Delhi District Court
Through Its Authorised Representative vs South Delhi Municipal Corporation on 9 June, 2022
IN THE COURT OF MS. SHELLY ARORA
ADDITIONAL DISTRICT JUDGE-01, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CNR NO.DLSE01-006720-2017
CS No. 1346 / 2017
Delhi Factory Owner's Federation
A Society Regd. Under the Societies Registration Act
Having its Registered Office
75, Ground Floor, Sant Nagar
East of Kailash, New Delhi - 110064.
Through its Authorised Representative
Mr. Vijay Kumar Wadhwa
............Plaintiff
VERSUS
1. South Delhi Municipal Corporation
Through its Commissioner
Civic Center, Minto Road
New Delhi.
2. Delhi State Industrial
Infrastructure Development Corporation Ltd.
Through its Chairman
3rd Floor, MCD Property Tax Building,
Near Lajpat Nagar Flyover,
Mahatma Gandhi Road,
Block L, Lajpat Nagar-III
New Delhi - 110024
CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 1 of 57
3. M/s. S.S. Engineers, The contractor
At C - 127
Okhla Industrial Area, Phase-I
New Delhi - 110020
Through its Supervisor
Sh. Bharat
.........Defendants
Date of Institution : 05.09.2017
Date of Reserving Judgment : 03.06.2022
Date of Judgment : 09.06.2022
JUDGMENT
1 This judgment shall dispose of the suit filed by Delhi Factory Owner's Federation (hereinafter referred as plaintiff) against South Delhi Municipal Corporation and Others (hereinafter referred as defendant no.1), Delhi State Industrial Infrastructure Development Corporation Limited (hereinafter referred as defendant no.2) and M/s. S.S. Engineers (hereinafter referred as defendant no.3) seeking mandatory and permanent injunction in respect of the site identified as C-127, Okhla Industrial Area, Phase-I, New Delhi - 110020 (hereinafter referred as 'suit property').
2 Plaintiff's case :
2.1 It is averred in the plaint that plaintiff is a society registered under the Societies Registration Act, 1860 having its registered office at 75, Ground Floor, Sant Nagar, East of Kailash, New Delhi-10065 and Mr. Vijay Kumar Wadhwa, a member of the plaintiff association has been authorized vide Resolution dated CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 2 of 57 28.08.2017 to sign, verify and institute the present suit for and on behalf of the plaintiff.
2.2 It is further averred that plaintiff was formed to serve, represent and protect the interest of the industrialists, factory owners, businessmen and entrepreneurs in Delhi and to assist them in various aspects of their business and every individual, firm, company or other corporations having factory or head office or registered office at Delhi is eligible to become a member of the plaintiff. Apart from these, any member holding prominent status in the social, industrial or government sector may also be appointed Honorary Member of the Executive Committee.
2.3 It is further averred that defendant no.1 has been established under the provisions of the Delhi Municipal Corporation Act, 1957 (DMC Act, 1957) and is a 'State' within the meaning of Article 12 of the Constitution of India and is thus an instrumentality of the State and all its actions are subject to scrutiny by the Courts of Law.
2.4 It is further averred that defendant no.2 has been designated as the nodal agency for establishment, operation and maintenance of industrial estate in Delhi under the DIDOMA Act, 2010.
2.5 It is further averred that various Master Plans for Delhi have designated areas to be specifically developed as industrial zones in Delhi over the years and some of these areas have been developed as plotted industries. The prominent industrial estate so developed in Delhi include Okhla Industrial Area, Phase-I, Phase-II, Phase-
III, Patpar Ganj Industrial Area, Bawana Industrial Area, Narela Industrial area, Jhilmil Industrial area, Mohan Co-operative CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 3 of 57 Industrial area, G.T. Karnal Industrial area, Wazirpur Industrial area, Lawrence Industrial area, Udyog Nagar Indusrial area, Maya Puri Industrial area, Naraina Industrial area, Kirti Nagar Industrial Area, etc. prior to 2010 while the land ownership of these industrial estate vested with the DDA or the GNCTD, the task of operating and maintaining these industrial estate was entrusted to the Municipal Corporation.
2.6 It is further averred that in furtherance of objective of MPD 2021 and Industrial Policy 2010-2021, the GNCTD enacted the Delhi Industrial Development Operation and Maintenance Act, 2010 (herein after referred to as 'DIDOMA') which came into force on 28.03.2011 vide Notification No.F.Comm/C1/2007/31(Vol.II)/4418-4429 dated 25.03.2011, after being reserved for and receiving the assent of the President of India. Further, pursuant to the enactment of the DIDOMA Act, 2010, the existing industrial areas in Delhi which were previously being operated and managed by the Municipal Corporation were to "stand transferred" to the defendant no.2.
2.7 It is further averred that subsequent to the notification of the DIDOMA Act, 2010, the GNCTD promulgated the Delhi Industrial Development, Operation and Maintenance Rules, 2011 (herein after referred to "DIDOMR Rules 2011') vide notification No.F.Comm/C1/2007/31(Vol.II)/5043 dated 11.11.2011 which defines the phrase "prescribed time frame" as contained in Section 4(ii) of the DIDOMA Act, for transfer of the Industrial Estate of Delhi to DSIIDC which is stated to be 90 days as per Rule 3 of the DIDOMA Rules 2011. As such, after coming into force of the DIDOMA Act, 2010, the existing industrial areas in Delhi which CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 4 of 57 were previously being operated and managed by the MCD, now "stand transferred" from defendant no.1 to defendant no.2 within the "prescribed time frame" i.e. 90 days after rules came into force.
2.8 It is further averred that after DIDOMA Act, 2010 came into force and the corresponding DIDOM Rules, 2011 the establishment, operation and management of industrial estates, which earlier vested with defendant no.1, have now all been transferred to defendant no.2. Even the land owning agency is now defendant no.2 and has been vested with requisite jurisdiction over the Okhla Industrial Area, Phase-I and the jurisdiction of defendant no.1 in respect of said industrial areas stands completely ousted for the purposes specified in DIDOMA, 2010.
2.9 It is further averred that defendant no.1 started claiming conversion charges from the industries located in various Okhla Industrial areas stating that they do not categorize the industrial activities listed by defendant no.2 as industrial and that it is within their competence to term the same as commercial and collect conversion charges else to seal the premises. The sealing orders passed by defendant no.1 have been stayed by the Ld. Appellate Tribunal, MCD. However, the plaintiff filed a written petition No. 5340/2016 before the Hon'ble Delhi High Court with a view to safeguard the interest of its members claiming that municipal authorities have no right and authority in the industrial areas and thus cannot claim conversion charges and also cannot pass sealing orders. It is further averred that vide order dated 03.06.2016, defendant no.1 and other municipal corporations have thus been restrained from sealing property of members of plaintiff and the said order is still in operation.
CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 5 of 572.10 It is further averred that a tussle has been going on between defendant no.1 and defendant no.2 as both of them are showing their supremacy over each and other and are claiming control of industrial areas including Okhla Industrial Area, Phase-I. 2.11 It is further averred that in the abovesaid Writ Petition, the stand taken by defendant no.1 is contrary to the stand taken by defendant no.2. Further defendant no.2 has affirmed the stand taken by plaintiff therein. Defendant no.1 is thus wrongly asserting its right over the Okhla Industrial Area, Phase-I whereas this area falls in the jurisdiction of defendant no.2.
2.12 It is further averred that in the lay out plan, various places have been earmarked for parking purposes so that the parking could be regulated and is not done in hazardous manner.
2.13 It is further averred that various industries being run from the said industrial area also include eatable and food processing industries and most of them are located in the C block and absolute hygiene, clean and clear environment is required to be maintained there.
2.14 It is further averred that all the industrial plot owners who have developed their industrial plots have made sufficient arrangement for toilet facilities within their units for the staff, visitors and themselves.
2.15 It is further averred that Sulabh Shauchalaya Complex was built up 10 years ago in consultation with the plaintiff at place pertaining to C-127 (as shown in the Site Plan) which was carved out from the said plot area meant for general parking and since it was for common use, plaintiff did not object to it. Further, the CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 6 of 57 entire remaining area of this parking plot bearing no.C-127 is being used purely for parking purposes.
2.16 It is further averred that on 24.08.2017 it was noticed by the industrial plot owners having industries around plot No.C-127 that digging had started in the remaining area of the parking plot by the labourers and on making enquiries, it was told that defendant no.1 had invited a tender for construction of prefabricated community toilets and that each contract has been given for 20 sets of prefabricated toilets and this parking area has been allotted to the contractor for building 3 sets of fabricated community toilets and it implies that defendant no.1 has given contract for installation of 60 fabricated toilets in the entire remaining parking area.
2.17 It is further averred that on further enquiries, it was revealed that these toilets are being constructed to facilitate the occupants of jhuggi-jhopri cluster known as Indra Kalyan Vihar came unauthorizedly on the plot meant for coal stock yard. Further inquiries revealed that these community prefabricated toilet were not completely covered and the same were not connected to the sewer lines and for dumping waste, a septic tank was constructed under these prefabricated toilets and no proper water facilities and sanitation provided to these toilets.
2.18 It is further averred that once a lay out plan has been prepared, passed and duly approved and the use of the earmarked places cannot be changed except through the process duly prescribed in law which calls for resolution to be passed by the competent authority recommending the change of use, its adaptation by the standing committee, invitation of objections from the affected CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 7 of 57 people and bodies, adjudication of objections received and then to approve or discard the proposed changes in the lay out. In the event of approval of a change in the lay out plan, the same is to be duly notified and becomes a part of the Master Plan. It is not in the hands of an individual or a group of officers of any authority to change the use of an earmarked plot to any other purpose. There is a process prescribed in law which calls for strict adherence to it.
2.19 That layout plan of this industrial area prescribes the use of plot No.C-127 to be used only for parking purposes. No amendment in the Master Plan, Zonal Development plan and layout plan has been made to change the use of the said plot from parking to community toilets.
