Hanuman Road Residents Welfare ... vs Govt. Of Nct Of Delhi And Ors
2016 Latest Caselaw 4380 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                               Date of decision: 7th JULY, 2016

+              W.P.(C) No.7487/2010 & CM No.14793/2010 (for stay).

       HANUMAN ROAD RESIDENTS
       WELFARE ASSOCIATION                         ..... Petitioner
                   Through: Mr. J.S. Bakshi, Mr. A.S. Bakshi, Mr.
                            Abhishek Mohan Sinha and Mr.
                            Chaitanya Jain, Advs.

                                       Versus

    GOVT. OF NCT OF DELHI AND ORS              ..... Respondents

Through: Mr. Yash S. Vijay, and Ms. Pratishtha Vij, Advs. for Mr. Sanjoy Ghose, Adv. for R-1&2/GNCTD.

Ms. Malvika Trivedi and Mr. Jitendra Kumar Tripathi, Adv. for R-3/NDMC Mr. Ruchir Mishra, Mr. Mukesh Kumar Tiwari and Mr. Sanjiv Kumar Saxena, Advs. for R-4/L&DO CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The controversy entailed in this petition can be gauged from the

following order dated 2nd November, 2010 passed when the petition came up

first before this Court:

"1. The petitioner objects to the proposal of the respondent No.3 NDMC to set up its electric sub-station in a portion of the park in the

locality. The counsel for the respondent No.3 NDMC appearing on advance notice states that the respondent No.3 NDMC is not the land owning agency of the area and the land belongs to Land & Development Office (L&DO) and the L&DO has handed over a portion of the park to the respondent No.3 NDMC on payment of consideration for setting up of the electric sub-station. It is stated that even though the alternative sites suggested by the petitioner prior to the filing of the petition did not belong to the respondent No.3 NDMC and belonged to the L&DO only but the same were nevertheless inspected but not found suitable. It is yet further informed that the park is constructed over one acre of land and the electric sub-station would take only 350 sq.mtrs. of space. It is urged that the electric sub-station is necessary to meet the future demands of electricity in the area and the tender therefor has already been floated and accepted.

2. The respondents 1 & 2 Govt. of NCT of Delhi has been impleaded for the reason of the same providing financial assistance for the maintenance of the park. The counsel for the respondents 1&2 appearing on advance notice states that they are not the necessary parties.

3. In view of the statement of the counsel for the respondent No.3 NDMC and on the oral request of counsel for the petitioner, the L&DO of the Ministry of Urban Development, Government of India is impleaded as the respondent No.4. Amended memo of parties be filed within 10 days and petitioner to serve the newly impleaded respondent No.4 by all modes including dasti.

4. The competing demands of electricity and open green space and parks are required to be balanced. It is deemed expedient that a meaningful dialogue takes place between the representatives of the petitioner and the concerned officials of the respondent No.3 NDMC so as to mutually satisfy each other as to whether the proposed electric sub-

station which cannot be wished away, can be installed / set up at any other more convenient location and or in a smaller place than as disclosed. The petitioner to also inform the officials of the respondent No.3 NDMC whether any other technologies qua electric sub-station are available and the costs thereof be also worked out. The said exercise be done before the next date of hearing. The first meeting of the representatives of the petitioner with the concerned official of the respondent No.3 NDMC to take place on 8th November, 2010 at 1100 hours at Palika Kendra, New Delhi.

List on 13th December, 2010."

2. On 13th December, 2010, it was informed that the meetings directed to

be held did not bear fruit as the alternative sites examined were not found to

be feasible. Notice of the petition was accordingly issued and pleadings

ordered to be completed.

3. The petitioner filed CM No.1847/2015 for amendment of the writ

petition and which was on 3rd February, 2015 allowed un-opposed and the

petitioner filed amended petition. Thereafter on 20th July, 2015, the

following order was passed:

"1. The residents of Hanuman Road through their association seek to restrain the respondent No.3 New Delhi Municipal Council (NDMC) from constructing an electric sub-station over an area of 350 sq. mtrs. carved out from a public park admeasuring 1.25 acres in the said colony.

According to the petitioner Residents Welfare Association (RWA), alternate sites are available for the said sub-station.

2. The matter has been languishing for the last five years.

3. The counsels for the respondent No.3 NDMC and respondent No.4 Land & Development Office (L&DO) have stated that the land underneath the park belongs to the respondent No.4 L&DO and the respondent No.4 L&DO has vide letter dated 23rd April, 2002 vested 350 sq. mtrs. of land therefrom in the respondent No.3 NDMC, for the purposes of electric sub-station. It is also informed that the alternate sites have not been found feasible.

