Greater Kailash-ii Welfare Association and anr. Vs. Municipal Corporation of Delhi and ors. - Court Judgment

Excerpt:
- - proper documents for effectively transferring the sites earmarked for community building etc. (15) we fail to appreciate how it can be said that there is any fraud on the petitioners which has been exercised. similarly as far as dlf is concerned, it was in possession of 85 sites and with a view to perfect its right over 9 sites it surrendered the possession of 75 sits in favor of m. it is only in this context that re-alignment of the layout plan has been done which does not affect any of the residential plots nor are other public facilities like parks, roads in any way adversely affected. we fail to understand as to how the petitioners can be aggrieved by the action of the respondents.b.n. kirpal, j. (1) rule d.b. (2) the challenge in this writ petition is to a resolution dated 3rd may, 1989 passed by the standing committee of the municipal corporation of delhi followed by a settlement dated 24th july, 1989 between the m.c.d. and respondent no, 3, d.l.f. universal ltd. (3) the petitioners are a society consisting of the residents of greater k.ailash-11. the main contention in the writ petition is that by virtue of the impugned resolution and settlement the rights of the petitioners are being adversely affected inasmuch as a fraud has been played on the public exchequer and the municipal corporation of delhi by showing undue favor to respondent no. 3 at the expense of the welfare of the residents, the specific of grievance of the petitioners is that as a result of the impugned action of the respondents, an area of 3.65 acres in greater kailash ii is going to be used for group housing. (4) before going into the legal contentions raised by the petitioners, it will be necessary to advert to a few facts. (5) respondent no. 3 is stated to be a coloniser. from the facts on record, including the facts as revealed by i he resolution dated 3rd may. 1989, it appears that respondent no. 3 developed 16 colonies in delhi. the lay out plans of these colonies had to be approved by the erstwhile improvement trust and thereafter by the municipal committee and the municipal corporation of delhi. the land in respect of these colonies was purchased by respondent no. 3 and thereafter building plans were submitted. (6) the municipal bye-laws require that certain areas in the colonies was to be kept as open spaces meant for parks, roads and other services whereas certain other areas had to be kept as open sites meant for public utility buildings. (7) there has been an on-going litigation between respondent no. 3 and the municipal corporation of delhi since 1965 with regard to open spaces and open sites. the case of respondent no. 3 has been that they were obliged to hand over to the municipal corporation of delhi open spaces without charging any money. these open spaces were to be maintained and looked after by the m.c.d. and were to consist of parks, roads etc. with regard to open sites which were meant for public utility buildings, the case of respondent no.3 was that they were to be transferred only on 'no profit no loss' basis. according to the lay-out plans, in some of the colonies there were sites for schools. according to respondent no. 3 these sites were not required to be transferred by respondent no. 3 to the corporation. (8) as already indicated, litigation between the parties commenced in 1965. one round was completed when the case went up to the supreme court against a judgment of the division bench of this court reported as messrs d. l. f. housing & construction. (p) ltd. v. delhi municipal corporation and others, (1969) delhi 1055. the supreme court in d.l.f. housing construction (p) lid. v. delhi municipal corpn. and others, : air1976sc386 came to the conclusion that disputed questions of fact were involved in the case and the matter should be decided by the civil courts. after this decision of the supreme court on 4th december, 1975, suits were again instituted in 1979, 1980 and 1981 and interim injunctions were obtained. on 29th november, 1986 interim injunctions were vacated and an appeal was filed. in appeal the interim orders were passed whereby respondent no. 3 continued to retain possession of 85 sites in 16 different colonies of delhi. at this stage it may be noted that one of the colonies in respect of which the litigation was continuing was mode! town. one of the two plots in the said colony was sold by respondent no. 3 to m/s lal chand public charitable trust. the question arose whether the sale of this plot was valid or not. it had been contended that this plot had been earmarked for a public building and, thereforee, it could not be sold. it was submitted, in that case, that respondent no. 3 was really a trustee and as such the plot earmarked for public building could not be sold by it. rejecting this contention, this court in d.l.f. universal ltd., new delhi and others v. arjan singh and others, : air1986delhi381 held that a coloniser purchases land, develops it and earmarks it and makes it ready for public use and then sells the plots. model town was a colony which was developed by respondent no. 3. some plots were earmarked for being used for public purpose but this earmarking did not create any trust in favor of the public. it was