Sri Guru Singh Sabha vs South Delhi Municipal ...
2016 Latest Caselaw 4375 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of decision: 7th July, 2016

+                                   W.P.(C) 4651/2014
       SRI GURU SINGH SABHA                      ..... Petitioner
                    Through: Mr. A.S. Chandhiok, Sr. Adv. with
                             Ms. Arneena Sharma and Ms. Sweta
                             Kakkad, Advs.

                                    Versus

       SOUTH DELHI MUNICIPAL CORPORATION
       AND ORS                                    ..... Respondents

Through: Mr. Gaurang Kanth and Mr. Sujoy Chatterjee, Adv. for SDMC.

Mr. Yash S. Vijay, Adv. for Mr. Sanjoy Ghose, Adv. for GNCTD.

Mr. Kush Sharma, Adv. for DDA.

Mr. Vinod Kumar Tiwari, Adv. for R-

5/UOI.

                         AND
+                              W.P.(C) 5817/2014

GREATER KAILASH-II WELFARE ASSOCIATION..... Petitioner Through: Mr. Sumit Chander, Adv.

Versus SOUTH DELHI MUNICIPAL CORPORATION ..... Respondent Through: Ms. Mini Pushkarna and Ms. Yoothica Pallavi, Advs.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. Both petitions concern a plot of land in the layout plan of the

residential colony of Greater Kailash, Part-II (GK-II) on which the

respondent no.1 South Delhi Municipal Corporation (SDMC) is going ahead

with the development / construction of a Community Centre-cum-Club and

residential accommodation for its employees. The petitioner in W.P.(C)

No.4651/2014 is a Society of the residents of the colony of GK-II which has

constructed and manages a Gurudwara adjacent to the said plot of land and

has filed this petition objecting to the said development / construction by

SDMC inter alia on the ground that the land aforesaid was ear-marked for

the purpose of a school and cannot be used for the purpose of a Community

Centre-cum-Club and residential accommodation for employees of the

SDMC and offering to itself establish a school on the said plot of land. The

petitioner in W.P.(C) no.5817/2014 is a Society, also consisting of residents

of the colony of GK-II and also objects to the construction / development

underway inter alia on the ground that the same would create a concrete

jungle to the prejudice of the existing residents of the colony.

2. W.P.(C) no.4651/2014 came up before this Court first on 28th July,

2014 when though notice thereof was issued but the interim relief sought of

restraining the SDMC from going ahead with the work of development /

construction on the said land not granted. However vide order dated 19th

November, 2014, the construction being carried out was made subject to the

further orders in the writ petition and it was clarified that the same would not

create any special equities in favour of the SDMC. Similarly, no interim

relief was granted in W.P.(C) No.5817/2014 also.

3. The aforesaid plot of land has a long history. The colony of GK-II in

which it is situated was developed by a private developer "DLF", after

having the layout plan thereof approved in the year 1959 from the Standing

Committee of the then Municipal Corporation of Delhi (MCD) and a

completion plan in pursuance thereto was approved in the year 1971. In the

said layout plan, the said plot was shown for community facilities. However

notwithstanding the colony having been fully developed and inhabited, use

of the said land for community facilities remained stalled owing to a dispute

between DLF, which besides the said colony of GK-II had also developed a

large number of other residential colonies in Delhi, and the MCD with

respect to the title of such sites sanctioned in each of the colonies for

community facilities. The said dispute remained pending in the Court till

1989. Ultimately, in the year 1989, a settlement was arrived at between

DLF and the MCD and in which settlement, the sites in different colonies

were inter alia divided / allocated between DLF and MCD and the subject

site fell to the allocation of MCD.

4. However thereafter also the aforesaid plot of land remained un-

utilised and it is the case of the petitioners that a part thereof was developed

by the MCD itself as „Udai Shankar Park‟ and the remaining land was used

by the residents, from time to time, for holding Diwali Utsav, Durga Puja,

etc.

5. The petitioner in W.P.(C) No.4651/2014 earlier filed W.P.(C)

No.4478/1994 pleading i) that at the time when it had established the

Gurudwara and when the residents of the locality had built their houses in

the colony of GK-II, the subject land was shown in the layout plan of the

colony for the purposes of a school; ii) that MCD had however on 28th

September, 1994 laid a foundation stone on the subject land for establishing

a public swimming pool; iii) that without issuing a statutory notice inviting

objections for changing the ear-marked purpose of the „school land‟ to

„swimming pool‟ and without the permission of the Delhi Urban Arts

Commission (DUAC) and without altering the sanctioned layout plan, the

land could not be used for a swimming pool; and, iv) that a school at the said

site was required for the residents of the colony and use of the land as

proposed for the swimming pool was contrary to law.

6. The aforesaid W.P.(C) no.4478/1994 was disposed of on 29th April,

1998 recording the statement of the counsel for the MCD that it will not

change the user of the subject land except in accordance with law and till

such change, no construction activity shall be carried out on the plot.

7. W.P.(C) No.4651/2014 was filed, pleading:

(i) that on 17th November, 2003, a note was prepared by the Commissioner, MCD suggesting that the subject land originally meant for school be utilised for construction of staff quarters for MCD including the Commissioner‟s residence;

(ii) that through a Standing Committee resolution of MCD dated 30th July, 2003, a modification of the layout plan of the colony was sought to be done by carving out a plot measuring 2000 sq. mtrs. from the subject land for construction of a community hall for the use by MCD as a club;

(iii) that the Standing Committee of the MCD, vide resolution dated 24th March, 2006, purportedly in exercise of powers under Section 313 of the Delhi Municipal Corporation Act, 1957 (MCD Act), approved utilisation of the land in question for construction of official residence of the Commissioner of MCD

and staff quarters and for utilisation of the proposed community hall as community hall / recreational club for MCD staff;

(iv) however Section 313, falling in Chapter XV of the MCD Act, deals with the issue of streets only;