4. The counsel for the petitioner Association has argued that the land underneath the park also belongs to the residents who have paid therefor and thus the respondents NDMC or L&DO cannot be allowed to construct a sub-station thereon to serve the purpose, not of the residents but of commercial establishments in the neighbourhood. It is also argued that no reason has been given for the alternate sites suggested by the residents having not been found feasible or for the existing sub-station servicing the area being not upgraded.

5. The petitioner, in support of its claim of the land underneath the park belonging to the residents, has not placed any document. The colony of Hanuman Road was not developed by any Housing Society. The entire land of the Colony was not leased out, for it to be said that the park carved out therefrom also belongs to the Housing Society and to the residents members thereof. Perpetual leases of separate plots of land were granted to different persons and no lease of land underneath the park granted to anyone. Now, 350 sq. mtrs. thereof has been given to NDMC for electric sub-station. There is thus no merit in contention of petitioner of the residents being owners thereof. The residents can only be concerned with maintenance thereof as a park.

6. It has however been enquired from the counsel for the respondent No.3 NDMC, as to what is the user prescribed for the said 1.25 acres of land in the Layout / Zonal / Master plan and whether in the Master Plan / Layout Plan / Zonal Plan, the said user has since been changed to that of an electric sub-station.

7. Prima facie, it appears that without the said user being changed in the Layout Plan / Zonal Plan, even the respondent No.3 NDMC would not be in a position to unauthorizedly change the use of the said land, if shown as a park, to that of electric sub-station.

8. Though the counsel for the respondent No.3 NDMC states that it would have been changed, but without any basis.

9. Last opportunity is given to the respondent No.3 NDMC to produce documents and to file an affidavit in this regard before the next date of hearing, failing which it shall be assumed that the user has not been changed.

10. The respondent No.3 NDMC to, on the next date of hearing also disclose, as to why the existing sub-station of the area cannot be upgraded to serve the purpose which the new sub-station is to serve. List on 31st August, 2015."

4. In pursuance to the above, on 31st October, 2015, the counsel for the

respondent no.3 New Delhi Municipal Council (NDMC) informed that the

possibility of upgrading the existing electric sub-station was being explored

and instructions regarding change of land use were also awaited.

5. The counsels were heard on 11th February, 2016 and order reserved.

The counsel for the petitioner has also handed over written arguments which

have been perused.

6. The counsel for the petitioner:

i) relied on various orders passed by the Division Bench of this

Court in W.P.(C) No.2345/2014 titled Courts on Its Own

Motion Vs. Union of India decided on 6th May, 2015 with

respect to the deplorable state of affairs in the Children Park

near India Gate and the Lake Park near Sarojini Nagar,

Opposite Laxmi Bai Nagar, Type IV Quarters;

ii) referred to the order dated 22nd August, 2016 of this Court in

WP(C) Nos.10546-51/2006 titled EC Pocket Maya Enclave

Residents Welfare Association Vs. Delhi Development

Authority emphasising the importance of public parks and

preservation thereof and directing the Delhi Development

Authority (DDA) to re-consider the proposal of changing the

use and character of a green area ad-measuring 300 sq. mtrs. of

a public park in the light of the provisions of the Master Plan,

the likely impact of shrinking of the green area and the putting

of the proposed CNG Mega Bus Filling Station on the areas in

vicinity;

iii) referred to Haji Ikram Ul Hassan Vs. Municipal Corporation

of Delhi 69 (1997) DLT 384 in which the Municipal

Corporation of Delhi (MCD) was directed to remove its

godown at the site of a public park and to maintain the land as

per the user specified in the development and zonal plans;

iv) relied on judgment dated 18th November, 2009 of this Court in

W.P.(C) No.6950/2009 titled Paryavaran Avam Januthan

Mission (Regd. Society) Vs. Lt. Governor wherein a Division

Bench of this Court issued directions for constitution of a high

level committee to re-examine the issue of letting out of parks

for community functions and to ensure that there is no

environmental damage in any manner caused by the letting out

of such parks for community functions;

v) referred to the order dated 10th August, 2010 of the Division

Bench of the High Court of Madras in W.P.(C) No.4647/2010

titled R. Chandran Vs. State of Tamil Nadu restraining the

respondents therein from constructing an underground car park

in the playground or from converting the playground for any

other purpose;

