Delhi District Court
Sh. D.K. Jain And Ors vs Delhi Development Authority on 21 December, 2013
IN THE COURT OF SAURABH PRATAP SINGH LALER,
ACJ/ARC(WEST), TIS HAZARI, DELHI
Suit No. 40/2013
Date of Institution : 13.10.1997
Date of Judgment : 21.12.2013
1.SH. D.K. JAIN AND ORS.
R/o G-1, Ashok Vihar,
Delhi.
2.SH. J.C. BINDRA
R/o G-3, Ashok Vihar,
Delhi.
3.SH. T.R. BHARDWAJ
R/o G-6, Ashok Vihar,
Delhi.
4.SH. G.C. CHHABRA
R/o G-9, Ashok Vihar,
Delhi.
5.SH. D.C. KAPOOR
R/o F-21-1, Ashok Vihar,
Delhi.
6.SH. D.M. MALHOTRA
R/o F-24-1, Ashok Vihar,
Delhi.
7.DARBARI LAL FOUNDATION
Through its Secretary
GF/46-47, World Trade Centre,
Connaught Place,
New Delhi. ... Plaintiffs
VERSUS
1.DELHI DEVELOPMENT AUTHORITY
Vikas Sadan, I.N.A.,
New Delhi.
2.PUNJABI BARADARI (Regd.)
Through its Secretary,
G-55, Ashok Vihar,
Delhi.
Suit No. 40/2013 D.K.Jain Vs DDA Page 1 of 35
3.LT. GOVERNOR OF DELHI
Raj Bhawan, Rajpur Road,
Delhi.
4.UNION OF INDIA
Though Ministry of Urban Development
Nirman Bhawan, New Delhi.
5.MUNICIPAL CORPORATION OF DELHI
Through its Commissioner
Town Hall, Delhi. ... Defendants
JUDGMENT
1 Plaintiffs filed a suit for permanent injunction on 13.10.1997. 2 Before proceeding to discuss the merits of the case, a brief history of present litigation is stated as under:-
2.1 The present suit was filed on 13.10.1997.
2.2 Defendant no. 1 appeared through L.A. for the first time on 27.10.1997 and defendant no. 2 appeared through its lawyer on 06.11.1997.
2.3 Written Statement were filed by defendant no. 1 and defendant no. 2 on 26.11.1997.
2.4 An application for amendment was filed by the plaintiffs under Order 6 Rule 17 CPC on 11.09.1998. The said amendment was allowed on 19.04.2001 and amended plaint was filed on 16.08.2001. Amended WS was filed by defendant no. 2 on 27.11.2001. 2.5 Another application under Order 1 rule 10 CPC was filed by plaintiffs on 29.01.2002 which was allowed vide order dated 01.04.2002 and MCD was made a party as defendant in the present case. 2.6 On 04.04.2002, another application for amendment of plaint under Order 6 Rule 17 CPC was filed by the plaintiffs alongwith an application under Section 151 CPC for restraining the defendant from carrying constructions in the suit plot.Suit No. 40/2013 D.K.Jain Vs DDA Page 2 of 35
2.7 The application under order 6 rule 17 CPC was allowed vide order dated 16.04.2002, after MCD filed its appearance through its counsel on 08.04.2002. Amended plaint was accordingly filed on 24.05.2002. WS to amended plaint was filed by defendant no. 2 on 24.09.2002.
2.8 Application under Section 151 CPC was also allowed on 16.04.2002 and against the said order defendant no. 2 filed an appeal before Ld. ADJ and Ld. ADJ vide order dated 26.08.2002 allowed the appeal and set aside the order dated 16.04.2002. Against the order of the Ld. ADJ, the plaintiffs went to Hon'ble High Court and the Hon'ble High Court vide order dated 09.02.2007 restrained defendant no. 2 from raising construction in the property and directed the trial court to expedite the disposal of the suit and give specific directions that evidence of parties be recorded on or before 31.07.2007 and that judgment be pronounced on or before 01.10.2007. 2.9 Subsequent to said order, issues were framed in the present case on 20.02.2007.
