Delhi High Court
Ashok Vihar, Residents Welfare ... vs Delhi Development Authority ... on 26 August, 2016
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on :16.08.2016
Judgment delivered on :26.08.2016
+ W.P.(C) 4429/2015
ASHOK VIHAR, RESIDENTS WELFARE ASSOCIATION..... Petitioner
Through: Ms. Smita Maan with Mr. Vishal
Maan and Mr. Paritosh Tomar,
Advocates.
versus
DELHI DEVELOPMENT AUTHORITY (DDA) & ORS. ..... Respondent
Through: Mr. Sanjeev Sindhwani, Sr. Advocate
with Mr. Arvind Kumar Gupta,
Advocate for R-1.
Mr. Sanjeev Sabharwal, Standing
Counsel for R-3.
+ W.P.(C) 5883/2015
MALTI JAIN ..... Petitioner
Through: Petitioner in person.
versus
LAWRENCE ROAD MODERN EDUCATIONAL
SOCIETY AND ORS. ..... Respondents
Through: Mr. Sanjeev Sabharwal, Standing
Counsel for DDA.
Mr. Rajendra Kumar, Advocate for
R-3.
Mr. Sanjeev Sindhwani, Sr. Advocate
with Mr. Arvind Kumar Gupta,
Advocate for R-4.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
W.P. (C) Nos.4429/2015 & 5883/2015 Page 1 of 24
INDERMEET KAUR, J.
1 The petitioner in W.P. (C) No.4429/2015 is Ashok Vihar, D Block,
Residents Welfare Association. The grievance of the petitioner is that an
illegal and unlawful construction in property measuring 1378.47 square
meters situated at Block-D, Ashok Vihar, Phase-I, New Delhi is being
permitted to be raised; it is a plot allotted by the Delhi Development
Authority (DDA) in the residential block and the aforenoted construction
which is a huge multi storey building is in violation of the provisions of the
Master Plan Delhi-2021 (MPD-2021) as also Delhi Building Laws and Delhi
Building Byelaws, 2014. Respondents No. 1 & 2 (Delhi Development
Authority and North Delhi Municipal Corporation respectively) are
permitting this unauthororized construction to come up on this residential
block. This is in active connivance of the private respondent who is the
interested party i.e. Lawrence Road Modern Educational Society. The
prayer in the petition seeks a cancellation of the perpertual lease deed dated
17.05.2006 executed in favour of respondent No. 4. The second prayer is to
revoke the sanction plan which has been granted on 18.07.2008 followed by
a revalidated sanction plan dated 17.07.2014 in favour of respondent No. 4
as they are contrary to the terms and conditions of the aforenoted lease deed
as also to the provisions of MPD-2021.
2 The petitioner in W.P.(C) No.5883/2015 is Malti Jain. She is a
resident of D-157, Phase-I, Ashok Vihar. Her grievance is the same as also
in the aforenoted petition. The grievance being that inspite of several
complaints having been addressed to the requisite authorities which includes
the concerned SHO of PS Ashok Vihar, construction work is being permitted
in the aforenoted block and respondents No. 2 & 3 (Delhi Development
Authority and North Delhi Municipal Corporation respectively) are in active
connivance with respondent No.1 (Lawrence Road Modern Educational
Society) in allowing this construction to continue. This school is facing her
property. Submission being that this is against the MPD-2021 and
applicable building byelaws. Her prayer is that the aforenoted structure be
demolished and the lease granted in favour of respondent No.1 by
respondents No.2 & 3 be cancelled forthwith.
3 Counter affidavit has been filed by the NDMC as also the DDA. The
private respondent has also filed his response/counter affidavit.
4 The stand of the DDA in both the petitions is common. Their stand
being that a valid allotment for running a nursery school has been made in
favour of respondent No. 4 i.e. Lawrence Road Modern Educational Society.
The society is duly registered under the Societies Registration Act, 1860.
The society had applied for a plot of land in the year 1978. This was
sponsored by the Directorate of Education, Delhi Admin. Respondent No.1
had allotted a nursery school plot measuring 0.25 acres to respondent No.4
on 22.08.1989 at NS-11, Lawrence Road vide allotment of the same date.