2.20 It is stated only defendant no.2 has the right to control and supervise the activities of construction in the said industrial area. The defendant no.2 has not permitted any one including defendant no.3 to build / install public toilets in the suit property.
2.21 It is further averred that there is no requirement of public toilets in the suit property and providing convenience for the unauthorized JJ Cluster that too situated at a distance of more than 500 meters is actually aimed at to encourage mushrooming growing of these unauthorized clusters.
2.22 That there is already a Sulabh Shauchalaya built in a portion of the suit property for the other visitors and commuters.
2.23 That there is already lot of parking crisis in the industrial area and the misappropriate of parking of suit property for building toilets will add to the woes of commuters.
2.24 That the proposed prefabricated toilets will cause nuisance and CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 8 of 57 will not be conducive to the food processing and eatable manufacturing units and pharmacy units already operating near the suit property.
2.25 That generally the public toilets are built up on the area identified with joint consensus of affected persons, RWAs, federations, associations like plaintiff with a view to avoid inconvenience to any one. However, defendant no.1 has not involved the plaintiff before identifying the suit property for constructing illegal toilets.
2.26 That there is no proper infrastructure built for construction of these toilets. Building up a small septic tank for 60 toilets is bound to fill up soon and when cleared shall emit unbearable foul smell.
2.27 That constructions of these toilets is bound to spread the outbreak of various diseases on account of mosquitoes, breeding and lack of hygiene.
2.28 That the proposed toilets complex will have its entry from the side of the factories which will increase apprehensions of theft, burglary and other law and order situations.
3 Defendants' Version Defendant No.1's Version :-
3.1 Written Statement was filed by the defendant no.1 upon service of summons of suit wherein it is stated that the suit of the plaintiff is barred by the provisions of Sections 478 and 478 of the DMC Act for want of service of statutory notice.
3.2 It is further averred that the suit is not maintainable in view of CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 9 of 57 provisions of Section 41(h) of the Specific Relief Act.
3.3 It is further averred that the community toilets at the following location in JJ Clusters are being constructed to meet out the deficiency as pointed out by Delhi Urban Slum Infrastructure Board (DUSIB).
S.No. Ward Location Seats
1 92-S Indra Kalian Vihar back Lane of Plot 100
No. B-230 to B-235, Okhla Phase-I
3.4 It is further stated that construction of these toilets has been taken by SDMC pursuant to the inability shown by DUSIB for the same, within the stipulated period for achieving open defecation free (ODF) status for the area. Further averments made in the plaint were denied by the defendant no.1. Defendant no.1 has prayed that suit of plaintiff has no force and ought to be dismissed.
Defendant no.2's Version 3.5 Written statement was filed by defendant no.2 wherein it is stated that plaintiff has failed to show any cause of action qua the present suit which necessitated the plaintiff to implead defendant no.2 as a party in the present suit and thus, the present suit is bad for non-joinder and mis-joinder of parties.It is stated that the plaintiff has failed to comply with the mandatory provisions of Section 80 CPC. It is stated that as per Delhi Industrial Development Operation and Maintenance Act 2010, which came into force on 28.03.2011, all the 33 notified industrial areas are supposed to be transferred to DSIDC for lease administration and CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 10 of 57 maintenance purpose. So far, only 21 industrial areas have been transferred to DSIDC and lease administration responsibility of 12 industrial areas are with DSIDC. It is stated that the industries department GNCTD has already transferred the industrial under their control to DSIDC, however, DDA is yet to transfer the industrial areas under their control. Okhla Industrial areas Phase-I and Phase-II are among the industrial areas which are yet to be transferred to DSIDC for both lease administration and maintenance which are being looked after by DDA and MCD respectively. Rest of the averments were denied by the defendant no.2.
Defendant no.3's version 3.6 Defendant no.3 did not appear in the proceedings of this case. Defendant no.3 was served by way of affixation as per report of process server, however neither anyone appeared on behalf of defendant no.3 nor any WS was filed. Vide Order dated 06.10.2017, defendant no.3 was proceeded Ex-parte.
Replication 4 Plaintiff has not filed replication to the written statement filed by defendant no.1.
5 Plaintiffs has filed replication to the written statement filed by defendant no.2, wherein, plaintiff has reiterated the contents of plaint and denied the averments made by defendant no.2. It is submitted that all industrial areas in Delhi stand transferred to defendant no.2 within 90 days of notification of DIDOMR. It is stated infact industrial areas stand deemed transferred by DDA or MCD, therefore, defendant no.2 CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 11 of 57 cannot evade its responsibilities on the ground that Okhla Industrial Area, Phase-I has not yet been transferred to defendant no.2. Other contents of WS of defendant no.2 are denied by the plaintiff.
Issues 6 Following issues were framed vide order dated 07.02.2019 on the basis of the pleadings of the parties :
a) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for in prayer clause (a) ? OPP.
b) Whether the plaintiff is entitled to relief of permanent injunction as prayed for in prayer clause (b) ? OPP.
c) Whether the suit is barred for want of notice under Section 477 and 478 of DMC Act? OPD1.
d) Whether the suit is not maintainable in view of Section 41(h) of the Specific Relief Act? OPD1.
e) Whether the defendant no.1 has lawfully awarded the contract to defendant no.3 for construction of toilets? OPD1.
f) Whether the suit is bad for non-joinder and mis-joinder of necessary parties? If so, its effect? OPD2.
g) Whether the suit is bad for want of notice under Section 80 CPC ? OPD2.
h) Relief.
7 Vide order dated 08.03.2018, application under Order XXXIX R 1 and 2 CPC moved by the plaintiff was dismissed. Application under Order I R 10 CPC moved by plaintiff was also disposed of vide Order dated 06.01.2022.
Evidence Led By Plaintiff :
8 Statement of Sh. Atul Gupta S/o Sh. K.C. Gupta was recorded as PW- 1 in lieu of Plaintiff Evidence. The affidavit of evidence of PW1 is CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 12 of 57 Ex. PW1/A. PW1 relied upon the following documents :
S. No. Ex./ Mark Description of document
1. Ex/PW1/1 Original Resolution dated 28.07.2017
2. Mark 'A' Photocopy of Memorandum of association
and rules of the plaintiff society.
3. Mark 'B' Copy of certified copy of order dated
03.06.2016 passed in W.P. © No.
5340/2016
4. Ex/PW1/2 Attested Copy by assistant director, DDA (This of the lay out of plan of Okhla Industrial document has Area Phase-I. been exhibited as PW1/4)
5. Ex/PW1/3 Colored Site Plan showing parking plot.
(This (The parking plot at marked mark A in this
document has Site Plan).
been
exhibited as
PW1/5)
6. Ex/PW1/4 Photographs of Sulabh toilets. (Objected to (colly) (This as 65B certificate is not filed) document has been exhibited as PW1/6)
7. Ex/PW1/5 Photographs showing unauthorised (colly)(This construction. (Objected to as 65B document has certificate is not filed) been exhibited as PW1/7)
8. Ex/PW1/6 Photographs showing traffic problems.
(colly)(This (Objected to as 65B certificate is not filed) document has been exhibited as CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 13 of 57 PW1/8)
9. Mark 'C' Photocopy of Health Trade License issued.
10. Mark 'D' Photocopy of Notice of tenders dated 26.07.2017
11. Mark 'E' Photocopy of Representation dated 28.08.2017 sent to defendant no. 1.
8.1 PW1 was cross-examined by counsel for defendant no.1, Ms. Dipika Jain wherein he stated that he is a member in Delhi Factory Owner's Federation and plaintiff's association has an executive body elected through election by its members. He stated that he is still a member only in this association and he has been authorised vide resolution dated 28.08.2017, placed on record as Exhibit PW1/1 to appear, pursue, represent and defend the plaintiff's federation and pursued in this case before the Hon'ble High Court and the Hon'ble Supreme Court of India also. He stated that as per Delhi Industrial Development Operation and Maintenance Act, 2010, the area of Okhla Industrial Area is transferred to DSIIDC.
8.2 PW1 stated that the whole maintenance of cleaning is being maintained by the SDMC in the said area and he has never made any representation to DSIIDC in respect of maintenance and cleaning of the subject area. He admitted that there is a Jhuggi- Jhopdi cluster in Okhla Industrial Area, Phase-I. He denied that there are no specified toilet complex for the residents of Jhuggi- Jhopdi cluster. He stated that there are other two / three toilet complexes in the surroundings area of Juggi-Jhopdi cluster which they put to use, however, he did not place any documents on record in this respect. He denied that there is no other toilet complex in the subject area apart from the one in question here and that this is CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 14 of 57 the only complex available for usage by people living in Jhuggi- Jhopdi cluster in Okhla Industrial Area, Phase-I. 8.3 PW1 denied that the Toilet Block was urgently required for maintaining the health of the local residents. Jhuggi-Jhopdi cluster is half kilometers away from the subject matter area. He stated that the construction of the subject matter is not completed yet.
8.4 PW1 admitted that Mark C is issued in favour of one Shri Ashmit Kapoor in individual capacity. He stated that there can not be any health trade license in the name of federation. He stated that Mark D has been obtained from SDMC by way of RTI but application of RTI is not placed on record. He denied that Mark D was obtained unofficially and cannot be used for official purpose. He admitted that it is the internal matter of SDMC regarding tendering for construction of Toilet Block in the subject matter area. He denied that the SDMC is constructing the Toilet Blocks strictly as per law and in the area specified for this purpose. He stated that nothing is pending in ATMCD regarding subject matter of the present suit. He denied that SDMC is constructing the community toilets as per the request of DUSIB and in furtherance of the governed policy of making of open defection free (ODF) in Delhi in the subject matter area.