held that the earmarking of the plots would not preclude the company from transferring the plots and the sale of the same by the company to a public charitable trust for construction of a public building was valid. (9) we arc informed that more than 10 cases were going on between the parties in different courts. the interim orders had been issued. the possession of 85 sites was with the respondent no. 3 because of the various interim orders passed by different courts. (10) it appears that efforts were made to see if a compromise could be arrived at between the parties and after the talks for compromise were successful, an amicable settlement was arrived at which led to the passing of a resolution dated 3rd may, 1989 by the standing committee. (11) a copy of this resolution has been placed on record by shri nariman at the time of hearing. reference in this is made to the commissioner's letter dated 1st may, 1989 wherein full facts relating to the state of litigation and also as to the state of the colonies and the development of land is indicated. reference was made in this to the demand of respondent no. 3 that there was excess unutilised/unplanned land within the sanctioned lay out plan of greater kailash ii for which it sought approval for two group housing schemes, pocket i measuring 2.5 acres and pocket ii measuring 1.152 acres. with regard to this the preamble of the resolution, giving all the detailed facts, is as follows : '(5).the matter has been discussed in various meetings of mcd and d.l.f. authorities, keeping in view the unending litigation, providing the residents with the desired/developed community facility sites and preventing such sites from being further encroached upon. the latest letter of m/s dlf dt. 10.4.89 along with its annexures, enclosed as annexure 'x'. the same has been got examined and the vital points are as under. (a) in particular reference of land under greater kailash-ii it is submitted that layout plan of greater kailash-ii submitted by d.l.f. was originally approved by the standing committee in 1959 for 200 acres and the revised layout approved in 1969 for 226 acres and also a completion plan approved in 1971. it may also be added that earlier in 1984 the proposals submitted by d.l.f. for group housing for plot of land measuring 2.00 acres and measuring 1.155 acres were rejected by the standing committee vide resolution nos. 304 dated 31.3.84 and 465 dated 27.4.84 respectively. (b) m/s d.l.f. on the basis of revenue records have been claiming an area of 263.10 acres. now as per the physical survey report dt. 13.1.89/supplementary report dt. 24.3.89 got done by d.l.f. in consultation with dda they have calculated/established an area of 239.469 acres on ground in greater kailash-ii including an area of 3.65 acres approximately of unplanned and unutilised land staling also that certain areas of land belonging to d.l.f. are not being presently confirmed by dda on account of some clarification to be sought from the ministry of rehabilitation and as such requested that dlf should have the right to subsequently ask for the approval of the group housing schemes on the additional land as may, later on be confirmed by dda to be belonging to dlf. on reference made to dda the addl. commissioner (land) dda vide his reply dt. 20.3.89 and also indicated the boundary between greater kailash-ii and e.p.d.p. colony and mandakini enclave on copy of layout plan of greater kailash-ii further clarifying that there is no acquired/dda land on the south east of this boundary line which forms part of greater kailash-ii. the d.l.f. in their supplementary report/plans dt. 24.3.1989 annexed with their representation of 10.4.89 i.e. above annexure have stated to have taken into reckoning the above boundary line as fixed by dda. (c) the area provided for community facilities as per layout plans/resolutions of greater kailash-ii comes to 22.5. acres excluding area under park and parking (19 acres). (d) as per representation dt. 10.4.89 i.e. annexure-'x' m/s d.l.f. want retain the following 6 sites in greater kailash-ii with them for development as per the use prescribed in the layout plan/master plan :- 1. higher secondary school 4,500 acres 2. pre-primary school (pp-4) 0.500 ' 3. pre-primary school (pp-5) 0.500 ' 4. community centre (cc- ) 0.500 ' 5. public building/health centre 0.500 ' 6. basic primary school (bp-2) 2.000 8.500' (12) the d.l.f. have agreed to hand over 19 public building/community facility sites covering an area of 13.72 acres as such the total area under community facilities would be 22.22 acres which is more or less same as per the approved layout plan. (e) the d.l.f. want to retain the following 3 sites in greater kailash-i:- greater kailash-1 1. public building sites no. 1 near archana cinema 1.000 acres 2. school site (site no. 9) 2.500 ' 3. public building site no. 6 adjacent to 'r' block (this site has been developed on site as a park by dda) 1.500 ' 5.000 ' (f)that d.l.f. have agreed to participate in the scheme relating to the construction of community hall for greater kailash-i on a site belonging to m.c.d. out of the area of 2 acres earmarked for a public building being site no. 5 part of which has been presently occupied by south delhi club or any other site belonging to mcd to the extent of meeting the cost of construction of 3000 sq. fit of area only of the proposed community hall, in accordance with the design to specified by mcd. (g) that total no. of public building/school etc. sites in all the 16 colonies of dlf are 87. two public building sites each of 0.500 acres in model town have been sold by d.l.f. to lal chand public charitable trust in the year 1963-64. d.l.f. has transferred on lease basis, ii public building sites in the years 1963-64 two charitable trusts in greater kailash-i, kailash & n.d.s.e.