Since the physical possession of the plot could not be handed over in time,
proceedings were initiated by respondent No. 4 by filing W.P. (C)
No.2323/1997 wherein the DDA had undertaken to handover the physical
possession of the site to respondent No. 4. Since there was an illegal
encroachment, the physical possession still could not be handed over to
respondent No. 4. On 23.07.2003, the Society informed the DDA that
although possession of the land had been handed over on paper but since
actual physical possession had not been handed over, they requested for an
alternate allotment of a plot of the same size preferably at Ashok Vihar,
Pitampura/Shalimar Bagh. Accordingly plot No.NS-2 which was originally
a single plot marked for a nursery school as approved in the layout plan
Wazirpur Residential Scheme Phase 1 (Ashok Vihar Phase-1) was sub-
divided into two parts on 22.12.2001. This sub-division was approved by the
Commissioner (Planning)/DDA on 22.11.2001 i.e. on same day. After the
sub-division, one plot measuring 800 square meters already stood allotted to
Agroha Educational Society and the remaining 1432.82 square meters was
reserved for future planning. Since the whole of this plot was earmarked for
nursery school in the approved layout plan, this could not be allowed to put
to any other land use except for a nursery school. Accordingly, 1378.47
square meters of the aforenoted land (NS-2) was offered to respondent No. 4
as an alternate plot against his original allotment of NS-11, Lawrence Road.
This was after the approval of the competent authority. This alternate plot
(NS-2) was allotted to respondent No. 4 on 03.06.2005. Physical possession
of the same was handed over on 27.07.2005. Perpetual lease deed was
executed by the DDA on 17.05.2006. Further stand of respondent No.1 is on
the application of respondent No. 4 seeking construction of the building at
the site, time for extension of construction of the school building was granted
up to 31.03.2015.
5 The stand of respondent No. 2 (NDMC) in its counter affidavit is to
the effect that building plan of the aforenoted property was sanctioned by the
Corporation for construction of nursery school on 09.01.2007 after
following a due process of law and considering the comments of the Town
Planning Department regarding land use and development control norms.
The comments of Town Planning Department confirms that the plot under
reference is part of the approved layout plan received from the DDA as
earmarked for a nursery school and the development control norms
applicable to this plot is of nursery school as per Master Plan. The lease
deed executed by the DDA in favour of respondent No. 4 had also confirmed
the land use of the plot under reference was for a nursery school. Further
stand of the respondent No. 2 is that mixed use regulation as provided in
Chapter 15.0 of MPD-2021 allows a nursery school at the ground floor level
on the road having right of way of 18 meters in C & D colonies which is
applicable to residential plots; the plot in question is not a residential plot.
The land use of this plot is a nursery school and as such development control
norms of nursery schools as per table 13.4 of Chapter 13.2 MPD-2021 are
applicable. The policy of mixed land use in Chapter 15 of MPD-2021 is not
applicable. Further contention of respondent No. 2 is that the respondent
No. 4 after coming into force of MPD-2021 had applied for sanction of a
building plan based under new MPD-2021 which was vide his letter dated
27.09.2007. This was rejected on 12.12.2007. Respondent No. 4 had filed
an appeal against the rejection of his building plan. This appeal was upheld
and building plan of this plot for construction of a basement, stilt for parking
(free from FAR), ground floor, first floor and second floor taking FAR-100
with maximum ground coverage 33.33% (as per MPD-2021) and the
development control norms for nursery school had been sanctioned and the
sanctioned plan was released on 18.07.2008. Vide communication dated
21.05.2013, respondent No. 4 applied for a revalidation of sanctioned plan
which was revalidated for a period of one year vide communication of
respondent No. 2 dated 17.07.2014. Site inspection has also been carried out
of the site which revealed that there is a basement, stilt, ground floor, first
floor and second floor. Deviations were noted and accordingly action under
Sections 343/344/345-A DMC Act was initiated. Demolition and sealing
orders were passed on 30.03.2015 and 17.04.2015 qua the illegal portions in
the building. Respondent No. 4 had applied for regularization on
30.03.2015. Against the order of sealing and demolition, respondent No. 4
had preferred an appeal before the ATMCD which also directed that AE (B)
to visit the property and ensure that illegal deviations be removed and report
was to be submitted before the ATMCD. This order is dated 28.04.2015.