       (vi)    argued:


               a)      that the construction by the NDMC of the electric sub-

station in the subject park is to the detriment of the residents of

Hanuman Road at the behest of few commercial establishments

being run illegally from few of the residences on Hanuman

Road;

b) that the constructions of the sub-station would deface and

defile the beauty, ambiance and environment of the park;

c) that rejection by the NDMC of alternative sites suggested

by the residents for the electric sub-station is whimsical and

without proper consideration;

d) that there exists technology for up-gradation of electric

sub-station for increasing their output, obviating the need for a

new electric sub-station;

e) that the land underneath the park belongs to the

petitioner;

f) that the prescribed user of the park cannot be changed;

g) that the erection of a transformer in the park will further

shrink the play area for the children apart from raising the

safety issue;

h) that the construction of electric sub-station is not

necessitated by the exigencies of public welfare;

i) that the construction of electric sub-station right in the

midst of the only park for children and elders in the locality is

mala fide and for oblique considerations;

j) that experts with technical background need to be

appointed for studying the necessity of another electric sub-

station and / or of having the electric sub-station at an

alternative site.

7. Per contra, the counsel for the respondent no.3 NDMC argued:

i) that in pursuance to the order dated 2nd November, 2010 supra

in this petition, a team of officers of NDMC along with

representatives of Residents Welfare Association (RWA)

inspected the alternative sites but the same were not found

technically suitable due to insufficient space, location and being

far away from the load centre etc.;

ii) that a number of multi-storied buildings have come up in the

NDMC area including Hanuman Road area and to meet the

increase in demand for electricity it has become incumbent to

create additional infrastructure to ensure reliable uninterrupted

power supply in the area;

iii) that the suggestion for up-gradation of the existing power

supply was also examined but not found feasible;

iv) that the claim of the petitioner of ownership of land is not only

frivolous but cannot be the subject matter of present petition;

v) that park land ad-mesuring 350 sq. mtrs. where construction of

electric sub-station is proposed has been allotted to NDMC by

the Government of India, Ministry of Urban Development,

Land and Development Office (L&DO) vide letter dated 23rd

April, 2002 and vacant possession of the land was taken over

on 23rd August, 2002 from L&DO by NDMC and payments

thereof made on 13th June, 2002, 2nd April, 2004 and 13th April,

2005;

vi) that pursuant to the order dated 20th July, 2005, the matter of

up-gradation was re-considered but not found feasible as the

existing sub-station has no extra space for additional

transformers and its associated equipment like HT/LT panels

etc.;

vii) that the area of 350 sq. mtrs. allotted by L&DO to NDMC is

very small compared to the overall size of the park of 4950 sq.

mtrs.;

viii) that due to latest technology transformers and the attached

equipment now being used, the space required has been reduced

to 216 sq. mtrs. only;

ix) that the proposed sub-station is in the alignment of existing

garbage station and will therefore not impact the aesthetic and

usage of the park also;

x) that the sub-station is completely enclosed system and is

absolutely safe in every manner;

xi) that numerous committees have been set up since the year 2010

to explore the feasibility of alternative space and up-gradation

etc. and in deliberations whereof the RWA has also

participated;

xii) that the up-gradation is for the benefit of the residents;

xiii) that there is no change of land user involved in setting up of the

electric sub-station as there is no change of land use; as per

Zonal Development Plan the said plot of land for the sub-

station as allotted by L&DO is a part of the area earmarked as

recreational park and open spaces;

xiv) that as per the Master Plan for Delhi (MPD) 2021 electric sub-

station building is a utility premises and public utility are

permitted in all zones;

Needless to state, the pleas aforesaid regarding allotment, ownership,

provisions of the Master Plan and Zonal Development Plan are supported by

affidavits on behalf of NDMC and documents filed therewith.

8. I have already in the order dated 20 th July, 2015 reproduced

hereinabove negatived the plea of the petitioners of ownership of the land.

The counsel for the respondent no.3 NDMC is correct in his contention that

the claim of ownership raised as an afterthought by way of amendment of

the writ petition cannot otherwise also be adjudicated in a writ proceeding.

9. Else, I am satisfied that there is no violation of any law including the

Master Plan in construction of a electric sub-station in a park. Note to Table

9.4 (titled "Permission of Use Premises in Sub Use Zones") of the MPD

2021 provides that structures of Toilet blocks, Pump Room, Electric Room,

Guard Room and Equipment Room are permissible in the Green Belt,

Regional Park, City Park, District Park, Community Park and Multi-purpose

Park. Similarly, Note to sub-clause 8(2) titled "Permission of Use Premises

in Use Zones" of the "Development Code" in Chapter 17 of MPD-2021 also

states that public utilities are permitted in all zones including in parks and

playgrounds, amusement parks and electricity is included in public utilities.

