Delhi High Court
Registrar, University Of Delhi vs Union Of India And Ors on 27 April, 2015
Author: Suresh Kait
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 27th April,2015
+ W.P.(C) 2743/2012
REGISTRAR, UNIVERSITY OF DELHI ..... Petitioner
Represented by: Mr. V.P. Singh, Sr. Adv.
with Mr. Ankur Chibber and Mr. Prashant
Sivarajan, Advs.
versus
UNION OF INDIA AND ORS ..... Respondents
Represented by: Mr. Sandeep Sethi, Sr. Adv.
with Mr. Prashant Mehta and Mr. Himanshu
Kapoor, Advs. for R12.
Mr. Arun Birbal and Mr. Sanjay Singh, Advs.
for DDA.
Mr.Sushil Kr. Tripathi, Adv. / Proxy Counsel
for Ms. Anita Pandey, Adv. for R7 to R9.
Mr. Tarun Joshi, Adv. for DMRC with
Mr. A.S. Rao, Law Officer from DMRC.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide the present petition, the petitioner University prayed, inter
alia, as under:-
a. Issue a writ of certiorari in favour of the petitioner
and against the respondents thereby quashing / setting
aside the impugned decision taken by the respondent
no. 3, i.e., DDA in its meeting held on 12th May,
2011, wherein the respondent no. 3 while acting
contrary to the mandate of the Master Plan Delhi -
2021 and the development control norms for metro
stations as stipulated under chapter 12 of the Master
Plan Delhi - 2021 has so allowed the respondent no.
12, i.e., M/s. Young Builders (P) Limited to construct
a high rise multi-storey group housing society in the
control zone of Zone-C and has further by virtue of
the impugned decision has been pleased to allow
development control norms as available to any group
housing under MPD-2021, including a FAR of 200
and maximum ground coverage of 33.3%, without any
height restrictions and has further allowed the plot
leased out of the Respondent no. 12 by the Delhi
Metro Rail Corporation, i.e., Respondent 10, i.e., plot
admeasuring 2 Hectares as a separate entity
segregating it from the total land acquired for metro
station i.e., 3 Hectares and has further been pleased to
allow development controls as applicable under the
clause "Group Housing" as per the provisions of
MPD-2021 to the segregated 2 Hectares plot, which
act of Respondent no. 3 is against the mandate of law
and more so is in totally ignorance of the MPD-2021,
Zonal Plan of Zone „C‟ & the provisions of the Delhi
building By-Laws.
b. Issue a writ of mandamus in favour of the
petitioner and against the respondents thereby
directing the respondents to follow the mandate of the
Master Plan of Delhi - 2021 and in more particularly
the development control norms as contained in the
Gazette Notification dated 20th January, 2005
(incorporated under Chapter-12 of the Master Plan of
Delhi - 2021) relating to Zone-C;
2. Facts of the case, in brief, are that in March, 2000 Delhi Metro
Rail Corporation Ltd.( hereinafter referred to as DMRC) wanted to
acquire land for its Metro Station, i.e., Vishwavidyalaya Metro Station
falling under Zone-C of MPD 2021 and for the said purpose identified
various bungalows for acquisition. On 02.05.2000 Ministry of Urban
Development granted it‟s no objection for the acquisition of the
bungalows. The land use of the proposed land to be acquired was
changed from „residential‟ to „public purpose‟. Accordingly,
notification under section 4(1) of the Land Acquisition Act, 1984 was
issued on 15.12.2000. A declaration was made under section 6 of the
Land Acquisition Act, 1984 on 14.02.2001. Consequently, the Land
Acquisition Collector passed an award on 11.09.2001 and land
measuring 3.05 Hectares situated in Zone-C (Civil Lines Zone) at Mall
Road was duly handed over and mutated in the revenue records in
favour of the respondent No.10 DMRC.
3. Thereafter, on 21/23.07.2003 Ministry of Urban Development
and Poverty Alleviation granted approval to permit the respondent
No.10 / DMRC to generate resources through property development
within the period of 6 to 20 years. Respondent No.3, Delhi
Development Authority (hereinafter referred to as DDA) issued a
notification No.500(E) on 16.04.2004 in accordance with the
provisions of section 44 of the Delhi Development Act, 1946
(hereinafter referred to as DD Act) inviting objections/suggestions on
the modification proposed by the Central Government with a view to
modify MPD 2021. On 20.01.2005 land use provisions of Master Plan
Zonal Development Metro Stations along with Property Development
with Control Norms was notified by virtue of a Gazette notification.
On 23.09.2005, Government of India notified change in land use from
„public and semi-public‟ to „residential‟.
4. Accordingly, on 12.02.2007 DDA informed DMRC that in view
of the change of land use, the MPD and the Zonal Development Plan
Zone-C providing detailed guidelines for development might be
followed. On 07.02.2007 MPD 2021, inter alia, stipulating
Development Controls for Metro Stations was notified. On 29.03.2007
and 14.09.2007 DDA confirmed to DMRC that all statutory provisions
relating to group housing as per MPD 2021 were to be followed. In
June, 2008 DMRC issued „Request for Proposal‟ for residential
development at Vishwavidyalaya Metro Station indicating that norms
of residential plot group housing as per MPD 2021 were to be
followed., i.e., FAR of 200, ground coverage of 33.3% and its intention
to transfer leasehold rights to the developer for a period of 90 years.
5. Accordingly, a bid of respondent no.12 Young Builders was
approved by the competent authority, thereafter letter of acceptance
was issued. A lease deed was executed and possession was handed
over. Thereafter, respondent No.12 submitted its application to the
Municipal Corporation of Delhi (hereinafter referred to as MCD) along
with the proposed layout plan for the approval of the Group Housing
Scheme. Accordingly, on 08.06.2009 MCD sought clarification from
DDA about the control norms.
6. Thereafter, the petitioner submitted a detailed representation to
the Delhi Urban Arts Commission (hereinafter referred to as DUAC)
raising concerns about the project. On 05.08.2009 the Chairman
DUAC wrote to the DDA to reconsider the project, as requested by the
petitioner. Accordingly, on 19.08.2009 DDA withdrew its earlier
letters dated 29.03.2007 & 14.09.2007 recording that the development
control norms of the property development for the Metro Station dated
20.01.2005 would be applicable. Accordingly, on 06.05.2010 the
petitioner approached this Court by WP(C) 3135/2010 challenging the
notification dated 20.01.2005 seeking quashing of the letter dated
19.08.2009 issued by DDA. The said petition was disposed of without
adjudication on merit on the basis of the meeting held on 12.05.2011.
7. Mr. V.P Singh, Learned Senior Counsel appearing on behalf of
the petitioner submitted that the act of the DDA would be in direct
conflict with the purpose of acquisition and would severely affect the
norms and aesthetic beauty of North Campus of Delhi University
which houses historical buildings, colleges, viceroy lodge etc. The plot
was acquired for the purpose of Mass Rapid Transit System (MRTS)
after converting the original land use of the land from „residential‟ to
„public and semi-public facilities‟. As per the Regulation 8(3) of MPD
2021 specifying the Regulations of Building Controls within Use
Premises, it is specified as under:-
" The objective of these regulations is to provide
controls for building (s) within use premises excluding
the internal arrangement, which are covered in
Building Bye-laws.