Further stand of respondent No. 2 is that the plot was again inspected on
13.05.2015 and approximately 80% of the rectification had been carried out
by the owner/builder/respondent No. 4 of the property in question.
6 Respondent No. 4 who is the private respondent has filed a separate
response. His stand is that the layout plan of Wazirpur Residential Scheme,
Phase-I has been admittedly earmarked for the purpose of a nursery school.
The DDA has allotted this portion of this plot for the purpose of a nursery
school to respondent No. 4. The lease deed executed by the DDA and the
sanction granted are all a matter of record. They cannot be challenged by the
petitioner as it is not the case of the petitioner that this nursery school at the
aforenoted plot of land is against the layout plan of residential block.
Further submission is that against the order of the MCD for sealing and
demolition of the aforenoted plot, an appeal had been preferred before the
ATMCD and all compliances as required by the ATMCD have been made
by respondent No. 4. The additional affidavit of respondent No. 4 was also
filed wherein this position has been reiterated. This additional affidavit is
dated 22.01.2016. A compounding fee amounting to Rs.3,46,020/- has since
been paid by respondent No. 4. The regularization plan has also been
released by respondent No. 2 on 19.01.2016 in favour of respondent No. 4.
Contention is that this writ petition is only in the form of a guise by the
welfare association to trouble and harass the respondents. The same is the
response qua the stand of petitioner in W.P. (C) No.5883/2015. The
submission on this count is that the petitioner Malti Jain in that petition was
the Ex-Secretary of the Ashok Vihar Residents Welfare Association; she
having been ousted from the aforenoted body, in order to vent her vendetta
against respondent No. 4 has filed this petition, neither of these two writ
petitions are maintainable.
7 Rejoinder affidavits have been filed by the petitioners in both the
aforenoted petitions. The stand as contained in the petition is reiterated. It is
reiterated that respondents No. 1 & 2 have connived with respondent No. 4
to allot this plot of land to respondent No. 4 when admittedly this was a
single plot of land and only one nursery school could have been permitted as
per the layout plan; the allotment of land to a second nursery school is
against the provisions of MPD-2021 and the building byelaws. Even
otherwise such a huge structure for the purpose of nursery school cannot be
permitted.
8 Learned counsel for the parties have addressed their arguments in
detail.
9 On behalf of the petitioner in W.P.(C) No.4429/2015, the submission
is three folds. First submission is bordered on the provisions of MPD-2021.
Submission being reiterated that the sanction had been granted to respondent
No. 4 under the provisions of MPD-2021 and Chapter 15 of MPD-2021
(which deals with the mixed use regulations and clearly stipulates under
clause 15.7.1 and 15.7.2 that in "D" colonies (admittedly Ashok Vihar is „D‟
rated colony), a minimum right of way (ROW) of a street area and stretch of
road on which a nursery school can be permitted has to be 18 meters wide).
Attention has also been drawn to 15.7.3 sub-clause (vi) wherein it has been
noted that a pre-primary school shall be restricted only to the ground floor
upto the permissible ground coverage. Submission again being reiterated
that a multi storey structure cannot be permitted for the purpose of nursery
school and at best it is only upto the ground floor level that the nursery
school can be constructed. The second submission of the learned counsel for
the petitioner is that even as per the case of the respondents, the Master Plan
and the Zonal Plan has envisaged the aforenoted plot to be a single nursery
school (NS-2). The single nursery school which is Orange Nursery School is
already running from the aforenoted site. The allotment of 1387 square
meters of land in favour of respondent No. 4 on the same plot of land for the
purpose of running a second nursery school is against the Master Plan and
Zonal Plan as also the layout plan; the government department cannot shy
away from this admitted position. Attention has been drawn to a
communication of the Additional Commissioner qua the aforenoted site
wherein it had been noted that „allocation of two nursery schools‟ out of
same nursery school site is not desirable from the planning point of view.
