[Cites 25, Cited by 0]
Delhi High Court
Mila Sen And Anr vs Delhi Development Authority And Ors on 16 March, 2026
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 10.03.2026
Judgment Delivered on: 16.03.2026
+ W.P.(C) 6004/2021 CM APPL. 18987/2021, CM APPL.
20912/2021, CM APPL. 27197/2021, CM APPL. 18827/2023, CM
APPL. 28077/2024, CM APPL. 14292/2025 & CM APPL.
48225/2025
MILA SEN AND ORS. .....Petitioners
Through: Mr. Fahim Khan, Advocate.
versus
DELHI DEVELOPMENT AUTHORITY
AND ORS .....Respondents
Through: Mr. Giriraj Subramanium, Ms.
Avantika Singh and Mr. Ravi Pathak,
Advocates for R3.
Mr. Gaurav Gupta, Ms. Ridhima
Purohit, Mr. Tapas Gaur and Ms.
Avisha Jain, Advocates for R4.
CORAM:
HON'BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT
VIKAS MAHAJAN, J
1. The present petition has been filed seeking following reliefs:
"i. Pass appropriate orders/directions thereby, directing the
Respondents to stop the construction in south portion of building
of the petitioners;
ii. Pass/issue appropriate writ/directions/orders holding the
e-auction dated 25.06.2019 of Plot No. 04 held by respondent
no.1 as illegal since the same is carved out by including 'public
land' i.e. the back lane of the said property and thereby
quashing/cancelling the e-auction of Plot No. 04 in Pocket O,
C.R. Park by respondent no. 1 in favour of respondent no. 3;
iii. Pass/issue appropriate writ/directions/orders holding the
modified layout plan of Pocket O, C.R. Park dated 03.12.1990 is
in contravention to the law of the land and thereby
quashing/cancelling the modified layout plan of Pocket O, C.R.
Park approved by the 65thScreening Committee meeting held on
03.12.1990 vide item no. 03, to the extent that it restores the
backlane of the said property belonging to the petitioners"
2. The case set out by the petitioners in the amended petition is that
petitioner no.1 is a senior citizen, who owns the ground floor of property
bearing no. Plot No.2, Pocket-O, Chittaranjan Park, New Delhi-110019
[hereinafter also referred to as 'said property'] and residing therein for the
past 21 years with her husband. Petitioner no.2 is the son of petitioner no.1,
who is a tenant on the first floor of the said property. The said property
admeasures 124.85 sqr.yrds and was originally purchased in an auction by
Smt. Ranjeeta Sinha from the Delhi Development Authority (DDA) on
leasehold basis. The registered perpetual lease deed dated 01.06.1993 shows
that the said property is bounded as under:
NORTH - Road
EAST - Plot No.O-1
SOUTH - Lane
WEST - Plot No.O-3
3. The allotment of said property was made in favour of Smt. Ranjeeta
Sinha after the modification of original layout plan of Chittaranjan Park
(C.R. Park) approved in the 65th Screening Committee Meeting held on
03.12.1990 as item no.03, wherein, as per modified layout plan, total 10
number of plots were carved out instead of originally proposed 18 number
of plots. Thereafter, the said property was allotted to the original allottee
namely, Smt. Ranjeeta Sinha, vide allotment letter dated 30.09.1991,
possession thereof was handed over on 29.03.1993 and the lease deed was
executed on 01.06.1993.
4. The original allottee sold the said property to one M/s Sentinels
Security Pvt. Ltd., who in turn sold to Shri Sanjay Navanay vide Agreement
to Sell and GPA dated 23.08.1999.
5. Shri Sanjay Navanay constructed a building on the said property after
getting the plan sanctioned from the concerned authorities and got the
property converted from leasehold to freehold vide registered conveyance
deed dated 05.05.2000.
6. Petitioner no.1, after considering that the said property has sufficient
open space with air ventilation and sunlight from front and back along with
exposure of sunlight, purchased the ground floor of the said property from
Shri Sanjay Navanay vide registered sale deed dated 15.07.2000.
7. It is the further pleaded case of the petitioners that petitioner no.1
along with her family has resided in the ground floor of the said property
ever since it was purchased i.e. for the past 21 years.
8. It is also stated in the petition that as per the original plan laid out by
the DDA for the settlement of colony at C.R. Park, the said property i.e. Plot
No.O-2, had a road in North (i.e. front portion of the building) and a back
lane with small park in the South (i.e. back portion of the building).
9. It is alleged that all the plots earmarked in the plan laid out for C.R.
Park, a lane/back alley has been left between two parallel plots for the
purpose of air ventilation, sunlight exposure and for other amenities for the
residents.
10. It is stated that the lease deed dated 01.06.1993 executed in respect of
the said property after the modification of original layout plan, clearly
depicts that a lane has been carved out in South of the said property.
However, in the year 2020, the respondent no.3 started the process of
constructing building in the back alley/lane of the said property, to which the
petitioners objected and approached respondent no.3 enquiring about copy
of plan or DDA approved documents based on which the construction was
being carried out in the back lane of the said property. However, no response
was given by respondent no.3.
11. Later, the petitioners found out that respondent no.1 had e-auctioned
the land on the rear side of the said property including the back lane
earmarking the entire area of land as Plot No.04, Block-O, C.R. Park, New
Delhi [hereinafter referred to as 'Plot No.O-4'].
12. In the backdrop of the aforesaid facts, the grievance articulated by the
petitioners in the petition is that the construction carried out by respondent
no.3 over Plot No.O-4 is in a manner that back lane of the petitioners'
property has been illegally occupied and there is no space between the rear
wall of the said property and the illegal construction in the back lane. Such
wall to wall construction will leave the 'said property' devoid of sunlight
and air ventilation. There is not even any space to install a window or air
conditioner on the rear side of the ground floor portion of the building which
is occupied by the petitioners.