1. Where development controls are not stipulated for
any use premise, the same can be formulated by the
Authority.
2. The mezzanine floor and service floor wherever
provided shall be considered as a part of the total FAR.
3. If the building is constructed with................
4. Wherever the building regulations are given for
different categories of plots, the area covered and the
floor area shall in no case be less than the permissible
covered area ad floor area respectively for the largest
size of plot in the lower category."
8. In view of the above, the respondent could have altered the
conditions in respect of use of the premise only when no development
controls were stipulated for the same. However, the same is not
applicable in the instant case as the control norms have been
formulated in respect of Metro Stations. Moreover, as per clause 2 (7)
of the Development Code contained in MPD 2021, the definition of
„use premises‟ is given as "Use premises means one of the many
subdivisions of a Use Zone, designated in an approved layout plan, for
a specific use. Land use of a premise has to be determined on the basis
of an approved layout plan."
9. Learned Senior Counsel further submitted that the MPD 2021
itself stipulates certain development controls for Metro Stations, and
the same is given as under:
"Development Controls for Metro Stations:
1. Metro stations along with property
development (composite development) up to a
maximum area of 3.0 ha shall be permitted in all Use
Zones, except in Recreational and Regional Park /
Ridge Use Zone. Lutyens' Bungalow Zone and
Heritage Zones.
2. This enabling provision of property
development would have the following broad
development controls:
i. 25% ground coverage and 100 FAR,
including area under Metro Station with no height
restrictions and subject to approval of the statutory
bodies such as ASI, Airport Authority, DUAC etc.
ii. In addition to the requirement of parking for
Metro stations, parking for the commercial
component will be @ 2 ECS per 100 Sq.m.
iii. The development shall be undertaken in a
composite manner and DMRC shall obtain approval
of all the concerned local bodies / agencies.
3. The following structures shall be treated as
operational structures:
i. All Metro Stations and tracks supporting at
grade, elevated and underground including entry
structures, ancillary buildings to house DG sets,
chilling plants and electric substation, supply exhaust
and tunnel ventilation shafts etc.
ii. Depots and maintenance workshops.
iii. Traction substations.
iv. Operational control centres.
v. Police Station.
vi. Recruitment and training centres for
operational and maintenance staff.
vii. Housing for operational staff and Metro
security personnel only.
viii. Rehabilitation work to be undertaken for the
construction of Metro project.
ix. Shops in Metro stations to cater to the public
amenities.
x. Structure above platform over the footprint
for the Metro Stations."
10. Learned Senior Counsel submitted that it was incumbent upon
the DDA to follow the development control norms as stipulated above
and by taking the impugned decision; the same could not have been
negated / circumvented. The site for proposed construction being in a
Metro Station premises, the Respondents were bound to follow the
norms specified in clause 2 (i) above i.e., 25% ground coverage and
100 FAR. Moreover, clause 11.3 of MPD 2021 imposes a restriction
on the height of tall buildings as under:-
"The height of buildings (above and below ground)
needs to be seen in the light of modern technology with
due consideration for natural disasters like
earthquakes, floods etc.
Restrictions on tall buildings would be necessary in
important areas like Lutyen's Bungalow Zone, Civil
Lines and North Delhi Campus. In case of urban
extension, areas for specific Urban Design projects
and tall buildings should be identified."
11. Mr. V.P. Singh further submitted that Para 1.4.4 of the Zonal
Development Plan for Zone-C (Civil Lines) under MPD 2021 provides
as under:
"The Delhi University was established in 1924 and it
has a number of old historical buildings, colleges,
Viceroy's lodge etc. of the Colonial period and
therefore efforts shall be done to preserve this
character. Also, efforts shall be done to make it an
Integrated Campus (without thoroughfare) and self
sufficient in terms of modern infrastructure and
residential requirements like hostels, staff quarters,
security arrangements etc. by optimum utilization of
the land. Attempt shall be made to accommodate all
institutional requirements within the Campus.
Therefore an Urban Design study shall be taken up for
this Sub-Zone. MPD-2021 has restricted this area for
tall buildings.
Delhi University has a large chunk of land allotted in
Sub-Zone C-15, (opposite Dushehra Ground) and it is
being utilized as Hostel and staff quarters. Optimum
utilization of this land shall be done to meet the
requirements in future.
Listed Heritage buildings, some residences and
Colleges of historical importance prepared by DDA,
INTACH, ASI and GNCTD are given."
12. It was submitted that the respondents ought to have kept even
this aspect in mind before issuing the impugned decision, especially
considering the height restrictions imposed but the same has been
ignored in the instant case. As essayed above, the MPD 2021 itself
imposes a restriction for construction of tall buildings in the controlled
zone of Delhi University. The impugned decision is in direct conflict
with the MPD 2021 which is statutory in nature. Gazette notification
dated 20.01.2005 is statutory in nature and provides for development
control norms in respect of Metro station along with property
development upto a maximum of 3 Hectares clearly stipulates 25%
ground coverage and 100 FAR.
13. Further submitted that as per the RPF issued by DDA, the plot
cannot be segregated and the area under the Metro Station cannot be
excluded from the FAR available for the whole plot admeasuring 3
Hectare, as has been done in the instant case by the respondents. The
actions of DMRC are in direct contravention with the permission
sanctioned by the Ministry of Urban Development and Poverty
Alleviation vide letters dated 22.07.2003 and 23.07.2003. By virtue of
the impugned decision, the DDA has sought to virtually amend the
provisions of MPD 2021.
14. Learned Senior Counsel submitted that the impugned decision is
a non-speaking order. Moreover, the decision taken was confined to
the plot in question and that too with specific reference to Respondent
No. 12 M/s. Young Builders. The relevant portion states: "......... the 2
hectares of the plot leased out to M/s. Young Builders Pvt. Ltd. may
be considered as a separate entity and the Development Controls as
applicable under the clause Group Housing as per the provision of
MPD 2021 be allowed......." The decision is applicable to this
particular site only." It is further submitted that it is perplexing as to
why DDA has found it fit to relax the norms applicable specifically to
Respondent No. 12 and with reference to a particular site. Therefore,
even if DDA wanted to relax the applicability of MPD 2021, it would
amount to land use pertaining to a Zonal Development Plan and not lay
out plan and the same could only be done after following the procedure
prescribed in Section 11A of the Delhi Development Act, 1957.