-i. for one school site in kailash colony measuring 5.0 acres, the lease in favor of the trust had been executed by d.l.f. on 10.4.70. the trust had further subleased this site to vocational educational society which had already constructed a building and has been running a higher secondary school known as summer field school for the last several years. (h) that some of the public building sites have been acquired under the provisions of land acquisition act (e.g. school sites at hauz khas and two public building sites in ndse-i & ii and the service personnel site in greater kailash-i) and copensation given to d.l.f. the division bench of delhi high court vide its judgment dated 13.12.85 in respect of the public building site at model town has also upheld the right of d.l.f. to dispose the public building sites to a charitable trust for proper utilization. (i) in view of the above out of 87 sites dlf would transfer 75 sites to the corporation that in turn the dlf without prejudice to their right would be agreeable to arrive at an amicable settlement, with the mcd with respect to public/building/school etc. sites in in all the colonies developed by dlf (about 75 sites) on as is where is basis free of cost regarding parks sites the same stand handed over/taken over by the land & estate deptt. out of the above balance 75 sites, dlf have transferred 7 sites on lease basis to charitable trust with this transfer to mcd of all the 75 sites, the mcd, shall become the 'lesser' in these seven cases also honouring terms and conditions of existing perpetual lease deed and the commitments made by dlf and the trust. (j) that meanwhile the dlf want approval for their group housing schemes (on the extra unutilised and unpainted area in greater kailash-ii owned by dlf which now comes to 3.652 acres approx. as per the latest boundary delineated by the dda) on two pockets admeasuring 2.500 acres and 1.152 acres respectively shown as 'red' on the enclosed layout plan at maximum far and dwelling units as per prevailing master plan norms. and 're adjustments in the existing public buildings/school etc. sites proposed in the revised layout of greater kailash-ii incorporating such changes so long as the total area for the public building/school etc. sites remain unchanged. it is also observed that the dlf have not increased the number of residential and commercial plots as were approved in the revised layout/completion plans of 1969 and 1971.'in view of the aforesaid facts, it was mentioned that if the proposal was agreed to, all the litigation will be withdrawn. the case was submitted to the standing committee for consideration and decision in the following lines: '(i)as proposed by the applicant, the arrangement regarding handing over/transfer of 75 sites for public buildings, be approved in principle. (ii) the applicant would obtain from standing committee for two pockets of group housing scheme which have become available on a/c of readjustment of community facilities sites in/greater kailash-ii in accordance with the prevalent zoning regulations of master plan. the applicants would be required to obtain clearance under provisions of l j.l.c.r. from competent authority/delhi admn. and it would also be verified that the land vests with the applicants. (iii) the proposal for re-adjustment for community facilities in greater kailash-ii as proposed by applicants be considered for approval. (iv) sites for public buildings/school facilities in all the dlf colonies except the sites to be retained dlf as proposed would be transferred to mcd. within 3 months or prior to submission of detailed group housing scheme. the applicants would be allowed to retain 6 sites in greater kailash-ii and 3 sites in greater kailash-i. in addition one site in kailash colony where summer field school exists, would remain with present owners and public building and hospital sites in model town which already stand allotted to charitable trust would remain with respt. (v) the sites for schools. heath centre and community centres would be utilised for the purposes, shown in the approved layout plans of these colonies and as per the re-adjustment plan of greater kailash-i under consideration for approval. the community centre and public building sites could be used for construction of community hall or any other use as permissible under the public and semi public facilities including and cultural instructions as per zoning regulations of master plan. (vi) site no. 6 earmarked for public building in greater kailash-i adjacent to r block has been shown as dist. park and open space in the zonal plan. the mcd would refer the matter to dda requesting to restore the land use as per approved layout plan. (vii) with regard to dilshad garden exnt. i the applicant would transfer the open spaces and other community facility sites to the