10. The jurisdiction of this Court in exercise of powers under Article 226

of the Constitution of India is confined to ensure that the actions of the State

/ State Authorities are in accordance with law and the said jurisdiction does

not extend, inspite of finding the action to be in accordance with law, to

interfere therewith only for the reason that the view or opinion of this Court

may be different. It is not the role of this Court to take decisions as to

whether the additional electric sub-station for the locality is required or not

or as to where it should be located. Once it is found that the construction of a

electric sub-station in a public park is with the sanction of the land owing

agency and is not violative of the Master Plan or any other law, howsoever

much this Court may think that the land of the public parks should not be

eaten up for such facilities, the Court cannot override the assessment made

in this regard by the respondent NDMC whose municipal function

includes ensuring electric supply to the residents. As I have observed

in the very first order dated 2nd November, 2010 supra, the competing

demands for electricity and public parks have to be balanced and once the

municipal authorities entrusted with both the said functions have in their

wisdom concluded that there is a need for an additional electric sub-station

and that the same can be most conveniently located in a public park, it is not

for this Court to go any further than it already has done in the last six years

by directing the authorities to reconsider. I may in this regard notice that in

a number of judgments / orders cited by the counsel for the petitioners also

and noted hereinabove, the Court has issued directions only for re-

consideration and which exercise has already been done in this petition. I

may also notice that the other judgments / orders cited were of cases in

which the public park was totally done away with by changing the use

thereof to that not permitted by law and which is not the case here.

11. Supreme Court, in Sooraram Pratap Reddy Vs. District Collector,

Ranga Reddy District (2008) 9 SCC 552 held that it is a settled proposition

of law that in absence of illegality or violation of law, a Court of law will not

interfere in policy matters; development of infrastructure was held to be a

legal and legitimate public purpose and government was held to be the best

judge thereof and it was held that normally in such matters a writ Court will

not interfere by substituting its judgment for the judgment of the

Government. Judicial interference therein was held to be permissible only

where the power was shown to have been exercised mala fide or for

collateral purpose or irrationally or unreasonably. The said view was

recently reiterated in State of Haryana Vs. Eros City Developers Pvt. Ltd.

MANU/SC/0045/2016.

12. Mention may also be made of the fact that petitioner does not deny

coming up of multi-storied buildings on some of the plots in the erstwhile

residential locality of Hanuman Road. It is not the case of the petitioner that

the said constructions are illegal or without permissions. The petitioner also

did not object thereto when the same were coming up or even now. The

reason is obvious. Hanuman Road is in the midst of the commercial city

centre of Connaught Place and construction of multi-storied building

enhances the value of the property. The real dispute appears to be between

the owners of properties on Hanuman Road who continue to use it for

residential purpose and those who are using it for commercial or other

permitted purposes and which necessitates additional demand for electricity.

In fact there is nothing to show that the petition has the mandate of the

majority of the owners of properties on Hanuman Road. The petition

appears to be pursued by owners of properties in the immediate vicinity of

the park and residing therein, more for their own benefit than for the benefit

of the larger body of residents. It is always easy to blame the public

authorities but the petitioner should also realize that its members as citizens

also owe a duty towards the city. If they feel that the additional sub-station

should not come up then they should arrange their affairs in a manner that

the demand for electricity is reduced and brought within the confines which

can be met by the existing electric sub-station. This was suggested to the

counsel for the petitioner during the hearing but obviously there was no

response thereto. The owners of properties of Hanuman Road cannot on the

one hand demand more electricity or make a grievance of non supply thereof

and on the other hand also object to the coming up of the electric sub-

station; of course the electric sub-station has to come up on some land. I had

during the hearing also suggested that if the residents do not want the

electric sub-station to come up in the park, they should carve out the land

needed therefor out of their own properties. The said suggestion was met

only with the plea that other public sites available. However it shows that

the members of petitioner are neither willing to pool and offer land from

their own properties for the installation of the additional electric sub-station

required nor willing to allow the same in the public park in their locality.

They, while wanting the sub-station, want respondent NDMC to locate it

near someone else‟s property. In all probability, even if respondent NDMC

was to identify such a site, the owner(s) of properties adjacent thereto will

object thereto.

13. I am neither competent nor empowered to make an assessment of the

most suitable site for the sub-station and thus cannot interfere in the site

selected by respondent NDMC especially when no illegality is shown in

installation of sub-station there at.

14. There is thus no merit in the petition.

Dismissed.

No costs.

RAJIV SAHAI ENDLAW, J.

JULY 07, 2016 „gsr‟..