Submission being that the stand of the Department itself is that two nursery
schools at the same site are not desirable. Learned counsel for the petitioner
has also drawn attention to an information obtained to an RTI query raised
by her which was answered on 15.05.2015 as per which the approved layout
plan of Wazirpur Residential Scheme, Phase-1 (NS-2 „D‟ Block) was a
single plot and the modified sub division of NS Site No.2, Ashok Vihar,
Phase-I, the area under nursery school is 800 square meters and area reserved
for future planning is 1432.82 square meters; submission being that this
information under the RTI by the petitioner (dated 15.05.2015) which even
on that date envisaged that 1432.82 square meters of land would be reserved
for future planning. The allotment of the aforenoted land to respondent No.
4 is thus wholly contrary. This is an active connivance of respondent No. 4
with respondents No. 1 & 2. The last submission of the learned counsel for
the petitioner is that the lease deed executed by respondent No.1 in favour of
respondent No. 4 is liable to be cancelled as this lease deed is against the
statutory document which is MPD-2021.
10 To support her submissions, learned counsel for the petitioner has
placed reliance upon a Division Bench judgment of this Court in Chander
Meenakshi decided in LPA No.169/2011 which was a case dealing with the
petrol pumps in Delhi. Contention being that after coming into force of the
MPD-2021, the setting up of petrol pumps was to be regulated by norms of
MPD-2021 and not of the earlier Master Plan; submission being reiterated
that under the new MPD-2021 Chapter 15.7.1 (mixed land use
regularization) clearly stipulates that a nursery school in a „D‟ block
commercial colony (as is Ashok Vihar) can only be up to the ground level
and right of way must be 18 meters wide which is not so in the instant case.
Reliance has also been placed upon another judgment of a Bench of this
Court reported as Justice for All Vs. Government of NCT of Delhi delivered
in W.PC (C)No. 4601/2013 on 24.11.2014 wherein the stand of the DDA as
noted by the Court was that the allotment of land for educational purpose
was either for a primary school or for a senior secondary school and in the
Master Plan, the concept of a nursery school has been done away with.
Submission being that this stand of the DDA in the aforenoted mater cannot
be contrary to the stand now adopted in the present case which is to the
effect that nursery school under MPD-2021 is permissible.
11 Per contra, the stand of the statutory departments i.e. of respondents
No. 1, 2 & 4 is already noted supra and it is the same stand which has been
argued before this Court. Their arguments have been bordered on their
averments made in their respective counter affidavits.
12 Learned senior counsel for respondent No. 4 has placed reliance upon
a judgment of a Bench of this Court reported as 2013 (133) DRJ 348 Harish
Batra Vs. Delhi Development Authority. His submission is that the layout
plan prescribes the user of land and as long as it continues to show the
prescribed user of land (as in the instant case) for a nursery school, the
Court cannot interfere in its user. This judgment has also been relied upon to
support a second argument which is that even if (although not admitting) the
MPD-2021 done away with the concept of nursery school; the allotment in
his case being prior in force to MPD-2021 cannot be disturbed. Additional
submission being that the judgment of Harish Batra (supra) related to a
residential area wherein in the instant case, it is the layout plan itself which
has prescribed the user of land for the purpose of a nursery school. Reliance
has also been placed upon 2014 (213) DLT 14 M.G. Ramachandran and
Another Vs. Municipal Corporation of Delhi & Others to support a
submission that the scheme of the DDA Act and the Master Plan shows that
micro level and macro level plannings have been envisaged under the Master
Plan and the Zonal Plan which are statutory documents and their character
cannot be changed. Micro level planning as reflected in the Layout Plan is
the baby of the authority. Submission on this count again being reiterated
that the Master Plan, the Zonal Plan as also the layout plan all prescribe the
user of this plot for the purpose of a nursery school and as such its user
cannot be disturbed; the Court cannot interfere in the user as prescribed by
Master Plan and Zonal Plan. Reliance has been placed upon a judgment of
the Apex Court reported as (2007) 6 SCC 448 Greater Kailash Part-II
Welfare Association and Others Vs. DLF Universal Ltd and Others to
support a submission that it is for the competent authorities to give a decision
as to whether a particular user for a prescribed plot of land is permissible or
not and it is not for the writ Court to interfere with such decisions. Learned
counsel for respondent No. 4 has lastly relied upon 2000 AIR (Del) 432
Municipal Corporation of Delhi Vs. Damyanti Sahni to support his stand that
the present lease has been executed by the DDA in his favour on 17.05.2006;
it is an act of the President of India and it can only be governed by the
provision of the Government Grants Act.