corporation, free of cost. as far as recovery of decency charges in the services are concerned for purpose of take over and maintenance of services, the same shall be payable by the plot/house owners, as per details given in para 5-k. (viii) necessary adjustment for incorporation of public building and hospital site in the layout plan of model town, will be made in accordance with original approved layout plan for this purpose (the site was shown for a school as per the layout committee decision). (ix) the d.l.f. will bear the cost of construction of a community hall in greater kailash-i on a site earmarked for public building adjacent to south delhi club or any other site owned by mcd for covered area of 3000 sq. ft. in accordance with the design to be specified and approved by the commissioner. (x) the south eastern boundary of greater kailash-ii would be ear marked by the applicants by boundary pillars as has been verified (xi) that mcd shall be exclusive owner of all the 75 sites to be transferred by d.l.f. to m.c.d. and d.l.f shall have no title or interest in respect thereof. m.c.d. may deal with these sites including the sites which may have been encroached upon in any manner it deems fit and proper. (xii) the sites for public buildings, would be taken over by land & estate department which are proposed to be transferred by the applicants to m.c.d. in view of the above arrangement, proper documents would be prepared in consultation with lo/la by land & estate department with regard to withdrawal of court cased pending between the applicants and corporation and any other disputed matters. proper documents for effectively transferring the sites earmarked for community building etc., in favor of m.c.d. would also be prepared and got approved by land & estate department in consultation with l.o./la., and would be executed by d.l.f.'(12) the aforesaid proposal was accepted in toto by the standing committee vide the resolution dated 3rd may. 1989. thereafter deed of settlement dated 24th july, 1989 was drawn up. as the said deed related to immovable property, the same was registered after being stamped. according to this settlement deed d.l.f. was to hand over 75 sites to m.c.d. for public buildings in all the 16 colonies which had been developed on 'as is 'as is where is' basis and free of cost. out of the aforesaid sites 7 had already been sold to two charitable trusts, so in effect 68 sites were to be handed over to m.c.d..d.l.f. was to continue to be the owner of and retain 6 sites in greater k.ailash-ii and 3 sites in greater kailash-i. in addition thereto, one school site in kailash colony had been handed over and the same was the position with regard to a site for hospital at model town. re-adjustment plan for community facility sites in g.k..-ii had already been approved and dlf was entitled to develop the same. there was out site marked 6 in the plan which was earmarked for a public building in g.k.-i adjacent to r block which had been shown as distt. park and open space in the zonal plan. it was agreed that the m.c.d. would refer the matter regarding the said site no. 6 to dda requesting it no restore its land use as per approved plan. (13) it has been contended by shri salve that the passing of the aforesaid resolution and the executive of the settlement deed constitutes a fraud on the part of the corporation. we have unable to agree with this submission. as has already been stated there was litigation which was ensuring between the corporation and the d.l.f. for the last 25 years. this litigation was brought to an end by the compromise between the parties. during the period of litigation, all the 85 sites were in possession of dlf. as a result of the compromise between the parties 75 sites have been handed over by the dlf to m.c.d. free of cost of course 7 of these sites had been leased by dlf to public charitable trusts but as a result of this settlement henceforth it will be the m.c.d. which will be the lesser and not dlf. as far as dlf is concerned, it has gained a clear title to 9 sites, 6 in g.k. ii and 3 in g.k.i. (14) it is to be born in mind that the land on which these 16 colonies were developed was free-hold and belonged to respondent no. 3. the ownership of the dlf continued with the regard to these 9 sites and this is recongnised by the settlement deed of 24th july, 1989 itself. (15) we fail to appreciate how it can be said that there is any fraud on the petitioners which has been exercised. prior to the settlement having been arrived at, mcd had been deprived of 75 sites. it is no doubt true that it was laying a claim to the same in the litigation which was pending between the parties but in actual fact it is the d .l.f. which was enjoying the possession of the said sites. the unfortunate part was that because these sites were to be issued for public purposes for constructing public buildings and as there was a cloud on the title of the dlf which was sought to be placed no building was constructed, except those which were constructed by the charitable trusts on 7 sites which were transferred in effect it is the general public which suffered as they were deprived of the benefit of public buildings on these sites. (16) in any compromise the parties have to come to a meeting ground. there can be no compromise if both the parties retain their