Judgment:
ORDER
M. L. Varma, J.
1. The respondent DDA has sanctioned construction of 'New Friends Club' on a plot of land between the Community Centre Friends Colony, New Delhi and 'C' Block of the said colony. The petitioners challenge the permission granted by DDA to construct the said club on the said plot of land as being vocative of Section 14 of the Delhi Development Act, 1957 (hereinafter referred to as 'the Act) as well as the Master Plan 1957 (hereinafter referred to as 'Old Master Plan). According to the petitioners, the plot of land in question on which the club building has been sanctioned is supposed to be an open area/ land. The question involved in the petition, thereforee, is as to what is the permissible land use in respect of the plot of land in question..
2. The petitioners 1 to 3 are residents of 'C' Block, Friends Colony, New Delhi and petitioner No. 4 is the Welfare Association of the residents of C-Block in Friends Colony. It is not known whether petitioner No. 4 is a registered body but nothing will turn on this. However, all the petitioners challenge the use of the plot of land in question for building a club house known as 'New Friends Club' as being in violation of the land-use permissible by law. It is also the case of the petitioners that this plot of land is earmarked as a public park and it was so developed by the respondent/ DDa. The petitioners have pointed out that earlier a request had been made on behalf of New Friends Colony Housing Society for permission to construct a club on the said land and this request was not granted. The petitioners have annexed 'draft minutes' of the meeting of the Institutional Allotment Committee of the DDA, held on 14-8-86 at 12.00 noon where Item No. 16 is the decision on that request. On that date the committee had decided that the society should be asked to make provision of land for a club within the society's land.
3. The petitioners contend that the society known as New Friends Colony Housing Society has been developed on an area of 226 acres and as per the lay out plan of the said colony, schools, parks and other community facilities as per the standard laid down by the master plan are shown in the said lay out plan which has been duly approved by the respondent/ DDA. According to the petitioners a club is also one such community' facility which must come up within the lay out plan of this colony where community cum recreation facilities for the residents of the colony have to be provided. According to the petitioners a club can be made in a residential area.
4. The Friends Colony and the New Friends Colony fall in Zones F. I and F.7 of the Old Master Plan. According to the petitioners, there exists a composite zonal development plan for the said zones, which has prepared and approved in 1966 in compliance with Section 9 of the Act. The petitioners contend that the plot of land on which the New Friends Club has been allowed to be constructed is a green area and acts as the buffer between the community centre of Friends Colony and the residents of C-Block in Friends Colony, New Delhi. The petitioners came to the Court when they saw construction being carried out on the plot in question.
5. The construction of the said club has been undertaken pursuant to a decision of the respondent/ authority, which is annexed to the counter-affidavit of respondent No. 5 viz., the New Friends Club Ltd. New Friends Colony, New Delhi and is on the records of the case. This document records the minutes of the meeting of the Technical Committee of the DDA held on 24-7-89 in the house of respondent No. 1. Allotment of land for Club was Item No. 131 of the Agenda and the decision taken is also in the paper book. On a perusal of this document it becomes clear that even though earlier the New Friends Colony Co op. Housing Society had been asked to make provision of land for a club within the Society's land, however, on the case being subsequently examined and in view of non-availability of suitable land in the lay out plan of the area belonging to the society the allotment of land in question for construction of the club was considered and decided upon.
6. Only 15 per cent. of the total area of the land allotted to the club has been allowed for the proposed ground coverage. This is stated to have been allowed keeping in mind the fact that in the approved PDP (Proposed Development Plan) 2001; although there is no mention of any club; a community hall of the size of 660 square metres has been provided in the said draft for the area in question. There is provision for tennis Court, swimming pool and service Court yards in the club. Membership of the club has to be open for the residents of various blocks of Friends Colony and the neighborhood. The land rates for the land in question; that, is the amount to be paid to the DDA; in respect of this land was to be decided keeping in view the fact that the land in question did not form a part of the land initially allotted to the New Friends Coop. Housing Society Ltd. It is obvious, thereforee, that the authorities concerned including respondent No. 1 were conscious of the fact that the land in question was outside the original area allotted to the New Friends Co-op. House Building Society.