(v) that the Commissioner, SDMC (in whose jurisdiction the subject land fell on trifurcation of MCD) had vide letter dated 18th April, 2013 to the Municipal Secretary objected to allocation of Rs.10 crores only against the project cost of Rs.92 crores for the aforesaid construction / development on the MCD lands;

(vi) that from the aforesaid letter, it is also borne out that in addition to staff quarters and the Commissioner‟s residence, there was a plan to construct a 19 floor tower to accommodate 38 numbers Type V quarters and 40 numbers Type VI quarters plus a 20 floor tower;

(vii) that the area is already highly congested and such massive development / construction thereon would further congest the area;

(viii) that though residents of the colony protested but foundation stone for the proposed community centre was laid on 14th June, 2014 and some fully grown trees on the land were felled on 26th June, 2014;

(ix) that the Residents Welfare Association (RWA) of GK-II filed Original Application No.132/2014 before the National Green Tribunal (NGT), Principal Bench, New Delhi against the felling of trees and the NGT granted a status quo order and directed that no further felling of trees be carried out; and,

(x) that the land is ear-marked for a school which is required and which a number of entities were willing to establish.

8. The pleadings in W.P.(C) No.5817/2014 are similar save that in

addition, it is pleaded:

(i) that it is a term of the Settlement Deed dated 24th July, 1989 between the MCD and the DLF that the sites for school, health centres and community centres would be utilised for the purposes shown in the approved lay-out plan and that the community centres and public building sites of GK-II could be used for construction of community hall or any other user permissible under the public and semi-public facilities including social and cultural institutions as per the zoning regulations of the master plan;

(ii) that as per the approved lay out plan of the colony, subject land was ear-marked for three pre-primary schools, one basic primary school and one religious building;

(iii) that vide Resolution No.312 dated 30th July, 2003, the approved layout plan of the colony was modified to provide for construction of a community hall on the subject land and which was further modified vide Resolution No.75 dated 1 st June, 2004 to provide that the said community hall would be made part of the complex to be used as community hall / recreational club for the MCD staff;

(iv) that the Resolution dated 1st June, 2004 is also contrary to the Settlement Deed dated 24th July, 1989 between MCD and DLF;

(v) that there is no provision in the MCD Act that the open space left for school or park in a private colony can be used by MCD as an owner for its own purpose;

(vi) that the SDMC is merely the custodian of the said land and cannot claim any ownership rights with respect thereto; and,

(vii) that the SDMC is misusing public money for constructing a lavish recreational club for its staff in the garb of making a community hall for residents.

9. It is the stand of the respondent no.1 SDMC in its counter affidavit in

W.P.(C) No.4651/2014 i) that the aforesaid site measuring about 3.5 acres

located at E-Block, Greater Kailash, Part-II was taken over by erstwhile

MCD from DLF along with 75 other sites under amicable settlement

approved by the Standing Committee vide Resolution No.383 dated 3 rd May,

1989; ii) that later on, MCD vide Resolution dated 1 st June, 2004 modified

the layout plan of GK-II by utilising the site at E-Block for the construction

of MCD staff quarters including the Commissioner‟s residence with the

condition that the plot measuring 2000 sq. mtrs. approved by the Standing

Committee vide Resolution No.312 dated 30th July, 2003 for construction of

community hall shall be part of the complex; iii) that the aforesaid

modification of the layout plan was without any change in the Zonal

Development Plan or Master Plan of Delhi (MPD) inasmuch as, as per the

Zonal Development Plan of Zone „F‟ under MPD-2001 and MPD-2021, the

land use of the site under reference is Gross Residential Area and the

community facilities sites are permitted in Gross Residential Area; iv) that

moreover this is an activity related to layout level and not Zonal Plan /

Master Plan level; v) that the petition insofar as impugning the modification

of the Layout Plan is not maintainable as an appeal lies to the Appellate

Tribunal, Municipal Corporation of Delhi (ATMCD) thereagainst under

Section 347B of the MCD Act; vi) it has been held by this Court in Shanti

Devi Gupta Vs. Delhi Development Authority AIR 1994 Delhi 229 that for

change in the Layout Plan, no approval or sanction of the Central

Government is required; vii) that it has been held by this Court in W.P.(C)

No.9077/2005 titled RWA Guru Nanak Pura Vs. MCD that once the

prescribed land use as per the Zonal Development Plan and the Master Plan

is residential, no error capable of interference can be found in the resolution

of the MCD sanctioning residential plots where earlier a park existed and

that the remedy before the Appellate Tribunal being available against

modifications of Layout Plan, writ petition is not maintainable; viii) that the

education department has given no objection for developing the school sites

for Recreation Centre as there is no demand for opening a Primary School in

GK-II; ix) that no permission from DUAC is required to be taken with

respect to the subject land as in terms of the decision taken in the meeting

held on 25th January, 2006 of DUAC, its functions shall cover consideration

of proposals pertaining to development of district centres, sub-district

centres, community centres, areas ear-marked for Government,

administrative buildings and for residential complexes, public building /

complexes on more than 2 hectares in area or taller than 26 meters in height

or having plot area more than 1000 sq. mtrs. abutting 24 mtrs. or more wide

road; x) that the area of the subject land is not more than 2 hectares and the

building as proposed to be constructed is not taller than 26 mtrs. and the road

abutting the subject land is not 24 mtrs. or more wide; the road abutting the

subject land is only 18 mtrs. wide; xi) that the respondent no.1 SDMC has

started the work of building housing complex for its employees on the

subject land only after following due process of law and after obtaining

requisite approval from the concerned authorities; xii) denying that any note

as alleged was prepared on 17th November, 2003, xiii) that NGT has rejected

all the contentions of the RWA; and, xiv) that the area of GK-II and its

neighbouring area of Chitranjan Park already have sufficient number of

schools and there is no shortage of schools.

