Delhi High Court
Dr. Pramod Pal Sehgal vs South Delhi Municipal Corporation And ... on 13 August, 2018
Author: C.Hari Shankar
Bench: Chief Justice, C.Hari Shankar
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*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM APPL. 26263/2018 in W.P. (C) 6402/2018
DR. PRAMOD PAL SEHGAL ..... Petitioner
Through: Mr. Sachin Chopra and
Ms.Aastha, Advs.
versus
SOUTH DELHI MUNICIPAL CORPORATION AND ORS.
..... Respondents
Through: Mr.Sanjay Poddar, Sr. Adv. with
Ms.Ruchi Jain and Mr.Govind, Advs. for
SDMC
Ms.Mini Pushkarna, Standing Counsel for
North DMC and East DMC
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 13.08.2018 CM APPL. 26263/2018 (for vacation of stay)
1. By this application, the Respondent No.1 seeks vacation of the order of stay, passed by us on 1st June, 2018, which reads thus:
"W.P.(C) 6402/2018 & CM No. 24580/2018 (stay)
3. Issue notice to show cause as to why rule nisi be not issued.
4. Mr. Sandeep Bajaj, Advocate accepts notice for respondent No.1 and Mr. Mini Pushkarna, learned Standing Counsel accepts notice for respondents no.2 &
3. W.P.(C) 6402/2018 Page 1 of 6
5. Time is sought to file counter affidavits. Let the same be filed within six weeks from today. Rejoinder thereto, if any, be filed before the next date of hearing.
6. List on 5th September, 2018.
7. In the meantime, the respondents shall stand prohibited from converting any land meant for use as a school or park into multilevel parking. The respondents are restrained from raising any further construction on the impugned sites.
Order be given dasti under the signatures of the Court Master."
2. The writ petition, filed in public interest, contains the following prayers:
"In the light of the following averments, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to:
a) Issue writ of mandamus or any other appropriate writ/order direction to the Respondents/Municipal Corporation of Delhi to ensure that Schools or School Playgrounds and Children Parks and Land or Plots earmarked for Schools or School Playgrounds or Children Parks; allotted to the respective Municipal Corporation, for the benefit of Children of Delhi, by way of making provisions in the Statues and Master Plan 2021, within their respective jurisdiction; shall not be used for any other purpose, other than building and running such Schools or School Playgrounds or Parks. And;
b) Pass all necessary directions to uphold "the W.P.(C) 6402/2018 Page 2 of 6 Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE)", which ensures right of free and compulsory education to children in India under Article 21A of the Indian Constitution and reiterate that education has become a fundamental right of every child since the Act came into force on 1st April, 2010.
c) Pass any other or further orders/directions, as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."
3. A reading of the prayers contained in the writ petition, as extracted above, makes it clear that the petitioner does not, in the writ petition, espouse his cause qua any particular plot or piece of land, but seeks an omnibus mandamus, directing the respondents to ensure that schools, school playgrounds, childrens parks and lands/plots earmarked for the said purposes, as per the Master Plan of Delhi (MPD) 2021, be not used for any other purpose.
4. Given the public interest purpose involved, we had, vide our above extracted order dated 1st June, 2018, injuncted the respondents, pending the decision in the writ petition, from converting any land, meant for use as a school or park, into multi-level parking.
5. The present miscellaneous application concerns itself only with one of the sites at which multi-level parking is being constructed i.e. J-Block, Rajouri Garden. It is contended in the application, filed at the instance of the SDMC (Respondent No.1), W.P.(C) 6402/2018 Page 3 of 6 that the construction of the multi-level parking at the said plot at J- Block, Rajouri Garden is being undertaken as per the MPD 2021. It is urged that Rajouri Garden is a suburban area in West Delhi which has severe parking problems, being highly congested and over populated with a market which has developed over a period of time.
6. It is also pointed out that the stretch of the Ring Road from Mayapuri Chowk to Raja Chowk is declared as commercial and the stretch of road known as Major Sudesh Kumar Marg is in the category of mixed land use.
7. Various other grounds have also been urged, on the basis whereof vacation of the order of stay, passed by us on 1 st June, 2018, qua the plot of land at J-Block, Rajouri Garden, has been sought; however, it is not necessary for us to refer to all the said grounds. Suffice it to state that, as the application for vacation of stay discloses, the project of construction of multi-level parking at J- Block, Rajouri Garden, stands specifically challenged, in W.P.(C) 4691/2018 [Friends of Rajouri Garden Environment (Regd.) vs SDMC], in which notices stand issued, and which is presently pending before the learned Single Judge. A copy of the said writ petition has been annexed to the present application, and a reading thereof discloses that the petitioner has, in that case too, specifically prayed for quashing the notice inviting tenders, issued by the SDMC, for construction of automated multi-level car W.P.(C) 6402/2018 Page 4 of 6 parking facility at J-Block, Rajouri Garden, as well as an injunction, to the SDMC, not to construct any such automated multi-level car parking facility.
8. Grounds 6.2, 6.5 and 6.6 of the writ petition read thus:
"6.2 Because the plot on which the automated multilevel car parking is proposed to be constructed is admittedly reserved for school use, and without changing the land user, the plot cannot be used for parking purposes. This was admitted by the MCD itself in its above mentioned affidavit dated 29.3.2007 filed in Writ Petition No.6631 of 2000.
6.5 Because there is no explanation coming forth from the SDMC as to why the land use should be changed from 'school' to parking. There is no gainsaying the fact that construction of a school as original envisages would subserve the public interest for more than construction of a needless parking lot, and that too right in the middle of a residential area.
6.6 Because in 2007-2008 a similar proposal of the MCD was shelved for another site, which was a school site, and in 2009 there was yet another attempt to make underground parking beneath a primary school, which was also shelved on the Petitioner's intervention."
(Emphasis supplied)
9. A perusal of the pleadings and prayers in W.P.(C) No.4691/2018, with the present writ petition and the prayers contained herein, make it apparent that the issue of construction of a multi-level car parking at J-Block, Rajouri Garden is sub-judice W.P.(C) 6402/2018 Page 5 of 6 before the learned Single Judge, who is in seisin thereof.
10. Without expressing any opinion on the merits of the stand of the petitioner, in respect of the said area at J-Block, Rajouri Garden, and the feasibility, or legality, of construction of a multi-level car parking thereon, we are of the opinion that; as the same issue is pending before the learned Single Judge, any continuance of the stay granted by us on 1st June, 2018, qua the said plot, would amount to an overlap of exercise of jurisdiction, which would be prejudicial to judicial comity and discipline.
11. Accordingly, we vacate the order of stay granted by us on 1 st June, 2018, qua the construction of multi-level car parking at J-Block, Rajouri Garden.
12. The present application filed by the Respondent No.1 is allowed in the above terms.
13. We, however, permit the present writ petitioner to intervene in W.P.(C). 4691/2018 pending before the learned Single Judge, if so advised.
CHIEF JUSTICE C.HARI SHANKAR, J AUGUST 13, 2018 dsn/bh W.P.(C) 6402/2018 Page 6 of 6