13. Respondent no.1/DDA filed its counter-affidavit taking a specific
stand that the plots in Block-O of C.R. Park are in consonance with the
modified layout plan of the area. It is further stated that Plot No.O-4 was
auctioned by DDA on 25.06.2019 as per the modified layout plan of the
area. After completion of all the codal formalities, the possession of plot was
handed over on 19.02.2020, which is bounded as under:
North : Metalled Road
East : Plot No.05
South : Service lane
West : Plot Nos.02 & 03
14. It is further alleged by the DDA that Plot No.O-3 and Plot No.O-4
were rightly auctioned as per modified layout plan and the auction purchaser
has all the rights to construct building as per the building plan sanctioned by
SDMC being H1 Bidder of e-auction, therefore, the request of the petitioners
is liable to be rejected.
15. It also appears from the counter-affidavit of DDA that the said
property i.e. Plot No.O-2 and Plot No.O-4 were carved out in the same
layout plan which was modified in 1990. It is further clarified that the
boundaries of Plot No.O-2, as mentioned in the site plan attached to the
perpetual lease, are not in consonance with the modified layout plan.
16. The relevant paragraphs from the counter-affidavit of DDA are
extracted below for ready reference:
"10. It is submitted that the modified layout plan of the area
under reference was placed during the meeting and the said
modified layout plan was approved by the 65th Screening
Committee meeting held on 03.12.1990 vide item no. 03. Copy of
the same is annexed as Annexure-II. As per modified layout plan,
total 10 numbers of plots have been carved out instead of 18
numbers of plots allowing a park (TOT-LOT) between plot no 05
and 06 of area under reference.
11. As per original Lay Out plan 18 plots were carved out
initially but as per feasibility plan only 10 plots could be carved out
and the balance 8 plots were re-adjusted in Pocket 52. Originally,
plot no 07 was allotted to Suit. Ranjeeta Sinha, original allottee of
the petitioner's residence vide letter dated 28.11.1988. Copy of
letter dated 28.11.1988 of plot no. 02 is annexed as Annexure-III.
12. That thereafter, layout plan was modified in 1990 and
draw of lots held on 04.09.1991 and Plot 02 was allotted vide
allotment letter dated 30.09.1991 to Ranjeeta Sinha and earlier
allotment letter of Plot no 07 was cancelled. Copy of allotment
letter dated 30.09.1991 is annexed as Annexure-IV. Possession was
handed over on 29.03.1993, lease deed executed on 01.06.1993 and
conversion allowed in favour of Sh. Sanjay Navanay (GPA/ATS
holder) on 04.05.2000. Copy of lease deed and conveyance deed is
annexed as Annexure-V colly."
(emphasis supplied)
17. Respondent no.2/SDMC filed a status report by way of an affidavit
dated 01.07.2021 stating that in respect of Plot No.O-4, the owner/builder
has obtained sanction of building plans for the purpose of carrying out
construction of residential building, having basement, stilt, ground floor,
first floor, second floor and third floor. Further, the layout plan does not
show any land on the back of Plot No.O-2. The relevant extract from the
said status report reads thus:
"3. That considering the role of answering respondent/SDMC,
it is submitted that in order to ascertain the status of the site in
question, the subject property i.e. 0-4, Chitranjan Park, has been
got inspected through area field staff and the record pertaining to
the said property, as available with this office, has also been
referred to. On referring to the record, it has been observed that in
respect of Plot No. 4, Pocket-0, Chitranjan Park, New Delhi, the
owner / builder has obtained the sanction of building plans from the
Architect under his certifications and signatures through online
mode vide ID No. 10081428 dated 25.12.2020, for the purpose of
carrying out the construction of a residential building, having
basement, stilt, ground floor, first floor, second floor and third
floor. Alongwith the said online application, the part Layout Plan,
as submitted does not show any lane at the back of your residence
/ P.No. 0-2, Chitranjan Park, New Delhi. Moreover, the
Conveyance Deed dated 18th March-2020, as submitted by the
owner / builder / applicant therein, shows the boundary /
surroundings of P.No.O-4 as under:
North : Metalled Road
East : Plot No.05
South : Service lane
West : Plot Nos.02 & 03
It is pointed out that the said Conveyance-Deed has been executed
by the D.D.A. and does not show any backlane, as alleged by you.
Moreover, it is also pointed out that on inspection of site, it has
been noticed that presently, the basement has been constructed and
shuttering for stilt roof has been found laid and presently, work is
lying stopped. The photographs showing the latest status of the site,
copy of sanction building plan along with part layout plan and
conveyance deed dated 18/03/2020 as submitted, are annexed
herewith as Annexure -A ( Colly.)."
(emphasis supplied)
18. Respondent no.2/SDMC filed yet another status report by way of
affidavit dated 14.08.2021 in deference to the order dated 16.07.2021 of this
Court reiterating that the inspection as well as the sanctioned building plan,
as also the DDA approved layout plan of the area, do not reveal any breach
of sanctioned building plan or spilling over of construction in respect of Plot
No.O-4 on to public land or any garden. It was further stated that the
construction in respect of Plot No.O-4 is being carried out as per the
sanctioned building plan so obtained by the owner/builder. The relevant
paragraphs of the said status report read thus:
"5. That on inspection and referring to the sanctioned
building plan and also the DDA approved layout plan of the area,
neither any breach of Sanctioned Building Plan nor the
construction in respect of the said plot spilling over on to public
land or any garden, have been noticed. The construction in
respect of the plot No. 0-4, C.R. Park is being carried out as per
the Sanctioned Building Plan so obtained by the owner / builder,
presently. The photographs of the site in question along with the
site plan are annexed herewith in terms of the directions of this
Hon'ble High Court as Annexure -B (Colly)."
(emphasis supplied)
19. Respondent no.3, auction purchaser of Plot No.O-4, filed its counter-
affidavit. Likewise, respondent no.4, to whom respondent no.3 had sold 45%
of his undivided, indivisible and impartible ownership rights in Plot No.O-4,
also filed separate counter-affidavit.
