Col.V. Katju vs Delhi Development Authority & ...
2013 Latest Caselaw 281 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of decision: 17th January, 2013

+                      W.P.(C) 2730/2003 & CM No.4607/2013 (for stay)
       COL.V. KATJU                                             ..... Petitioner
                             Through:     Mr. Naveen R. Nath, Adv.

                                        Versus
    DELHI DEVELOPMENT AUTHORITY & ORS. .... Respondents

Through: Ms. Shobhana Takiar, Adv. for DDA.

Mr. Sumit Bansal & Mr. Ateev Mathur, Advs. for R-3.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This writ petition filed in public interest seeks the quashing of the

allotment dated 18th February, 2002 by the respondent No.1 Delhi Development

Authority (DDA) of land admeasuring 321.20 sq.m. "in respect of the

designated park situated in H-Block, Saket, New Delhi" in favour of the

respondent No.3 Gurudwara Prabhandak Committee and further seeks a

direction to the respondent No.1 DDA and respondent No.2 Municipal Council

of Delhi (MCD) to demolish the structure existing thereon and remove the

encroachment over the said land.

2. Notice of the petition was issued, though no interim relief granted.

Counter affidavits have been filed by the respondent No.1 DDA and respondent

No.3 Gurudwara Prabhandak Committee and to which rejoinders have been

filed by the petitioner.

3. It is the case of the petitioner:

(i) that he is the resident of Flat No.61-C, H-Block, Saket, New Delhi;

(ii) his aforesaid flat overlooks a park, a part of which, was in the year

1979 allotted to the respondent No.3;

(iii) though, the original allotment for the purpose of constructing a

Gurudwara was of land ad-measuring 418 sq.m. and the remaining land

measuring 427 sq.m. was to be preserved as a park but the respondent

No.3 encroached over the said park also and constructed the Gurudwara

not only over the land allotted to it but also on the land of the park;

(iv) DDA had in the years 1981-1984 issued notices for removal of

encroachment and unauthorized constructions;

(v) the residents of the locality had also lodged complaints in this

regard but no action was taken;

(vi) that the petitioner along with four other residents had earlier filed

CWP No.4863/2001 which was entertained;

(vii) however, during the pendency of the said earlier writ petition,

respondent DDA, vide an order dated 18 th February, 2002 regularized the

encroached land;

(viii) that such regularization was on the assumption that the encroached

land was capable of being allotted and had not been designated for any

specific purpose under the layout plan of the area;

(ix) that the petitioner is directly affected by the encroachment as he has

completely lost privacy of his flat due to the four storied building of the

respondent No.3 having come up adjacent to the house of the petitioner;

(x) that the petitioner came to know about the allotment only when the

respondent No.3 filed an affidavit in the other writ petition;

(xi) that the area in question is a developed area and no modification

can be made in respect of a developed area affecting the character of the

plan, diminishing the standards of population density etc.

4. Soon after the filing of the present petition, the earlier petition preferred

by the petitioner and certain other residents being CWP 4863/2001, was allowed

vide judgment dated 20th November, 2003 with a direction to the respondent

DDA to put the land to its original use i.e. of a park and with a further direction

to the Vice Chairman of the DDA to hold an enquiry as to how such

encroachment and construction was permitted and to submit a report. However

being conscious of the filing of the present petition, it was observed in the said

judgment dated 20th November, 2003 as under:

"We have dealt only with the use of land other than permissible use and we are not expressing any opinion with regard to allotment since the petition for allotment is pending."

5. The respondent DDA has filed a counter affidavit to this writ petition

pleading:

(a) that a plot of land admeasuring 418 sq.m. at H-Block, Saket, New

Delhi was allotted to Delhi Sikh Gurudwara Management Committee in

the year 1979 for construction of Gurudwara;

(b) the Gurudwara Authorities subsequently encroached on adjacent

land measuring 321 sq.m. and raised construction on 418 sq.m. of allotted

land and 321 sq.m. of encroached land at the same time and the entire

building exists as a single structure;

(c) DDA at the request of the Gurudwara Committee regularized the

land admeasuring 321 sq.m. against the payment of Rs.15,75,013/- and

handed over the possession on 18 th February, 2002;

(d) that after the judgment dated 20th November, 2003 (supra) in the

earlier writ petition, the matter was referred to Special Branch and it was

found that the demolition of a part of Gurudwara is not possible as the

entire building is constructed together;

(e) that the residential scheme of Saket was prepared prior to Master

Plan of Delhi (MPD) 2001 and under the provisions of MPD-1962;

(f) that even after the regularization of 321 sq.m. of encroached land in

favour of the Gurudwara Committee, the requirement of percentage of

green area in Saket Residential Scheme was met and rather the greens in

existence after such regularization also were in excess by 3% over the

minimum required green area under the MPD-1962;

(g) that thus no prejudice has been caused to the residents of the

colony;

(h) that the said 321 sq.m. of land was not even marked as green under

the Zonal Plan;

(i) that the issue of removal of construction raised by the Gurudwara

has been considered up to the Lt. Governor, Delhi, who after getting an

assessment, concluded that such demolition would have a grave fall-out

and law and order repercussion.