10. The respondent no.4 Delhi Development Authority (DDA) in its

counter affidavit in W.P.(C) No.4651/2014 has merely pleaded that as per

Clause 3(11) of MPD-2021, Layout Plans / Site Plans and Building Plans

shall be approved by the Local Bodies and Authorities in their areas of

jurisdiction and has reproduced Table 4.2 titled "Infrastructure Requirement

for layout at Residential Neighbourhood level of the MPD-2021" and as per

which there has to be one Primary School on land ad-measuring 0.20 to

0.40 hectares and one Senior Secondary School on land ad-measuring 0.60

to 0.80 hectares and further stated that the land is situated in the jurisdiction

of MCD and thus the DDA has no role.

11. The respondent no.2 Government of NCT of Delhi (GNCTD) in its

counter affidavit in W.P.(C) No.4651/2014 has also taken a stand that the

averments in the petition pertain to local body and do not concern the

respondent no.2 GNCTD.

12. No counter affidavit has been filed by the respondent no.3 DUAC or

the respondent no.5 Union of India (UOI).

13. No counter affidavit has been filed by the sole respondent SDMC in

W.P.(C) No.5817/2014 though written synopsis of submissions supported by

documents has been filed.

14. Hearing of the petitions was commenced on 20th July, 2015 when a

number of queries were raised from the counsels. Hearing was concluded on

14th January, 2016 and judgment reserved.

15. It was the contention of the senior counsel for the petitioner in

W.P.(C) No.4651/2014:

(a) that Section 313(1)(b) of the MCD Act requires a Layout Plan to show the reservation or allotment of any site for any "street, open space, park, recreation ground, school, market or any other public purpose";

(b) that a reservation in the Layout Plan for a school cannot be changed;

(c) that even the DDA in its minutes of the Second Technical Committee held on 10th February, 2014 permitted alternate use of vacant / un-allotted nursery school sites in developed Zones A to H and urban extension (Dwarka, Rohini & Narela Project) only for park if on road below 9 mtrs. and prohibited community recreational club thereon;

(d) that the Layout Plan insofar as reserving the sites for open spaces, park, recreational ground, school, market or any other public purposes cannot be revised because the rights in the said land in favour of the public are created at the time of such reservation being sanctioned;

(e) that SDMC is not the owner of the subject land and is merely a caretaker;

(f) that MCD previously having not permitted DLF change of user with respect to the subject land, cannot now itself change the user;

(g) that under the Settlement Deed dated 24th July, 1989 between DLF and MCD also, the sites for schools, health centres and community centres which had fallen to the share of DLF were to be utilised for the purposes shown in the approved Layout Plan of the colonies and could not be used for construction of

community hall or any other use as permissible under the public and semi-public facilities including social and cultural institutions as per Zoning Regulations of Master Plan;

(h) had the subject site fell to the share of DLF in the said settlement, the purpose thereof could not have been changed and since MCD extracted the said site from DLF, under the Settlement, for itself, it also is not entitled to change the purpose of the site which has fallen to its share;

(i) that even DLF who was the owner of the entire land underneath the colony of GK-II, upon reservation of the subject site for a school, was left with no absolute rights as owner therein;

(j) that the subject site even otherwise has vested in the MCD only for the purpose of maintenance; attention in this regard is invited to Sections 298 and 299 of the MCD Act particularly to proviso to Sub-Section (2) of Section 299 of the MCD Act requiring a reasonable opportunity to the residents likely to be affected to be given;

(k) that the Resolution dated 1st June, 2004 became stale upon no action in terms thereof being taken till the year 2014 as the same was based on assessment then done of there being no need for a school and the need for a school changed in 10 years;

(l) reliance was placed on Arjun Singh Vs. Deputy Mal Jain ILR (1982) I Delhi 11, D.L.F. Housing & Construction (P) Ltd. Vs.

Delhi Municipal Corporation ILR (1969) Del 1055 (DB) and Fomento Resorts and Hotels Ltd. Vs. Minguel Martins (2009) 3 SCC 571 on the concept of „Trust‟ in law; it was clarified that though the Division Bench, in appeal, reversed Arjun Singh supra but without examining Section 313 of the MCD Act;

(m) in the context of use of the word "reservation" in Section 313(1)(b) of the MCD Act, attention to the definition of "reservation" in Black‟s Law Dictionary, Fifth Edition was invited;

(n) reference was made to Green Park Association (Regd.)Society Vs. Corporation of Delhi 2000 V AD (Delhi) 561 where, relying on Pt. Chet Ram Vashist Vs. Municipal Corporation of Delhi (1995) 1 SCC 47 it was held that a land for primary school vested in MCD for maintenance could not, inspite of change of land use thereof, be used for setting up office of the Executive Engineer of the MCD as there was a difference between ownership and vesting of land in MCD for management purposes;

(o) D.L.F. Qutab Enclave Complex Educational Charitable Trust Vs. State of Haryana (2003) 5 SCC 622, to which attention of the counsels was drawn in the order dated 20th July, 2015 does not dilute Pt. Chet Ram Vashist supra;

(p) Greater Kailash-II Welfare Association Vs. Municipal Corporation of Delhi 42 (1990) DLT 87, to which also attention of counsels was invited to in the order dated 20 th July, 2015, does not affect the rights asserted by the petitioner in these petitions;

(q) reference was made to Shri Girish Vyas Vs. The State of Maharastra (2012) 3 SCC 619 where, the shifting of an area reserved for a amenity like primary school in favour of kin of Chief Minister was quashed observing that the spaces for public amenities, particularly educational institutions, are essential for a decent urban life and that the planning process therefore assumes significance in this behalf and it was argued that the said observations would be binding on this Court as law under Article 141 of the Constitution of India;

(r) attention was also invited to Articles 21A, 45, 243Q(C) and Schedule II of the VIIth Schedule to emphasise that there is a constitutional mandate for education and it was argued that a statutory provision has to give way to the constitution;

(s) attention was also invited to Section 42(r) of the MCD Act making establishment, maintenance and aid to schools for primary education an obligatory function of the MCD;

(t) attention was invited to the provisions of the MPD-2021 to contend that inspite of increase of as much as 40.6% in the

population of elderly and children, MCD / SDMC could not have held that there is no need for a school;

(u) it was argued that the appellate remedy is not available because the petition is for enforcement of fundamental rights and the action of the MCD/SDMC is without jurisdiction;

(v) reliance is placed on Ahuja Property Developers (P) Ltd. Vs. M.C.D. 42 (1990) DLT 474 to contend that just like in the context of Section 345A of the MCD Act, the Courts have read an opportunity of hearing implicit in an action for sealing, so would the position be in the case of change of Layout plan;

(w) reliance was placed on Union of India Vs. Tantia Construction Pvt. Ltd. (2011) 5 SCC 697 and on Shiv Kumar Chadha Vs. Municipal Corporation of Delhi (1993) 3 SCR 522 to contend that alternative remedy is not an absolute bar to the invocation of writ jurisdiction; and,

(x) that the denial by the SDMC in its counter affidavit of the note dated 17th November, 2003 of the Commissioner of MCD is contrary to the documents filed by the petitioner.