7. In support of the contention that the construction of the club on the plot of land in question is in violation of Section 14 of the said Act and against the permissible land user. Mr. V.N. Kaura, learned counsel for the petitioners, has vehemently urged before us that the said plot of land is supposed to be an open area and has been shown in the old master plan as such. He has referred to the composite zonal development plan, where, according to Mr. Kaura, the plot in question has been shown as 'master plan green'. The contention is that the use of the words 'master plan green' in the said zonal development plan is not merely descriptive of the colour used in the master plan in connection with this plot of land but prescribes the use to which the said land can be put.
8. Mr. Kaura has drawn our attention to Chapter I of the old master plan, which bears the heading 'the Land Use Plan'. On page 32 of the old master plan under this chapter, heading No. 9 talks of Community Facilities and Services. Under this heading there is a sub-heading 'A-Recreation'. Under recreation sub-para (ii) bears the heading 'District Parks'. By referring to Chapter-1-9, Community Facilities and Services - A-Recreation (ii) District Parks' of the old master plan Mr. Kaura has contended that the plot of land in question forms a part of the 'green ways' which are supposed to connect district parks and are meant 'to provide an efficient system of direct pedestrian and cycle tracks for circulation between different residential neighborhoods safe from vehicular traffic'.
9. Learned counsel for the petitioners also referred to Chapter 11 at page 44 of the old master plan, which gives the Zoning and Sub-Division Regulations. Para 2 of the Zoning Regulations (of Chapter-11) states that for these zoning regulations Union Territory of Delhi has been divided in 24 use zones. Admittedly, plot of land in question falls in Land Use Zone-P at Sl. No. 23, which is a Recreational Zone. On page 53 of the old master plan at SI. No. 23, permitted uses for Use Zone P viz., Recreational have been given; as also uses permissible if allowed by competent authority after special appeal.
10. The relevant portion of the master plan reads thus:
'Recreational:
23. USE ZONE P
Uses permitted:
All public and semi-public recreational including parks, playgrounds, park-ways and boulevards; special recreation areas and special educational and recreational areas; bus and railway passenger terminals and car parking area. Parking area requirements must be approved in all cases.
Uses permissible if allowed by competent authority after special appeal:
Outdoor theatres and drive-in-cinemas, restaurants and selling of eatables; public utility and municipal facilities; uses clearly incidental to recreational use which will not create nuisance or hazard. Dwelling for watch and ward staff. Parking area requirements must be provided.
Uses prohibited:
Uses not specifically permitted herein'.
11. Mr. Kaura, then referred to the map attached to the old master plan being the Land Use Plan and pointed out that the Heading 'Recreational'; which shows the land meant for recreational use; had been shown in three different shades of green colour in this land use plan. The land shown in light green colour is for district parks, playgrounds and open spaces. The land shown in dark green colour is for public and semi-public recreational use. The land shown in dark green colour spotted with black dots are for regional parks. It is not in dispute that the land in question falls in an area shown in light green colour. By referring to the Land Use Plan Mr. Kaura has contended that this land falls in the 'green-way', which goes and connects up to the district park along the Jamuna River Front. According to Mr. Kaura, there are three district parks, in and around the area/zone in question viz., in Kalkaji, in Tuqlakabad and along the riverfront.
12. Mr. Kaura contended that this Land Use Plan has been prepared on a macro-level and the zonal development plan is a plan prepared on a micro level. He has referred to page 66 of the old master plan where at the bottom of the left hand side column, there is a heading 'Parks and Open Spaces which says that district parks have been shown in the land use plan and that in addition local parks and playgrounds have to be shown in zonal and detailed plans. He has then referred us to zonal development plan, which is annexed to the writ petition. According to Mr. Kaura this zonal development plan is a more detailed plan of the zone which stipulates as to which portion of the land would be used for parks and playgrounds from out of the land shown in light green colour in the land use plan of the old master plan.