Submissions
20. Mr. Fahim Khan, learned counsel appearing on behalf of petitioners
invites attention of the Court to page 66 (Annexure P-6) which is a site plan
forming part of the original Lease Deed dated 01.06.1993 executed by
respondent no.1/DDA in favour of the original allottee, namely, Ranjita
Sinha, to contend that the said site plan clearly shows that on the rear side of
plot no. O-2, there is a lane, whereas respondent no.3 is raising construction
encroaching upon the said lane.
21. He submits that DDA has filed counter-affidavit in the present
petition taking a stand that lay out plan of Pocket-O, C.R. Park, New Delhi
was modified on 03.12.1990 and both, Plot No. O-2 as well as Plot No. O-4,
were carved out by way of said modified lay out plan dated 03.12.1990. He
further submits that such a stand taken by respondent no.1/DDA has caused
grave prejudice to petitioners, inasmuch as the lane which was shown in the
site plan attached to the original Lease Deed has now been merged with Plot
No. O-4, which has been auctioned in favour of respondent no.3.
22. He submits that in view of the stand taken by the DDA, the petitioners
were constrained to amend the writ petition and substitute its prayer,
whereby petitioners have also challenged the modified lay out plan of
Pocket-O, C.R. Park dated 03.12.1990 besides assailing e-auction dated
25.06.2019 of plot no. O-4 in favour of respondent no.3.
23. He submits that respondent no.1/DDA vide its letter dated 18.06.2019
issued for e-auction had increased the plot area of plot no.O-4 from 152.4
Sq. Mtr. to 158.1 Sq. Mtr. which shows that the lane has been subsequently
included in the plot area of O-4.
24. He submits that respondent no.1/DDA had no right to auction the
back lane abutting the property of petitioners as the same is a public land
meant for public use, and for having access and use of air ventilation and
sunlight.
25. He contends that neither the original allottee nor the subsequent
buyers were ever intimated about the carving of plot no. O-4.
26. Further, the rights of petitioners have been severely affected by
creation of plot no. O-4 and the same could not have been done unilaterally
by respondent no.1/DDA, thereby depriving petitioners of their easementary
rights to the extent of the rear lane.
27. He submits that the modification of land use by respondent no.1/DDA
without any information, intimation or consultation with petitioners is
against the principles of natural justice, hence illegal.
28. In support of his contentions, Mr. Khan has placed reliance on the
following decisions:- (i) Dr. G.N. Khajuria v. Delhi Development
Authority, (1995) 5 SCC 762; (ii) Sri Devi Nagar Residences Welfare
Association v. Subbathal, 2007-3 L.W.259 of Madras High Court and (iii)
Grand Vasant Residents Welfare v. DDA, 2014 SCC Online Del 996.
29. Pertinently, during the pendency of present writ petition, petitioner
no.1 had sold her portion i.e. ground floor of property bearing no. O-2, C.R.
Park, New Delhi to Mr. Kumar Gautam vide sale deed dated 17.02.2025,
therefore, an application being CM APPL 18684/2025 was filed by Mr.
Kumar Gautam seeking impleadment as petitioner no.3. The said application
was allowed vide order dated 10.03.2026 and Mr. Kumar Gautam was
impleaded as petitioner no.3 in the present petition.
30. Incidentally, Mr. Khan also appears for petitioner no.3 and he adopted
the arguments advanced by him on behalf of petitioner nos.1 and 2 for
petitioner no.3 as well. The statement of Mr. Khan to that effect was
recorded in the order dated 10.03.2026.
31. Per contra, Mr. Giriraj Subramanium, learned counsel appearing on
behalf of respondent no.3 submits that the respondent no.3 had participated
in the e-auction of Plot No. O-4, C.R. Park, New Delhi held on 07.10.2019
and he was the successful bidder. Accordingly, respondent no.3 paid the
entire consideration amount to respondent no.1 DDA to the extent of
Rs.6.64 Crore.
32. Subsequently, respondent no.3 entered into an agreement to sell with
respondent no.4 on 20.07.2020, whereunder respondent no.3 agreed to sell
45% interest in the property which was proposed to be constructed on the
said plot. Subsequent thereto, respondent no.4 started construction over the
plot in question on 26.12.2020.
33. He submits that after the Respondent no. 3 had raised construction to
the extent of ground floor and first floor, the present writ petition came to be
filed at the instance of petitioners on or about 22.06.2021.
34. He submits that petitioners obtained ex parte status quo order from
this Court on 23.08.2021 and since then, the interim order has been
continuing. He contends that on account of said interim order, respondent
nos.3 and 4 have not been able to complete the construction and put the
property to use. He submits that further on account of the restraint order
passed by this Court, entire money of respondent no.3 as well as respondent
no.4 is stuck.
35. Mr. Subramanium invites attention of the Court to page 121 which is
a modified lay out plan annexed by respondent no.1/DDA along with its
counter-affidavit. Referring to the said modified plan, he contends that by
virtue of said modified plan, not only the plot no. O-4 which was purchased
by respondent no.3 in e-auction was carved out, but petitioners' plot no. O-2
was also carved out by the same modified lay out plan. In case modified lay
out plan is quashed, then as a consequence, the allotment/lease/conveyance
qua Plot No.O-2 will also stand quashed.
36. He submits that insofar as the Lease Deed with regard to petitioners'
plot i.e. Plot No.O-2 is concerned, the same is dated 01.06.1993, which was
executed subsequent to the publication of modified lay out plan dated
03.12.1990. He submits that there cannot be any estoppel against the
modified lay out plan which is a form of delegated legislation.
37. He further submits that challenge to the modified lay out plan is also
barred by delay and laches inasmuch as modified lay out plan was approved
as early as on 03.12.1990 and the amendment of the writ petition, whereby
prayer with regard to challenge to the said modified lay out plan was
inserted, came to be filed only on 15.12.2023.
