Kingsway Camp Shop-Keepers ... vs Delhi Development Authority & ...
2013 Latest Caselaw 1761 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Decision: 18.04.2013

+      W.P.(C) 2318/2012

       KINGSWAY CAMP SHOP-KEEPERS WELFARE ASSOCATION
       (REGD.)                                          ..... Petitioner
                   Through: Mr Sumit Bansal and Mr M.G. Vacher and Ms
                   Sumi Anand, Advs.

                    versus

    DELHI DEVELOPMENT AUTHORITY & ANR.                 ..... Respondents
                  Through: Mr Ajay Verma, Adv. for DDA
                  Mr Jatan Singh, CGSC and Mr Soayib Qureshi, Adv. for
                  UOI, Mr Rajinder Handoo, Adv for respondent No.3
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                             JUDGMENT

V.K.JAIN, J. (ORAL)

1. In CWP No. 4150/2003, this Court had directed carving out allotment of

shop plots to the petitioners in that case. One of the petitioners in that case was

Vikas Khatri, who is respondent No. 3 in this petition. It is an admitted position

before me that a plot measuring 900 square feet was to be allotted to Vikas Khatri

in compliance of the order passed in the said writ petition. The allotment was to be

made in Hudson Line, Kingsway Camp, Delhi.

2. There is some vacant land between plot No. 114 and 116 of the Mall Road.

That open space measures 20 ft X 60 ft. No particular use of the said open land

was indicated in the lay out plan of the locality. A perusal of the letter No.

F.3(31)2002/MP/D-145 dated 27.07.2011, written by DDA to the Additional

Secretary to Lieutenant Governor, would show that the Screening Committee of

DDA, in its meeting held on 05.09.1998, referring to the said land as passage, had

approved to keep the same vacant for connecting the residential plot of Hudson

Line and also for the shopkeepers having backside entrance to their residences with

Mall Road.

3. A meeting was held by Vice-Chairman of DDA on 14.11.2007 in connection

with the implementation of the directions of this Court in CWP No. 4150/2003

Vikas Khatri and Others vs. DDA. In the said meeting, the following observations

were made:

"in case of plot between plots No. 114&116, the area available is 1200 sq.ft. as against the required 900 sq. ft. (100 sq. yads). Due to this, the extra available piece of land measuring 5' X 60' cannot be used as service land. In view of this, it was decided that the extra land measuring 300 sq. ft cannot be used as service lane nor any other use from planning point of view. Therefore, the land measuring 300 sq. ft. is to be added with the new plot, numbering 114A, at market rate as approved by VC, DDA on 25.11.07 and will measure 1200 sq. ft."

4. The aforesaid proposal was placed before the Screening Committee of DDA

in its meeting on 16.0.2010 and the following decision was taken:-

"Proposal for consideration:

The modification in the L.O.P. of shops plots at Hudson Line/Outram Line and Kingsway Camp area was proposed to accommodate old shop plots no. 4, 5&6 under the Kingsway Camp Redevelopment scheme. The High Court of Delhi vide its decision in the case of Sh. Madan Lal Taneja v. DDA, owner of Shop No. 114, WP(C) No. 6940/2009 dt. 7.9.2009 has dismissed as withdrawn the case and vacate the stay. This has a reference to directions of Hon'ble High Court in the case of Khatri and Others v. DDA (CWP 4150/2003) for allotment of plot owners of 4,5 & 6 within one year subject to availability of land and to the reference of the Commercial Lands Branch, DDA in file No. F.15(37) 88/CL note dt. 1.12.2006 and subsequent to High Court decision WP(C) No. 6940/2009 as indicated by CL Branch in file No. F.15(37) 88/CL carving out two additional shop plots.

If plot is carved out between 114 and 116, the area is 1200 sq. ft. (approx.) against required 900 sq. ft. (100 sq. yd.) then the extra land of 5 ft. X 60 ft. is to be added with the new plot number 114A at market rate as approved by VC, DDA on 25.11.2007 and will measure 1200 sq. ft. Regarding other plot adjacent to plot No. 25 and 29, after carving out 15 ft. X 60 ft. plot, 10 ft. land is available which could be used as a passage/service land. The new number of the plot will be 29A. The circulation space will be reduced from the original approved layout plant."

5. The petitioner before this Court is an association of shopkeepers of

Kingsway Camp and it is aggrieved from the above-referred allotment on the

ground that the land allotted to respondent No. 3 being a passage, meant for the

shopkeepers/residents of the locality, could not have been allotted to respondent

No. 3. In support of their case, the petitioner places reliance upon the letter dated

27.07.2011, written by DDA to the Private Secretary to Lieutenant Governor

stating therein that the aforesaid land was a passage kept vacant for connecting the

residential plots of Hudson Line and also for shopkeepers having backside entrance

to their residence to Mall Road. The contention of the learned counsel representing

DDA is that Screening Committee of DDA is the Competent Authority to modify

any lay out plan of a locality and in exercise of that power, the said Committee had,

in its meeting held on 16.06.2010, modified the lay out plan of Hudson

Line/Outram Line/Kingsway Camp area by carving out a plot of land to be

numbered as 114A, comprising the aforesaid land between plot No. 114 and 116

which has been described as a passage in the letter dated 27.07.2011. This is also

the submission of the learned counsel for DDA that modification of a lay out plan

is altogether different from change of land use prescribed in Master Plan or a Zonal

Development Plan and, therefore, the procedure, prescribed in Delhi Development

Act for changing land use, prescribed in Master Plan/Zonal Development Plan was

not required to be followed.