13. Mr. Kaura then pointed out that in the zonal development plan the areas which are shown in thick black dots are to be used for parks and playgrounds and the land which is shown in small black spots/dots is the 'master plan green'. It is in this context that Mr. Kaura had urged that the words 'master plan green' do not describe the colour used in the master plan but describe the land user in respect of the land shown 'master plan green'. He has also referred to the dictionary meaning of the word 'green' in support of his contention that the plot in question being a part of 'master plan green' can only be used as open spaces where there is greenery.
14. Learned counsel for the petitioners further contended that if the land which is shown as 'master plan green' in the. zonal plan could be used for district parks and playgrounds then the zonal plan would have shown it as such just as the parks and playgrounds have been shown in thick black dots, According to Mr. Kaura it was wrong to contend that this 'master plan green' or the open space of the 'green-way' can be put to use as the district park or for that matter as a play-ground. Mr. Kaura submitted that this argument without prejudice to the other argument made in the alternative that the plot in question fell in the strip of land shown in green colour being green ways meant to connect district parks for the use of pedestrians and cycle tracks. It may be noticed here that Mr. Kaura was, however, unable to point out by referring to the zonal development plan that there was a 'green-way' in the zone continuously running through the zone leading up to or connecting the district parks. In the zonal development plan there is no continuity of any such green ways.
15. Mr. Kaura also urged that even if in a recreational area a club house could be made; since in the zonal development plans the plot in question has been shown as an open space/ green-ways/'master-plan-green', and the zonal development plan gives the details of land use in a particular zone; the construction of a club on the land in question was in violation of the plans. In support of the aforesaid contention, Mr. Kaura has drawn our attention to the judgment of a Division Bench of this Court in the case of DDA v. National Tonnage Club reported in 1983 Raj LR 6581984 Cri U 268 This judgment may support Mr. Kaura only to the extent that a clubhouse cannot be constructed in a recreational zone if in the zonal plan that particular area is earmarked as an open space. This contention presupposes that the plot in question undisputedly is earmarked as an open space. But if it is held to the contrary then the judgment cited by Mr. Kaura will be of no help to the petitioners.
16. In support of his argument that for changing land use, notifications are issued containing amendments in the master plan permitting such change. Mr. Kaura has drawn our attention to a notification-dated 5-8-72 issued by the Ministry of Works and Housing, Government of India, whereby the land use of a certain area of land was changed from recreational to industrial. In this notification the phrase 'master plan green' has been used. With reference to this notification, Mr. Kaura has tried to further buttress his argument that this phrase is descriptive of the land use and is not indicative only of the colour used in respect of a land in the land use plan. Mr. Kaura points out that change in land use can be made as per the provisions of Section 11A only; which provides for modifications to master plan and zonal development plan. Mr. Kaura contended that the new master plan which has come into effect from 1-8-90 has been notified under Section 11A of the said Act. He points out that the Master Plan 1990 modifies the Old Master Plan. However, whereas the said new Master Plan of 1990 contains a land use plan on a macro level, the zonal development plans; which were made under the old master plan; have not yet been modified as per Section 11-A of the Act. He contends that the zonal development plans which were prepared during the currency of the old master plan still hold the field, as they were prepared pursuant to the provisions of S. 8 of the said Act. Mr. Kaura contended that any construction allowed to be made on an open space contrary to the existing zonal development plan would be in violation of Section 14 of the Act.
17. It may also be noticed that Mr. Kaura does not dispute that under the New Master Plan and the land use plan attached thereto the land use in respect of the area where the plot of land in question falls has been changed from district parks, playgrounds and open spaces to residential. The plot of land in question now falls in an area, which is meant for residential use, where a clubhouse can be built. There is no dispute that under the old master plan also a club house can be built in an area/ zone which was meant for residential use depending upon the lay out plan containing provision for community facilities; so that a club house could be made on a plot of land where community facilities in a residential area had to be provided.