6. The petitioner in rejoinder of the aforesaid counter affidavit of the

respondent DDA has contended that DDA inspite of repeated directions in the

earlier writ petition had not filed the reply or produced the documents / records

which it was directed to produce; that it was the stand of the respondent DDA in

the earlier writ petition that the use by the Gurudwara of the encroached land

was not in accordance with the layout plain and that the use prescribed of the

said land was as a lawn; that the respondent DDA had made all efforts to keep

this Court in the earlier writ petition in dark about its intention to regularize the

illegal encroachment; that the regularization is thus mala fide. The other

averments of the respondent DDA, in rejoinder, are also controverted.

7. The respondent No.3 in its counter affidavit has pleaded that the writ

petition though filed as public interest litigation had been filed by the petitioner

alone to sub serve his personal interest; that the petitioner also had converted a

strip of land adjacent to his house into his private park and has also installed a

gate to prevent others from use thereof and being himself an encroacher, is not

entitled to any discretionary relief; that the petitioner had come into possession

of his flat after allotment in favour of the respondent No.3; that the alleged park

is in fact a tot-lot and was never used as a park; that the petitioner has no locus

to challenge the allotment in favour of the respondent No.3; that the entire

construction on the land was in the process of being regularized; that no other

resident has any grievance.

8. Needless to state that the petitioner in his rejoinder has denied all the

averments made in the counter affidavit of the respondent No.3.

9. It may also be mentioned at this stage that the respondent No.3 in the year

2004 itself had applied for review of the directions contained in the judgment

dated 20th November, 2003 in the earlier writ petition on the ground that the land

having been regularized in its favour, the direction to the DDA to restore it to

the original use as a park could not have been issued. The said review petition

was disposed of vide order dated 2nd May, 2011 observing that while

pronouncing the judgment dated 20 th November, 2003, the Court was aware of

the pendency of this petition and that the submissions in the review petition

could be suitably taken note of and considered in this writ petition and that the

question whether the land was to be maintained as a park or could be

legitimately used by the respondent No.3, would depend upon the decision as to

whether the allotment of the land in favour of the respondent No.3 is valid or

not.

10. We have considered the controversy. We find that the petitioner has been

unable to show any document prescribing the use of the subject land which has

been regularized in favour of the respondent No.3, as a park. The whole case of

the petitioner of the regularization of the land in favour of the respondent No.3

being illegal, is predicated on the proceedings in and the judgment in the earlier

writ petition. However as aforesaid, on review being applied by the respondent

No.3 of the earlier judgment, vide order dated 2nd May, 2011, the mater has been

left at large for decision in this petition. It is thus for the petitioner to show that

the prescribed use of the land was as a park and which could not have been

regularized in favour of the respondent No.3.

11. The entire emphasis of the petitioner as aforesaid is on the record of the

earlier writ petition. However a perusal of the documents filed by the petitioner

as annexures to this petition, shows that the averments of the respondent DDA

and the MCD while issuing notices to the respondent No.3 of encroachment,

were of the respondent No.3 having encroached upon all setbacks and having

encroached by covering an open nallah adjacent to the plot earlier allotted to it

or of encroachment of public land. All public lands, setbacks and nallahs do not

fall in the category of park, for it to be said that the regularization thereof is bad

for the reason of having converted use of the land from the prescribed use of a

park, to that of a religious structure. As far as reliance by the petitioner on

certain orders during the pendency of the earlier petition is concerned,

undoubtedly the counsel for the respondent DDA has therein referred to the said

land as lawn and / or the specific use thereof being as a lawn. However, such

statements are followed by direction to the respondent DDA to produce the

records. Neither is there any affidavit of the respondent DDA in the earlier writ

petition admitting the prescribed use of the land as a park nor was any document

in that regard produced. It thus appears that the stand of the counsel for the DDA

in certain orders referring to the land as lawn and / or that the specified use

thereof was as a lawn, is without any basis.

12. On the contrary, the respondent DDA in the counter affidavit in this

petition, has expressly stated that the use of the land was never prescribed as

park or lawn and that the requirements in the Master/Zonal Plan of green area in

the colony are sufficiently met and rather that the green area is in excess by 3%.

The respondent DDA along with its counter affidavit has also filed the Zonal

Development Plan of the area to support its said stand. Counsel for the petitioner

during the hearing, has been unable to show that the said Zonal Development

Plan produced before us, shows the user of the said land as park/lawn/green; the

correctness of the Zonal Development Plan is also not controverted.

13. In the aforesaid state of affairs, we have no reason to disbelieve the stand

of the respondent DDA. It is also worth mentioning that this Court cannot lightly

interfere with administrative decisions of the authorities empowered to

take such decisions, as of regularization, especially when pertaining

to religious structures or of repercussions of demolition of such structures. In

this regard it is also worth mentioning that the Supreme Court vide orders in

SLP(C) 8519/2006 & WP(C) No.314/2010 has directed constitution of

Religious Committees under the chairmanship of the Lt. Governor (as far as

Delhi is concerned) to deal with the encroachment by religious structures of

public lands.

14. We are, therefore, unable to find any error in the decision of the

respondent DDA of regularization of the land earlier encroached upon by the

respondent No.3 in favour of respondent No.3.

15. The petition therefore fails and is dismissed. Resultantly, respondent

DDA shall also stand discharged from the direction contained in the judgment

dated 20th November, 2003 in CWP No.4863/2002 to restore the use of the said

land as of a park.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE JANUARY 17, 2013 bs