16. Per contra, the counsel for the respondent no.1 SDMC has argued:

(i) that the writ remedy is not available in view of the alternative remedy of appeal before the ATMCD;

(ii) that the proposed community hall on the subject land is also for the residents of the colony; a copy of the Resolution No.352 dated 24th February, 2014 of the MCD was handed over in this regard;

(iii) that under the Settlement Deed dated 24th July, 1989 between MCD and DLF, MCD became the full and complete owner of the subject site and all the rights, title and interest of DLF, which was admittedly the owner thereof, thereunder stood transferred to the MCD;

(iv) that the argument of public trust is misconceived;

(v) that the Layout Plan is within the domain of the MCD;

(vi) that in the Zonal Development Plan of the locality, the use of the subject land is prescribed for Gross Residential Purpose;

(vii) that the change in the Layout Plan does not involve the Zonal Plan or the Master Plan;

(viii) attention was invited to the provisions of Chapter 17 titled „Development Code‟ of MPD-2021 and on the basis thereof also it was argued that the Layout Plan is within the domain of the MCD only;

(ix) reliance was placed on Delhi Land and Finance Universal Ltd.

Vs. Arjun Singh AIR 1986 Delhi 381 (DB) (this is the judgment in appeal from Arjun Singh Vs. Deputy Mal Jain

supra cited by senior counsel for the petitioner) where the challenge to the sale of two plots ear-marked for public building in the colony of Model Town also developed by DLF on the ground that the earmarking of the plot for public building created a trust and DLF was not entitled to sell the land and holding that no such trust was created; it was thus argued that the whole contention of the senior counsel for the petitioners relating to public trust is misconceived;

(x) reliance in this regard was placed on Greater Kailash-II Welfare Association (supra) where also the argument of public trust was rejected;

(xi) that the issue in Pt. Chet Ram Vashist (supra) was entirely different and the same has no applicability to the present controversy;

(xii) reliance was placed on Shanti Devi Gupta Vs. D.D.A. AIR 1994 Delhi 299 (DB) holding that departure from Layout Plan cannot be equated with violation of Master Plan or Zonal Development Plan which are statutory;

(xiii) reliance was placed on The State of Bombay Vs. R.S. Nanji AIR 1956 SC 294 holding that requisition of premises by Bombay Government to provide living accommodation for the employees of the State Road Transport Corporation was for a public purpose; attention in this regard was invited to Sections

43(n)&(o) and 55 of the DMC Act which are pari materia to the provisions of the Road Transport Corporations Act, 1950;

(xiv) reference was made to Lal Chand Public Charitable Trust Vs. Delhi Wakf Board 189 (2012) DLT 397 where it was observed that MCD / SDMC becomes the new owner of the plots allotted to it under the Settlement Deed dated 24th July, 1989;

(xv) it was argued that MCD / SDMC was thus fully entitled to change the Layout Plan.

17. The senior counsel for the petitioner, in rejoinder, argued:

(a) that the Layout Plan approved of the colony on 15 th April, 1966 was modified on 3rd May, 1989 to include additional land and to provide for construction of group housing where the same is under construction by DLF but in the said modification also the use of the subject land remained the same;

(b) that the Resolution dated 24th February, 2014 of the SDMC handed over by the counsel during the hearing was not mentioned in either of two counter affidavits dated 12th August, 2014 and 13th January, 2015 filed;

(c) that no credence can be given to the Resolution dated 24 th February, 2014 being without any pleadings;

(d) that Supreme Court in Pt. Chet Ram Vashist (supra) approved Arjun Singh (supra) wherein the contention of MCD was that

DLF, after reservation of the plot in the proposed layout plans for diverse public purpose mentioned, agreed to the use of the said plots for public purpose for the benefit of persons other than itself and for the accomplishment of those particular public purposes which were specified in the plan and in doing so necessarily divested itself of all the beneficial use of the plots and agreed to an obligation being annexed to itself in order to use the subject plots for the benefit of others and not for any other purposes and it was argued that MCD is bound by the said argument;

(e) that the transfer even if any of ownership by DLF in favour of MCD of the subject plot under the Settlement Deed dated 24th July, 1989 cannot be de hors the obligation attached to the said plot;

(f) that just like the lands underneath the streets vests in MCD only for the purpose of maintenance, so is the position with respect to lands which vested in the MCD / SDMC under the aforesaid settlement;

(g) that as per the special position enjoyed by Delhi under the Constitution of India, land continues to vest in the Union of India and does not belong to the State;

(h) that the SDMC, as a fiduciary holder of the land cannot exercise a right to construct thereon for its own purpose;

(i) that the Division Bench of this Court in Arjun Singh (supra) did not deal with Section 313 of the MCD Act;

(j) that the ratio in Pt. Chet Ram Vashist (supra) was only slightly modified in D.L.F. Qutab Enclave Complex Educational Charitable Trust (supra);

(k) attention was drawn to K.L. Sachdeva Vs. M.C.D. 2013 (136) DRJ 157 but which is not found to be of any relevance to the present case;

(l) that SDMC is a State within the meaning of Article 12 of the Constitution of India and even as owner of the subject land cannot change the purpose or use thereof thereby undoing the reservation made for public purpose;

(m) that there is more need for schools now than earlier;

(n) attention was invited to the letter dated 13th September, 1988 of the petitioner to the Lieutenant Governor of Delhi offering to construct the school on the subject land;

(o) that the Resolution dated 24th February, 2014 handed over by the counsel for the respondent no.1 SDMC during the hearing is without the backing of the Layout Plan and in the Layout Plan the land continues to be shown as a school and there is no community centre as is proposed;

(p) that the actions of the SDMC are also in violation of the Right of Children to Free and Compulsory Education Act, 2009;

(q) that SDMC could have at best changed the use from that of a primary school to a secondary school if there is no need for a primary school but could not have changed the use to residential as has been done;

(r) that the time prescribed for approaching the ATMCD has in any case been lost and the petitioner cannot now be relegated to the ATMCD.

