Pocket B Mig Flats Welfare ... vs Dda & Ors
2013 Latest Caselaw 1300 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      LPA 160/2013
       POCKET B MIG FLATS WELFARE ASSOCIATION
                                     ..... Appellant
                     Through : Mr. S.N. Gupta, Mr. S.S. Shukla, Mr.
                               Mohit Bhardwaj, and Mr. Gaurav
                               Kakar, Adv.

                   Versus

       DDA & ORS.                               ..... Respondents
                          Through :    None

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V.K. JAIN

            ORDER

%             15.03.2013
CM 4500/2013 (exemption)

Exemption allowed subject to all just exceptions. The application stands disposed of.

CM 4501/2013 (delay) For the reasons stated in the application, the delay in re-filing the appeal is condoned.

The application stands disposed of.

LPA 160/2013 & CM 4499/2013 (stay) The appellant before us is an Association of allottees of MIG Flats of DDD in Pocket-B, East Loni Road, Delhi. The case of the appellant is that in its broachers for allotment of flats in the aforesaid locality, the DDA had

stated that two community halls for occasional gathering were in the process of construction, but, a sub station was constructed on the site earmarked for community halls and a high tension line of electricity was passing over it. On the appellant making a representation in this regard, the DDA allotted land measuring 3118 sq mtrs to MCD for construction of a community hall and physical possession of the said land was also handed over to MCD on 1.4.1998. However, vide its letter dated 19.4.2002, MCD expressed its unwillingness to take the aforesaid site for construction of community halls and the allotment made to it was therefore withdrawn on 22.10.2002. In the meanwhile, a new policy was formulated by the Government of India with respect to land earmarked for community halls and it was decided that 50% of such sites would be auctioned publicly whereas the remaining 50% sites shall be allotted to government local bodies. Pursuant to the new policy, the aforesaid land was allotted to the respondent no.2 Ravi Bharti Shiksha Samiti.

2. Since no community hall was constructed for the residents, the appellant filed a writ petition seeking direction to the respondents to complete the construction of community halls at the site of DDA defunct office and provide the said community hall to it. The writ petition having been dismissed, the appellant is before us by way of this appeal.

3. The contention of the learned counsel for the appellant is that DDA having promised two community halls in the locality, it cannot go back on its promise and, therefore, the respondent should be directed to construct community halls for the benefit of inhabitants of the locality and hand it over to the appellant.

4. According to the appellant, the allotment of flats in the locality was made by DDA 1989-90 onwards and way back on 5.7.1995, the concerned Suptd. Engineering had informed various persons including the General Secretary of the residential association that a sub-station had been constructed in the area as a community centre and high tension line was passing on the aforesaid site. The alternative site for construction of community halls was allotted to MCD on 21.10.1997 and even physical possession was given to it on 1.4.1998. For more than 4 years, MCD did not construct any community hall on the aforesaid site. But, all these years, the appellant kept on making representations to the respondent instead of coming to the Court, for redressal of its grievance. The allotment of the alternative site to MCD was withdrawn on 22.10.2002 on account of MCD expressing its unwillingness to construct community halls for the residents. Even thereafter, the appellant did not approach this Court for a direction to the respondents to construct community halls on the aforesaid site. Admittedly, the policy with respect to construction of the community hall has since been modified by Government of India on 29.9.2004 and under the new policy, no community hall can be constructed either by DDA or by MCD. Fifty percent of the sites meant for community halls are to be sold by way of public auction whereas the remaining 50% sites are to be allotted to government local bodies, in terms of new policy. There was no existing allotment of land for construction of community hall, on the date the new policy was formulated by Government of India on 29.9.2004. No legal right therefore accrued to the appellant for construction of a community hall and

handing over that hall to it. In the wake of the new policy formulated by the Government of India on 29.9.2004, no direction can be issued to the respondent for allotment of land for construction of a community hall.

5. Since the new policy framed by Government of India on 29.9.2004 was not challenged in the writ petition, we cannot go into the validity or otherwise of the said policy. We would like to note here that despite the respondents referring to the new policy of Government of India in their reply to the writ petition, no attempt was made by the appellant to amend the writ petition so as to challenge the aforesaid policy. Therefore, it is not open to us to examine the legality or otherwise of the said policy in these proceedings.

6. For the reasons stated hereinabove, we find no merit in this appeal. The appeal is hereby dismissed. There shall be no orders as to costs.

CHIEF JUSTICE

V.K. JAIN, J MARCH 15, 2013 rd