15. To strengthen the above arguments, learned Senior Counsel has
relied upon the case of Subramaniam Swamy & Ors. vs. Raju through
Member, Juvenile Justice Board & Anr. 2014 (8) SCC 390 in which
the Apex Court in Para 61 has held as under:-
"61. Reading down the provisions of a statute cannot
be resorted to when the meaning thereof is plain and
unambiguous and the legislative intent is clear. The
fundamental principle of the "reading down" doctrine
can be summarized as follows. Courts must read the
legislation literally in the first instance. If on such
reading and understanding the vice of
unconstitutionality is attracted, the courts must explore
whether there has been an unintended legislative
omission. If such an intendment can be reasonably
implied without undertaking what, unmistakably,
would be a legislative exercise, the Act may be read
down to save it from unconstitutionality. The above is
a fairly well established and well accepted principle of
interpretation which having been reiterated by the
Supreme Court time and again would obviate the
necessity of any recall of the huge number of
precedents available except, perhaps, the view of
Sawant, J. (majority view) in Delhi Transport
Corporation v. D.T.C. Mazdoor Congress and others,
1991 Supp. (1) SCC 600."
16. Further submitted that when the Statute and MPD have clearly
specified Development control norms to be followed in the
construction of Metro Station as well as construction in Zone-C as per
Zonal Plan, it is not open to the respondents to circumvent the same
through administrative action and other means. The respondents have
failed to appreciate that once a land has been acquired for a particular
purpose, the same cannot be converted to some other purpose as has
been held by the Apex Court in the case of Bangalore Medical Trust
vs. B.S. Muddappa &Ors. , 1991 (4) SCC 54 wherein it was
held as under:-
"...... This means that once an area has been stamped
with the character of a particular civic amenity by
reservation of that area for such purpose, it cannot be
diverted to any other use even when it is transferred to
another party. The rationale of this restriction is that
the scheme once sanctioned by the Government must
operate universally and the areas allocated for
particular objects must not be diverted to other
objects. This means that a site for a school or hospital
or any other civic amenity must remain reserved for
that purpose, although the site itself may change
hands."
17. Learned Senior Counsel submitted that because the respondents
have miserably failed to appreciate, as has been held in a catena of
decisions, that the land use cannot be changed, except in accordance
with law. Assuming that the same could indeed be done, it would
amount to land use pertaining to a Zonal Development Plan and not
lay-out plan and the same could only be done after following the
procedure prescribed in Section 11A of the Delhi Development Act,
1957. The illegal action of the respondents has led to the deforestation
of the controlled and preserved zone of Delhi University.
18. Learned Senior Counsel submitted that if the proposed
construction of a multistoried group housing society is allowed, it
would lead to infringement of privacy of Meghadoot Girls‟ Hostel and
Miranda House Girls‟ Hostel which are located mere 250 meters from
the proposed site of construction. The proposed structure sought to be
constructed right at the entrance of the University, which would
impede the access of thousands of students, teachers and employees
who would use that road and only choke the entrance of the University.
19. On the other hand, Mr. Tarun Johri, learned counsel for
respondent No.10 submitted that the Metro project was sanctioned with
a provision of generating revenue partly through property
development. In the present case, DMRC had constructed
Vishwavidyalaya Metro Station, where 2 Hectares of land remained
surplus and was used for development in order to generate revenue.
Accordingly, the respondent No.10 applied to DDA for change of land
use from 'Public and Semi Public' to 'Residential', which was approved
by the Ministry of Urban Development as per its notification no. 1383
(E) dated 23.09.2005. The auction of the land in favour of the
Respondent No.12 was done only after receipt of letters dated
29.03.2007 & 14.09.2007 issued by the DDA, wherein it was
specifically informed that the FAR for the Plot in question would be as
per the norms of the MPD -2021 for Group Housing and FAR of 200
would be permissible. Accordingly, the auction of the plot confirming
FAR 200 and 33% Grounds Coverage in favour of Respondent No. 12
was completely bonafide.
20. Mr. Johri further submitted that the Ministry of Urban
Development in its letter dated 30.03.2009 once again confirmed that
the property development by Metro projects is in line with the global
examples as Metros are highly capital intensive projects and the only
way they can remain financially healthy, without government
subsidies, is to increase the non-operational revenues i.e. revenues
from advertisements, retailing, real estate at metro stations and parking
lots revenue to the extent of 40%-50% of the total revenues as in the
case of Hongkong Metro. It was further envisaged in condition No. (v)
that, 'Property development on acquired land shall also be considered
as part of the 'Project'.
21. Learned counsel further submitted that the aforesaid Ministry
vide its Notification dated 18.04.2011 had amended Clause 3.3.1.1 (vii)
of the MPD 2021, wherein the words, 'Property Development by
DMRC‟ was deleted. Thus, the restriction on enhancement of FAR for
property development by DMRC as provided under the MPD-2021
stood modified to the effect that the FAR for projects of property
development by the DMRC can be enhanced in accordance with the
provisions of the MPD-2021. Moreover, in the Minutes of Meeting
dated 21.05.2011, in respect of the Plot in question, DDA allowed the
development control norms as available to any Group Housing Society
under MPD -2021, including 200 FAR without restriction of height.
Thus, this was done only after the amendment of the MPD -2021, when
the restriction on enhancement of FAR as given in MPD-2021 was
already deleted through amendment dated 18.04.2011. The said
Minutes of Meeting was duly accepted by this Court in its order dated
18.05.2011 passed in WP(C) 3135/2010. Therefore, the permission
given by the DDA in the minutes of meeting dated 21.05.2011 was
completely in line with the amended provisions of the MPD-2021 and
the same cannot be faulted within the eyes of law.
22. Learned counsel further submitted that the approval by the
competent authority of the DDA with FAR 200 and ground coverage
as 33% as applicable norms for residential development (Group
Housing) is not the first such plot of land acquired for the construction
and development of the Metro Projects in the National Capital
Territory of Delhi. The respondent No.10 has also leased out (5) five
parcels of land for residential development and all such five Projects
have been approved by the competent authority with FAR-200 and
ground coverage as 33% as applicable vide applicable norms for
residential development (Group Housing). The details of the land is
given herein below:-
Sl. Location Plot Ground FAR
no.
Nagar
4. Dwarka Mod 21955 sqm 33.30 200
5. Vishva 20000 33.30 200
Vidhyala
23. Mr. Sandeep Sethi, Senior Advocate appearing on behalf of
respondent No.12, has supported the submissions made by respondent
No.10 and submitted that the President of India has provided a mandate
to DMRC to undertake value capture through property development by
selling surplus land on completion of a metro station project so as to
raise additional resources for its highly intensive capital requirements
as well as sustainable operations. Accordingly, DMRC desired to sell
a part of 3.05 Hectare land at Vishwavidyalaya Metro Station, as it
became surplus, to generate resources. Earlier under Phase-I, the
Vishwavidyalaya Metro Station used to be terminal station. In 2006,
when Phase-II was envisioned, the aforesaid Metro Station was no
longer the terminal station and the line from Central Secretariat to
Vishwavidyalaya was extended to Jahangirpuri, resultantly, the
requirement for parking space was reduced, and consequently there
was a surplus land available with the DMRC. Accordingly, DMRC
invited bids for residential development on 2.0 Hectare plot
representing that the norms of Residential Plot-Group Housing as per
MPD 2021 are to be followed which permit 200 FAR with 33% ground
coverage. Accordingly, public auction was conducted on 28.07.2008,
after intimating the MCD by DMRC vide letter dated 14.07.2008 of
its intention of developing 2.0 Hectare of plot with 200 FAR so that
development of this plot on the basis of the agreed compromise do not
face any difficulty. Accordingly, respondent No.12 participated and
turned out to be the highest bidder at Rs.218.20 crores. Consequently,
respondent No.10, DMRC issued Letter of Acceptance dated
13.08.2008. Thereafter, DMRC and respondent No.12 executed Lease
Agreement dated 15.12.2008, consequently vacant physical possession
was handed over to respondent No.12 on 23.01.2009 and DMRC
executed Lease Deed of 2.0 Hectare plot in favour of respondent
No.12, registered in the office of Sub Registrar 1, Delhi on 19.02.2013.