38. Mr. Subramanium has also invited attention of the Court to the status
report filed by erstwhile SDMC dated 16.08.2021 to contend that SDMC has
also verified the lay out plan of 03.12.1990 as well as the building sanction
plan pertaining to plot no. O-4 and has concluded in the status report that
there is no encroachment over the public land.
39. Mr. Gaurav Gupta, learned counsel appearing on behalf of respondent
no.4 submits that petitioners have not come to this Court with clean hands
inasmuch as the modified lay out plan with regard to plot nos. O-4 as well as
O-2 was displayed by way of metal display board right outside Plot No.O-1
immediately next to Plot No.O-2, therefore, petitioners cannot feign
ignorance with regard to the knowledge of the said lay out plan.
40. He submits that construction over the plot O-4 started on 26.12.2020,
however, petitioners had waited for six months and by that time, respondent
no.4 had already constructed ground floor as well as first floor on the
property. He submits that, in fact, the balcony of petitioners extends to the
property of respondent nos. 3 and 4, and it is the petitioners who have
encroached upon some area of their plot i.e. Plot No.O-4.
41. He submits that all these questions are disputed questions of fact
which cannot be gone into under Article 226 of the Constitution of India and
appropriate remedy for the same is either to file civil suit or to prefer an
appeal before the MCD Tribunal.
42. He further submits that in the writ petition, petitioners are claiming
easement rights. However, in terms of Section 15 of the Easement Act, 1882
petitioners ought to have been in possession for 30 continuous years to claim
such easement rights against the DDA. He further submits that the remedy
available to petitioners, in the event their easementary rights are obstructed,
is to file a civil suit.
43. Mr. Gupta further contends that the building sanction plan pertaining
to Plot No.O-4 is expiring on 24.12.2025, and in case the period of operation
of the stay order if not excluded, respondent no.4 will not be able to
complete construction before the expiry of the said period. He further
contends that in case an application is made by respondent no.4 for
extension of the building plan, he may not be able to get fresh approval. He
places reliance on the decision of the Coordinate Bench of the Court in Anil
Dhingra v. Commissioner, MCD and Ors., W.P.(C) 8720/2010.
44. I have heard learned counsels for the parties and have considered the
material placed on record.
45. The fundamental challenge in the present writ petition is to the
modified layout plan of Pocket-O, C.R. Park, dated 03.12.1990 whereby
Plot No.O-4 was carved out, as well as, to the construction raised thereon.
The said challenge is essentially predicated on two grounds, viz. - (i) the
back alley on the rear/South side of Plot No.O-2 could not have been altered
without prior notice or information to the petitioners; as the said procedure
was not followed, the carving out of Plot No.O-4 by inclusion of back alley
is arbitrary and unsustainable and (ii) the easementary rights of the
petitioners have been violated as the construction of building over Plot
No.O-4 which now includes the back alley of Plot No.O-2 by virtue of
modified lay out plan, blocks the air ventilation and sunlight exposure; and
46. Undisputedly, Plot No.O-2, as well as, Plot No.O-4, were carved out
by virtue same modified layout plan of C.R. Park, which was approved in
65th Screening Committee Meeting held on 03.12.1990.
47. Plot No.O-2 was subsequently allotted to the original allottee namely,
Smt. Ranjeeta Sinha vide allotment letter dated 30.09.1991 and the lease
deed in respect thereof came to be executed on 01.06.1993.
48. It is not the case of the petitioners that the modification in the layout
plan which took place on 03.12.1990 entails amendment or change in Master
Plan for Delhi, 2001 [in short, 'MPD'] or Zonal Development Plan [ZDP].
49. Section 11A1 of the Delhi Development Act, 1957 (hereinafter
11A. Modifications to plan.--(1) The Authority may make any modifications to the master plan or the
zonal development plan as it thinks fit, being modifications which, in its opinion, do not effect important
alterations in the character of the plan and which do not relate to the extent of land-uses or the standards
of population density.
(2) The Central Government may make any modifications to the master plan or the zonal development plan
whether such modifications are of the nature specified in sub-section (1) or otherwise.
(3) Before making any modifications to the plan, the Authority or, as the case may be, the Central
Government shall publish a notice in such form and manner as may be prescribed by rules made in this
behalf inviting objections and suggestions from any person with respect to the proposed modifications
before such date as may be specified in the notice and shall consider all objections and suggestions that
may be received by the Authority or the Central Government.
(4) Every modification made under the provisions of this section shall be published in such manner as
the Authority or the Central Government, as the case may be, may specify and the modifications shall
come into operation either on the date of the publication or on such other date as the Authority or the
Central Government may fix.
(5) When the Authority makes any modifications to the plan under sub-section (1), it shall report to
the Central Government the full particulars of such modifications within thirty days of the date on which
such modifications come into operation.
(6) If any question arises whether the modifications proposed to be made by the Authority are
referred to as the "DD Act") prescribes the procedure to be followed where
any modification is proposed to be undertaken in the Master Plan (MPD) or
the Zonal Development Plan (ZDP), either by the Delhi Development
Authority (DDA) or by the Central Government. However, the DD Act does
not prescribe any specific procedure governing the modification or
amendment of a layout plan. Consequently, a layout plan may be modified
or amended without invoking the procedure contemplated under Section
11A of the DD Act, provided that the revised layout plan remains consistent
with and in conformity with the applicable MPD and ZDP.
50. The law is well settled that the layout plan is a sort of working
drawings prepared by the DDA, and the same could be administratively
modified by the DDA2. No provision in the DDA has been brought to the
notice of the Court, and in my opinion there exists none, which deals with
the modification of layout plan. It implies thereby that the layout plan can be
modified by an administrative decision3 without resorting to the procedure
envisaged under Section 11A of the DD Act to modify the MPD and ZDP,
which essentially means that there is no need to publish a notice to invite
objections or suggestions from any person with respect to proposed
modification in the layout plan. Reference in this regard may also be had to
the decision of the Division Bench of this Court in Rohit Dhupar & Ors. v.
modifications which effect important alterations in the character of the plan or whether they relate to the
extent of land-uses or the standards of population density, it shall be referred to the Central Government
whose decision thereon shall be final.