8.5 During cross-examination by Counsel for defendant no.2/DSIIDC, PW1 stated that in the list of Transferred Industrial Area of Schedule-I at Item no.13, it is clearly mentioned that the subject matter area has been transferred to defendant no.2 i.e. DSIIDC. He denied that the said schedule only mentions list of existing industrial areas intended to be transferred and not the areas CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 15 of 57 that has been transferred to DSIIDC. He stated that he had given representation to defendant no.2 in respect of subject matter area, however, he has not placed it on record. He denied that no such representation was made to defendant no.2. He denied that he had made false statement that defendant no.2 had assured to take up the call of the plaintiff with defendant no.1. He stated that DDA is the Land Owning Agency of the subject matter area but after the commencement of DIDOMA Act, it has been transferred to defendant no.2. He admitted that the subject matter area was being operated and managed by the Municipal Corporation. He adopted further cross-examination conducted by counsel for defendant no.1/SDMC only in respect of the questions put qua DSIIDC.
Defendant Evidence Evidence on behalf of defendant no.1 9 Statement of Sh. Dinesh Kumar, S/o. Sh. Rajender Singh, Executive Engineer of M-2 Division, Central Zone, SDMC, New Delhi. was recorded as D1W-1 in lieu of evidence on behalf of defendant no.1. The affidavit of evidence of D1W1 is Ex. D1W1/A. DW1 relied upon following documents :
S. No. Ex. / Mark Description of
document
1 Mark X1 (mentioned as Ex. DW2/1 Copy of OD Free
in evidentiary affidavit) Action Plan for JJ
Basties located in
SDMC
2 Ex. D1W1/1 (colly) (mentioned as Copy of three work
DW2/2 in evidentiary affidavit) orders (OSR)
3 Mark X2 (mentioned as Ex. DW2/3 Copy of Minutes of
CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 16 of 57
in evidentiary affidavit) Meeting dated
04.08.2017
9.1 D1W1 was cross-examined by counsel for plaintiff wherein he stated that on 06.10.2017, when Written Statement was filed by SDMC, he was posted at Lajpat Nagar Building Division. He stated that he has never dealt with the file related to suit property. and it was Sh. Ranbir Singh, EE who had filed the WS, has retired but his address is known to the department. D1W1 stated that he had not seen the site in question where the toilets were proposed to be built. He admitted that defendant no.1 is not the owner of Okhla Industrial Area (OIA) and SDMC is maintaining and providing public utilities in the said area which includes toilets etc. He could not give any specific location of any toilet but he stated that there are many toilets provided by SDMC in the said area and some of these toilets have been constructed in the last three to four years. However, he did not know which authority had constructed them. He states that most of these toilets have been maintained by SDMC and the remaining by DUSIB. However, he did not know how many toilets already existed near the site in question. He stated that the toilets in question were meant for residents of Indira Kalyan Vihar, JJ Cluster which is nearly 100 meters away from the site in question. He did not know the size and number of jhuggis in the said basti and stated that there is no toilet in the said jhuggi basti. He did not know whether SDMC had conducted any survey of the said basti. He stated that the residents of this basti used to go for open defecation near the area in question. He did not know if survey of the said basti was conducted by DUSIB and also that in CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 17 of 57 the said survey, 30 toilets were found in existence in the said basti. He stated that there are around 2000 jhuggis which do not have toilets. He did not know whether any complaint in writing related to open defecation by the residents of basti was received by SDMC. He stated that DUSIB has the authority to remove / relocate the said basti. He could not tell whether the said basti is legal or illegal. He further stated that since the very beginning, the constructions of toilets in area was assigned to SDMC. He further stated that the construction of toilets in the site in question was being carried on under the Open Defecation Free (ODF) India Scheme - Swatch Bharat Mission but he could not tell on which date, the site in question was identified for construction of toilets by Chief Engineer Central Zone. He stated that being Executive Engineer, he knew that that Chief Engineer is the competent authority to identify the site in question for construction of toilet. He could not tell the plot number of the site in question. He admitted that alongwith work order, site map was also given to the contractor.
9.2 D1W1 further stated that the constructions of toilets were started by the contractor at the allocated site but no plot number was identified for the site where toilets were to be constructed. He stated that he had not seen the documents relating to handing over / taking over of the site for construction of toilet to the contractor which was started at point A in Site Plan Ex.PW-1/3. He stated that the Indira Kalyan Vihar Basti is at point B in the Site Plan Ex.PW- 1/3 and behind plot no.230 to 235 and the nearest toilet near the said Basti is at point A which is Sulabh Sauchalaya. He failed to identify any other Toilet Block in OIA and stated that there may be CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 18 of 57 10-15 Toilet Blocks in OIA but he could not identify their location in Site Plan Ex.PW-1/3.
9.3 D1W1 stated that he had not seen any letter written by DUSIB to SDMC expressing their inability to construct toilets. He stated that no permission for water connection and sewage had been obtained from DJB before inviting tender till date although such permissions were applied after completion of structure.
9.4 D1W1 stated that there had been no violation of layout plan on the ground that public utility can be provided anywhere and there is already provision of public utilities in the layout plan of OIA. He admitted that only in green belt zone public utilities toilet can be built up without amending or modifying layout plan or zonal development plan. He again stated that it can be constructed in green belt zone as well as in other areas.
9.5 D1W1 produced the Site Plan of the location where toilets were to be constructed by the contractor as Ex.D1W1/PX-1 prepared by JE. He stated that the location at point X in the said Site Plan is the same which is at point A in the Site Plan Ex.PW-1/3. He stated that the location of B225 and C127 as shown in Site Plan Ex.D1W1/PX-1 is not the same as per the layout plan Ex.PW-1/3 and the plot B225 is at point X1 in Site Plan Ex.PW-1/3. He further stated that plot no.C127 is the plot marked A in the Site Plan Ex.PW-1/3 and the location of plot No.B225 has been wrongly shown in the plan Ex.D1W1/PX1. He stated that no plot number was required to be mentioned at the place where plot no.B225 is mentioned on Ex.D1W1/PX1. He further stated that in the layout plan the plot at point A is prescribed for parking and CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 19 of 57 there are no other parking plots except those mentioned in the layout plan Ex.PW-1/3. He further stated that no other parking place was carved out before making construction of toilet at point A. He could not tell the exact size of the plot Mark A and stated that in Mark A plot there is already a Sulabh Sauchalaya besides BSES Office, Jal Board Office, Sanitary Inspector Office. He could not tell the remaining size of the plot left for parking purposes and also for which purpose the balance vacant land was used in the plot Mark A. He denied that in the plot Mark A, the vacant land was/ is used for parking but as it is in side lane, it cannot be used for parking. He could not tell whether any modification in the layout plan was made for construction of BSES Office, Jal Board Office, Sanitary Inspector Office. He stated that the work order for construction of toilets has since expired and no fresh tender was invited. He denied that open defecation scheme has been lapsed. He stated that no other place has been identified for constructions of toilet for Indira Kalyan Basti. He stated that under Swachh Bharat Mission, MCD might have constructed the toilets. He stated that he had been posted in this area since August 2020 and had visited OIA Phase -I, II and III and had seen many toilets constructed in the said industrial area but he could not tell whether any of them were constructed under the said scheme. He also could not tell whether the industries around the plot Mark A are Food and Edible Product industries. He denied that SDMC not being the owner of the industrial area could not have awarded contract for construction of toilets. He admitted that DDA had never asked them to raise construction of toilet at Mark A and also that defendant no.2 had never asked us to raise construction of CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 20 of 57 toilet at Mark A. He denied that without modification of layout plan the toilets cannot be constructed at place Mark A. He further denied that DUSIB had never asked SDMC to construct the said toilets and that said constructions of toilet has commenced to usurp the funds released under open defecation scheme in connivance with the contractors. He further denied that that SDMC had illegally awarded work order to the contractor for the said construction.
Evidence on behalf of defendant no.2 10 Statement of Sh. Vijit Kumar Singh, S/o. Sh. Ilaka Singh, Age- 44 years, Chief Manager (IEM) and Authorised Signatory of Defendant no.2 having office at DSIIDC, N-36, Bombay Life Building, Connaught Place, New Delhi - 110001. The affidavit of evidence of D1W1 is Ex. D2W1/A. DW2 relied upon following documents :
S. No. Ex. / Mark Description of document
1. Ex. D2W1/1 Board Resolution dated 31.03.2015
(mentioned as Ex.
RW1/1 in affidavit)
2. Ex. D2W1/2 True copy of Affidavit filed in writ
(mentioned as Ex. petition bearing no. 5340/2016 RW1/2 in affidavit) 10.1 In his cross-examination by Sh. Ramesh Kumar, Ld. counsel for plaintiff, he stated that he had not brought the original resolution dated 31.03.2015. He further stated tht DIDOMA Act 2010 was made applicable on 28.03.2011 and he had read the said Act. He did not know as to by what period, all industrial plots CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 21 of 57 were to stand transferred to defendant no.2. He denied that all industrial plots were deemed transferred to defendant no.2 within 90 days of the said Act. He could not recollect as to whether I had read the affidavit Ex.RW1/2. He did not know that the Hon'ble High Court of Delhi has in the order dated 03.06.2016 in the W.P. has observed that Okhla Indl. Areas belong to defendant no.2. He stated that on the date of institution of this suit, DDA was the owner of this industrial area and defendant no.1 was looking after its maintenance. He further stated that he had never seen any notification whereby the said industrial area has been transferred to defendant no.1 for maintenance. He did not know the complete list of activities which defendant no.1 can operate while maintaining the industrial area but generally it includes drainage, road, common area electricity. He stated that defendant no.1 had not obtained any permission from defendant no.2 before inviting tender for construction of public toilets at the site in question. He was not sure if defendant no.1 was authorized or had competence to invite tender for construction of public toilets at the site in question. He stated that there is no letter written by DDA to defendant no.1 for inviting the said tender and he had not seen the lay out plan of the industrial area in question and also had not seen all the documents filed by the plaintiff at the time of preparing written statement. He stated that he had not seen the lay out plan at the time of preparing his affidavit of evidence. He did not know that plot in question as per lay out plan is meant for parking purposes or for which purpose, the said plot can be used. He stated that the defendant no.2 had not passed any resolution affirming the action of defendant no.1 to invite tender for construction of public toilets at CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 22 of 57 the site in question. He further stated that DUSIB and defendant no.1 did not make any correspondence with defendant no.2 before inviting tender for construction of public toilets at the site in question. He further stated that since he had not visited the industrial area in question, he could not answer any question related to the said area.