18. Mr. Kaura, however, argued that it would incorrect to treat the land as falling in a residential land use area under the New Master Plan and then contending that even under the Old Master Plan a clubhouse could be constructed in such an area. The argument of Mr. Kaura is that the construction of a clubhouse on the plot of land in question was sanctioned during the currency of the old master plan. thereforee, the legality or otherwise of such an action has to be tested with reference to the old master plan. Consequently, he contended that just because under the New Master Plan it may or may not be legal to permit construction of a clubhouse, in the area in question, that was no reason to hold that under the old master plan the permission to allow construction of a clubhouse would be valid in law.
19. Mr. R. K. Anand, learned counsel for respondent No. 4 has submitted that the sanction accorded by the DDA for building of a club house on the plot of land in question is valid and in accordance with the Delhi Development Act as well as the Master Plans both new and old. Mr. Anand pointed out that such a sanction is according to the permissible land use and the plot in question is not earmarked as an open space even under the Old Master Plan. With reference to the map attached to the old master plan. Mr. Anand submitted that there are no district parks in the zone in question for any green-ways or path-ways to connect such district parks and there is no question of any cycle track or pedestrian path for connecting such district parks.
20. Learned counsel for respondent No. 4 urged that the impugned sanction accorded by the DDA for building the club house on the plot in question was done by keeping in mind the then proposed new master plan. He contends that there can be no doubt that under the new master plan such a clubhouse can be built on the plot in question. thereforee, even if the sanction accorded were to be set aside the DDA could accord such a sanction again which would certainly be in conformity with the new master plan. thereforee, he submits that this Court will not issue any writ as prayed for. According to Mr. Anand the club house being built would be for the benefit of the residents of the colonies around the club and, thereforee, for the benefit of the general public.
21. Mr. Jayant Bhushan, learned counsel for respondent No. 3 submitted that the words 'master plan green' merely denote the colour shown in the plan and are not indicative of the land use. He points out that at page 53, the old master plan gives the land use in respect of the land in the recreational zone, which is shown in three different shades of green colour in the map attached to the old master plan. According to Mr. Bhushan, these uses are interchangeable. He contends that the club and clubhouses can be built in areas earmarked as semi-public recreation in the said map. He points out that the existing clubs like the Roshnara Club, Gymkhana club, Golf Club are in such areas. He also points out that the Jawaharlal Nehru Stadium, the Indira Gandhi Indoor Stadium, Ferozshah Kotla Cricket Stadium are built on lands which are shown in the attached to the old master plan as 'district parks, playgrounds and open spaces'. According to, Mr. Bhushan, in the lands earmarked for district parks, playgrounds and open spaces; railway stations, bus stands, parking spaces and Olympic Stadia can also to be constructed as per the old master plan. He referred to page 53 of the old master plan in support of his contention. Consequently, he argued that if the areas earmarked for district parks, play grounds and open spaces were to be used only for the purpose as contended on behalf of the petitioners then railway stations, bus stands and Olympic stadia cannot be built there; but the old master plan permits such construction on such land.
22. Mr. Bhushan strongly urged that the DDA had and has the authority to reconsider its decision. He argued that the fact that earlier a request made by respondent No. 4 to permit construction of a club house outside the area earmarked for the New Friends Colony Co-operative Society had been turned down goes to show that there has been an application of mind, while according the impugned sanction. He submitted that since DDA had the authority to sanction such a clubhouse or a piece of land, which is admittedly within the jurisdiction of the DDA, the grievance made by the petitioners is untenable. He points out that the permission to construct the clubhouse is in accordance with the permissible land user in respect of the plot in question and not contrary to either of the master Ian, or the Delhi Development Act.
