Delhi High Court
Samaj Sudhar Samiti Harkesh Nagar ... vs Govt. Of (Nct) Of Delhi And Ors on 18 May, 2012
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 15.05.2012
% Judgment delivered on: 18.05.2012
+ W.P.(C) 5525/2011
SAMAJ SUDHAR SAMITI HARKESH NAGAR (REGD) THROUGH
DHYAN SINGH ..... Petitioner
Through: Mr. C. Mukund with Mr. Firdoz Vani,
Mr. Vinny Shangloo and Mr. Ravi,
Advs.
versus
GOVT. OF (NCT) OF DELHI AND ORS ..... Respondents
Through: Ms. Indira Jai Sing, ASG with Mr.
Rajiv Nanda, Additional Standing
Counsel and Ms. Shawana Bari,
Adv. for R-1, 2 & 6.
Mr. Suresh Tripathy with Mr.
Mayank Singh Chauhan, Advs. for
Delhi Jal Board.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
JUDGMENT
VIPIN SANGHI, J.
1. The present writ petition under Article 226 of the Constitution
of India has been preferred by the Samaj Sudhar Samiti Harkesh Nagar
(Regd.), through its General Secretary, Sh. Dhyan Singh to seek a writ
order or direction in the nature of prohibition, to prohibit the
respondents from closing, or in any manner interfering or restricting
the access to the residents of Harkesh Nagar Colony from the main
road i.e., the Ma Anand Mai Marg.
2. The case of the petitioner is that it is an association of
residents of Harkesh Nagar Colony, which was an unauthorized colony
regularized by the MCD vide Resolution No.631 dated 06.12.1990. The
petitioner submits that its members and residents have been using a
connecting road from its colony to the Maa Anand Mai Marg over the
years, which falls on an open tract of land.
3. The respondents impleaded in the present writ petition are
the Director (Works), GNCT of Delhi; the Chairman, IIT; the Director
(Delhi Jal Board); the Commissioner (Industries), GNCT of Delhi; the
President, Okhla Industrial Association (Regd.), and; the Commissioner
of Police in that order.
4. The grievance of the petitioner is that the land, whereon the
said connecting road is located, has now been allotted to respondent
no.2, IIIT to set up their campus, and respondent no.2 is seeking to
cordon off the said road, and to prevent the members of the petitioner
association from using the same. The petitioners case is that there are
about two lacs residents in Harkesh Nagar Colony and the blockade of
the connecting road would create chaos for the said residents as they
would not be able to access Maa Anand Mai Marg, which is the
main/trunk road used by the residents of Harkesh Nagar Colony for
coming into or going out of the said colony.
5. The petitioners submit that they have no other alternate way
to approach the colony, and if the said connecting road is cut off, the
petitioners colony would become land locked. The action of the
respondents, and in particular respondent no.2, is claimed to be in
breach of the master plan and also in breach of the fundamental rights
of the residents of Harkesh Nagar Colony. The petitioners have placed
on record photographs to show the said connecting road being used by
them, a part of which lies along boundary of G.B. Pant Polytechnic.
6. The petition is opposed by all the respondent authorities,
namely, respondent nos.1, 2, 3, 4 and 6. However, respondent no.5,
Okhla Industrial Estate Association (Regd.) supports the petitioners
case on the ground that the alternate route sought to be provided to
the residents of Harkesh Nagar Colony adversely affects their interest.
7. Mr. Mukund, learned counsel for the petitioner submits that
merely because respondent no.2 claims to have been allotted the land,
over which the said connecting road is located, is no ground to cut off
the said road. He submits that when the allotment of the land in
question was made to respondent no.2, they were well aware of the
fact that a connecting road exists thereon from Harkesh Nagar Colony
to Maa Anand Mai Marg, which is in regular use by the residents of
Harkesh Nagar Colony for accessing Maa Anand Mai Marg. Therefore,
the allotment was accepted by respondent No.2 with the above
limitations. They cannot seek to alter the position now to the
disadvantage of the residents of Harkesh Nagar Colony.
8. Learned counsel for the petitioner further submits that there
are any number of other instances, such as the Delhi University and
Jamia Millia University, where the campus of the university is spread
out, and there exist public roads/streets, open to the public for the
purpose of commutation. He submits that there is no need for the
respondent no.2 to cordon of its entire campus in such a manner as to
block the connecting road, which the residents of Harkesh Nagar
Colony have been using for five decades.
9. Learned counsel for the petitioner has shown to the Court the
plan of the area to submit that the petitioners are only seeking the
maintenance of the connecting road partially, since, according to him,
the remaining portion of the connecting road, which runs along the
boundary of G.B. Polytechnic, in any event, would continue to exist.