24. Mr. Sethi further submitted that respondent No.12 submitted a
lay out plan to MCD on 30 March 2009 on the basis of norms
applicable to Residential Plot-Group Housing. In response thereto,
MCD vide letter dated 8.06.2009 sought clarification from DDA
whether the 2.0 Hectare plot leased by DMRC to respondent No.12 can
be considered as a separate entity for the purpose of approval of Group
Housing with 200 FAR. On 25.06. 2009, DMRC informed DDA that
they have entered into Lease Agreement with respondent No.12 on
15.12.2008 for Residential Plot-Group Housing development on 2.0
Hectare and requested DDA to confirm 200 FAR to MCD. However,
DDA in complete u-turn and in contravention to MPD-2021 norms,
replied to MCD vide letter dated 19.08.2009 that Development Control
Norms shall be as per Notification dated 20.01.2005, prescribing
Development Control Norms for Metro Stations viz 25% ground
coverage and 100 FAR with no height restrictions. Further, DDA in a
complete volte face and in derogation purported to withdraw its earlier
decision. The said action of DDA was on the erroneous and illegal plea
that Notification dated 20.01.2005 will prevail as it was notified much
before the Notification dated 23.09.2005 for change of land use of 3.05
Hectare. MCD issued letter dated 22.09.2009 informing DMRC and
respondent No.12 about DDA's decision dated 19.08.2009.
Thereafter, DMRC and respondent No.12 made various
representations to DDA. The matter was considered in DDA‟s meeting
held on 17.02.2010 in which the following decision was taken:-
"4. The Lt Governor also constituted a Committee
under the Chairmanship of Engineer Member,
DDA with Chief Town Planner, MCD and
ChiefEngineer, DMRC as members to survey the
entire area and examine the implications on the
proposed high-rise buildings on the privacy and
integrity of the Delhi University environment. He
directed that the Committed should give its report
within a week."
25. Accordingly, a joint inspection of the site was conducted by the
committee members on 19.02.2010 whereby observed and concluded
that the proposed high rise property development on 2.0 Hectare plot
will not affect the privacy of the girls' hostel nearby, will not add to
any parking problem and will also not affect the serenity / tranquillity
of University area. Moreover, Shri Sreedharan, Managing Director of
DMRC submitted a Joint Inspection Report of the Committee to Lt.
Governor vide letter dated 10.03.2010 and informed that the
apprehensions raised were incorrect. In addition, a legal opinion was
sought by DMRC from Justice R.C. Lahoti, Ex-Chief Justice of India,
whereby he opined that the planned Group Housing development on
2.0 Hectare plot with 200 FAR and no height restrictions is in
accordance with the provisions of MPD 2021.
26. Mr. Sethi further submitted that respondents No.10 and 12 made
efforts to persuade DDA to correct its action and restore Group
Housing norms with 200 FAR but have failed to yield any result.
Being left with no alternative, respondent No.12 filed Writ Petition
No.3135/2010 impugning letter dated 19.08.2009 issued by DDA
whereby stated that MPD 2001 was amended by the Government of
India vide notification dated 20.01.2005 in which Metro Stations along
with property development up to a maximum area of 3 Hectare was
permitted in all zones, except Recreation Use Zone and the
development norms of such development was 25% ground coverage
and 100 FAR, including area under Metro Station with no height
restrictions subject to approval of the statutory bodies. The above
stated norms were subsequently incorporated in MPD 2021. Since the
Development Control Norms for Property Development at the Metro
Stations was notified much before the notification of Change of Land
Use of an area measuring 3.05 Hectare from „public, semi-public‟ to
„residential‟, therefore, Development Control Norms are applicable as
per Gazette Notification dated 20.01.2005.
27. Mr. Sethi further submitted that since the said decision mitigated
the grievance of respondent No. 12, this Court ordered on 18.05.2011
that nothing remains to be adjudicated and with these observations, the
aforesaid writ petition was disposed of.
28. Learned Senior Counsel further submitted that the petitioner has
filed the present writ petition impugning DDA's decision dated
12.05.2011 resolving to allow development control norms as applicable
under the clause 'Group Housing' viz 200 FAR without height
restriction on 2.0 Hectare plot leased by DMRC to respondent No.12,
and praying inter alia for quashing the decision taken by DDA and
direct the respondents to follow 'Development Control Norms for
Metro Stations' viz 25% ground coverage and 100 FAR with no height
restrictions.
29. Learned Senior Counsel further submitted that the controversy
raised in the petition has already been fully adjudicated upon by the
Division Bench of this Court in three Writ Petitions, viz., WP(C)
No.3135/ 2010, WP(C) No.8675/2011 and WP(C) No.6624/2012
pertaining to the plot in question. Vide order dated 10.05.2010, passed
in WP(C) No.3135/2010, the Division Bench of this Court observed
that the pendency of this matter will not come in the way of the
respondents making an endeavour to resolve the controversy which has
been created inter se the respondents. Moreover, on 18.08.2010
counsel for the DDA submitted that the lis raised in the aforesaid
petition being discussed at the highest level of the DDA and there is a
possibility that the controversy may be put to rest. Accordingly, on
07.03.2011 DDA filed an affidavit placing on record a resolution dated
21.01.2011, passed by DDA permitting construction of group housing
but with height restriction upto 8 storeys. Accordingly, this Court
directed the DDA to invite the highest officer of the DMRC and
consider the height restriction with liberty to respondent No.12 to
submit representation in this regard. Accordingly, DDA in its meeting
dated 12.05.2011 considered the height issue and resolved that 2.0
Hectare plot leased out to respondent No.12 shall be considered as a
separate entity and the Development Controls as applicable under the
clause „Group Housing‟ with no height restriction shall apply. On
18.05.2011 DDA‟s counsel placed on record the Authority‟s decision
to allow 200 FAR with "no height restriction". Since the said decision
mitigated the grievance of the respondent No.12, this Court observed
that nothing remains to be adjudicated and with these observations the
writ petition was disposed of.
30. Mr. Sethi further submitted that it is pertinent to mention here
that a separate Writ Petition (C) No.8675 of 2011 was filed by one
"Association of Metro Commuters" inter alia challenging the allocation
of the said land for residential development, which came to be
dismissed by the Division Bench of this Court vide order dated
14.12. 2011 wherein the Court after detailed perusal of the records held
that there is no illegality in the actions of DMRC / DDA and dismissed
the petition.