23. In reply to the argument of Mr. Kaura; that the zonal development plans prepared under the old master plan still hold the field; Mr. Jayant Bhushan has drawn our attention to page 148 of the new master plan. In the right hand side column on this page of the New Master Plan, in the last two lines above the heading 'Development Code' it is clearly stated that 'In the absence of zonal plan of any areas the development should be in accordance with the master plan'. Consequently, Mr. Bhushan urged that it cannot be argued that the old zonal development plans still hold the field after coming into force of the new master plan. In any event, Mr. Bhushan contends that the structure of the clubhouse sanctioned is a very small percentage of the area earmarked for the club and the rest of the plot would in any case be open space.
24. It may be noticed here that the words 'master plan green' have not been defined in the master plan though these words have been used in the zonal plan. As noticed above it is not in dispute that the land in question falls in an area shown in light green colour in the map being the land use plan attached to the old master plan and earmarked for district parks, playgrounds and open spaces. As also noticed above, there is no district park shown in the zonal development plan in the area where the plot in question is located. The construction of the club in question will provide facilities for tennis courts, swimming pool etc. being sporting facilities and playing activities with a clubhouse. There are much bigger structures in Ferozshah Kotla grounds as well as the Jawaharlal Nehru Stadium and Indira Gandhi Indoor Stadium providing sports and games facilities, which are also located in areas earmarked for district parks playgrounds and open space. The fact that Jawaharlal Nehru Stadium, Ferozshah Kotla grounds and Indira Gandhi Indoor Stadium are located in the area earmarked for district parks, playgrounds and open spaces was not seriously disputed by Mr. Kaura.
25. In view of the fact that there are no district parks as already noticed above, it is not possible for us to hold that the plot of land in question on which the construction of the club house has been sanctioned is a part of any green ways meant to connect district parks or for that matter any pathway for pedestrians or a cycle track. We are also not persuaded to hold that the plot in question is earmarked as an open space or is a part of open spaces. thereforee, it is not possible for us to hold that the sanction accorded by the DDA for construction of the club house is in violation of the old master plan or Section 14 of the Delhi Development Act, The contention of Mr. Bhushan with reference to page 148 of the new master plan referred to above has merit and is accepted and, thereforee, we are unable to hold that the sanction of a club house on the plot of land in question is in violation of the zonal development plan.
26. We are, however, not convinced with the argument of Mr. Jayant Bhushan that the uses in the recreational zone are inter-change-able insofar as it is difficult to accept the vacated contention that in an area earmarked for 'public and semi-public recreation' s regional park may be constructed, just as it may not be possible to accept that Olympic Stadia may be built in an area earmarked as regional parks. We, however, express no final opinion in this regard because, according to us, it is not necessary to do so for deciding the present writ petition. We also think it is unnecessary to decide whether the words 'master plan green' denote the colour or the land use, since we have held that the plot in question is not an open space or part of any green-ways.
27. According to us there has been no violation of the old master plan in the first instance. Besides we cannot shut our eyes to the subsequent developments as our writ jurisdiction is not hide bound and for doing substantial justice between the parties we are of the opinion that subsequent events must also be taken note of while deciding this petition. There is no serious dispute or controversy that under the new master plan the plot in question falls in a residential area where a clubhouse can be built. The sanction accorded; which is impugned in the writ petition had been done keeping in mind the proposed master plan, which has since been notified and has come into force. Even if it were to be assumed that there was any doubt with regard to the permissible land use of the plot of land in question under the old master plan such a doubt is totally cleared. Since the club can be built on the plot of land in question under the new master plan, we see no reason to interfere with the sanction accorded for constructing a clubhouse on the plot of land in question. We are of the opinion that unless there is a clear violation of law in permitting the user of the land for construction of a club house or even if there is any doubt with regard to the land user of the plot in question, the decision of the respondent/ DDA in this regard should prevail particularly because such a decision has been taken after proper application of mind. After giving our serious consideration to the case, it appears to us that the writ petition must fail and is accordingly dismissed. There will be no order as to costs. Interim orders stand vacated.
28. Petition dismissed.