10. The petition is primarily opposed by respondent no.2. Ms.
Indira Jaising, learned Additional Solicitor General, who appears on
behalf of respondent nos.1 and 2 submits that the connecting road in
question is not a public street in terms of the definition contained in
section 2(44) of the Delhi Municipal Corporation Act (DMC Act). She
submits by reference to the counter-affidavit filed by Public Works
Department of the GNCT of Delhi that the said connecting road does
not vest in the Corporation. She submits that the connecting road has
neither become, nor has been declared to be, a public street.
11. She further submits it is not even the petitioners case that the
connecting road in question is a public street within the meaning of the
expression as defined in section 2(44) of the DMC Act. She submits
that the members of the petitioner association have no vested right to
claim the right to continue to use the said connecting road as it falls on
government land, which stands allotted to respondent no.2.
12. She submits that, firstly, the connecting road is not the only
access road for the residents of Harkesh Nagar Colony to come into, or
get out of the said colony. She further submits that, in any event, all
the petitioners could ask for is the right to access the trunk road, so
that they are not land locked. She submits that the respondent no.2
has, therefore, already laid a 7 meter wide road along the periphery of
its boundary, which eventually connects to the public street leading to
Maa Anand Mai Marg. She submits that the said street falls entirely on
the land allotted to respondent no.2, and respondent no.2 would
undertake to maintain the same in good functional use. She has
reflected to the plan filed by respondent No.2 with its counter affidavit.
13. Ms. Indira Jaising submits that the only difference between the
connecting road being used by the petitioner's members presently,
and the street constructed by respondent no.2 over its land is that the
said street increases the distance between the petitioners colony and
Maa Anand Mai Marg by about 500 meters. Otherwise, it is as broad as
the existing connecting road. She has also drawn the attention of the
Court to the affidavit of respondent nos.1, 3 and 4.
14. Respondent no.1, Public Works Department of the GNCT of
Delhi has stated in its affidavit that the existing connecting road in
question exists on the campus of respondent no.2; the road and the
land belong to respondent no.2 and; the road of Public Works
Departments does not enter the campus of respondent no.2. It is also
stated by respondent no.1 that the Public Works Department has made
a 500 meter long and 7 meter wide concrete road as alternate access
for the residents of the petitioner association. The said new concrete
road was built by Public Works Department along side of boundary of
the land of respondent no.2, that is to say - within the land of
respondent no.2.
15. Respondent no.3 has stated that the land in question does not
belong to the Delhi Jal Board. Ms. Jaising submits that the Delhi Jal
Board has no objection to the construction of the alternate street which
the Public Works Department has already constructed. Respondent
no.4 i.e., the Commissioner of Industries, GNCTD in their counter-
affidavit, submits that it has no objection to the creation of the
alternate route for the residents of Harkesh Nagar Colony.
16. Ms. Jaising submits that the respondent no.2 cannot permit a
connecting road to exist on its campus, as the existence of a
thoroughfare would disturb the working of the institution. She submits
that, as there would be a hostel blocks both for male and female
students erected on the campus, to protect the property and the
students studying in the institute living in the hostel, it is necessary to
cordon of and sanitise the premises of the institute.
17. Ms. Jaising submits that the connecting road is an
unauthorized road constructed with the blessings of the local MLAs and
from their fund. She submits that the construction of the alternate
street was undertaken by the Public Works Department after due
deliberation and in consultation with all the concerned authorities.
Respondent no.2 has placed on record alongwith its counter-affidavit,
the minutes of the meeting held on 02.02.2009 under the
chairmanship of the Principal Secretary to Chief Minister. In this
meeting, the officers from various departments of the Government of
Delhi, such as the Secretary, Training and Technical Education;
Department of Revenue; Officers of the MCD; Officers of the Delhi Jal
Board; Officers of the GB Pant Polytechnic; respondent no.2, and; Delhi
Police were present.
18. In this meeting, the existence of the connecting road and the
disturbance which the same was causing in the architectural alignment
of the proposed building of IIIT was noted and the possibility to explore
a separate entry to Harkesh Nagar Colony was required to be explored.
The actions suggested included the provision of an independent road
to Harkesh Nagar Colony. It was agreed that if land is needed for
constructing the road, the same shall be provided by the respondent
no.2.
19. Respondent no.2 has also placed the minutes of another
meeting held on 17.02.2009, once again, in the presence of about 21
officers drawn from various departments and authorities. The fact that
the delay in raising the construction could lead to loss of an academic
year was also noted. With regard to the construction of alternate
access road for Harkesh Nagar residents, it was agreed that the
alternate access road be constructed over the MCD nala and the
bridge/culvert be widened. It was also agreed that the unauthorized
access road would be closed once the alternate access road is
completed.