Written Submissions Submissions on behalf of plaintiff 11 In the written submissions filed on behalf of plaintiff, it is stated that defendant no.1 has admitted being neither the owner of the suit premises nor having any other statutory rights therein. It is argued that the responsibility of operation and maintenance of all the industrial complexes already stands vested with defendant no.2 upon enactment of DIDOMA Act and Rules thereunder and it is admitted that defendant no.1 has not sought any permission from defendant no.2 for the construction of toilet at the identified site. It is stated that the act of defendant no.1 in awarding contract to defendant no.3 for the construction of toilet is illegal, to say the least. It is argued that the site identified in site plan annexed with the Work Order do not correspond with the actual site or with the site as reflected in the Layout Plan. It is stated that there are specifications with respect to industrial areas as per Master Plan, 2021 which need to be adhere to and as per the mandate of Chapter 12.13 of MPD, 2021 plots meant for parking should be strictly used for the said purpose. It is argued that defendant no.1 cannot modify the Layout Plan without following the appropriate procedure laid down in this respect. It is prayed that CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 23 of 57 the suit be decreed in favour of plaintiff and against the defendants.
Submissions on behalf of Defendant no. 1 12 It is argued that plaintiff has failed to serve Statutory Notice under Section 477 and 478 of DMC Act and thus suit ought have been rejected at the very threshhold. Further, suit is not maintainable as an alternative efficacious remedy has not been availed by plaintiff with respect to the grievance raised in the suit. It is stated that the contract has been lawfully awarded by officials of defendant no.1 to defendant no.3 for construction of toilet block to achieve open defecation area status in Okhla Industrial Area, Phase-I as per the vision in Swachh Bharat Mission. It is argued that Clause 8(2) of MPD, 2021 permits construction of public utilities in any zone and therefore construction of toilet in a plot meant for parking purposes that too only a small portion thereof would not amount to any violation or alteration thereof and thus there was no need to approach DDA for Administrative sanctions. It is stated that defendant no.1 is the leading agency for maintaining hygiene sanitation and cleanliness in the said area and as Okhla Industrial Area, Phase-I is yet to be transferred to DSIIDC. It is argued that plaintiff will not suffer any loss by construction of community toilet for the use of JJ slum dwellers which would ensure hygiene and cleanliness for the entire area. It is prayed that suit of the plaintiff be dismissed.
Submissions on behalf of Defendant no.2 13 Defendant no.2 has argued that it has no role to play with respect to cause of action of plaintiff as although Okhla Industrial Area, Phase-I was to be transferred upon enactment of DIDOMA Act CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 24 of 57 and DIDOMA Rules within the prescribed time frame of 90 days from the date of coming into force of the Rules but the files have not been physically handed over as yet to DSIIDC and thus it has no role to play with respect to construction of toilets at the disputed area. It is also argued that plaintiff did not serve Statutory Notice under Section 80 of CPC to defendant no.2. It is stated that plaintiff has failed to show any cause of action against defendant no.2 and thus the suit is not maintainable for misjoinder of parties. It is also underlined that any representation in respect of the dispute at hand was never made by the plaintiff federation with defendant no.2 at any point of time. It is accordingly prayed that the suit of plaintiff be dismissed qua defendant no.2.
Findings 14 I have heard arguments advanced by both the sides and have gone through the entire record carefully. My thoughtful findings are as under:-
Issue no. 3
c) Whether the suit is barred for want of notice under Section 477 and 478 of DMC Act? OPD1.
15 Onus to prove this issue is cast upon defendant no.1. It is contended by defendant no.1 in Written Statement that the present suit is not maintainable, being barred by the provision of Section 477 and 478 of DMC Act for want of service of Statutory Notice. It is stated by plaintiff that any notice under Section 477 and 478 DMC Act at CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 25 of 57 any point of time was not issued to defendant no.1 prior to institution of the suit.
15.1 Present case has been filed on behalf of plaintiff seeking the relief of mandatory and permanent injunction. Provision of Section 478(1) DMC Act envisages that any suit against any Municipal Authority shall not be instituted unless notice in writing is delivered thereto, explicitly stating the cause of action, nature of relief sought, amount of compensation claimed and the particulars of the intending plaintiff till the expiration of two months after notice in writing has been left at the Municipal Office with necessary averments in the plaint that such notice has been so left or delivered. An exception thereto has been carved in Section 478(3) of DMC Act that mandate provided in Section 478 (1) DMC Act shall not apply to any suit therein where only relief claimed is to seek injunction for which the object would stand be defeated by the effect of giving of notice as desired in Section 478(1) DMC Act leading to postponement of the institution of the suit. Thus, this suit having been filed by plaintiff seeking the only relief as injunction against defendant no.1 cannot be stated to be hit by the mandate of Section 478(1) DMC Act. In view thereof, there was no requirement of issuance of service of Statutory Notice under Section 478(1) DMC Act by plaintiff upon defendant no.1 prior to institution of the suit. This issue accordingly stands decided against defendant no.1 and in favour of plaintiff.
Issue no.4
d) Whether the suit is not maintainable in view of Section 41(h) of the Specific Relief Act? OPD1.
CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 26 of 5716 The onus to prove this issue is upon defendant no.1. It is pleaded by defendant no.1 that the present suit is not maintainable as it was for plaintiff to invoke the available, applicable, equally efficacious alternative remedy rather than approaching the Civil Court with the institution of this suit. There is nothing mentioned in the said written statement, however, as to what was the alternative remedy with plaintiff ought to have availed instead. During the course of arguments, it was stated by counsel for defendant no.1 that plaintiff has the option of approaching the defendant no.1 with its grievance under the relevant provision of DMC Act rather plaintiff rushed to the Court without even trying to put across his cause of action before the concerned authority seeking remedy under the Act. Counsel for plaintiff responded that the plaintiff federation did approach the defendant no.1 with correspondence dated 28.08.2017 requesting defendant no.1 to stop the ongoing construction of Toilet Block taking into account their concern in respect thereto, however, no action was taken thereupon. No communication was made on behalf of defendant no.1 addressing the grievance raised, thus, plaintiff was left with no option but to approach the Court to seek prompt relief as it was imperative to obtain order to stop the ongoing construction activity of Toilet Block at the site concerned, else the entire purpose to raise the dispute would have been frustrated. Counsel for defendant no.1 did not elaborate as to which provision instead ought to have been invoked by plaintiff to obtain the requisite prompt and effective relief against the very action of defendant no.1 which entailed cause of action in favour of plaintiff. There is nothing affirmed on behalf of defendant no.1 to substantiate the averment made in the WS in this respect. It cannot be stated therefore that the suit is not maintainable CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 27 of 57 and no injunction as prayed can be granted as plaintiff failed to avail the alternative equally efficacious remedy already available under the Act. Defendant no.1 thus has not been able to discharge the burden to prove this issue. This issue accordingly decided against defendant no.1 and in favour of plaintiff.
Issue no.6
f) Whether the suit is bad for non-joinder and mis-joinder of necessary parties? If so, its effect? OPD2.
17 The onus to prove this issue is upon defendant no.2. It is pleaded on behalf of defendant no.2 in Written Statement that the suit is bad for non-joinder and mis-joinder of necessary party. It is understood that defendant no.2 has contended that the area where the subject site, which is Okhla Industrial Area, Phase I is located, has not been transferred to its control and thus defendant no.2 is not the right agency to be approached to address or respond to the grievance raised by plaintiff because it cannot be stated that the cause of action pressed by plaintiff is on account of any action or inaction on the part of defendant no.2 which has absolutely no concern with the area as it is neither a land owning agency nor a maintenance agency in respect of the area as on the date or period of cause of action of plaintiff. Whether or not any role is attributable or any responsibility can be put upon or any liability cast upon defendant no.2, is a concern which will be deliberated in subsequent issues. Suffice would it be to mention that the plaintiff federation has raised a concern about industrial area, which as per the applicability of relevant legislation and rules framed thereunder, stand transferred to the jurisdiction of defendant no.2, CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 28 of 57 thus, it cannot be stated that defendant no.2 is not a necessary party and ought not be made to join and respond to the proceeding as having no concern whatsoever with the cause of action raised by plaintiff in the suit. In view of the spectrum of pleadings, it can be deduced that the cause of action pleaded by plaintiff in the suit or the questions for determination which the suit project cannot be completely and effectively deliberately finally determined without the answerability of defendant no.2 with respect to industrial area which includes the subject area in the context of applicable notified legislation, casting liability upon defendant no.2 which include the subject area. Accordingly this issue stands decided against Defendant no.2 and in favour of plaintiff.
Issue no. 7
g) Whether the suit is bad for want of notice under Section 80 CPC ? OPD2.
18 The onus to prove this issue is cast upon defendant no.2. It is contended on behalf of defendant no.2 in the Written Statement filed that mandatory statutory notice of two months under Section 80 CPC was not given to the authority and that the suit has been filed without expiration of aforesaid mandatory period of notice. It is argued that the plaintiff case does not fall under the exception provided in Section 80(2) CPC and thus the suit is ought to be dismissed. The reliance is placed upon judgment Juhi Chawla & Ors. Vs. Science and Engineering Reserach Board & Ors. (2021) 280 DLT 1.