rigid stances. thereforee, when the mcd did not press its claim in respect of 9 sites which were ultimately retained by the dlf and, in lieu thereof, it got 75 sites free of cost, it cannot be said that mcd has played a fraud on its part. similarly as far as dlf is concerned, it was in possession of 85 sites and with a view to perfect its right over 9 sites it surrendered the possession of 75 sits in favor of m.c.d. without charging any money. merely because a public body. government or a municipality enters into a compromise with a view to bring to an end a history of litigation between the two parties cannot lead one to the conclusion that there has been any fraud which has been played on any one. (17) it was as o submitted by shri salve that the urban land ceiling act permission had not been obtained by the respondents. it will be seen that in the resolution sanctioning the compromise it had been stated that respondent no. 3 would be required to take clearance under the provisions of urban land ceiling act from the competent authority. we are informed by mr. nariman, and he has placed on record letters in support of the submission, that application have already been filed with the competent authority for the grant of such approval. it is clear, thereforee, that no action can be taken by the respondent no. 3 in violation of the urban land ceiling act. (18) it was then contended by shri salve that layout plans which had been submitted cannot be altered. reference was made to section 313 of the m.c.d. act which provides that the owner can send to the commissioner written application for permission of the layout plan. the contention was that once the lay out plans had been sanctioned, no re-adjustment of the plans can take place. (19) we are unable to agree with this submission. the members of the petitioner-association are owners of plots of land in g.k. ii. as a result of re-alignment of the plan no size of any of the residential plots which had been sold to these members been altered. even the location thereof has not been changed. as it appears from what has been stated herein above initially when the layout plan of g.k. ii was sanctioned the area shown was less than what was subsequently found to be. the excess area which has now been discovered after due measurements is over 13 acres out of which two sites totalling 3.65 acres are to be developed by respondent no. 3 for the purpose of group housing. it is only in this context that re-alignment of the layout plan has been done which does not affect any of the residential plots nor are other public facilities like parks, roads in any way adversely affected. in our opinion, when power under section 313 is given to the corporation to sanction a plan, then by virtue of the general clauses act the said authority must necessarily have the power to amend the layout plan. as long as the amended lay out plan is in accordance with the bye-laws and other rules and regulations we see no infirmity in the action of the respondent-corporation in passing the re-aligned layout plan. we fail to understand as to how the petitioners can be aggrieved by the action of the respondents. merely because respondent no. 3 may financially gain in the whole exercise does not mean that the action of the corporation is in any way mala fide or is a fraud in the exercise of the powers. (20) it was also submitted that the settlement was under-stamped and there had also been violation of the registration act. we again do not see any merits in this contention. the appropriate authorities have applied their mind and the. settlement deed has been registered. if there has been any under valuation we are sure that the competent authorities under the act would have taken appropriate steps. it is stated by the learned counsel for the respondents that adjudication under the stamp act was done and thereafter stamps affixed and the deed registered.. this being so, there is no merit in the aforesaid contention of shri salve. (21) lastly it was contended that the provisions of chapter-20-c of the income-tax act have been violated. in our opinion the provisions of chapter 20-c are not attracted to the present case, firstly for the reason that the deed of settlement has already been registered and, secondly, there is no transfer of the 9 sites by the dl.f. in favor of any one else. mere recognition of the existing title of dlf of these 9 sites would not attract the provisions of chapter 20-c of the act. (22) what has happened ill this case is that there has been a compromise of doubtful claims and counter-claims which has been effected by the impugned resolution and the deed of statement. from the facts enumerated hereinabove, it is clear that the said compromise is not in violation of any law. as has been stated by shri sabharwal, appearing on behalf of m.c.d., the lay out plans were sanctioned separately and in fact the settlement has already been acted upon in july and november, 1989 and possession of 75 sites has already been handed over by d.l.f. to m.c.d. as a result of the aforesaid compromise, the the litigation between the parties has been brought to an end resulting in even the withdrawal of some of the suits. (23) for the aforesaid reasons, we find no merit in this petition and the same is accordingly dismissed. there will be no order as to costs.