(7) Any reference in any other Chapter, except Chapter III, to the master plan or the zonal development
plan shall be construed as a reference to the master plan or the zonal development plan as modified under
the provisions of this section.]
Shanti Devi Gupta & Ors. v. DDA & Ors., AIR 1994 Delhi 299 (para 16)
Smt. Maya Devi v. UOI, 65 (1997) DLT 405
LT. Governor & Ors., 2009 (109) DRJ 586 (DB), wherein the Court in the
context of modification of layout plan made the following pertinent
observations:
"9. MPD, 2001 divided Delhi into 15 Zones. A Zonal Development
Plan (hereinafter referred to as ZDP, for short) is prepared for
each Zone and thereafter adopted after following the procedure as
prescribed for adoption in the DD Act. Each ZDP comprises of site
plan and use plan. MPD 2001 divided Delhi into 9 categories of
uses comprising of 37 use zones to be detailed in the ZDP. 136 use
premises are prescribed in the MPD-2001.
10. Lay Out Plans are different and distinct from ZDP. Lay Out
Plans demarcate specific areas which can be used for different
purposes and earmark land/plots which can be used for different
purposes. Under Development Code of MPD 2001, Clauses 2(3)
and (4), Lay Out Plan and ZDP have been defined as:
"2(3). Layout Plan-Layout Plan means a sub-division plan
indicating configuration and sizes of all use premises.
2(4). Zonal Development Plan means a plan for one of the
zones (divisions) of the Union Territory of Delhi containing
detailed information regarding provision of social
infrastructure, parks and open spaces and circulation system."
11. As per the counter affidavit filed by DDA, it is clear that the
area out of which 500 sq.mts. of land has been allotted to
respondent No. 5 in the earlier Lay Out Plan was identified for land
use as "Multi Purpose Community Usage". The land, therefore,
could be used for different usages under the MPD-2001, permitted
under the heading "Multi Purpose Community Usage". The
affidavits of DDA and MCD state that 500 sq.mts. of land allotted
to respondent No. 5 formed part of land that had been earmarked in
the Lay Out Plan for use as community centre, nursery school,
common services etc. in the Lay Out Plan. The Lay Out Plan was
subsequently amended and 500 sq.mts. was earmarked for
residence of service personnel and balance 1500 sq. mtrs. was to
be developed as a green area. Therefore, we accept the contention
of DDA and MCD that allotment of land to respondent No. 5 did
not entail amendment or change in MPD, 2001 or ZDP. It only
entailed amendment in the Lay Out Plan and change in use from
nursery school/community centre/other activities falling under the
broad category 'Multi Purpose Community Usage'. This
modification in the Lay Out Plan for use of land for purpose of
residence of service personnel resulted in only amendment of the
Lay Out Plan and not an amendment or modification of the ZDP.
12. It is not possible to agree with the learned counsel for the
petitioners that Lay Out Plan can be modified or amended only
after following the prescribed procedure for amendment of the
MPD 2001 and ZDP as prescribed under the DD Act. The Lay
Out Plan can be amended and modified without following the
procedure u/s 11A of the DD Act, as long as amended and
modified lay out plans are in conformity with the ZDP and the
MPD. Section 11A of the DD Act, quoted above, deals with
amendment of the ZDP and MPD, 2001 and not amendment or
modification of the lay out plans. This has been the consistent view
of this Court as is clear from the judgments of Division Benches of
this court in B-1, Vasant Kunj Resident Welfare Association
(Regd.) v. Lt. Governor of Delhi and others, 2003 (1) AD (Delhi)
727 and Shanti Devi Gupta and others v. Delhi Development
Authority, 54 (1994) DLT 620 Delhi. In Star Residents Society
(Regd.) and Ors. v. Delhi Development Authority, 2004 (77) DRJ
(Delhi) 599, it was observed that:
29. A Division Bench of this Court in the decision Shanti Devi
Gupta, v. DDA, AIR 1994 Delhi 299, vide para 16 held that the
Delhi Development Act, 1957 in general and Section 9 of the
said Act in particular, only refer to the Master Plan and Zonal
Development Plan and not the lay out plan. The lay out plan
was held to be a sort of working drawings prepared by the
DDA. Any departure from the lay out plan was held as not to be
equated with the violation of the Master Plan or the Zonal
Development Plan which are statutory.
30. The learned Single Judge of this Court in the decision, Smt.
Maya Devi v. UOI, 65 (1997) DLT 405 held that a lay out plan
could be administratively modified by the Delhi Development
Authority without resorting to the process of modification
envisaged to a Master Plan and a Zonal Development Plan as
per the mandate of Section 11A of the Delhi Development Act.
In para 11 it was observed:--
"If this is the situation, in that eventuality there is only a lay
out plan of the area in question. A careful scrutiny of the
provisions of the Act reveals that Chapter 3A deals with the
modification of Master Plan. Section HA(i) to (iv) deals with
the modification of the said plan. There is no other
provision in the entire act which deals with the
modification of the lay out plan. It implies thereby that the
lay out plan can be modified by the Vice Chairman of the
DDA.
xxx xxx xxx"
51. Earlier, the Division Bench of this Court in B.U. Block Residents
Welfare Association v. DDA, 87 (2000) DLT 603, had occasion to consider
the issue concerning the requirement of approval from the Central
Government in the context of modification of a layout plan. The Court,
while examining the scheme of the Delhi Development Act and the planning
framework under the Master Plan and Zonal Development Plan, observed as
under:
"9. ... In any case, we find no breach or violation of MPD-2001 or
the ZDP. It cannot be disputed that if there is a change in the layout
plan, no approval or sanction of the Central Government is
required."