31. Moreover, vide W.P. (C) 6624-6625/2012 titled as Sanjay
Khanna (HUF) v. UOI and Ors., the acquisition was challenged by
the erstwhile lessees of the plot in question. The Petitions were
dismissed by this Court stating that there is no question of colourable
exercise of power and the plot used by DMRC for commercial purpose
is being done as per the settled principles of law. The said order was
challenged by SLP which was also dismissed.
32. Mr. Sethi submitted that despite the fact that the said issue has
been adjudicated upon thrice by this Court, the present Writ Petition
again without any locus and proper authority raises the same issues in
the present petition again by suppressing the adjudication of the said
issues in the aforementioned three Writ Petitions. The present Writ
Petition has been filed with oblique motives and with malafide
intentions for causing losses to the respondents No.10 & 12.
33. Mr. Sethi, learned Senior Counsel further submitted that land use
of the 3.05 Hectare land was changed to 'Residential' vide Notification
dated 23.09.2005, Development Control Norms for Residential Plot-
Group Housing only will apply and no other norms are applicable to
this plot. This controversy whether the 'Development Control Norms
for Residential Plot-Group Housing' or the 'Development Control
Norms For Metro Stations' apply to the said plot in question, was the
subject matter before this Court in WP(C) 3135/2010. The issue was
finally set to rest after DDA in a meeting held under the directions of
this Court and chaired by Lt. Governor decided on 21.01.2011 and
12.05.2011, that Group Housing Norms with no height restriction will
apply in respect of subject 2.0 Hectare plot. Therefore, petitioner
cannot be allowed to re-open and re-agitate an issue already
adjudicated / settled by a Division Bench of this Court.
34. Moreover, DDA / MCD have allowed Group Housing norms,
viz., 200 FAR, 33.3% Ground Coverage and no height restriction in
respect of 5 properties including the plot in question auctioned by
DMRC for property development as Group Housing. The aforesaid 5
properties have been mentioned in the submission of the DMRC by the
counsel for the respondent No.10 which is reproduced as under:-
"The relevant Development Control norms in MPD 2021
are as follows:
(Pg25) Ch-4 Shelter
Table 4.3: Uses / Use Activities Permitted in Use Premises
Use Definition Use/Use Activities
Permitted
Residential A premise of size not Residential flat,
Plot - less than 3000 sqm mixed use Plot
Group (2000 sqm. For activity as per the
Housing Slum/JJ rehabilitation) Master Group Plan
comprising of provisions, retail
residential flats with shops of
basic amenities like confectionery,
parking, park, grocery & general
convenience shops, merchandise, books
public utility etc. and stationery.
Chemist, Barber,
Laundry, Tailor,
Vegetable Shop (On
ground floor with
an area up to 20
sqm. each).
Community Room,
Society Office,
Creche / Day Care
Centre, Religious,
Senior Citizen
recreation room.
Swimming Pool.
Pg 28 -4.4.3 Control for Building/Buildings within
Residential premises
B. Residential Plot -Group Housing
Minimum size of plot: 3000 sq. m.
Maximum Ground coverage: 33.3%
Maximum FAR: 200
Height NR (Subject to clearance from AAI / Fire
Department and other
statutory bodies.
Parking: 2.0 ECS/100 sqm built up area"
Ch-12 Transportation
Pg 82 -Development Controls for Metro Stations
1. Metro Stations along with property development
(composite Development) up to a maximum area of 3.0
ha shall be permitted in all Use Zones, except in
Recreational and Regional Park / Ridge Use Zone,
Lutyens' Bungalow Zone and Heritage Zones, subject
to approval of Technical Committee of DDA.
2. This enabling provisions of property development
would have the following broad development controls:
(i) 25% ground coverage and 100 FAR, including area
under Metro Station with no height restrictions
(emphasis supplied) and subject to approval of the
statutory bodies such as ASI, Airport Authority, and
DUAC etc.
(ii) In addition to the requirement of parking for Metro
Stations, parking for the commercial component will be
@ 2 ECS per 100 sq. m.
(iii) The development shall be undertaken in a
composite manner and DMRC shall obtain approval of
all the concerned local bodies / agencies."
Chapter 17 Development Code
"Pg 123 -Clause 2.0 Definitions
In this code unless the context otherwise require:
2(7) Use Premises means one of the many sub
divisions of a Use Zone, designated in an approved
layout plan, for a specific Use. Land use of a premise
has to be determined on the basis of an approved layout
plan.
3(3) Each use premises shall be permitted to
have specific uses/use activities out of the prescribed
uses/use activities with or without conditions.
5.0 The use premises and use/use activities with
similar nomenclature are given with the controls of
specific premises in the respective chapters."
35. Moreover, DDA had examined the applicable Development
Control Norms for this plot as a Residential Plot-Group Housing vis-a-
vis the Development Control norms for Metro stations notified on
20.01.2005. After detailed examination, DDA came to a conclusion that
since the land use has been notified as residential on 23.09.2005,
Residential Plot-Group Housing norms (200 FAR, 33.3% Ground
Coverage and no height restriction) are applicable to 3.05 Hectare
Land.
36. Mr. Sethi further submitted that two independent committees
have submitted the report that the development is within the control
norms applicable to this area and that it will not affect the aesthetic
beauty of the North Campus of Delhi University. He further submitted
that as contended by the petitioner, the Group Housing Norms were
made applicable without amending MPD 2021. Learned counsel
further submitted that in the present case the relevant amendment in the
Master Plan was required to be made in respect of change of land use
from PSP to residential. This was done by DDA following due process
of law as contemplated in Section 11-A of Delhi Development Act,
1957. Accordingly, the DDA had issued a Public Notice dated
19.12.2004 inviting objections before changing the land use of the plot
from PSP to residential. No objections were received and a
Notification dated 23.09.2005 was issued changing the land use of the
plot. There was, thus, complete compliance of the requirements of
Section 11A of the Delhi Development Act.
37. Mr. Sethi submitted that DDA is the sole decision maker in
respect of provisions of Master Plan and has full powers to grant site
specific approvals. To strengthen his arguments, learned Counsel
relied upon the judgment of this Court in the case of Kenneth Builders
and Developer Ltd. v. Union of India and Ors., W.P.(C) No. 10647 of
2010 in which the Court observed as under:-
"28: In deciding this writ petition, an important
question which arises for consideration is -who
decides the land use of a particular piece of land in
Delhi? If the land use is to be determined by the DDA
through the publication of the Master Plan, then the
question arises as to whether the DPCC or the
Department of Forest can object to a particular land
use?
...........................................................................
30. From these provisions, it is clear that the making
of the master plan and the zonal plans goes through
an elaborate procedure. Even the modification
carried out to any of these plans has to go through a
series of steps which include the inviting of objections
and the consideration thereof. From these provisions
it is clear that the stand taken by the DDA that once
the master plan shows the land in question as
earmarked for a particular use then no other
authority can challenge the same. The master plan
and the zonal plans are prepared by the DDA and
they have a statutory flavour. Once the DDA has gone
through the formalities required under law in
preparing the master plan and/or the zonal plans
and/or in carrying out any modifications therein, the
land use of a particular area would stand determined
as per the said plans.