18.1 It is contended on behalf of defendant no.2 that no urgent relief has been sought by plaintiff and therefore requirement of service of mandatory statutory notice upon defendant no.2 being a CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 29 of 57 Government Authority cannot be waived. This suit has been filed by plaintiff seeking the relief of permanent and mandatory injunction against defendant no.1 and defendant no.2, which are both instrumentalities of Government. It is settled that service of Notice u/s. 80(1) is mandatory before institution of the suit against any Government Authority. Section 80(1) itself carves an exception in sub section (2) which exempts institution of a suit to obtain an urgent or immediate relief with the leave of the Court without serving any notice, with the rider that any relief shall not be granted by the Court except after giving to the public or Government Officer a reasonable opportunity of showing cause in respect of the relief prayed for in the suit.
18.2 In this matter, plaintiff prayed for urgent orders to stop the ongoing construction of Toilet Block at the disputed site else the entire object or purpose of filing the suit would have been frustrated. The averments pleaded on behalf of plaintiff were duly considered by the Court upon presentation of plaint and institution of suit wherein short date notices were ordered to be sent and served upon defendants, for those bodies to appear and make representations with an opportunity to contest the claim of the plaintiff including the interim injunction as sought by the counsel for plaintiff upon institution of suit, therefore it was not considered fit by the Ld. Predecessor of the Court to return plaint to be represented upon/after compliance of requisites envisaged under Section 80(1) CPC. The relief prayed by plaintiff falls within the urgency as indicated in Section 80(2) CPC and therefore the suit of plaintiff remains maintainable despite the non fulfillment of requirement of mandatory statutory notice upon defendant no.2.
CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 30 of 57Accordingly, this issue stands decided against Defendant no.2 and in favour of plaintiff.
Issue no.5
e)Whether the defendant no.1 has lawfully awarded the contract to defendant no.3 for construction of toilets? OPD1.
19 The onus to prove this issue lies on defendant no.1. To deliberate upon this issue against the backdrop of contentions raised by plaintiff, it is important to reflect upon the role, responsibility and liability of defendant no.2.
19.1 PW1 has affirmed that operation and management of all the existing industrial areas in Delhi stand transferred to defendant no.2 pursuant to enactment of the Delhi Industrial Development Operation and Maintenance Act, 2010 (in short "DIDOMA") which came into force on 28.03.2011. It is stated that as per Rule 3 of DIDOMA Rules 2011, the transfer of industrial estate of Delhi was to culminate within the 'prescribed time frame of 90 days' from the date of coming into force of Rules and thus, only defendant no.2 has the requisite jurisdiction over Okhla Indl. Area, Phase-I and as such, jurisdiction of defendant no.1 stands completely ousted for the purposes specified in DIDOMA, 2010. Support was drawn by plaintiff to Order dated 03.06.2016 passed by Hon'ble Delhi High Court in Writ Petition(C)-5340/2016 wherein defendant no.1 was restrained from sealing the property of members of plaintiff's federation on account of non-deposit of conversion charges demanded by defendant no.1 on the same premise as taken in this matter.
CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 31 of 5719.2 It is imperative at this stage to understand the contentions made by defendant no.2 in response to that of plaintiff. Objections wee made by Counsel for plaintiff as recorded in testimony sheet of D2W1 Sh. Vijit Kumar Singh that the documents of his authorisation was not placed in original having as copy of same was filed alongwith Written Statement and same being in the nature of formal document, no prejudice would be caused to plaintiff if the same is taken on record. The objections made by Counsel for plaintiff are not sustainable and dismissed as such. D2W1 Sh. Vijit Kumar Singh appeared on behalf of defendant no.2 and affirmed in evidentiary affidavit Ex.D2W1/A that all 33 notified industrial areas are supposed to be transferred to DSIIDC for lease administration and maintenance purposes, out of which 22 have been transferred for maintenance purposes and lease administration of 12 industrial areas are with DSIIDC. It is also affirmed that Industries, Department, GNCTD has transferred the industrial areas under their control to DSIIDC whereas DDA is yet to transfer the industrial areas under its control to DSIIDC. It is stated that Okhla Indl. Area, Phase-I where the disputed site is located has yet not been transferred for the purpose of lease administration and maintenance to DSIIDC which is being looked after by DDA and MCD respectively. D2W1 also stated in cross-examination that defendant no.1 was the agency responsible for maintenance of Okhla Indl. Area, Phase-I, whereas DDA had the ownership of the said industrial area.
19.3 Summing the position with respect to defendant no.2, it is clear that Okhla Indl. Area, Phase-I, as all the other existing industrial areas, was to stand transferred both, for the purpose of lease CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 32 of 57 administration and maintenance, to DSIIDC within the ' prescribed time frame' of 90 days from the date of coming into force of DIDOMA Rules, 2011 which factually till date has not been completed. Reliance has been placed by defendant no.2 upon affidavit filed by it before the Hon'ble Delhi High Court in Writ Petition(C) 5340/2016 placed on record as Ex.D2W1/2 which enlisted the effort made to effectuate the de facto physical handing over / taking over of the existing industrial estates / areas as per the mandate of DIDOMA, 2010 coupled with DIDOMA Rules, 2011 which came into force on 11.11.2011. It is stated therein that DDA vide its letter dated 30.10.2012 had requested to depute authorized representative of DSIIDC to receive record of industrial areas controlled by DDA so that same can be handed over immediately. Reference was also made therein to the Minutes of Meeting held under the Chairmanship of Hon'ble Lt. Governor of Delhi on 22.08.2014 whereby it was directed that day to day maintenance of parks as well as cleanliness and sanitation in industrial areas would be exclusively done by the respective DMCs, with additional responsibility of removal of encroachment from common areas in joint operation with DSIIDC and Delhi Police.
19.4 What falls out of the above made discussion is that operation and maintenance of Okhla Indl. Area, Phase-I where the site in dispute is located has physically not been handed over to DSIIDC, defendant no.2 till date. There is no categorical answer which could be culled out of the response given by defendant no.2 considering that there was request made by DDA to depute an authorized representative for physical handing over of remaining industrial areas while same exercise has already been completed CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 33 of 57 with Industries Department of GNCTD. Another aspect of the story is the direction given by Hon'ble Lt. Governor of Delhi about exclusive cleanliness and sanitation responsibility in respective industrial areas despite notification of DIDOMA and Rules thereunder to respective Municipal Corporations and not to DSIIDC. It is a separate matter to determine as to what function would qualify to fall within the scope of maintaining cleanliness and ensuring proper sanitation in an area considering the peculiar factual scenario in this case. It is, thus, clear that defendant no.2, despite having been vested control of the subject industrial area can still be seen only sitting at fence, not partaking any active role with respect to its operations and maintenance. For the purpose of dispute at hand, therefore, defendant no.2 has a marginal role and it cannot really be stated that defendant no.2 being the concerned agency was the one liable to adapt and respond to the cause of action in the present matter.
19.5 PW1 admitted that the maintenance and cleanliness of the entire subject area is being maintained by SDMC and that no representation till date has been made to DSIIDC in respect of maintenance and cleanliness of the subject payment. He admitted that SDMC was operating and managing the subject area. Defendant no.1 thus, attains a primordial role with respect to determination of the dispute at hand. There is no denial that defendant no.1 had awarded the work contract for construction of Toilet Block at the site in question.
19.6 In the absence of active role of defendant no.2 as discussed in preceding paragraphs, defendant no.1 was the one responsible for the maintenance of the area, and exclusively for the purpose of CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 34 of 57 sanitation and cleanliness, also as per directives of the Hon'ble Lt. Governor of Delhi.
19.7 Before proceeding further, it is noted that plot no. C-127, Okhla Indl. Area, Phase-I has all along been averred in the plaint as the site where Toilet Block was allegedly being constructed. During the course of final arguments when Layout Plan filed by plaintiff in evidence was perused, there was spotted another plot therein with number 127 in C-Block itself. That plot was clarified by both contesting counsels as well as concerned JE and Executive Engineer to be part of DSIIDC shed instead and identified factually at site as such. It was also pointed that there is no dispute with respect to identification of the site where alleged construction of Toilet Block started and as such, the nomenclature for the sake of ease of reference in the case be taken as 'the disputed site'.
19.8 Defendant no.1 produced Sh. Dinesh Kumar, Executive Engineer, SDMC in the witness box who affirmed that construction of Toilet Block was taken by SDMC pursuant to the inability shown and upon request by Delhi Urban Slum Infrastructure Board (in short 'DUSIB'). DUSIB for the same, within the stipulated period for achieving Open Defecation Free (ODF) status for the area. This was contended by defendant no.1 in the Written Statement also and subsequently affirmed in the affidavit Ex.D1W1/A. D1W1 Sh. Dinesh Kumar, however, denied having seen any written request of DUSIB in this respect. He declined the suggestion that the construction of toilet was undertaken only to consume the fund released under Open Defecation Scheme in connivance with the contractors as DUSIB had never asked SDMC to construct the said toilet. The relevant CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 35 of 57 extract of cross-examination of D1 W1 for ready reference are reproduced hereunder :
"I have not seen any letter written by DUSIB to SDMC expressing their inability to construct toilet... I have not seen the written request of DUSIB as mentioned in para 10 of my affidavit....
Q. Had DUSIB not requested SDMC to construct toilet, would SDMC still make construction at place Mark A in the Site Plan Ex.PW1/3?
Ans. Yes, under Swatch Bharat Mission, MCD may have constructed the toilet....
It is correct that DDA had never asked us to raise construction of toilet Mark A. It is correct that defendant no.2 had never asked us to raise construction of toilet at Mark A.... It is wrong to suggest that DUSIB had never asked the SDMC to construct the said toilet. It is wrong to suggest that said construction of toilet was commenced to usurp the funds released under Open Defecation Scheme in connivance with contractors. "
19.9 It may not be out of place to mention that D2W1 Sh. Vijit Kumar Singh had also denied that any permission was obtained by defendant no.1 from defendant no.2 pertaining to construction of public toilet at the site in question. The relevant excerpts of cross- examination of D2W1 is reproduced hereunder for ready reference :
"To my knowledge, defendant no.1 had not obtained any permission from defendant no.2 before inviting tender for construction of public toilet at the site in question. I am not sure if defendant no.1 was authorized or had the competence to invite tender for construction of public toilet at the site in question. To my knowledge, there is no letter written by DDA to defendant no.1 for inviting the said tender.... The defendant no.2 has not passed any resolution affirming the action of defendant no.1 to invite tender for construction of public toilet at the site in question, as per my knowledge. As per my knowledge, DUSIB and defendant no.1 did not make any correspondence with defendant no.2 before inviting any tender for construction of public toilet at the site in question."