18. The counsel for the petitioner and the counsel for the respondent

SDMC in W.P.(C) No.5817/2014 have adopted the arguments in W.P.(C)

No.4651/2014.

19. The rule, of jurisdiction under Article 226 of the Constitution being

not exercised if alternative efficacious remedy is available, is a flexible one

and does not create any absolute bar. These petitions having been

entertained, having remained pending in this Court for nearly two years,

interim order making the construction on the subject land subject to the

outcome of these petitions having been passed, and the counsels having been

heard fully on the merits of the controversy, no case for dismissal of the

petitions on the ground of availability of alternative remedy before the

ATMCD is made out. Even otherwise, I tend to agree with the contention of

the senior counsel for the petitioner in W.P.(C) No.4651/2014 that

considering the nature and grounds of the challenge by the petitioners to the

modification of the layout plan of the colony of GK-II, the challenge before

the ATMCD would not serve the purpose. ATMCD is not a Court but a

Tribunal of limited jurisdiction and can entertain a challenge to the

modification of the layout plan only on the grounds of the same being

contrary to the provisions of the Act and not on other grounds also as are

urged by the petitioners. I therefore do not find any merit in the objection of

SDMC as to the maintainability of the writ petitions.

20. Sections 312 and 313 of the MCD Act are as under:

"312. Owners' obligation when dealing with land as building sites--If the owner of any land utilises, sells, leases out or otherwise disposes of such land for the construction of buildings thereon he shall lay down and make a street or streets giving access to the plots into which the land may be divided and connecting with an existing public or private street.

313. Lay-out plans--(1) Before utilising, selling or otherwise dealing with any land under section 312, the owner thereof shall send to the Commissioner a written application with a lay- out plan of the land showing the following particulars, namely:--

(a) the plots into which the land is proposed to be divided for the erection of buildings thereon and the purpose or purposes for which such buildings are to be used;

(b) the reservation or allotment of any site for any street, open space, park, recreation ground, school, market or any other public purpose;

(c) the intended level, direction and width of street or streets;

(d) the regular line of street or streets;

(e) the arrangements to be made for levelling, paving, metalling, flagging, channelling, sewering, draining, conserving and lighting street or streets;

(2) The provisions of this Act and the bye-laws made thereunder as to width of the public streets and the height of buildings abutting thereon, shall apply in the case of streets referred to in sub-section (1) and all the particulars referred to in that sub- section shall be subject to the sanction of the Standing Committee.

(3) Within sixty days after the receipt of any application under sub-section (1) the Standing Committee shall either accord sanction to the lay-out plan on such conditions as it may think fit or disallow it or ask for further information with respect to it. (4) Such sanction shall be refused--

(a) if the particulars shown in the lay-out plan would conflict with any arrangements which have been made or which are in the opinion of the Standing Committee likely to be made for carrying out any general scheme of development of Delhi whether contained in the master plan or a zonal development plan prepared for Delhi or not; or

(b) if the said lay-out plan does not conform to the provisions of this Act and bye-laws made thereunder; or

(c) if any street proposed in the plan is not designed so as to connect at one end with a street which is already open.

(5) No person shall utilise, sell or otherwise deal with any land or lay-out or make any new street without or otherwise than in conformity with the orders of the Standing Committee and if further information is asked for, no step shall be taken to utilise, sell or otherwise deal with the land or to lay-out or make the street until orders have been passed upon receipt of such information:

Provided that the passing of such orders shall not be in any case delayed for more than sixty days after the Standing Committee has received the information which it considers necessary to enable it to deal with the said application.

(6) The lay-out plan referred to earlier in this section shall, if so required by the Standing Committee, be prepared by a licensed town planner."

21. The undisputed facts are that at the time of sanction of the layout plan

of the colony of GK-II, the subject land was reserved, within the meaning of

Section 313(1)(b), for construction of a school and MCD / SDMC has

modified the layout plan to change the prescribed user of the said land from

that as a school to that as for residential accommodation for its employees,

community hall etc. and SDMC is now putting the land to use for its own

purpose i.e. of housing its employees as compared to use as a school for

benefit of public.

22. The questions, which according to me, arise for adjudication are:

(I) Whether layout plan once sanctioned, can be so modified;

(II) If the answer to the above question is in the affirmative, whether such modification also extends to change of user prescribed of land reserved for the purposes mentioned in Section 313(1)(b) supra and if so, whether such modification is limited from one of the purposes prescribed therein to another or the modification can also be by changing the user for any other purpose;

(III) Whether the user of the subject land, as modified, is within the purpose mentioned in Section 313(1)(b) of the Act;

(IV) Whether SDMC is merely a custodian of the said land or is the owner thereof.

23. Since the counsels have contended the aforesaid questions to be no

longer res integra, I straightway proceed to examine the judgments cited in

this respect.