31. When the land owning agency as also the
authority which prepares he Master Plan clearly and
categorically states that the land in question does not
fall within the ridge area and the land uses is
residential, we fail to see as to how the DPCC or the
Department of Forests, NCT of Delhi can raise any
objection on this account"
32. Therefore, we are of the view that the stand taken
by the DBA that the land use of the project site is
residential stands established...."
38. Moreover, the stand of DDA in the present case is that the land
use of the plot in question was changed from PSP to Residential and,
therefore, Development Control Norms for Residential Plot-Group
Housing apply to this plot. Further, MCD's Standing Committee has
approved the layout plan for development of Group Housing on 2.0
Hectare plot as a separate entity u/s 313 of the DMC Act in its meeting
held on 22.03.2013 vide resolution No. 315. Regarding petitioner‟s
contention that the land acquired for MRTS Project was acquired after
converting the land use from „Residential‟ to „Public and semi public‟
and now DDA cannot re-convert it to „Residential‟ defeating the
purpose of acquisition. Whereas the land use of 3.05 Hectare land has
been changed only once from PSP to „Residential‟ vide Notification
dated 23.09.2005. The same is evident from the information obtained
by respondent No.12 under RTI. Once the land is acquired in a lawful
manner and is vested in the acquiring authority, and if a portion of the
acquired land is left unused after achieving the public purpose, the
unused portion can be used for a purpose other than it was acquired
for. To strengthen his arguments, learned Senior Counsel for the
respondent No.12 relied on the judgment of this Court in the case of
Adil Singh v. UOI and Ors, W.P. (C) No. 2948 of 2007 in which the
Court observed as under:-
"45. From all these decision, a clear line of thought is
discernible, and that is, that where land is acquired
for one public purpose and part of it is left unused, the
same can be used for another pubic purpose. In case
this is done, merely because the unused land is used
for another public purpose would not be a ground for
challenging the original acquisition itself. It is further
clear that once the land has vested in the State either
by virtue of section16 of the said Actor by virtue of
Section 17(1), in urgent cases, there is no question of
the land being re-vested in the erstwhile owners. The
Government can withdraw from the acquisition only
up to the point it does not take possession of the land
sought to be acquired. Once possession has been
taken, the acquisition cannot be given up. It is also
clear that trough part of the land acquired for one
public purpose could not be used for another public
purpose, without invalidating the acquisition itself,
land acquired for a public purpose cannot be used for
a private objective. But, even if part of the land is
sought to be used for a commercial purpose, the same
would not revert to the original owner though the
appropriate Government would be subject to an
action in case the allotment for commercial use is
arbitrary or unreasonable. Where a portion of the
land acquired for a public purpose is left unused, it
would be open to the state government to utilize the
same for a commercial purpose provided it is done in
a transparent manner either through an open tender
or through an auction."
39. Mr. Sethi further submitted that the auction has been conducted
by DMRC in a transparent manner, i.e., through a public auction and
there is no allegation that the auction was not done in accordance with
law. Moreover, there was no malafide on part of DDA. Thus it is clear
that DDA took a conscious decision in its meeting dated 21.01.2011
with respect to the applicability of FAR for Group Housing and further
again took an informed decision at the highest level vide its resolution
dated 12.05.2011 that no height restrictions can be imposed on the
proposed project under the provisions of MPD 2021.
40. It is further submitted that as per the settled law the Court would
not interfere in a policy decision taken by a Government body unless
some illegality, impropriety, malafide or unreasonableness can be
proved on part of such decision making body as held in the cases of
Sethi Auto Service Station and Anr. Vs. Delhi Development Authority
and Ors. (2009) 1 SCC 180; and Residents Welfare and Recreation
Association (Regd.) & Ors. Vs. DDA & Ors. W.P. (C) 1815/2009.
41. Mr. Sethi further submitted that the principle of res judicata bars
re-opening of the decision of this Court in WP(C) 3135/2010. DDA
has the final authority to rule on questions of land use/norms as held in
the case of Kenneth Builders (Supra). The fact that DDA has to decide
all issues pertaining to MPD2021 has been provided within the powers
of DDA as per clause 17 of the Introduction of the MPD 2021.
42. Mr. Sethi further submitted that the present petition has been
filed by Mrs. Alka Sharma in her capacity as the Officiating Registrar
of Delhi University. There is no authority given by the Executive
Council of Delhi University authorizing her to file the present petition.
In fact, there cannot be any such authority as Executive Council of
Delhi University never passed a resolution to file the present writ
petition.
43. However, vide Order dated 10.09.2013 this Court directed the
petitioner to file an affidavit disclosing as to how the decision to file
the present writ petition was taken. Accordingly, the petitioner has
filed an affidavit referring to Resolution No. 56 passed by The
Academic Council on 20.03.2012 and Resolution No. 173 passed by
the Executive Council on 21.03.2012 and stated that pursuant to above
resolutions, the present writ petition was filed. Thus, the Registrar
has filed the present petition.
44. While concluding his arguments, Mr. Sethi submitted that
respondent No.12 received all approvals from all statutory bodies, viz.,
AAI, AST, Fire (CFO), DDA, DUAC, Forest, MCD, NMA, SEAC,
etc.. Therefore, all approvals have been obtained but construction has
not yet started. Six years have been spent on same issues causing huge
loss to respondents No.10 & 12 both in money and reputation.
45. Mr. Arun Birbal, Ld. Counsel appearing on behalf of DDA has
fully supported the case of respondent No.10 and 12. Further added
that for determining the land use, DDA is the proper and final
authority. Vide decision dated 12.05.2011, DDA has resolved and
allowed development control norms as applicable under the clause
„Group Housing‟ viz., 200 FAR with 33% ground coverage without
height restriction on the plot in question. The said plot is not part of
North Campus of Delhi University, therefore, the petitioner has no
locus to file the present petition. Moreover, land use has been changed
by due process of law.
46. I have heard learned counsels for the parties.
47. Respondent No.10 DMRC had constructed Vishwavidyalaya
Metro Station, where 2 Hectares of land remained surplus and was to
be used for development in order to generate revenue. Accordingly,
the respondent No.10 applied to DDA for change of land use from
'Public and Semi Public' to 'Residential', which was approved by the
Ministry of Urban Development as per its notification no. 1383 (E)
dated 23.09.2005. The auction of the land in favour of the Respondent
No.12 was granted only after receipt of letters dated 29.03.2007 &
14.09.2007 issued by the DDA, wherein it was specifically informed
that the FAR for the Plot in question would be as per the norms of the
MPD -2021 for Group Housing and FAR of 200 with 33% ground
coverage would be permissible. Moreover, the Ministry of Urban
Development vide its Notification dated 18.04.2011 had amended
Clause 3.3.1.1 (vii) of the MPD 2021, wherein the words, 'Property
Development by DMRC‟ was deleted. Thus, the restriction on
enhancement of FAR for property development by DMRC as provided
under the MPD-2021 stood modified to the effect that the FAR for
projects of property development by the DMRC can be enhanced in
accordance with the provisions of the MPD-2021. Moreover, in the
Minutes of Meeting dated 21.05.2011, in respect of the Plot in
question, DDA allowed the development control norms as available to
any Group Housing Society under MPD -2021, including 200 FAR
without restriction of height, on the residential plot leased out to
respondent no. 12 by DMRC near Vishwavidyalaya Metro Station.