20. Respondent no.2 has also placed on record the minutes of
meeting held in the chamber of the Hon'ble Minister of Development,
Revenue, I&FC, PWD and Welfare for SC/St on 08.02.2010. In this
meeting, the concerned MLA was also present, who represents the
residents of Harkesh Nagar.
21. Ms. Jaising submits that in the presence of the concerned
MLAs, it was decided that the alternate road be constructed adjacent
to the Delhi Jal Board drain. The Public Works Department informed
that tender for the same had been called and the work would be taken
up soon. The Public Works Department was required by the Hon'ble
Minister to do the needful at the earliest. She submits that the
decision to construct an alternate street has been taken collectively
and after due consideration by all concerned, including the
representative of the members of the petitioner association, i.e. local
MLAs. She submits that since the alternate street has already been
constructed, the present petition should be dismissed.
22. Though respondent no.5 has supported the petitioners case,
none has appeared on their behalf to advance any submission. The
stand taken by respondent no.5 in its counter-affidavit is that the
opening of an alternate street would adversely affect the industries
being run in Okhla Industrial Estate. It is stated that the traffic from
Harkesh Nagar would be diverted into Okhla Industrial Estate.
Respondent no.5 has stated that there are various knowledge based
prestigious industries operating in Okhla Industrial Estate, and they
would be adversely affected by the proposed move.
23. Mr. Jaising submits that respondent no.5, while objecting to
the alternate street constructed by respondent no.2, proceeds on the
incorrect premise that the alternate street is located on the land falling
within the Okhla Industrial Estate. She submits that the street has
been constructed entirely on the land falling within the area allotted to
respondent no.2. She further submits that the said alternate route has
been completely cordoned off from Okhla Industrial Estate, inasmuch,
as, boundary walls have been constructed on both the sides of the said
alternate street having width of 7 meters throughout.
24. In his rejoinder, learned counsel for the petitioner has argued
that the alternate street constructed by respondent no.2 ends on a
culvert which is narrow and creates a bottleneck. He submits that the
residents would, therefore, face great difficulty in accessing the public
street from this alternate street due to heavy traffic. He further
submits that the existing connecting road is much wider, i.e. about 40
feet wide, whereas the alternate street constructed by respondent no.2
is only 7 meters wide.
25. In response to the aforesaid submission, Ms. Jaising submits,
on instructions, that the respondent no.2 is willing to undertake to this
Court, and would abide by direction issued by this Court, requiring
respondent no.2 to keep the alternate street maintained in good
operational condition. She further submits that respondent no.2 would
also be ready and willing to take whatever steps are required to be
taken for the broadening of culvert over the Delhi Jal Board drain, if not
already widened, so that no bottle neck is created and the traffic can
flow smoothly on the alternate street, including over the culvert. She
further submits that the submission of the petitioner with regard to the
width of the existing connecting road being 40 feet is not correct,
inasmuch, as, the metal road is more or less 7 meters width
throughout. She has tendered in Court the comparison chart prepared
by the respondent authorities of the alternate route and the existing
unauthorized road in this regard, which is taken on record.
26. The tabulation prepared by the respondent authorities
containing the comparison of the existing unauthorized
road/connecting road and the alternate road/street reads as follows:
Distances L (m) W Status
(m)
ALTERNATE ROAD PROVIDED
Between Mother diary Along 579 7 Existing
to culvert Phase bitumin
III top
Between Culvert to Along 433 7 New
dustbin Harkesh Concrete
Nagar Road
ALTERNATE ROAD PROVIDED Distance 1012 7
EXISTING UNAUTHORIZED ROAD
At 500m Mother 100 6 Existing
diary Bitumin
top
At 400m Our 100 6 Existing
present Bitumin
entry top
At 300m GBP 100 5.5 Existing
Main Bitumin
gate top
At 200m Turn 100 8.2 Existing
Bitumin
top
At 100m 102 7 Existing
Bitumin
top
At 0 Dustbin 7 Existing
Bitumin
top
Existing Unauthorized ROAD Distance 502 6.6
27. Having heard learned counsels for the parties, in view of the
fact that the respondents have provided an alternate street/road to the
residents of Harkesh Nagar Colony to access the main road, i.e. Maa
Anand Mai Marg, I am not inclined to permit the members of the
petitioner association and the residents of Harkesh Nagar Colony to
continue to use the existing connecting road, which falls over the land
allotted to respondent no.2 for developing its campus.
28. Respondent no.2 has been allotted the said site for setting up
a State University in accordance with the IIIT Delhi Act, 2007 for the
purpose, and with the mission of setting up a global centre of
excellence in information technology education, training and research.