19.10 Defendant no.1 has not been able to produce any document to substantiate its hollow contention that it was at the behest of DUSIB that SDMC took over construction of community CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 36 of 57 toilet at the disputed site. It is difficult to fathom as to whether and why did defendant no.1 had to follow the suit as compelled by DUSIB. It was for defendant no.1 to show by either producing any document containing any such request on behalf of DUSIB or to not make any such contention or affirmation before the court that it was on account of inability and specific request of DUSIB that work project of construction of Toilet Block was taken over. Defendant no.1 chose not to produce any witness on behalf of DUSIB to prove that any such request from DUSIB was received. D1W1 stated that MCD could have undertaken the construction of toilet even without any request received from DUSIB. Therefore, no clarity has been brought in on behalf of defendant no,1 to reflect as to why at all was DUSIB roped in with respect to dispute at hand and what role in such circumstances, if attributable to DUSIB which it failed to do or that in all such circumstances, while DISUB was under an obligation to undertake the construction of Toilet Block, the role in certain circumstances can be taken over by SDMC as per certain relevant rules which defendant no.1 has failed to produce. Therefore, it remains only a bald affirmation on the part of defendant no.1 without explaining or clarifying its specific role with respect to these like projects in the industrial areas viz a viz the liability of DUSIB. There is nothing mentioned as to how, why, what and when was any such request received from DUSIB and how was the same binding upon defendant no.1 to effectuate and in what circumstances could defendant no.1 have commenced construction of Toilet Block on its own motion without any role of DUSIB whatsoever. Defendant no.1 is a public agency and is expected to act strictly within the contour of legal frame work of CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 37 of 57 applicable legislation and rule and any random statement made on its behalf is liable for public scrutiny and cannot just be accepted on the face of it without casting liability upon defendant no.1 to prove the same in letter and spirit. Defendant no.1 has clearly failed to prove that any request was received from DUSIB to undertake construction of Toilet Block at the disputed site.
19.11 D1W1 affirmed in affidavit D1W1/A that the community toilets were being constructed at the following locations in JJ Cluster.
S.NO. WARD LOCATION SEATS
1 92-S Indra Kalian Vihar back lane of 100
Plot no.B-230 to B235, Okhla
Phase-I
19.12 Mark D was placed on record by PW1 as part of his
testimony to show the notice of tender dated 26.07.2017 awarded to the respective contractors for the construction of Toilet Block. As evident from the details mentioned in affidavit Ex. D1W1/A, the location of proposed Toilet Block was identified to be 'backlane of plot no B-230 to B-235, Okhla Phase-I' . What is mentioned in Mark D is 'backlane of plot no B-230 to B-235, OIA, Ph-I W.no. 92, CNZ', further configuration reads 'Near SI Office', 'Near sidelane of C-127', 'Near Jal Board Office' with respect to construction of 'CTC (Community Toilet Construction) - prefabricated fully assembled, Cubical Unit of different capacities /seats' as mentioned in the Work Order bearing Reference No. NIT No. EE(M)-IV/CNZ/2017-18/09 dated 20.07.2017 of Office of the Executive Engineer (M)- IV, C.N.Z. CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 38 of 57 19.13 During the course of final arguments, both the contesting counsels were asked to identify the actual site location in the coloured Site Plan Ex. PW1/3 and Layout Plan Ex. PW1/2. The actual site location was identified as an unnumbered plot designated as 'PARKING' besides plot numbered as 126 in C Block. It was put across to counsel for defendant no.1 as to how this location would qualify to be classified as 'backlane of plot no B-230 to B-235, OIA'. The actual site identified in Ex. PW1/2 and Ex. PW1/3 is across 80 ft. wide road on the front side of Plot no. B- 230 to B-235. There is a back lane which is called service road / service lane to Plot no. B-230 to B-235 which serves as Service Lane both to Plot no. B-230 to B-235 and Plot no. B-236 to B-241. Counsel for defendant no.1 fairly conceded that the description mentioned in the Work Order as backlane of B-230 to B-235 to identify the site for construction of Toilet Block was not accurately worded, however, the site was categorically identified and there was no confusion whatsoever while allotting the work order to contractor with respect to actual site identified for the purpose of construction of Community Toilet Block. Ex. D1W1/1 (colly) are three Work Orders issued by the concerned authority in the Office of Executive Engineer for the construction of Toilet Blocks which specifically mentioned the location to be :
1. 'near Indira Kalyan Vihar' in the backlane of Plot no. B-230 to B-235 OIA Ph-I W. No. 92 CNZ (near side lane of C-127),
2. 'near Indira Kalyan Vihar' in the backlane of Plot no. B-230 to B-235 OIA Ph-I W. No. 92 CNZ (near SI Office),
3. 'near Indira Kalyan Vihar' in the backlane of Plot no. B-230 to CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 39 of 57 B-235 OIA Ph-I W. No. 92 CNZ (near Jal Board Office) It is stated by D1W1 that no plot number was identified for the site where toilets were to be constructed and only site was identified.
He stated that the construction of toilet was started at point A in Site Plan Ex. PW1/3, whereas Indira Kalyan Vihar Basti is at point B in the Site Plan Ex. PW1/3 and behind plot no. 230 to 235. Site Plan of the location was produced by witness D1W1 to show the location of Toilet Block to be constructed by Contractor as Ex. D1W1/PX1 where location of the Toilet Block is stated to be point X and that this point X in Site Plan Ex. D1W1/PX1 corresponds with the location at point A in the Site Plan Ex. PW1/3. Upon query D1W1 clarified that this Site Plan was prepared by JE concerned. The relevant extract of the cross-examination of witness D1W1 in the contextual discussion are reproduced hereunder :
"I produce the Site Plan of the location where toilets were to be constructed by the contractor and the same is Ex.D1W1/PX1. The said location is at point X. The location at point X in the said Site Plan is the same which is at point A in the Site Plan Ex.PW1/3. The said Site Plan was prepared by JE. The location of B225 and C127 as shown in Site Plan Ex.D1W1/PX1 is not the same as per the layout plan Ex.PW1/3. The plot B225 is at point X1 in Site Plan Ex.PW1/3. Plot no.C127 is the plot marked A in the Site Plan Ex.PW1/3. The location of plot No.B225 has been wrongly shown in the plan Ex.D1W1/PX1. No plot number was required to be mentioned at the place where plot no.B225 is mentioned on Ex.D1W1/PX1. In the layout plan the plot at point A is prescribed for parking. There are no other parking plots except those mentioned in the layout plan Ex.PW1/3. No other parking place was CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 40 of 57 carved out before making construction of toilet at point A."
19.14 This Site Plan was produced by witness D1W1 as prepared by JE to be given and was also given to the Contractor alongwith the Work order for the purpose of identification of the site in question for construction of toilet so the Work Orders which were placed on record by DW1 as Ex. D1W1/1 also included this Site Plan subsequently produced during cross-examination by D1W1 which was earlier not placed on record as part of examination in chief by defendant no.1. It is apparent upon a bare glance of Ex. D1W1/PX1 that the proposed Toilet Block Site Plan was never meant to be part of C-127 rather can be understood to be located somewhere between B-225 and C-127. It is beyond comprehension as to which plot was identified by JE concerned at the time of making the Site Plan as C-127. C-127 which is identified as DSIDC is across 80 ft. road besides Plot no. 230-235. The site identified is located between plot no. B-225 as on one side and C-127 on the other, is with Plot no. B-224 to B-235 located across the road can be understood to be 80 ft road between plot no. B-224 on one side and 'disputed site - designated as 'Parking' on another side and plot no. B-225 to plot no. B-235 on another. There are various plots between B-224 and the disputed site mentioned at point A in Ex. PW1/3 and there is nothing specified in the Site Plan Ex. D1W1/PX1 with respect to the actual location of point X which is the proposed Toilet Block and the same appears to be very vaguely drawn and to the least it can be stated that it does not identify the actual site location of point A in Ex. PW1/3 as 'the proposed Toilet Block site'.
CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 41 of 5719.15 It was stated during the course of final arguments by counsel for defendant no.1 that the Delhi Jal Board Office located at the disputed plot carries the address board as 'C-127' which is why the said disputed plot was taken to be 'C-127'. Thus it is evident that the Site Plan annexed with the Work Order Ex. D1W1/1 (colly) cannot be stated to be correct depiction of the identified site for the construction of the Toilet Block. What Site Plan seems to be depicting is rather the front 80 ft. road of plot no. B-230 to B-235 and not the backlane. It is undisputed that SI Office and Jal Board Office are located within / abutting the disputed plot in question which might be interpreted as pointing to the disputed subject plot. It is not clear from the record as to which Work Order in specific was the Contractor executing at the disputed site, also if the site was common why was different specification made in three work orders. It can thus be deduced that the Work Order as well as the Site Plan lacked exactitude and precision which ought to be laid down while awarding public contracts/work orders, expected of any public agency.