Therefore, the permission given by the DDA in the minutes of meeting
dated 21.05.2011 was completely in line with the amended provisions
of the MPD-2021.
48. It is pertinent to mention here that the respondent No.10 has also
leased out (5) five parcels of land for residential development and all
such five Projects have been approved by the competent authority with
FAR-200 and ground coverage as 33%. In addition to the land in
question, the other 4 (four) parcels of land are Kyber Pass, Rithala,
Subash Nagar and Dwarka Mod.
49. It is also pertinent to mention here that the situation in question
arose for the reason that earlier under Phase-I, the Vishwavidyalaya
Metro Station used to be a terminal station. In 2006, when Phase-II
was envisioned, the aforesaid Metro Station remained no longer a
terminal station and the line from Central Secretariat to
Vishwavidyalaya was extended to Jahangirpuri, resultantly, the
requirement for parking space was reduced, and consequently there
was a surplus land available with the DMRC. Accordingly, DMRC
invited bids for residential development on 2.0 Hectare plot
representing that the norms of Residential Plot-Group Housing as per
MPD 2021 would be applicable which permit 200 FAR with 33%
ground coverage. Accordingly, respondent No.12 participated and
turned out to be the highest bidder at Rs.218.20 crores.
50. Thereafter, respondent No.12 submitted a lay out plan to MCD
on 30.03.2009 on the basis of norms applicable to Residential Plot-
Group Housing. In response thereto, MCD vide letter dated 8.06.2009
sought clarification from DDA whether the 2.0 Hectare plot leased by
DMRC to respondent No.12 can be considered as a separate entity for
the purpose of approval of Group Housing with 200 FAR. On 25.06.
2009, DMRC informed DDA that they have entered into Lease
Agreement with respondent No.12 on 15.12.2008 for Residential Plot-
Group Housing development on 2.0 Hectare and requested DDA to
confirm 200 FAR to MCD. However, DDA replied to MCD vide letter
dated 19.08.2009 that Development Control Norms shall be as per
Notification dated 20.01.2005 prescribing Development Control Norms
for Metro Stations viz 25% ground coverage and 100 FAR with no
height restrictions.
51. Thereafter, the matter was considered in DDA‟s meeting held on
17.02.2010, whereby the Lt. Governor constituted a Committee under
the Chairmanship of Engineer Member, DDA with Chief Town
Planner, MCD and Chief Engineer, DMRC as members to survey the
entire area and examine the implications on the proposed high-rise
buildings on the privacy and integrity of the Delhi University
environment. Accordingly, the Lt. Governor directed that the
Committed would give its report within a week. Pursuant to the said
direction, a joint inspection of the site was conducted by the committee
members on 19.02.2010 whereby observed and concluded that the
proposed high rise property development on 2.0 Hectare plot will not
affect the privacy of the girls' hostel nearby, will not add to any parking
problem and will also not affect the serenity / tranquillity of University
area.
52. Thereafter, respondents No.10 and 12 made efforts to persuade
DDA to correct its action and restore Group Housing norms with 200
FAR but failed to yield any result. Being aggrieved, respondent No.12
filed Writ Petition No.3135/2010 impugning the letter dated
19.08.2009 issued by DDA. During the pendency of the afore-
mentioned writ petition, DDA informed the Court that the impugned
decision was being reconsidered at the highest level in DDA.
Accordingly, DDA reconsidered the issue and resolved that 2.0
Hectare plot leased out to respondent No.12 shall be considered as a
'separate entity' and the Development Control Norms for Group
Housing with no height restriction shall apply. Moreover, DDA's
counsel placed on record the Authority‟s decision applicable on Group
Housing Norms with 200 FAR and 'No height restriction'.
53. It is pertinent to mention here that a separate Writ Petition (C)
No.8675 of 2011 was filed by one "Association of Metro Commuters"
inter alia challenging the allocation of the said land for residential
development, which was dismissed by the Division Bench of this
Court vide order dated 14.12.2011 and held as under:
"6. We are unable to agree. A person, who
brings a Us before the Court, even in public interest, is
required to, unless the facts speak for themselves,
satisfy the Court as to the illegality in the actions of
the State /public body affecting the public interest. A
petitioner, even in a Public Interest Litigation cannot
seek commencement of a roving and fishing inquiry. It
was so held in Narmada Bachao Andolan Vs. State of
Madhya Pradesh 2011 (5) SCALE 624. A litigant who
is unwilling to collect / gather facts, which in today's
transparent regime are available on the asking, cannot
be allowed to waste the time of the Court
7. Even otherwise, we find that the said residential
development to which objection is taken, having
commenced at least in the year 2007 if not earlier i..e
four years prior hereto and the agreement of the
Young Builders Pvt. Ltd. is also of 15.12.2008. From
the documents filed by the petitioner itself we also find
the Government of India to have accorded permission
to the respondent No. 1 DMRC to generate resources
through development on the land transferred to it by
the Government and sanction having been accorded as
far back as in 2007 by DDA for the said residential
development at Vishwa Vidyalaya MRTS metro station.
There is thus nothing before us as to show that there is
any irregularity in the actions with respect whereto the
petition is filed."
54. Moreover, vide W.P. (C) 6624-6625/2012 titled as Sanjay
Khanna (supra), the acquisition was challenged by the erstwhile
lessees of the plot in question. The Petitions were also dismissed. The
order passed in aforementioned petition was challenged by filing SLP
which was also dismissed. Thus, the issue was finally set to rest, after
DDA in a meeting held under the directions of this Court and chaired
by Lt. Governor decided on 21.01.2011 and 12.05.2011, that Group
Housing Norms with no height restriction will apply in respect of
subject 2.0 Hectare plot. Moreover, clause-B of 4.4.3 of MPD 2021
provides that on the minimum size of 3000 sq.m. plot, maximum
ground coverage applicable would be 33.3% with maximum FAR of
200. In addition, as per Chapter-12 titled Transportation of MPD 2021,
Metro Stations along with property development (composite
Development) up to a maximum area of 3.0 ha shall be permitted in all
Use Zones, except in Recreational and Regional Park / Ridge Use
Zone, Lutyens' Bungalow Zone and Heritage Zones, subject to
approval of Technical Committee of DDA.
55. It is worth noting that the process of change of land use for 3.05
Hectare plot had been initiated since 19.12.2004, which preceded
Notification dated 20.01.2005. In any case, Notification dated
20.01.2005 apply only in cases where DMRC desires property
development without change of land use and that too on plots upto 3.0
Hectare. Thus, Notification dated 20.01.2005 makes it clear that it
(Incorporated in MPD-2021, Chapter-12 as 'Development Control
Norms for Metro Station') will not apply in the present case as the size
of the plot in question is more than 3.0 Hectare.