13 Arguments have been heard. Record has been perused.
14 There are certain facts which are admitted. It is an admitted fact that
respondent No. 4 had applied for allotment of a plot for construction of a
nursery school in the year 1978. On 22.08.1989, respondent No. 2 (DDA)
had allotted a nursery school site No.11, Lawrence Road to the petitioner.
This measured 0.25 acres. However since the physical possession of the plot
could not be handed over by respondent No. 2 to respondent No. 4 and
inspite of Court proceedings having ensued (which had culminated into W.P.
(C) No.2323/1997) the undertaking of the DDA to handover the physical
possession of the site to respondent No. 4 still could not be honoured. This
was for the reason that there was an illegal encroachment over the site.
Accordingly, respondent No. 4 had made an application to respondent No. 2
to give him an alternate site which was vide his application dated
09.09.2003. It is also not in dispute that the plot in question i.e. (NS-2) was
always earmarked for a nursery school. The user of the plot even till date
has not been changed. This user has been recorded in the earlier MPD-2001
as also in the subsequent MPD-2021 as also in the zonal development plan
and the layout plan. It is also not the case of the petitioner before this Court
that the user of this land has changed. It still remains the same; meaning
thereby that this plot can be used for no other purpose but for the purpose of
a nursery school. It is also an admitted fact that out of this 2200 square
meters (total area of NS-2), 800 square meters of land has been allotted to
Agroha Educational Society where the "Orange School" is running. It is also
an admitted fact (as is evident from the counter affidavit of respondent No.
2) that this plot was sub-divided into two parts on 22.12.2001 and this sub-
division had been approved by the Commissioner of the DDA, Planning on
the same day i.e. on 22.12.2001. The subsequent allotment of 1378.47
square meters of the aforenoted land to respondent No. 4 on 03.06.2005 is
another admitted fact. It is also admitted that respondent No. 4 had applied
for sanction of the building plan of his nursery school to the Competent
Authority (respondent No.1) vide his application dated 10.05.2006 and this
date becomes relevant in view of the fact that MPD-2021 had come into
operation w.e.f. 07.02.2007. This plan was sanctioned in favour of
respondent No.1 on 09.01.2007. This is also an admitted position. The
revised plan was thereafter submitted by respondent No. 4 to respondent No.
2 on 27.09.2007. This revised plan was in view of the increased FAR which
was permitted under MPD-2021. This revised plan had been rejected on
05.02.2008 but on an appeal filed by respondent No. 4 to the Appellate
Body, the revised plan of the nursery school was sanctioned in terms of
MPD-2021 on 18.07.2008. These facts are not disputed.
15 Thus what has come on record is that the allotment of the aforenoted
plot (measuring 1378.47 square meters) in favour of respondent No. 4 by
respondent No.1 was as per the permitted user as recorded of this plot (NS-2)
not only in the earlier MPD but also in MPD-2021, the zonal development
plan as also the layout plan. The user of this land has not been changed and
at the cost of repetition, this land can be used for no other purpose but for the
purpose of a nursery school. The fact that this plot which was originally
envisaged for one nursery school was sub-divided on 22.12.2001 (which
sub-division was approved by the Commissioner of DDA, Planning) is also a
matter of record. The fact that an area measuring 1378.47 square meters was
allotted to respondent No. 4 in lieu of his earlier allotment of 0.25 acres of
land at D-11, Lawrence Road, Delhi is also undisputed.