52. Similar view has been taken in the case of B-1, Vasant Kunj Resident
Welfare Association (Regd.) v. Lt. Governor of Delhi & Ors., 2003 (1) AD
(Delhi) 727, wherein it was laid down that layout plans can be amended and
changed without following the procedure laid down in Section 11A of the
DD Act. The relevant portion of the judgment reads thus:
"7. Having heard learned counsel for the parties we are of
the opinion that although layout plan can be changed wherefor
no permission in terms of section 11A of the Delhi Development
Authority Act is required but there cannot be further any doubt
whatsoever that the sufficient area should be left out as green
area."
53. The law exposited in the aforesaid decisions clearly underscores the
distinction between statutory development plans, such as the Master Plan
and Zonal Development Plan, and a layout plan prepared for a particular
locality or pocket of land. While any modification to the Master Plan or the
Zonal Development Plan is required to follow the procedure prescribed
under Section 11A of the DDA, the same requirement does not extend to
alterations made to a layout plan, so long as the modification does not result
in any violation of the Master Plan or the applicable Zonal Development
Plan. Thus, the modification to the lay out plan would be legally sustainable
provided that it remains within the framework of statutory plans, namely the
MPD and ZDP. In other words, merely because a layout plan has been
modified cannot, by itself, be a ground to assail it's modification, unless it is
shown that such alteration is inconsistent with or contrary to the Master Plan
or the Zonal Development Plan.
54. As the petitioners have neither alleged nor shown that the modified
layout plan is in breach or violation of MPD or ZDP or any other provisions
of the DD Act or the rules framed thereunder, the modified layout plan
cannot be interfered with by this Court.
55. The only stand taken by the petitioners is that the site plan attached to
the original lease deed dated 01.06.1993 executed by respondent no.1/DDA
in favour of the original allottee, namely Ranjita Sinha, shows that on the
rear side of plot no. O-2, there is a lane. Suffice it to say that the Lease
Deed dated 01.06.1993 was executed by the DDA after the modification of
lay out plan on 03.12.1990 and the said lay out plan does not provide for any
lane on the rear side of plot no. O-2. Therefore, the site plan attached to the
lease deed dated 01.06.1993 is not in consonance with the modified lay out
plan, and the petitioners cannot take advantage of the said lease deed.
56. Incidentally, the petitioners and their predecessor-in-interest are also
beneficiaries of the same modified lay out plan dated 03.12.1990, inasmuch
as their Plot No. O-2 was also carved out along with Plot No. O-4, by virtue
of impugned modified layout plan, therefore, the petitioners are also
estopped from questioning the same.
57. Mr. Khan has placed reliance on Dr. G.N. Khajuria (supra) to
contend that the DDA could not have unilaterally auctioned and allotted the
land comprised in Plot O-4, as according to him, the said parcel was
intended to serve as a rear lane providing access and ease to the petitioner's
property. The reliance, however, is misplaced. In Dr. G.N. Khajuria
(supra), the land in question had been specifically earmarked for a particular
public purpose in the layout plan, and the Authority (DDA) sought to alter
such earmarked use at the stage of allotment. It was in that context that the
Hon'ble Supreme Court disapproved the change in land use. The factual
matrix of the present case, stands on an entirely different footing. Here, the
purpose of land use of plot O-4 has not undergone any such alteration and
no breach of MPD and ZDP has been committed while modifying the layout
plan. Consequently, the principle laid down in Dr. G.N. Khajuria (supra)
has no application to the facts of the present case.
58. Mr. Khan has further placed reliance on Sri Devi Nagar Residences
Welfare Association (supra) to contend that open parcel of land within
residential colonies serve as the lungs of the area and therefore ought not to
be put to development. This reliance is equally misconceived. In the said
decision, the land in question had been specifically earmarked as a park in
the layout plan and was consequently held to be incapable of being diverted
for development or construction. In the present case, plot no. O-4 was never
designated as a park, open space or any other amenity area intended for the
benefit of the petitioners or other residents. The factual premise underlying
the said judgment is therefore absent in the present matter.
59. Similarly, reliance has been placed on Grand Vasant Residents
Welfare Association (supra) wherein the allotment made by the DDA was
found to be contrary to the land use specifically earmarked in the layout
plan, which is not the position in the present case. Therefore, the said
decision does not advance the case of the petitioner.
60. In each of the aforesaid decisions relied on by Mr. Khan, the land
concerned had been expressly earmarked for a defined public purpose which
the Authority sought to alter without following the requisite procedure. In
contrast, in the present case, there has been no change in the designated
purpose in the land of plot O-4. The reliance placed by Mr. Khan on
aforesaid judgments is therefore misplaced and the same are clearly
distinguishable.
61. Now coming to the petitioners' submission that their right to easement
has been violated by the blocking of air ventilation and sunlight exposure on
account of construction of building by respondent nos.3 & 4 on Plot No.O-4,
it is important to note that for creation of an easement, two distinct heritages
are essential - a dominant heritage and servient heritage - and they must not
belong to the same individual. The easement has been defined in Section 44
of the Indian Easements Act, 1882 [in short, 'Easements Act'] which
provides that following conditions are required to be met to claim an
easementary right - (i) the right is in the dominant owner or occupier of land
as such; (ii) it is for the beneficial enjoyment of that land; (iii) it is to do and
continue to do something or to prevent or continue to prevent something
being done; (iv) that something is in or upon, or in respect of, certain other
land of servient owner; and (v) the other land is not his own.
62. The easements by prescription can be acquired only under Section 15
of the Easements Act, which reads as under::
"15. Acquisition by prescription.--Where the access and use of
light or air to and for any building have been peaceably enjoyed
therewith, as an easement, without interruption, and for twenty
years,
and where support from one person's land or things affixed thereto
has been peaceably received by another person's land subjected to
4. "Easement" defined- An easement is a right which the owner or occupier of certain land possesses, as
such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and
continue to prevent something being done, in or upon, or in respect of, certain other land not his own.