6. Pursuant to the aforesaid decision taken in the meeting of the Screening

Committee, DDA issued an allotment-cum-demand letter dated 30.03.2012 to Shri

Vikas Khatri, respondent No. 3 in this petition, conveying approval of the

Competent Authority to allot shop plot No. 114A, measuring 1200 square feet to

him on the terms and conditions indicated in the said letter. The possession of the

aforesaid plot, however, is yet to be handed over to respondent No. 3.

7. There is no reason to reject the case of the DDA that the Screening

Committee is the Competent Authority to modify the lay out plant of a locality

coming under the jurisdiction of DDA. Master plan is a document which applies to

whole of Delhi, whereas the Zonal Development Plan applies to a particular zone.

Neither the Master Plan, nor the Zonal Development Plan indicates the land use of

a particular plot in a colony. This is specified only in the Layout Plan of that

colony. It is, therefore, difficult to dispute that modification of a lay out plan being

altogether different from change of land use prescribed in Master Plan/Zonal

Development Plan, the procedure prescribed in Section 11A of Delhi Development

Act was not required to be followed before converting the land in question into a

plot for allotment to respondent No. 3. To this extent, no fault can be found with

the decision taken by DDA.

8. The learned counsel for the petitioner places reliance upon the decision of

Supreme Court in Dr G.N. Khajuria and Ors. vs. Delhi Development Authority

and Ors. (1995) 5 SCC 762, where DDA had allotted the land reserved for park in

the lay out plan to respondent No. 2 before Supreme Court for running a nursery

school. I have carefully gone through the said judgment. There is nothing in the

judgment to indicate that in the case before the Supreme Court any modification of

the layout plan of the locality was carried out by the Screening Committee of DDA

before allotting the park area as a plot for running a nursery school. Moreover, the

land reserved for park in a residential colony cannot be treated at par with land

such as the area between plot Nos. 114 and 116 which has been described as a

passage in the letter dated 27.07.2011. No resident or shopkeeper of the locality has

a vested right to use the said land as a passage. The occupants of plots No. 114 and

116 have their entrance from the front as well as from the backside of the said

plots. The persons coming out of the rear entrance also can come to the front

portion though not through the land in question and they would have to travel a

little bit for coming to the main road from the rear lane. Therefore, it cannot be

said that use of the aforesaid land as a passage is a matter of necessity for the

occupants of plots No. 114 and 116.

9. As noted earlier, DDA was required to allot only 900 square feet land to

respondent No. 3 in compliance of the order passed by this Court in CWP No.

4150/2003. DDA, however, chose to allot the whole of the land measuring 1200

square feet to respondent No. 3 on the ground that in case only 900 square feet of

land is allotted to him, the remaining 300 square feet of land cannot be used as a

service lane or for any other use from planning point of view. The learned counsel

for the petitioner submits that even if area measuring 300 square feet is left out for

being used as a passage, that would be better than not leaving any area at all for

this purpose since persons coming on foot would still be able to use this as a

passage for coming to the main road.

10. The learned counsel for the respondent No. 3, on instructions from

respondent No. 3, who is present in the Court, states that respondent No. 3 has no

objection to surrender 300 square feet of the land to DDA after retaining 900

square feet encroachment free portion of the land with him, provided DDA refunds

to him the premium which he has paid for this 300 square feet of land along with

interest which he paid in respect of 300 square feet of land.

11. The learned counsel for the petitioner states that similar issue arises in this

petition with respect to piece of land now known as plot No. 29A, which is yet to

be allotted by DDA to any person. Since I have rejected the challenge of the

petitioner to the power of DDA to modify the layout plan, in the context of land

between plot No. 114 and 116, the challenge to carve out plot No. 29A out of the

above-referred land also fails. No direction, therefore, is required to be given in

respect of the land/space now known as plot No. 29A.

12. For the reasons stated hereinabove, DDA is directed to issue a revised

demand-cum-allotment letter to respondent No. 3 allotting only 900 square feet of

land to him. DDA is also directed to refund to respondent No. 3, the premium paid

by him for 300 square feet of land which he would be surrendering back to the

DDA along with amount which has been paid to DDA as interest in respect of this

300 square feet of land. It is, however, made it clear that no interest would be paid

to respondent No. 3 on the amount which he had deposited with DDA as premium

and interest in respect of 300 square feet of land. DDA shall also handover

possession of land measuring 900 square feet to respondent No. 3, within a period

of four weeks. DDA, while giving possession of land measuring 900 square feet to

respondent No. 3, will ensure that possession of only that portion is given to him

which is free from encroachment either on the side of plot No. 114 or on the side of

plot No. 116.

The writ petition stands disposed of.

Dasti.

V.K. JAIN, J

APRIL 18, 2013 BG