16 A Bench of this Court in Harish Batra (supra) (relied upon by
respondent No. 4) while dealing with the similar contention of residents of
Chirag Enclave who had also sought the relief of quashing of an allotment of
800 square meters of land to a nursery school and to restrain them from
running the nursery school, had noted that where admittedly even in the
layout plan, the plot had been earmarked for nursery school and continued to
be so shown and as such it was not for the Writ Court to direct the user of
that plot for any other purpose. The observations of this Court in this context
are relevant and read herein as under:-
"13. The plot aforesaid, in the Layout Plan, was admittedly earmarked for
a nursery school and continues to be so shown. On enquiry as to whether the
appellants in LPA No. 757/2012, prior to filing the writ petition, had made
any representation or taken any steps for modification of the Layout Plan,
the counsel replies that such steps could not have been taken since the writ
petition filed by CCHBS was already pending. We are unable to agree.
While the issue in the writ petition of CCHBS was as to who should run the
nursery school, the issue raised by the seven residents aforesaid is of
whether the nursery school should at all come up or not. So long as the
Layout Plan continues to show the prescribed user of the land as that for a
nursery school, this Court cannot direct the user to be anything else."
17 The submission of the learned counsel for the petitioner that there is a
contravention of MPD-2021 and the concept of nursery school has been done
away under the new MPD-2021; her additional submission that at best the
nursery school can only go up to the ground level coverage; it cannot be a
multi storey building (as is so in the present case) and her reliance on the
Mixed Use Regulation of MPD-2021 as contained in Chapter 15.7.1, 15.7.2
and 15.7.3 as also sub-clause (vi) of 15.7.3 are all misplaced. Her subsequent
submission that Ashok Vihar (where the present school is housed) is a „D‟
rated colony and as per the Mixed Use Regulation of MPD-2021 [Chapter
15.07.1 (a), 15.7.2 read with 15.7.3 (vi)] in a „D‟ rated colony, a 18 meters
ROW is required in front of a nursery school and which has to be restricted
to the ground floor level.
18 This Court is of the view that Chapter 15 would not be applicable to
the case in hand as the plot in question is not a residential plot. Chapter 15
relates to residential areas as is evident from a reading of 15.2 and 15.3 lays
down the principle of identification of mixed use areas in existing urban
areas and urbanizable areas. This Chapter is not applicable to the instant
case. The stand of respondent No. 2 (NDMC) is correct on this score; their
stand being that it is Chapter 13 of MPD-2021 which would be applicable to
the present case. Chapter 13 deals with the social infrastructure which
includes facilities pertaining to health, education, sports, etc. This Court is
concerned with the aspect of education which is contained in Chapter 13.2.
Chapter 13.2 sub-clause (vi) prescribes herein as under:-
"Nursery school may function as part of Primary School/Secondary
School/Senior Secondary Scholl whichever needed. Separate/exclusive
Nursery Schools are permitted in residential premises as per the Mixed use
policy"
19 Table 13.4 lays down the Development Control for Educational
Facilities. At serial No.2, the height of a nursery school can go up to 15
meters. It is not disputed that height of the present school does not exceed
that limit. The submission of the learned counsel for the petitioner that there
is contravention of Chapter 15.3 is thus an argument without any merit.
20 It is also not disputed that respondent No. 4 had applied for a sanction
for the building of his nursery school under the old MPD-2001 which was
vide his letter dated 10.05.2006 and which was granted on 09.01.2007. All
this was before the coming into force of the new MPD-2021. Petitioner
again applied for a revised sanctioned plan on 29.07.2007 under MPD-2021.
This plan after a rejection was finally sanctioned on 18.07.2008. Respondent
No.1 had also vide his communication dated 27.06.2013 granted time to the
Society to complete the construction of their nursery school. This letter is
also a part of the record and is not a disputed document. The fact that the
ATMCD had initiated certain proceedings against respondent No. 4 and had
asked him to demolish all the unauthorized and illegal construction
contained upon it and compliance of the same has been effected and
respondent No. 4 has thereafter deposited the compounding fee on
18.01.2016 is also a matter of record.