56. Respondent No.10, DMRC was desirous of using its properties
for commercial/residential development to generate resources which
was proving to be extremely time consuming exercise because of the
cumbersome procedures involved in change of land use. Accordingly,
DMRC requested DDA to dispense with the change of land use and
allow property development under automatic use. The request of
DMRC was deliberated and considered by DDA whereby it was
decided that blanket permission cannot be given and property
development by DMRC without change of land use will be restricted
on plots up to a maximum area of 3 Hectare and will have maximum
100 FAR, 25% Ground Coverage with no height restriction.
Accordingly, Notification dated 20.01.2005 was issued which starts
with "Notwithstanding the land use provisions of Master Plan property
development shall be permitted..... " Thus, this Notification was an
'enabling' provision to facilitate DMRC to take up property
development and generate resources in an expeditious manner without
undergoing the cumbersome procedure of change of land use on plots
upto 3.0 Hectare. No doubt, while developing property on land above
3.0 Hectare, DMRC has to necessarily follow the procedure of change
of land use which would then be subject to norms applicable under
respective chapters in MPD 2021.
57. In the present case, Notification dated 20.01.2005 could not have
applied because the size of the plot in question is 3.05 Hectare which is
more than the prescribed limit of 3.0 Hectare. Therefore, Respondent
no.10 DMRC, had no choice but to necessarily follow the process of
change of land use. The same was done by following due process of
law and land use was changed from PSP to Residential vide
Notification dated 23.09.2005, after which Development Control
Norms of Residential Plot -Group Housing only can apply.
58. The claim of the petitioner is that the 3.05 Hectare land falls in
the 'controlled zone' of Delhi University and that a height restriction
ought to have been imposed on the Project otherwise it will be in direct
conflict with MPD 2021. However, as submitted by ld. Counsel for
respondents that there is nothing called "controlled zone" of Delhi
University under MPD 2021 or Zonal Development Plan for Zone-"C".
However, MPD 2021, Chapter 11-Urban Design, Para 11.3 provides
that restriction on tall buildings would be necessary in important areas
like Lutyen's Bungalow Zone, Civil Lines Bungalow Zone and North
Delhi Campus. The plot in question does not fall within any of these
restricted areas. In any case, the same was also established by
respondent No.12 during arguments by showing the Zonal
Development Plan for Zone-'C (Civil Lines Zone) that the land in
question does not fall within any restricted area in Zone-"C" i.e. the
Civil Lines Bungalow Zone or the North Delhi Campus. In fact that
land does not fall within Delhi University North Campus which is
established from the information obtained by respondent No.12 under
RTI wherein it is stated that the 3.05 Hectare plot is not a part of Delhi
University.
59. It is pertinent to mention here that two independent committees
have submitted the report that the development is within the control
norms applicable to this area and that it will not affect the aesthetic
beauty of the North Campus of Delhi University. In the present case
the relevant amendment in the Master Plan was required to be made in
respect of change of land use from PSP to residential. This was done
by DDA following due process of law as contemplated in Section 11-A
of DD Act,1957. Accordingly, the DDA had issued a Public Notice
dated 19.12.2004 inviting objections before changing the land use of
the plot from PSP to residential. The respondents did not receive any
objection from any corner, thereafter, issued Notification dated
23.09.2005 changing the land use of the plot.
60. The contention made by the petitioner that the present plot
cannot be treated as a separate entity, the DDA in its meetings held on
21.01.2011 and 12.05.2011 deliberated the said issue in detail and only
thereafter decided to treat 2.0 Hectare plot as a separate entity and
allowed Group Housing norms without height restriction in view of the
fact that the said site had already been notified as residential. The said
meeting was held under the directions of this Court as issued in WP
(C) No. 3135/2010. The meeting was chaired by Lt. Governor of Delhi
and attended, amongst others, by Vice Chairaian of DDA, Members of
Authority and special invitees such as Chief Secretary, Principal
Secretary and Secretary to Govt. of NCT of Delhi, Principal Secretary
to LG and Managing Director, DMRC.
61. The land in issue does not come under a development area as
defined under Section 12 of the DD Act, 1957. The „Authority‟ of
DDA is constituted under Section 3 of the DD Act, 1957. By virtue of
Section 6 of DD Act, the executive power of DDA vests in this
Authority. Once the DDA and its Authority have gone through the
formalities required under law in preparing the master plan and/or the
zonal plans and/or in carrying out any modifications therein, the land
use of a particular area would stand determined as per the said plans.
Moreover, FAR of 200 with no height restriction for residential
complexes has been specifically made available to the University also
under MPD-2021. This would enable the University to provide shelter
to its employees and teachers.
62. The stand of DDA in the present case is that the land use of the
plot in question was changed from PSP to Residential and, therefore,
Development Control Norms for Residential Plot -Group Housing
apply to this plot. Further, MCD's Standing Committee has approved
the layout plan for development of Group Housing on 2.0 Hectare plot
as a separate entity u/s 313 of the DMC Act in its meeting held on
22.03.2013 vide resolution No. 315.
63. Regarding petitioner‟s contention that the land acquired for
MRTS Project was acquired after converting the land use from
Residential to Public and semi public, and now DDA cannot re-convert
it to Residential defeating the purpose of acquisition. Whereas, the
land use of 3.05 Hectare land has been changed only once from PSP to
Residential vide Notification dated 23.09.2005 as is evident from the
information obtained by respondent No.12 under RTI. Once the land is
acquired in a lawful manner and is vested in the acquiring authority,
and if a portion of the acquired land is left unused after achieving the
public purpose, the unused portion can be used for a purpose other than
it was acquired for as held in the case of Adil Singh (supra).
64. As per the settled law, the Court should not interfere with any
policy decision taken by a Government body unless there appears to be
some illegality, impropriety, malafide or unreasonableness on part of
such decision making body. However, the petitioner has failed to
establish the same.
65. Moreover, the petition suffers from latches, which has been filed
almost with delay of 7-8 years. The existence of the factum of land in
question has been within petitioner‟s knowledge since beginning. In
view of such delay on part of the petitioner to challenge the project, the
present writ petition deserves to be dismissed on ground of delay and
latches, as held in the case of State of M.P. and Ors. vs. Nandlal
Jaiswal and Ors. (1986) 4 SCC 566 in which the Apex Court observed
that the delay of only 10 months in challenging the policy also cannot
be condoned.
66. The respondent No.12 has received all approvals from all
statutory bodies, viz., AAI, AST, Fire (CFO), DDA, DUAC, Forest,
MCD, NMA, SEAC etc., but construction has not yet started.
67. In view of the above discussion, I find no merit in the instant
petition and the same is also hit by delay and latches.
68. Accordingly, instant petition is dismissed with no order as to
costs.
CM Nos. 5899/2012, 7676/2012, 11637/2012, 1045/2013 and
6676/2014
The instant applications are dismissed as infructuous.
SURESH KAIT, J
APRIL 27, 2015
RS
