal Limited being the owner of the Cinema had preferred an intra-court appeal against the said judgment, which was allowed by the Division Bench of this Court, the judgment whereof is reported as DLF Universal Limited vs. Greater Kailash-II Welfare Association 127 (2006) DLT 131. The sanctions granted by the MCD for the Cinema were held to be non-assailable and were upheld and the judgment of the learned Single Judge was set aside.

5. The Greater Kailash-II Welfare Association i.e. the petitioner herein had approached the Supreme Court against the judgment supra of the Division Bench of this Court and vide detailed judgment reported as Greater Kailash Part-II Welfare Association vs. DLF Universal Limited (2007) 6 SCC 448, it was held that the Division Bench was justified in observing that the learned Single Judge could not have sat in appeal over the decisions of the executive authorities. However, while dismissing the appeal, it was observed "If, however, in future the necessity so arises, the concerned authorities will be at liberty to take appropriate steps to contain any problem that may arise, in accordance with law."

6. The counsel for respondent no.11 DLF Universal Limited, on the very first date when the matter had came up before us, had informed that the Cinema had already become operational.

7. The case of the petitioner in the present petition is,

i) "that the terms given for reconstruction of Savitri Cinema are in

contravention of Municipal Corporation Act, 1957, Delhi Building Bye-Laws, 1983 and Delhi Cinematograph Rules 2002 and 2008 etc.";

ii) that, on a petition/representation by the petitioner, the OSD to the Lt. Governor issued a note to UTTIPEC to look into the problems;

iii) that in the meetings of UTTIPEC held on 20th July, 2011, 3rd August, 2011, 12th August, 2011 and 3rd October, 2011 certain steps were proposed but which were suddenly reversed in the meeting held on 25th October, 2011;

iv) that an agreement had also been arrived at between M/s DLF Universal Limited and the Association of the Occupants of the Commercial Complex adjacent to the cinema qua the utilization of the parking amenities in the Complex;

v) that the said agreement showed that M/s DLF Universal Limited had misrepresented facts before the Supreme Court and the parking, as represented to the Supreme Court, to be available, is in fact not available.

8. The counsel for the petitioner has invited our attention to the counter affidavit dated 8th September, 2006 of M/s DLF Universal Limited in the Supreme Court in the proceedings aforesaid as well as to the copy of the agreement aforesaid entered into with the Association of Occupants of the Commercial Complex to contend that the parking as represented is not available. He has also invited our attention to Schedule II of the Cinematograph Rules, 2008 and to the Regulations 15 and 17 to contend that

at the time of renewal every 10 years of the cinematograph licence, the compliance of the various rules and regulations is to be decided afresh and if the Cinema infrastructure is not found to be in compliance of the prevalent conditions, the renewal of the cinematograph licence ought to be refused.

9. Per contra, learned senior counsel for the DLF Universal Limited has invited our attention to the minutes of the meetings held on 25th October, 2011 and 18th January, 2012 of UTTIPEC to show that the cinema hall is in compliance of all the conditions enumerated therein. He has also controverted that any misrepresentation was made before the Supreme Court or that the requisite number of parking spaces for the patrons of the cinema hall are not available. The counsels for the petitioner and M/s DLF Universal Limited have also taken us through the site plan of the area and have also after the close of hearing filed their written submissions. The counsel for the petitioner has also referred to Deepak Theatre, Dhuri vs. State of Punjab AIR 1992 SC 1519.

10. The conclusion, that the petitioner by way of the present petition is re- agitating the issues which stand concluded by the judgments of the Division Bench and of the Supreme Court (supra) in the earlier round of litigation, is inescapable. The matter having been thrashed out in the earlier round of litigation, we are not inclined to re-open the same. The petitioner has been unable to demonstrate any new development requiring relook into the matter. Rather, the cinema has just become operational, as a consequence of sanctions/permissions challenged in the earlier round of litigation. The principles of res judicata and constructive res judicata squarely apply. The

present is found to be a case, of the petitioner, in spite of losing in the highest court of the land being desirous of a second opportunity and which cannot be permitted.

11. The petitioner has also been unable to make out any case, of the parking requisite for the Cinema having been bartered away to the occupants of the adjacent commercial complex. M/s DLF Universal Limited in its written arguments has demonstrated that the position as represented at the time of hearing before the Supreme Court and accepted by the Supreme Court continues to exist and there is no change therein. Moreover the remedy for any misrepresentation to the Supreme Court cannot be before this Court.

12. As far as the argument of what should be the procedure at the time of renewal of cinema licences is concerned, we are of the opinion that there is no cause of action therefor; as and when the renewal of licence becomes due and is sought for and is granted, the petitioner, if aggrieved therefrom shall have remedies.

13. In fact the counsel for the petitioner also, in rejoinder stated that he is confining the relief in the petition to adherence to the understanding arrived at in the meetings of UTTIPEC held on 20 th July, 2011, 3rd August, 2011, 12th August, 2011 and 3rd October, 2011 and which was changed in the meeting held on 25th October, 2011. The said understanding pertained to use of various gates to the complex for entry/exit and to closure of certain gates. The counsels for the various authorities however have supported the traffic movement in and out of the complex, now worked out and contend the same

to be most conducive to smooth flow and to avoid any congestion/jam. Once the experts have applied themselves and taken a decision and in the absence of the petitioner being able to demonstrate any error in the decision making process, we are loath to interfere with such decision.

14. We, therefore do not find any merit in this petition. The same is dismissed. No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

JULY 13, 2012 sd