24. The Division Bench of this Court in Arjun Singh supra was

concerned with a challenge to the sale, by DLF Land and Finance Universal

Limited, which had developed the colony of Model Town in Delhi, of two

plots ear-marked for public building in the layout plan sanctioned by the

MCD of the said colony, to M/s Lal Chand Public Charitable Trust which in

turn had granted lease thereof in favour of Jain Sabha Dharamarth Trust and

Aggarwal Dharmarth Trust. The learned Single Judge of this Court (in

Arjun Singh Vs. Deputy Mal Jain supra) relying on Section 313(1)(b) of

the Act supra held that the setting aside of the land of the said two plots for

public purpose created a trust. On appeal, the Division Bench held that for

there to be a trust, there has to be confidence reposed in some other and a

mere declaration by the owner that he will hold land for public purpose does

not mean that a trust is created. The reasoning given by the learned Single

Judge, of a "constructive trust" and of a "resulting trust" was also not agreed

with. It was further held that just as a developer or a coloniser cannot be

compelled to also construct houses on the plots ear-marked in the layout

plan for residences and or to construct and maintain streets marked in the

layout plan and the land underneath streets has to vest in the MCD and the

land marked for park etc. would also have to be in the hands of some other

public body and just like the land ear-marked for markets could be

developed into market either by the developer or coloniser or by anyone to

whom he may sell that land, so is the reservation of plots for making a

public building; the developer or coloniser is not required to develop the

public building himself. Accordingly, sale of the plots to M/s Lal Chand

Public Charitable Trust and the leasing by M/s Lal Chand Public Charitable

Trust of the plots to other public charitable trusts was upheld with the rider

that such plots could be utilized only by a charitable body for a charitable

building and it was further held that a building which is used for a public

purpose will still retain the character of utilisation of the plot for public

purpose. The senior counsel for the petitioner is thus not correct in saying

that the Division Bench in Arjun Singh supra did not examine Section

313(1)(a) and (b) of the Act.

25. The Division Bench of this Court in Greater Kailash-II Welfare

Association supra was concerned with a challenge to the resolution dated 3rd

May, 1989 of the Standing Committee of the MCD followed by the

Settlement Deed dated 24th July, 1989 supra between DLF and MCD on the

ground that by the said Settlement Deed the rights of the residents of the

colony of GK-II were adversely affected and that undue favour had been

shown to DLF and that the layout plan once sanctioned of the colony could

not be altered. The Division Bench found that MCD, while sanctioning

layout plan of the colonies developed by DLF had ear-marked open spaces

therein for parks, roads and other services or for public utility building and

as many as ten litigations were pending between DLF and MCD with respect

to the said open sites which according to MCD were to be transferred by

DLF to MCD and according to DLF were not so required to be transferred to

MCD. The Division Bench noticed the earlier judgment of the Division

Bench of this Court in Arjun Singh supra holding that the ear-marking of

the plots would not preclude DLF from transferring the plots and held (i)

that the Settlement Deed aforesaid was to bring to an end litigation of the

last 25 years and during which litigation all such sites in all the colonies had

remained un-utilised; (ii) that DLF was the owner of the land on which the

colonies had been developed; (iii) that the settlement was for the benefit of

public, to enable the said sites to be utilised and there was no question of any

fraud; iv) that the power of the MCD under Section 313 to sanction a plan,

by virtue of the General Clauses Act, 1897 includes the power to amend the

layout plan; (v) as long as the amended layout plan is in accordance with the

Bye-laws and other rules and regulations, there can be no objection thereto;

and, (vi) that the Settlement Deed was not in violation of any law.

26. The question with which the Supreme Court was concerned in Pt.

Chet Ram Vashist supra was, whether in the absence of any provision in the

MCD Act empowering MCD to sanction the plan for building activities with

the condition that open spaces for parks and schools be transferred to the

MCD free of cost, MCD was entitled to demand the same. The facts in

which the said question arose were i) that in the layout plan sanctioned for

the colony, the water supply to the colony was to be by tube wells, till the

municipal supply of water reached the colony; ii) two plots in the colony

were set apart for installation of the tube wells; iii) in the layout plan,

restrictions were placed on building activities; iv) on municipal water supply

being made available to the colony, the developer / coloniser applied for

modification of layout plan to remove restrictions placed on building

activity; v) the Standing Committee of the MCD passed a resolution

allowing building activity subject to the condition that the open spaces for

parks and schools be transferred to MCD free of cost; the two plots reserved

for tube wells were also asked to be used as open park; and, vi) the

grievance of the developer / coloniser was with respect to the condition of

transfer of open spaces for parks and schools to the MCD free of costs.

Supreme Court after examining Section 313 supra held (a) that the same

does not entitle MCD to claim any right of interest in the property of the

owner; (b) that the power of MCD under Section 313(3) to impose

conditions has to be understood so as to advance the objective of the

provision and the purpose to serve which it has been enacted; (c) MCD has

been given a right to examine that the layout plan is not contrary to any

provision of the Act or Rules framed thereunder; (d) for instance, MCD

thereunder, can impose conditions like leaving an open space or require that

the length and width of the rooms shall not be less than a particular

measurement or that a coloniser shall have to provide amenities and facilities

to those who shall purchase land or building in the colony but does not

entitle the MCD to impose a condition for transfer of the land in favour of

MCD free of cost; (e) the power to impose conditions cannot be construed to

mean that MCD, before sanctioning a layout plan cannot claim that it will

sanction only if owner surrenders a portion of the land in MCD‟s favour free

of cost; (f) that would be violation of civil rights which vest in every person

to own and hold land; (g) the Resolution of MCD directing owner to transfer

land reserved for tube wells, parks, school in favour of MCD free of cost

was depriving the owner of his property and vesting the same in favour of

MCD, against the law; (h) MCD, as custodian of civil amenities and services

can only claim a right to regulate, manage and supervise and look after such

amenities; (i) that reserving any site for any street, open space, park, school

etc. in a layout plan is normally a public purpose as it is inherent in such

reservation that it shall be used by the public in general; (j) the effect of such

reservation is that the owner ceases to be a legal owner of the land in dispute

and he holds the land for the benefit of the society or of the public in

general--it may result in creating an obligation in the nature of a trust and

may preclude the owner from transferring or selling his interest in it and the

interest which is left in the owner is a residuary interest which may be

nothing more than a right to hold that land in trust for the specific purpose

specified in the sanctioned plan but the same still does not entitle the MCD

to claim that the land so specified should be transferred to it free of cost; (k)

MCD, by virtue of the land being specified as open space in the layout plan,

may get a right as a custodian of public interest to manage it in the interest

of the society in general but the right to manage as local body is not the

same thing as to claim transfer of the property to itself. However, finding

that the developer / coloniser had not immediately rasied objection in this

regard and that MCD had been exercising rights over the land for long and

finding it not appropriate to disturb the settled state of affairs, it was directed

that MCD shall continue to exercise such rights over the land which was ear-

marked for school, park etc. but would not change the user thereof and the

said land shall be in the beneficial enjoyment of the residents of the colony

concerned.