Dominant and servient heritages and owners.- The land for the beneficial enjoyment of which the right
exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on
which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient
owner.
Explanation.- In the first and second clauses of this section, the expression land includes also things
permanently attached to the earth; the expression beneficial enjoyment includes also possible convenience,
remote advantage and even a mere amenity; and the expression to do something includes removal and
appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of
the soil of the servient heritage or anything growing or subsisting thereon.
artificial pressure or by things affixed thereto as an easement,
without interruption, and for twenty years,
and where a right of way or any other easement has been peaceably
and openly enjoyed by any person claiming title thereto, as an
easement, and as of right, without interruption, and for twenty
years, the right to such access and use of light or air, support or
other easement shall be absolute.
Each of the said periods of twenty years shall be taken to be a
period ending within two years next before the institution of the
suit wherein the claim to which such period relates is contested.
Explanation I.--Nothing is an enjoyment within the meaning of this
section when it has been had in pursuance of an agreement with the
owner or occupier of the property over which the right is claimed,
and it is apparent from the agreement that such right has not been
granted as an easement, or, if granted as an easement, that it has
been granted for a limited period, or subject to a condition on the
fulfilment of which it is to cease.
Explanation II.--Nothing is an interruption within the meaning of
this section unless where there is an actual cessation of the
enjoyment by reason of an obstruction by the act of some person
other than the claimant, and unless such obstruction is submitted to
or acquiesced in for one year after the claimant has notice thereof
and of the person making or authorising the same to be made.
Explanation III.--Suspension of enjoyment in pursuance of a
contract between the dominant and servient owners is not an
interruption within the meaning of this section.
Explanation IV.--In the case of an easement to pollute water, the
said period of twenty years begins when the pollution first
prejudices perceptibly the servient heritage.
When the property over which a right is claimed under this
section belongs to [Government] this section shall be read as if,
for the words "twenty years", the words "[thirty years]" were
substituted.
(emphasis supplied)
63. The other relevant provisions of the Easements Act which relate to -
the extent of easements; right to enjoyment without disturbance; suit for
disturbance of easement; and injunction to restrain disturbance, are
contained in Sections 28, 32, 33 and 35 of the said Act, respectively. The
relevant text of the said provisions is reproduced hereinbelow for ready
reference:
"28. Extent of easements.--With respect to the extent of easements
and the mode of their enjoyment, the following provisions shall take
effect:--
Easement of necessity.--An easement of necessity is co-extensive
with the necessity as it existed when the easement was imposed.
Other easements.--The extent of any other easement and the mode
of its enjoyment must be fixed with reference to the probable
intention of the parties and the purpose for which the right was
imposed or acquired.
In the absence of evidence as to such intention and purpose--
xxx xxx xxx
(c) Prescriptive right to light or air.--The extent of a prescriptive
right to the passage of light or air to a certain window, door or
other opening is that quantity of light or air which has been
accustomed to enter that opening during the whole of the
prescriptive period irrespectively of the purposes for which it has
been used;
xxx xxx xxx
32. Right to enjoyment without disturbance.--The owner or
occupier of the dominant heritage is entitled to enjoy the easement
without disturbance by any other person.
33. Suit for disturbance of easement.--The owner of any interest in
the dominant heritage, or the occupier of such heritage, may
institute a suit for compensation for the disturbance of the
easement or of any right accessory thereto; provided that the
disturbance has actually caused substantial damage to the
plaintiff.
Explanation I.--The doing of any act likely to injure the plaintiff
by affecting the evidence of the easement, or by materially
diminishing the value of the dominant heritage, is substantial
damage within the meaning of this section and section 34.
Explanation II.--Where the easement disturbed is a right to the free
passage of light passing to the openings in a house, no damage is
substantial within the meaning of this section unless it falls within
the first Explanation, or interferes materially with the physical
comfort of the plaintiff, or prevents him from carrying on his
accustomed business in the dominant heritage as beneficially as he
had done previous to instituting the suit.
Explanation III.--Where the easement disturbed is a right to the
free passage of air to the openings in a house, damage is
substantial within the meaning of this section if it interferes
materially with the physical comfort of the plaintiff, though it is
not injurious to his health.
xxx xxx xxx
35. Injunction to restrain disturbance.--Subject to the provisions
of the Specific Relief Act, 1877 (1 of 1877), sections 52 to 57 (both
inclusive), an injunction may be granted to restrain the disturbance
of an easement--
(a) if the easement is actually disturbed--when compensation for
such disturbance might be recovered under this Chapter;
(b) if the disturbance is only threatened or intended--when the act
threatened or intended must necessarily, if performed, disturb the
easement."
(emphasis supplied)
64. A reading of Section 15 of Easements Act makes it clear that to prove
the right of easement acquired by prescription in respect of use of light and
air for any building, it should be shown that the person claiming the right
was in peaceful, open and uninterrupted enjoyment of the right for a period
of 20 years [30 years where the property over which right is claimed
belongs to the government] lasting within two years of the suit. Indubitably,
all these aspects are questions of fact.
65. Further, a conjoint reading of the provisions of Sections 15, 28, 33
and 35 makes it clear that in the matter of prescriptive right with regard to
flow of light and air, mere diminution of air and light would not give a cause
of action, but it should materially diminishes the value of the dominant
heritage and should be a substantial interference with the normal enjoyment
of light and air so as to disturb the usual mode of light or air of the
inhabitants of the building or render the occupation of the building
uncomfortable, which again are purely questions of fact that needs to be
specifically pleaded and proved, all the more when easement by its very
definition is a restriction on the rights of another person i.e. the servient
owner.
66. In the present case, the petitioners have set up a plea of easement to
air and light, the burden is, therefore, on the petitioners to adduce clear and
cogent evidence that they had acquired easementary right in enjoyment of
air and light, and that the obstruction to the same by way of construction
raised by respondent nos.3 and 4 has materially diminished the value of the
dominant heritage and rendered the occupation of their property/premises
uncomfortable. However, all these questions of fact cannot be gone into in a
summary proceedings under Article 226 of the Constitution of India, as the
same would require leading of evidence.