Respondent no.2 aims to train and educate at both undergraduate and
post graduate levels, engineers of outstanding ability, who could
become innovators and new product creators. Respondent no.2 has
been allotted 25 acres of land at the site in question, out of a total of
65 acres of land initially granted to G.B. Pant Polytechnic established in
the year 1961. Respondent no.2 currently has three academic
programmes, i.e. B-Tech, M-Tech and PhD with a total of 400 students,
which includes males and females, and the faculty of about 20 highly
qualified doctorates.
29. From the counter-affidavit filed by the Public Works
Department, it is abundantly clear that the connecting road in question
is not a public street within the meaning of section 2(44) of the DMC
Act. It is clear that the same has been unauthorisedly constructed
over government land, which has eventually been allotted to
respondent no.2. The location of the said connecting road is such that
it divides the land allotted to respondent no.2 practically into two
halves. The land allotted to respondent no.2 is an irregular shaped
plot and the existence of the said connecting road running through its
area is, therefore, bound to create difficulties in the development and
proper utilization of the area by respondent no.2. If allowed to remain,
the said connecting road would not only hamper the development of
the area, but would also create security risks and disturb the
atmosphere and peace of an educational institution. Therefore, the
right of respondent no.2 to cordon of its area for purpose of setting up
its institution cannot be denied or disputed by the petitioner.
30. Merely because Delhi University and Jamia Millia University
have public streets running within their campus is no ground for the
maintenance of the connecting road in question in respect of the
campus of respondent no.2. The said campus admeasures only 25
acres which is far less compared to the campus of either Delhi
University or Jamia Millia University. Moreover, respondent no.2 is a
single institution university, unlike the Delhi University and the Jamia
Millia University, which have different institutions and departments
within its campus. These institutions have their own boundary walls.
31. The petitioners, in any event, have no right to dictate to
respondent no.2 that they must continue to maintain the connecting
road, particularly when all the respondent authorities have collectively
applied their mind, and decided to provide and, in fact, provided an
equally convenient alternate road/street to them along the periphery of
the area allotted to respondent no.2. The only difference is that
whereas the existing connecting road admeasures 502 meters, the
alternate road/street admeasures 1012 meters.
32. The submission of Mr. Mukund, learned counsel for the
petitioner that the width of the existing connecting road is 40 feet does
not appear to be correct. From the comparative table drawn by the
respondent authorities, it appears that the width of the bitumen top of
the existing connecting road, at the highest, is 8.2 meters and goes
down to even 5.5 meters, whereas the width of the alternate
road/street provided by the respondent authorities for use of the
residents of the petitioner association is consistently maintained at 7
meters.
33. There can be no issue that the fundamental rights of the
residents of Harkesh Nagar Colony have to be preserved. They cannot
be left in a land locked state, assuming that there was no other
connecting street/road apart from the one in question (before the
construction of the alternate street by the respondent-PWD on the land
of respondent No.2). However, it does not mean that the rights of the
community at large to benefit from development of the respondent
No.2 institute should be sacrificed only to maintain status quo in
respect of the user of the unauthorized road by the residents of
Harkesh Nagar Colony. In a developing country like ours, there are
bound to be competing claims made by different sections of the
society whenever developmental works are undertaken. Someone is
bound to oppose the same on the ground of being inconvenienced.
Human beings, by their very nature, prefer to maintain status quo and
seldom welcome change, and particularly when it causes some slight
inconvenience to them. The authorities would, in such situations, have
to balance the rights of all stakeholders. No one section or group of
persons can claim that their rights should override the rights of others.
34. In the present case, the residents of Harkesh Nagar Colony
have now been provided with a new concrete road, which has been
constructed on the land allotted to respondent no.2. The respondent
no.2 has undertaken to this Court that they shall continue to maintain
the said road in good condition. They have also put to rest the
apprehension of respondent no.2 with regard to the width of the
culvert. In fact, a perusal of the minutes of the meeting held on
17.12.2009, as aforesaid, shows that one of the decisions reached by
agreement was that:
"1.3 The alternate access road is over a MCD nala, the
bridge/culvert is to be widened. The CE, MCD confirmed
that they have no objection to the widening of the culvert".
35. Respondent no.2 has also undertaken to the Court that they
would undertake to the widening of the culvert, in case the same has
not already been widened, so that a bottleneck is not created and the
traffic runs smoothly on the alternate road/street connecting Harkesh
Nagar to the main trunk road, i.e. Maa Anand Mai Marg via the existing
public street. Respondent no.2 shall remain bound by its undertaking
given to the Court, which is accepted by the Court.
36. In view of the aforesaid position, the present petition stands
disposed of. Interim orders passed in this petition stands vacated.
VIPIN SANGHI, J
MAY 18, 2012
sr