21 In this background, this Court is not able to decipher the argument of
the learned counsel for the petitioner which is largely to the extent that all
this activity is in connivance of respondent No. 4 with respondents No. 1 &
2. This connivance cannot be seen anywhere from the record.
22 NS-2 is admittedly earmarked for nursery school. Its user till date
remains the same. The fact that respondent No. 4 had got this plot allotted
after its due sub-division is also a matter of record. This was way back in the
year 2001. The fact that respondent No.1 had allotted it (in view of the
earlier allotment) is also an admitted position. The fact that respondent No.
4 had applied sanction of his building plan under the old MPD-2001 and
which was allowed under the older master plan and thereafter the renewed
sanction plan under MPD-2021 was also sanctioned are also admitted facts.
Chapter 13.4 of MPD-2021 clearly prescribes that a nursery school can go up
to a height of 15 meters. The submission of the learned counsel for the
petitioner that the practice of doing away with nursery schools in the layout
plan is dis-continued (in terms of Table 13.4 and serial No.1 as the same is
permissible in mixed use) is an argument without any merit as admittedly
this plot has been allotted to respondent No. 4 (after its due sub-division in
the year 2001) on 03.06.2005 which is much prior in time to the coming into
force of MPD-2021 (which was on 07.02.2007) and therefore it cannot be
disturbed.
23 In this context, the observations of the Division Bench in Harish Batra
(supra) wherein a similar argument had been put up was answered herein as
follows:-
"As far as the MPD-2021 having done away with the earmarked plots
for nursery school is concerned, the allotment in favour of TES is of prior to
the coming into force of MPD-2021 and cannot be disturbed on account
thereof. The said allotment will be governed by the policies framed by the
DDA/Government from time to time with respect t allotments already made."
24 The submission of the petitioner Malti Jain (in W.P. (C) No.
5883/2015) that this school faces her house and it is not only awkward but
also extremely annoying to have a multi-storey school in front of her
residential house which has disturbed her ingress and egress into the house is
also an argument (even presuming it to be correct) which has little merit. At
the cost of repetition this plot (NS-2) has always been earmarked in the
Master Plan, Zonal Development Plan and Layout Plan for a nursery school.
Petitioner Malti Jain had bought her plot with her eyes open. She was fully
aware at the time when she purchased this plot (in front of her house) that it
has been earmarked for a nursery school. She cannot have any grievance
now. It cannot be at asking of a particular resident that the user of the plot of
land can be changed. In fact this is also not her case. Her grievance is that
this allotment of land is against the byelaws of MPD-2021. This discussion
has already taken place and has been answered in the negative. In this
context the observation of Division Bench in Harish Batra (supra) would
again becomes relevant and reads herein as under:-
"There is another aspect of the matter. The said seven residents claim
to be the subsequent purchasers of the residential plots of land in the colony.
They acquired their plots with open eyes, of the said plot being earmarked
for a nursery school and of the likelihood of a nursery school coming into
existence. Infact the said nursery school would have come into existence but
for the interim order obtained by CCHBS in its own writ petition. It is not
this Court to enter into an inquiry as to the requirement of a nursery school.
The Newspapers are full of the difficulties in nursery school admissions and
certainly convey a dearth of schools vis-a-vis admission seekers thereto. We
therefore find it unpalatable that there is no need for a nursery school. There
is no basis whatsoever for the said claim made by the said handful of
residents of the colony."
25 The submission of the respondents that the petitioner Malti Jain is
venting out a private vendetta for the reason that she has been as Secretary
ousted of the Residents Welfare Association (RWA) which she was holding
is also a submission which cannot be ignored. The respondents have been
harassed continuously for no fault of theirs. These petitions are pending
since 2015.
26 The case of both the petitioners is clearly without any merit. Each of
these petition are accordingly dismissed with costs quantified at Rs.10,000/-
each.
INDERMEET KAUR, J
AUGUST 26, 2016
A