67. Further, upon reading of provisions of Sections 15, 33 and 35, it is
plain that easement can be established and protected only in a suit, and a title
of easement is not complete merely upon completion of statutory period of
20 years or 30 years, as the case may be. Reference in this regard may be
had to the decision of Hon'ble Supreme Court in Ramkanya Bai & Anr. v.
Jagdish & Ors., (2011) 7 SCC 452, wherein the Court was confronted with
the question as to whether the customary easementary right could be decided
by the Tehsildar under the Madhya Pradesh Land Revenue Code, 1959 in a
summary proceedings or right relating to easement can be established in a
civil suit. The Court observed as under:
"20. When a person (dominant owner) has an easementary right,
and the servient owner disturbs, obstructs or interferes with his
easementary right, or denies his easementary right, the remedy of
the dominant owner is to approach the civil court for the relief of
declaration and/or injunction. Similarly, when a person who does
not have an easementary right, tries to assert or exercise any
easementary right over another's land, the owner of such land can
resist such assertion or obstruct the exercise of the easementary
right and also approach the civil court to declare that the defendant
has no easementary right of the nature claimed, over his land
and/or that the defendant should be prevented from asserting such
right or interfering with his possession and enjoyment.
(emphasis supplied)
68. The law is also well settled that pure question of fact could be
adjudicated only by the Civil Court and writ petition filed under Article 226
of the Constitution is not an appropriate remedy. The remedy under Article
226 of the Constitution is available where violation of some statutory duty
on the part of statutory authorities is alleged, which is not the position in the
present case. Reference in this regard may be had to the following
observations of the Hon'ble Supreme Court in Roshina T. V. Abdul Azeez
K.T. & Ors., (2019) 2 SCC 329:
"12. The question as to who is the owner of the flat in question,
whether Respondent 1 was/is in possession of the flat and, if so,
from which date, how and in what circumstances, he claimed to be
in its possession, whether his possession could be regarded as legal
or not qua its real owner, etc. were some of the material questions
which arose for consideration in the writ petition.
13. These questions, in our view, were pure questions of fact and
could be answered one way or the other only by the civil court in a
properly constituted civil suit and on the basis of the evidence
adduced by the parties but not in a writ petition filed under Article
226 of the Constitution by the High Court.
14. It has been consistently held by this Court that a regular suit is
the appropriate remedy for settlement of the disputes relating to
property rights between the private persons. The remedy under
Article 226 of the Constitution shall not be available except where
violation of some statutory duty on the part of statutory authority
is alleged. In such cases, the Court has jurisdiction to issue
appropriate directions to the authority concerned. It is held that
the High Court cannot allow its constitutional jurisdiction to be
used for deciding disputes, for which remedies under the general
law, civil or criminal are available. This Court has held that it is
not intended to replace the ordinary remedies by way of a civil suit
or application available to an aggrieved person. The jurisdiction
under Article 226 of the Constitution being special and
extraordinary, it should not be exercised casually or lightly on
mere asking by the litigant. (See Mohan Pandey v. Usha Rani
Rajgaria [Mohan Pandey v. Usha Rani Rajgaria, (1992) 4 SCC 61]
and Dwarka Prasad Agarwal v. B.D. Agarwal [Dwarka Prasad
Agarwal v. B.D. Agarwal, (2003) 6 SCC 230] .)
15. In our view, the writ petition to claim such relief was not,
therefore, legally permissible. It, therefore, deserved dismissal in
limine on the ground of availability of an alternative remedy of
filing a civil suit by Respondent 1 (writ petitioner) in the civil
court."
(emphasis supplied)
69. The upshot of above discussion is that the petitioners' remedy for
enforcing easementary right is not by way of present petition, but by way of
Civil Suit. The petition is, therefore, dismissed. Consequently, the interim
relief granted vide order dated 23.08.2021 is vacated. Liberty is, however,
granted to the petitioners to file civil proceedings in the civil court for
claiming appropriate reliefs. All the contentions available to the parties with
regard to the claim of petitioners in respect of acquisition of easementary
rights of air and light, are left open.
70. Before parting, the prayer of respondent no.4 with regard to the
extension of validity of building sanction plan also needs to be addressed.
71. The building plan for construction on Plot No.O-4 was sanctioned by
respondent no.2/SDMC on 25.12.2020 and respondent nos.3 and 4 had
undertaken construction pursuant thereto. However, vide order dated
23.08.2021, the construction was stayed by this Court and the stay order has
continued since then.
72. The building sanction plan has expired on 24.12.2025 during the
pendency of the present petition. It is not in dispute that respondent no.4 has
paid all relevant charges for getting the plan sanctioned. Respondent
no.2/SDMC (now 'MCD') vide its status report has also affirmed that the
construction carried out on Plot No.O-4 is legal and in accordance with the
sanctioned plan.
73. The act of the Court shall prejudice no one, is a principle firmly
embedded in jurisprudence. Where a party has been disadvantaged by reason
of an act of the Court, it is incumbent upon Court to undo such prejudice and
restore party to the position he would have occupied but for such act.
74. In that view of the matter, this Court is of the view that the period for
which the stay order was in operation needs to be excluded from the validity
period of the building sanction plan. Accordingly, the MCD (erstwhile
SDMC) is directed to issue appropriate administrative order in that behalf
thereby extending the validity of building sanction plan so as to enable
respondent nos.3 and 4 to undertake further construction on their plot i.e.
Plot No.O-4.
75. Respondent no.2/MCD is also directed to ensure that the construction
is carried out by respondent nos.3 and 4 strictly in accordance with the
building sanction plan and no damage is caused to the petitioners' property.
76. The writ petition along with pending applications stands disposed of.
VIKAS MAHAJAN, J
MARCH 16, 2026/aj