27. It would thus be noticed, that the question with which these petitions

are concerned, viz. whether a reservation under Section 313(1)(b) once done

for a particular purpose can be changed for another purpose specified therein

or removed i.e. by prescribing the use of that land for a private purpose, as

compared to public purpose, did not fall for consideration in either of the

above cases. What the aforesaid judgments answer is, only question no.I of

the questions framed by me in para 22 above i.e. that the layout plan once

sanctioned, can be modified. It was held so expressly by the Division Bench

in Greater Kailash-II Welfare Association supra and Pt. Chet Ram

Vashisht supra also was a case of modification of layout plan and the

Supreme Court, though not faced with the issue, did not hold that layout plan

once sanctioned could not be modified.

28. Once, there is no bar to the modification / alteration of a layout plan, I

see no reason to limit the said power to Clauses (a),(c),(d) & (e) of Section

313(1) and to hold that the power of such modification / alteration does not

extend to the reservation under Section 313(1)(b) of the Act. There is

nothing in Section 313 or in any other provision to suggest so. The

reservation under Section 313(1)(b) of the MCD Act is not as per the ipsi

dixit of the developer / coloniser or of the Standing Committee of MCD.

The developer / coloniser is ordinarily interested in having the maximum

permissible area available for sale / development into residential and

commercial and would be interested in reserving only the minimum

prescribed area for streets, open spaces, parks, recreation grounds, schools,

markets or for any other public purpose and would not voluntarily reserve an

area in excess thereof, and for which he reaps no price, for such public

purposes. MCD also, cannot insist upon the developer / coloniser reserving

more than the prescribed area. Supreme Court, in Pt. Chet Ram Vashisht

supra also held that reservation of sites for streets, open spaces, parks,

schools etc. has to be in accordance with the prevalent bye-laws or other

parameters prescribed. If with the passage of time or for any other reason (as

in Pt. Chet Ram Vashist supra, where the need for tube well for which the

plot was ear-marked disappeared with the passage of time) the parameters of

the area required to be reserved for streets, open spaces, parks, recreation

grounds, schools, markets or for any other public purpose changes or the

need therefor disappears, I see no reason to hold that notwithstanding the

same, MCD or developer / coloniser are precluded from seeking such

modification. In fact, a situation may also arise where the residents

themselves may want the user to be changed as per the changed needs and

requirements of public/society.

29. The argument of the petitioners however is that once such a

reservation is made for a public purpose, rights in favour of public are

created in such land / sites and which cannot be taken away by modification

of layout plan. I do not agree. As aforesaid, though a Single Judge of this

Court in Arjun Singh Vs. Deputy Mal Jain supra held so but the Division

Bench in appeal, in Delhi Land and Finance Universal Ltd. Vs. Arjun

Singh supra held that there is no such trust created. I do not agree with the

contention of senior counsel for the petitioner that Pt. Ceht Ram Vashisht

supra holds otherwise. Though this Court, in that case had held (see

placitum „h‟ at page 50) that a fiduciary relationship in the nature of a trust

arises and the coloniser ceases to have the beneficial interest in the lands so

reserved for public purpose and that the beneficial enjoyment of said land

after sanction of layout plan vests in third parties but the Supreme Court held

the said reasoning of this Court to be not correct (see placitum „h‟ page 54)

and held such restriction to be only placing a bar on exercise of power by the

coloniser as owner on dealing with the reserved land except in accordance

with the resolution i.e. for the benefit of public in general and to this extent

creates an obligation in the nature of a trust and may preclude the coloniser

as owner from transferring or selling his interest in it but not interfering with

the ownership rights of the coloniser therein.

30. I may at this stage mention that Supreme Court in D.L.F. Qutab

Enclave Complex Educational Charitable Trust supra has held that

reservation of sites for construction of schools, community buildings etc.

while granting licence to a developer / coloniser for setting up of a colony

does not bar the developer / coloniser from transferring the said sites and

further held that the transfer would be subject to the same statutory

obligations which were placed on the developer / coloniser. It thus appears

that the reasoning given by the Division Bench of this Court in Arjun Singh

supra was approved of by the Supreme Court. In Pt. Chet Ram Vashisht,

Supreme Court was not directly concerned with the said issue and had only

observed that the coloniser „may‟ not be entitled to sell his interest in

reserved land.

31. It would thus be seen that the act of „reservation for public purpose‟

under Section 313(1)(b) does not divest the coloniser as owner of his

ownership rights and does not vest such ownership rights in the public so as

to say that the coloniser having lost ownership cannot take the benefit of

having the land which was so „reserved‟, „deserved‟, if has become

otherwise permissible in law or that the public only, after the initial

reservation, can deal with the said land. The „reservation‟ is only imposing

restrictions on ownership rights of coloniser and if the said restrictions are

no longer required to be continued, the coloniser as owner can apply for

removal thereof. Pt. Chet Ram Vashisht supra is not a precedent for the

proposition that „reservation‟ under Section 313(1)(b) is irreversible.

32. I therefore conclude and answer question no.II framed in para 22

above by concluding that the power of alternation / modification of layout

plan extends to, in accordance with prevalent bye-laws / needs /

requirements, change of user of land earlier reserved for one of the purposes

under Section 313(1)(b), not only to any other purpose specified therein but

also for other purposes not falling therein. Such interpretation of Section

313(1)(b), according to me is also in public interest as I feel that any land, of

which no more is being produced, should not be shackled so as to prevent

use thereof as per the needs from time to time of the fast changing society.