19.16 Moving further, to look for an answer as to why a particular plot was chosen to built Community Toilet Blocks, there is nothing to show as to whether and what were the factors which weighed with the public agency and the officials thereof to identify the plot in question as most suitable and apt for the upcoming Toilet Block. There is nothing placed on record to decipher the mode and manner of identification of any such site as to whether there are any policies existing to that effect and how officials take up the task for identification of the sites for any such projects. This brings the relevance of existing applicable Master Plan, Zonal CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 42 of 57 Development Plan and Actual Layout Plan for the area concerned. The contention made on behalf of plaintiff is that various sites have been marked for parking purposes in the Layout Plan Ex. PW1/2 and as such once such a Layout plan has been prepared, passed and duly approved, its user cannot be changed except through the process duly prescribed in law which calls for resolution to be passed by the competent authority recommending the change of use, its adaptation by the Standing Committee, invitation of objections from the affected people and bodies, adjudication of the objections received and then to approve or discard the proposed changes in the Layout. It is further affirmed that in the event of approval of change in the Layout Plan, the same is to be duly notified which then becomes part of Master Plan. It is further affirmed in the affidavit Ex. PW1/A that it is not in the hands of an individual or group of officers of any authority to change the user of any earmarked plot to any other purpose considering that there is a process in law which calls for strict adherence to it.
19.17 This contention has been responded by defendant no.1 in affidavit Ex. D1W1/A that Toilet Block being public utility can be constructed in all use zones as per clause 8(2) of Master Plan of Delhi 2021 and thus, no alteration or modification of Layout Plan is required, further as only small portion of the plot earmarked for parking has been allotted for construction of Toilet Block.
19.18 Central Government approved the Master Plan of Delhi, 2021 in exercise of powers under Section 11A of the Delhi Development Act, 1957. This power has been delegated as exercisable by Vice Chairman, Delhi Development Authorities in exercise of powers conferred under Section 52(2) of Delhi CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 43 of 57 Development Act, 1957 in so far as to relates to inviting objections and suggestions. The NCT of Delhi has been divided into various zones. Zonal Plans for the existing 11 zones have been notified with the approval of Central Government. The NCT of Delhi has been divided into 9 Land Use categories as mentioned in Clause 3 of Chapter 'Development Code'. Clause 2 therein provides definitions as per which Land use plan, Zonal Development Plan, Layout Plan, Site Plan, Use Zone and Use premises have been defined thereunder which are reproduced for further reference :
2(4) Layout Plan means a Plan indicating configuration and sizes of all Use Premises. Each Use Zone may have one or more than one Layout Plan depending upon the extensiveness of the area under the specific Use Zones and vice-versa. A layout plan shall have at least two use premises (apart from Recreational, utilities and transportation) and a minimum area of 1 Ha. Below which it shall be termed as Site Plan or sub division plan.
Layout Plan will indicate the location of all proposed and existing roads with their widths, dimensions of plots alongwith building lines and setbacks, location of drains, public facilities and services and electric lines etc, statement indicating the total area of the site, area under roads, open spaces for parks, playground, recreational spaces and other public places, as required by specific sections of the development code. 2(5) Site Plan : A Detailed Plan showing the proposed placement of structures, parking areas, open space, landscaping and other development features, on a parcel of land, as required by specific sections of the development code.
2(6) Use Zone means an area for any one of the Specified Use Category of the urban functions as provided for in Clause 4.0.
2(7) Use Premises means one of the many sub CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 44 of 57 divisions of a Use Zone, designated in an approved layout plan, for a specific Use. Land use of a premise has to be determined on the basis of an approved layout plan.
Use Zones have been designated as Clause 4 of Master Plan of Delhi, 2021 in terms of 9 Land Use Categories. Industrial Use Zone has been designated as 'M1' which comprise of manufacturing, service and repair industry. The Industrial use premises have been categorized into (i) Industrial Plot, Flatted Group Industry (ii) Service Centre and Service Industry. In first, only industrial activity is permitted and in the latter, certain commercial activities apart from setting up of industry is permitted. It is pertinent to mention that each Use premises has been permitted to have specific uses / use activities out of the prescribed uses / used activities with or without conditions.
19.19 What is relevant for the purpose of the adjudication of the dispute at hand that certain public and semi public facilities have been enlisted in Clause 8(2) of Master Plan of Delhi 2021 which are all permitted to the set up in Industrial Use Zone except schools and vocational training institutes. It is also noted therein that park, open parking, circulation and public utilities are permitted in all the Use Zones and therefore those have not been specified amongst the Use Premises. The submission made on behalf of defendant no.1 also revolves around the same argument that Toilet Block is a public utility which can be constructed in all Use Zones as per clause 8(2) of Master Plan of Delhi, 2021 and therefore there is no violation of any Layout Plan.
CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 45 of 5719.20 As already mentioned, Zonal Development Plan lays down plans for various zones of NCT of Delhi whereas Layout Plan provides the detailing and specifications to an area. It is clear that a Zonal Development Plan and Layout Plan must confirm to the parameters laid down in the Master Plan. Technical Committee of DDA has been saddled with the responsibility to formulate policy guidelines for the sanctioning of Layout Plan and all Layout Plans have to be approved by the local bodies and authorities within their specific areas of jurisdiction. Once a Layout Plan stands approved, it becomes a guiding beacon for all the land use purposes of the concerned area. The activities undertaken by SDMC in any area have to confirm to the contours laid down by the Layout Plan.
19.21 It is not in dispute in the present matter that the specified usage of the disputed plot in the Layout Plan is for the purpose of parking. However, area out of that parking plot is sought to be carved out to be used for the purpose of construction of community toilets to be used by slum dwellers.
19.22 It is settled that any modification to the Master Plan and the Zonal Development Plan can be made under Section 11A of Delhi Development Act, 1957. As Layout Plan is brought into effect only to confirm with the approved Master Plan and Zonal Development Plan, its user is sacrosanct and can only be varied for the purpose of better public interest that too with the approval by Vice Chairman, DDA. It is for the Technical Committee of DDA, as already noted, to formulate guidelines for the sanctioning of Layout Plans and thus, any modification in the Layout Plan also would necessarily has to follow administrative screening and might CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 46 of 57 also have to call for public opinion and objections, if any. This implies that under no eventuality, can a Municipal Authority vary or change any User of the Premises which may entail modification of the sanctioned and approved Layout Plan. (Reliance is placed upon case titled as Maya Devi v. Union of India 1997(65) DLT 405 and observations made by Hon'ble Supreme Court of India in case titled as R.K. Mittal and Others v. State of Uttar Pradesh and others (2012 2 SCC 232 ) 19.23 The contention raised by counsel for plaintiff is that the subject matter plot cannot be used for any other purposes but for Parking unless a modification of the change of user is administratively approved by DDA as per the applicable rules. This has been refuted by SDMC, which calls itself to be a public agency responsible for maintenance and cleanliness of area, contending that construction of Toilet Block being a public utility would not entail any modification of the Layout Plan as it is permissible in all Use Zones as per clause 8(2) of Master Plan of Delhi, 2021.
19.24 Layout Plan Ex. PW1/2 has been mentioned to be approved by Lt. Governor of Delhi and it has proposed sites demarcated for public and semi public facilities like Fire Station, Petrol Pump, Slaughter House, Community Centre and Parking. It is noted in the said Layout Plan that the provision of Fire Station and two Petrol Pumps, Modern Pig Slaughter House and additional area of C.E.T.P. have been super imposed in the original Layout Plan of Okhla Industrial Area, Phase-I as per approval of competent authority. Various other modifications are also noted therein as discussed and analysed in the Screening Committee meetings concerned and approved to be included as part of the CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 47 of 57 Layout Plan. It is also noted that there is no mention or demarcation of any area or plot for public utility in the entire Layout Plan.
19.25 Okhla Industrial Area, Phase-I is an existing planned industrial area as mentioned in Chapter 7 of Master Plan of Delhi, 2021 which notes that 'there is a need for modernisation and upgradation of the existing Industrial area with due regard to environmental consideration which will be carried out in a planned manner and in a public-private partnership frame work, in which the entrepreneurs contribute for betterment and subsequent maintenance to suitable Operations and Maintenance arrangements'. There are Industry Use Zone guidelines provided in Clause 7.8 of Chapter 7 of Master Plan of Delhi, 2021 which even contains provision of Residential Use premise providing housing facilities for workers engaged in the industrial sector.
19.26 Okhla Industrial Area Phase-I, as already noted is a Planned Industrial Zone with industrial plot carved and allotted for setting up permissible industrial units with ancilliary support facilities for the smooth functioning and maintenance of the area, also made arrangements for. Parking also forms one such purpose so that allottees and the workers do not have to face parking woes as no plot has been carved for setting up public utilities in the Layout Plan. It is clear that extensive need of the same was not contemplated considering the nature of purpose of the area with regulations in place for the industrial plots to mandatorily make individual arrangements in their allotted plot. Indira Kalyan Vihar cluster came up as an urban Slum and as such do not constitute to have any existence in the Layout Plan. Therefore making CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 48 of 57 arrangements to accommodate their needs was not projected while sanctioning or approving the Layout Plan for the plotted industrial area.
19.27 It is the contention of defendant no.1 that only some space out of the entire disputed plot has been identified for the purpose of construction of community toilets therefore the user as such of that plot earmarked for parking has not been changed. There is nothing mentioned about the dimension of the plot reserved for parking and no categorisation has been given to show as to what percentage of that plot would be utilised for construction of community toilets and how much would remain for the purpose of parking.
19.28 On the basis of deliberations made above, it is evident that SDMC being a Municipal Authority can only maintain the area but has no right or authority to tinkle with the diktats of the Layout Plan. Once Layout Plan has been put into action, it cannot be varied or modified without requisite administrative approvals. The disputed plot has been earmarked for parking and therefore its user cannot be changed or modified without obtaining administrative sanctions to bring it to the force of law. In the same breath, it is also clear that public utility facilities are permissible in all Use Zones. Therefore, while it is permissible to be put up in Industrial Zone as well however, demarcated user of any Use Premises cannot be altered. As in, a space identified for setting up a Fire Station or a Bus Stop or a Truck Depot or Sewerage Plant cannot be turn around for the purpose of setting up community toilet as public utility. It is imperative for the Municipal Authority to abide to its best potential the contours laid down in the Layout Plan.
CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 49 of 5719.29 There is nothing placed on record on behalf of defendant no.1 to understand as to why this particular plot was chosen for the proposed construction of community Toilet Block. There is nothing placed on record to show any scientific or technical analysis having been undertaken on behalf of defendant no.1 to reflect upon the identification of site as apt for the purpose and why it would not have any prejudicial effect on the original purpose for which it was demarcated and with respect to people who paid for purchase of Industrial plots and are important stakeholders in the development of the area vis-a-vis the needs of slum dwellers who have encroached upon the public space. D1W1 was elaborately cross- examined to understand the number of existing toilets in the area and how an action plan was finalised based on the assessment of the needs of people living in JJ clusters but D1W1 was hardly aware about any such information. Some of the relevant extract of his cross-examination are reproduced hereunder :
DDA is the land owning agency of Okhla Industrial Area. Again said, I do not know. It is correct that defendant no.1 is not the owner of Okhla Industrial Area (OIA). SDMC is maintaining and providing public utilities in the said area which includes toilets etc. I cannot give any specific location of any toilet but there are many toilets provided by SDMC in the said area. Some of these toilets have been constructed in the last 34 years. I cannot tell the no. of toilet seats. There are many toilet already built up in the OIA. Vol. Those toilets are not constructed by SDMC. I do not know which authority has constructed them. Most of these toilets have been maintained by SDMC and the remaining by DUSIB. I do not know how many toilets already exist near the site in question. The toilets in question were meant for residents of CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 50 of 57 Indira Kalyan Vihar, JJ Cluster. The said basti is nearly 100 meters away from the site in question. I do not know the size of the said basti. I do not know the number of jhuggis in the said basti. There is no toilet in the said jhuggi basti. I do not know if any survey of the said basti was conducted by SDMC. The residents of this basti used to go for open defecation near the area in question. I do not know if survey of the said basti was conducted by DUSIB. I do not know that in the said survey, 30 toilets were found in existence in the said basti. At this stage, witness has been confronted with Mark X1 and states that there are already 25 toilets in the said basti. There are around 2000 jhuggis which do not have toilets. I do not know whether any complaint in writing related to open defecation by the residents of basti was received by SDMC. Q : What is the legal use of the site where the said basti has come up?
Ans : These are roads and backlanes.
There is nothing placed on record by defendant no.1 to show as to whether any alternate site was identified to respond to the parking issues which might crop up on account of usage of substantial part of the parking site for the purpose of construction of community toilets. It is not the case of defendant no.1 that this parking plot has been lying unutilised and therefore it would in the better interest of space utlisiation subject to administrative approvals, to convert or partly convert the usage to the setting up of public utility services for use by JJ Cluster. There is nothing to show as to what is the precise distance which JJ Cluster people would have to negotiate to reach to the dispute site in question, as identified by defendant no.1. There is nothing to show as to how appropriate would it be for old aged, infirm and for small children to negotiate roads in CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 51 of 57 order to reach at the site to ease themselves.
19.30 MPD, 2021 has recognised 'shortage of parking space' to be a major problem in Delhi, primarily in the absence of either edequate organised parking space facility or as provisions relating to parking within the plot area being normally not adhered to on account of which vehilces spill over on the roads adding to congestion in the area. Therefore, planned measures are required to alleviate this problem in the existing areas with adequate provisions for future developments. This appears to be precisely the case in this matter as well where a plot earmarked for parking purposes in a planned industrial zone is being sought to be utilised for construction of public utilities without accounting for the difficulties which would arise therefrom.
19.31 Identification of site does not bear to be result of a scientific and technical assessment of the area with several spots identified as proposed sites and then a particular site chosen for getting the needful done. It appears to be a fanciful and whimsical act on the part of officials of SDMC who were to complete their exercise under the applicable schemes atleast for the purposes of record, without any obligation to balance the same with other applicable concerns of the area. Disturbing parking would make things unmanageable for so many people on so many fronts and therefore would not be a happy scenario in the public interest.
While it may be obligatory on the part of SDMC to make the area defecation free and it is laudable to construct community toilets, but same ought not be at the cost and expense of the allottees of Industrial areas who are the prime contenders and stakeholders of the said areas. It is accordingly held that SDMC did not act within CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 52 of 57 the contours of law to identify plot meant for parking purposes for the purpose of construction of community toilets and to award work contracts without calling for any public objections, unilaterally imposing the decision of some public officials upon people of the area without giving any space for their opinion or objections to be taken note of, to the detriment of basic objectives of formulation of Layout Plan for a particular area. This issue is accordingly decided against defendant no.1 and in favour of plaintiff.
Issue no. 1 and 2
a) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for in prayer clause (a) ? OPP.
b) Whether the plaintiff is entitled to relief of permanent injunction as prayed for in prayer clause (b) ? OPP.
20 The onus to prove both these issues fall upon plaintiff. As already deliberated in the previous issue, SDMC has been held to have acted illegally to award work contract to the contractor for the purpose of construction of community toilets at the disputed site/plot earmarked for Parking as per the Layout Plan.
20.1 Plaintiff is a society registered under the Society Registration Act and PW1 being member of Plaintiff Association has been authorised by Resolution dated 28.10.2017 to institute a suit. The resolution has been placed on record as Ex. PW1/1. It cannot be said that the plaintiff has no locus with respect to cause of action in the present matter. What PW-1 has contended against is not construction of public toilets which may be an obligation on the CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 53 of 57 part of Government and in turn SDMC but asserting its right to use plot earmarked for parking as such. There is no document filed in the form of survey or otherwise by defendant no.1 as to why till date this cluster has mushroomed to such an extent without provision of adequate basic facilities in place. D1W1 admitted that the cluster was basically an encroachment on public space. While construction of community toilets would cater to basic human needs of people dwelling in JJ Clusters but there is no right vested in them to assert usage of any space whatsoever for the said purpose. On the other hand, the original allottees of industrial plots have given consideration in the form of money, time period, development of the area, contribution towards the economic activities and the evolution of the area cannot be understood to be in contra-distinction of their interest. The investments were made in the area to be part of plotted industrial development with adequate public and semi public ancilliary facilities for the smooth operation of the area and therefore it is imperative to look/take into the consideration their concerns as well. Defendant no.1 has not been able to prove as to why and how it carried legal force in its act of construction of community toilets at the disputed sites. In the said plot, already spaces have been used for Office of Sanitary Inspector and that of Delhi Jal Board with a Sulabh Shauchalya abutting the said plot facing the main road besides this plot in question. Defendant no.1 has contended that it would ensure services like water and sewage system before making the toilets function but it appears that the construction of toilets at the disputed site would be more of a detriment and nuisance to the adjoining industrial units who have no benefit or connect with CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 54 of 57 these toilets, than its projected usefulness for the slum dwellers considering that not even clarity has been brought between the distance of the cluster, easy accessibility of the site in question and balancing the needs of immediate people in vicinity and those who have to come from another cluster just to use these toilets. Infact, if the toilets are not very accessible and located in immediate vicinity, there is a likelihood of these lying unused or misused defeating the very purpose for which those were contemplated. Nothing has been pointed out to show that plaintiff is not entitled on the principles of equity and conscience to ask for the assistance of the Court or that in any manner plaintiff has acquiesced to the act of the defendant no.1 which is sought to be restrained. Defendant no.1 being a public agency, its action are open to public scrutiny and it needs to balance its obligation with respect to various conflicting public interest.
20.2 On account of the discussion and deliberation made above, it is held that allowing construction of these toilets at the site designated for parking purposes would only add to the traffic snarls and parking woes which would imbalance/disturb the basic purpose of the set up of Planned Industrial Zone. Accordingly, defendant no.1 is restrained from raising any further construction for building community toilets at the disputed subject site of plot/space besides plot no. C-126 designated for parking as per Layout Plan Ex. PW1/2. Defendant no.1/SDMC is also directed to remove the construction which has already taken place at the disputed site and restore to its original position making it compatible for use by the allottees / industrial unit owners /workers/commuters for parking purposes within two months from the date of this Order.
CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 55 of 5720.3 With respect to defendant no.2, it has already been specified that the physical handing over of files pertaining to Okhla Industrial Area, Phase-I, has not culminated and therefore, factually neither defendant no.2 is responsible for Lease Administration or for Operations and Management of the Industrial Area concerned as mentioned in DIDOMA Act, therefore has not been borne with any liability with respect to cause of action in the present suit.
20.4 Defendant no.3 was merely a contractor who was under an obligation to execute the Work Contract awarded by defendant no.1 and as such has no direct role to play with respect to dispute between plaintiff and defendant no.1. Defendant no.3 has never appeared before the Court and has proceeded against ex-parte as mentioned hereinabove. Nothing is claimed against defendant no.3. The legal obligation has only been enforced against defendant no.1 as deliberated above. Both these issues are accordingly decided in favour of plaintiff and against the defendant no.1.
Relief 21 In view of the discussion on the issues made above, the present suit stands decreed in favour of plaintiff and in favour of defendants. Defendant no.1/SDMC is directed to remove the construction which has already been taken place at the disputed site and restore to its original position making it compatible for use by the allottees / industrial unit owners /workers/commuters for parking purposes within two months from the date of this Order and is also forbidden to carry any further construction at the site besides suit property i.e. Plot No. C-127, Okhla Industrial Area, Phase-I, New Delhi - 110020, CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 56 of 57 earmarked for parking purpose.
22 Decree sheet be prepared accordingly. Parties to bear their own costs.
23 File be consigned to record room. Digitally signed
by SHELLY
SHELLY ARORA
ARORA Date:
2022.06.11
03:51:49 +0530
Announced in the open (SHELLY ARORA)
Court on 09.06.2022. Additional District Judge-01 (SE) Saket Courts, New Delhi. (sm) CS - 1346/2017 Delhi Factory Owner's Federation Vs. South Delhi Municipal Corporation & Ors. Page 57 of 57