Judgment:
$~6 * % + IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on 11.05.2018 FAO1082018, CM APPL. 11292/2018 DELHI FACTORY OWNERS FEDERATION ..... Appellant Through: Mr. Jayant Mehta and Mr. Hiresh Choudhary and Mr. Shubhankar, Advs. versus SOUTH DELHI MUNICIPAL CORPORATION & ORS ........ RESPONDENTS
Through: Mr. Sumit Rana, Advocate for DSIIDC Mr. Rajan Tyagi, ASC for SDMC with Mr. Ranvir Singh, Executive Engineer. CORAM: HON'BLE MR. JUSTICE NAJMI WAZIRI NAJMI WAZIRI, J.
(Oral) 1. The learned counsel for the respondents states that the plot earmarked for parking in the layout plan can be used for the purpose of constructing a public toilet since that is a permissible user under Clause 8.2 of Chapter 17 of the Delhi Master Plan (MPD), 2021. He relies upon the dicta of this Court in Shanti Devi Gupta v. Delhi Development Authority 1994 AIR (Del) 299 to contend that Nazul land can be used for public purposes.
2. The Court is unable to see how the said case is applicable to the facts of the present case because it dealt with construction of a road FAO108of 2018 Page 1 of 6 admeasuring 20 x 8 ft. which was already provided for in the layout plan. Therefore, there was no violation of the layout plan. The second judgment relied upon by him is Maya Devi v. Union of India 1997 (65) DLT405which dealt with a case in which the original area as per the affidavit of the Delhi Development Authority was 0.64 hectare for a primary school. However, the Master Plan itself earmarked an area of 0.40 hectare. The said area when handed over for construction of the primary school was found short by 184 sq. mtrs. The Court held that there is not much reduction in the area even after the modification of the layout plan. Therefore, there is no violation of the Master Plan. Nevertheless, the important question addressed by the Court was: “A careful scrutiny of the provisions of the Act reveals that Chapter 3-A deals with the modification of the Master Plan. Sections 11A(i) to (vi) 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. Mr. Karanwal, Senior Architect, DDA has stated in the additional affidavit with regard to the modification carried, out in the modification in the lay out plan was got approved by the Vice Chairman, DDA who is the Competent Authority, in the 56th Screening Committee Meeting held on July 10,1990 (vide para 6 of the Additional Affidavit). According to him, the lay out plan was further got amended and the said modification was also got approved by the Vice Chairman, DDA in the 75th Screening Committee Meeting held on April 1, 1991 (vide para 8 of the Additional Affidavit). lay out plan. According the to him, FAO108of 2018 Page 2 of 6 Thus it is manifest from above that the lay out plan was got modified twice.” It implies thereby that the layout plan can be modified by the Vice Chairman of the DDA. In other words, there being a layout plan given to an agency (the SDMC) to maintain the industrial area, the maintaining agency cannot tinker with the layout plan except with the permission of the DDA. This has been emphasised by the Supreme Court in R.K. Mittal and others v. State of Uttar Pradesh and others (2012) 2 SCC232as under: the discretion of is not merely at “All the above judgments clearly show that it the Development Authority concerned to designate user of a site and then alter the same without following due process of law. Even where such an exercise is required to be undertaken by the Development Authority, there also it is expected of the Development Authority to act for the betterment of the public and strictly in accordance with the plans and the statutory provisions. It cannot take recourse to its powers and use its discretion contrary to such provisions and that too, to frustrate the very object of the Act. Exercise of power ought not to be destructive of the provision of the Act and the plans having the force of law. We would hasten to add that even where the requisite prescribed procedure is followed, still the discretion should be exercised sparingly and achieving the object of the statute and not to completely vary or destruct the purpose for which the sector has been earmarked.” FAO108of 2018 Page 3 of 6 3. In view of the above, the MCD cannot alter user specified in the layout plan. If they wish to change the user for whatever reason, they would have to approach the DDA for change in the layout plan.
4. The learned counsel for the MCD relies upon the dicta of this Court in Rohit Dhupar vs. Lt. Governor 2009 (159) DLT193which dealt with usage of a land as a park which was earlier earmarked for “multipurpose community usage”. It was held that the land earmarked for “multipurpose community usage” in the layout plan can be amended and modified without following the procedure u/s 11- A as long as amended layout plans are in conformity with the Master Plan and Zonal Development Plan. It further held that term “multipurpose community usage” entail may kinds of usage. To arrive at the decision, the Court relied upon another decision of this Court in Triveni Educational & Social Welfare Society v. DDA & Another, 76 (1998) DLT329which held that if there is no breach or violation of the Master Plan and if there is a change in the layout plan, no approval or sanction of the Central Government is required.
5. However, in the present case, the sanction of the Master Plan is not in question but that of the layout plan for which Maya Devi (supra) has already held that it will require to be modified administratively by the DDA as per the method envisaged in the Master Plan and Zonal Plan as envisaged under section 11-A of the DDA. FAO108of 2018 Page 4 of 6 6. Rohit Dhupar (supra) dealt with the conversion of 1500 sq. mtrs. of land into a park instead of a nursery school, dhobi ghat, etc. out of 2000 sq. meters of land earlier earmarked for “multipurpose community usage”. It held that in view of the fact that a park was necessary in terms of the Master Plan and Zonal Development Plan, the conversion was permissible. But importantly, the change was effected with the permission of the DDA. It held inter alia: “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 usage 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. mtrs. 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 ZPD. 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 FAO108of 2018 Page 5 of 6 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 as amendment of modification of the ZDP.” 7. The import of the aforesaid discussion is that the Municipal Corporation by itself cannot alter the use specified in the layout plan; such change of user is permissible only with the sanction of the DDA.
8. In view of all these, the impugned order dated 08.03.2018 is made absolute till the disposal of the suit. All other questions of law are left open. The appeal is disposed off in the above terms. NAJMI WAZIRI, J MAY11 2018/acm FAO108of 2018 Page 6 of 6