33. That takes me to the merits of the modification to the layout plan

effected by the MCD. The senior counsel for the petitioner has not drawn

attention to any provision of the contemporaneous parameters prescribed,

prescribing a school / additional school for a colony of the size of GK-II. It

is only generally argued that the need for schools cannot disappear. As

against that, is the stand of MCD as a public body and which as per

judgments aforesaid also, is the custodian of such public rights, that there is

no need for such a school. In fact, the petitioners have not even shown any

provision of the time when the said layout plan was sanctioned, requiring the

reservation of a plot, as the size of the subject plot, for a school and have not

argued that the said provision has not changed. It cannot be lost sight of that

the layout plan making such reservation was sanctioned more than half a

century ago in the year 1959 and since then Delhi, which was a city, has

expanded to National Capital Region, MCD has been trifurcated and not

only have there been physical / infrastructural changes but also societal

changes in the needs, requirements and aspirations of the people. The

petitioners cannot obstruct a change without pleading and proving that the

same is contrary to prevalent parameters for a colony of the size and locale

of GK-II and which I am afraid the petitioners have failed to do. Petitioners

pegged their case only on the doctrine of „trust‟ and in which I have found

no merit.

34. Though the modification of layout plan was also alleged to be

contrary to the provisions of DDA and DUAC Acts but the said contention

also could not be substantiated.

35. Though in the light of the aforesaid view taken, need to adjudicate the

question III, framed in para 22 above i.e. whether providing for residence for

MCD employees is a public purpose or not within the meaning of Section

313(1)(b) of the Act, does not arise but for the sake of completeness, I may

state that in my view it does not qualify so. As has been clarified in Pt. Chet

Ram Vashist supra qua the words "on such conditions" in Section 313(3), so

also, in my view, the words „public purpose‟ in Section 313(1)(b) can only

mean purpose for the benefit of the future residents of the colony and which

though may include land for an electric sub-station or for a pump room or

tube well as in Pt. Chet Ram Vashist supra but can certainly not include

residence for the employees of MCD, particularly when the said employees

are not stated to be required to be residing in the colony for the purpose of

rendering municipal services to the residents of the colony only.

36. That takes me to the nature of the title of MCD to the said land.

37. It follows from Pt. Chet Ram Vashist supra that the developer /

coloniser remains the owner of the land reserved under Section 313(1)(b) but

which ownership is made subject to the said restrictions/reservation.

Following the said logic, upon transfer of the land under the Settlement

Deed dated 24th July, 1989 to MCD, MCD became the owner of the said

land, subject to the restrictions aforesaid. However, once the said

restrictions are removed, MCD became free to use the land as owner thereof

for whatsoever purpose it deems fit. No merit is found in the contention of

the senior counsel for the petitioner, of there being anything to the contrary

in the Settlement Deed dated 24th July, 1989. Rather, a reading of the said

Settlement Deed shows the rights as held by DLF in the subject land having

been transferred to MCD. Since, DLF was the owner subject to restrictions,

the same has to be the status of the MCD.

38. I am even otherwise of the view that at least the petitioner in W.P.(C)

No.5817/2014, who was also the petitioner in Greater Kailash-II Welfare

Association supra, is estopped from raising the said issue. The said

petitioner had challenged the settlement deed, under which SDMC claims

rights in the land, and failed therein. One of the arguments of the petitioner

therein was of the settlement deed being violative of Chapter 20C of the

Income Tax Act, meaning the petitioner was also admitting the settlement to

be by way of change of ownership. The petitioner then did not make any

claim of vesting of the land irreversibly in public. The petitioner now is

barred from contending so, on the principles of constructive res judicata and

issue estoppel. The petitioner in W.P.(C) No.4651/2014 also represents

interest of the same persons as petitioner in W.P.(C) No.5817/2014 and is

equally bound.

39. That brings me to Green Park Association (Regd.) Society supra. In

that case, a decree was passed restraining MCD from using a plot of land

ear-marked in the layout plan of the colony for the purpose of a school for

any other purpose. In opposition to the execution of the said decree, it was

pleaded that subsequent to the decree, the layout plan had been modified to

change the purpose of the land from that of a school to that of for the

purpose of an office of the Executive Engineer of the MCD. It was held that

modification of the layout plan was in violation of the decree. It was further

held that MCD being not the owner of the land could not have used the land

for its own purpose.

40. The position here is entirely different. While in Green Park

Association (Regd.) Society supra the land vested in the MCD only for

management, here vide the Settlement Deed dated 24th July, 1989, the land

stands transferred to the MCD/SDMC. Thus, the ratio of Green Park

Association (Regd.) Society supra cannot apply to the facts of the present

case.

41. Similarly, the other judgments cited by the senior counsel for the

petitioner are not found to be applicable to the present case.

42. I do not also find any merit in the argument of the senior counsel for

the petitioner that MCD is bound by the arguments made by it in an earlier

case. I am not aware of any principle of law or of estoppel to the said effect.

Arguments in a Court of Law, particularly as to interpretation of statutory

provisions, are made by counsels on their own understanding and

interpretation of legal provisions and the litigants whom they represent

cannot be said to be bound thereby for all times to come or stop from

contending to the contrary.

43. Sites, reserved in a layout plan for a school and qua which it has been

held as aforesaid, can also be sold / transferred by the coloniser / developer,

cannot be compared to public streets, so as to contend that public hearing, as

required to be given before closure of a public street, ought to be given

before change of user thereof. The only ground on which the petitioners

could have challenged such change was of the same being contrary to

prescribed parameters and which has not been done.

44. No merit is thus found in the petitions; dismissed.

45. Though the petitioners by pursuing these petitions have cast a cloud

on the right of the MCD to proceed with the development / construction

undertaken by it on the subject land and which cloud, I am sure, must have

impacted the progress of the construction inspite of there being no stay

thereagainst, but I refrain from imposing costs.

RAJIV SAHAI ENDLAW, J.

JULY 07, 2016/ „gsr/bs‟..