2.10 Plaintiffs filed another application under Order 6 rule 17 of CPC in 2007 and the said application was allowed vide order 08.10.2007 and amended WS was filed by defendant no. 1 on 23.10.2007.
Thereafter, another amended plaint as per order dated 02.11.2007 was filed on 14.11.2007 and finally amended WS was filed by defendant no. 2 on 10.02.2007. Replication was filed by plaintiffs to the WS of defendant no. 1 and defendant no. 2 on 18.01.2008. 2.11 Another application under Order 7 rule 14 CPC was filed by plaintiffs on 30.01.2008 and the said application was dismissed vide order dated 16.02.2008. A review application for review of the said order was filed by the plaintiffs on 17.03.2008 and was taken up on 16.04.2008. The said application was pressed on 28.03.2011 and the same was allowed vide order dated 07.12.2011.
2.12 Against the said order dated 07.12.2011, defendant no. 2 went in Suit No. 40/2013 D.K.Jain Vs DDA Page 3 of 35 appeal and Ld. ADJ vide order dated 24.07.2013 allowed the appeal and set aside the review order dated 07.12.2011. 2.13 On 23.08.2011, defendant no. 3 to 5 were proceeded ex-parte.
2.14 Thereafter, Defendant no. 2 moved an application before the Hon'ble High court under Section 151 CPC for vacation of the said order which was confirmed by Hon'ble High Court in C.M. No. 289/04 vide order dated 25.07.2007. The said application was disposed of by Hon'ble High Court vide order dated 23.09.2013 and the Hon'ble High Court after observing that the earlier order of the Hon'ble High Court dated 09.02.2007 has not been implemented, directed the trial court to record evidence in the matter on priority basis and to pronounce judgment within three months from the date of order (23.09.2013). The said order was communicated to the Trial Court on 30.09.2013. 2.15 Vide order dated 29.10.2013, the present case was assigned to the court of the undersigned by Ld. District & Sessions Judge (West). The case was received in the court of the undersigned on 31.10.2013. PE was concluded on 07.11.2013 after cross examination of PW-4 J.C. Bindra. Defendant's evidence was concluded on 12.12.2013. Thereafter, final arguments were heard and case was posted for judgment on 21.12.2013 i.e. today.
3 The plaintiffs have pleaded as under :-
3.1 Plaintiffs no. 1 to 6 are the owners / allottees of house in Phase-I of the colony known as ASHOK VIHAR, DELHI and plaintiff no.7 is an Educational Society registered with Registrar of Societies, Delhi. One of the aims and objection of plaintiff no. 7 is to impart education in and around Delhi, and even in other parts of the country. 3.2 That Delhi Development Authority (DDA) (defendant no. 1) allotted plots in G/F Blocks, Ashok Vihar, Delhi to various persons as per the lay out plan of the DDA. Many of these people are residing here after constructing the houses on the plots. In the lay out plan, there is a plot adjacent to two children parks and dividing the G Block and F Suit No. 40/2013 D.K.Jain Vs DDA Page 4 of 35 Block. This plot of land according to the lay out plan is earmarked for a Nursery School as shown in yellow in the site plan. 3.3 Plaintiffs no. 1 to 6 purchased their respective plots from defendant no. 1 / DDA with the understanding that their plots / houses are located in front of the plot which is meant for nursery school and that after some time a nursery school would come up on the plot in question and that the nursery schools usually are in operation in the earlier part of the day and there was no scope of any disturbance to the residents particularly in the evenings.
3.4 Defendant no. 1 had allotted a part of this Nursery School plot to Kulachi Hans Raj Model School to run its Nursery School, a few years ago, and DDA had filed its site plan in suit No. 255/96 in the court of Sh.
D.K. Sharma, Ld. Civil Judge, Delhi, clearly showing the site in question as Nursery School.
3.5 Plaintiff no. 7 society also contacted defendant no. 1 to allot the remaining portion of the plot, which was meant only for Nursery School, to run one of its Institute here in Ashok Vihar.
3.6 Defendant no. 1/DDA had told the representatives of plaintiff no. 7 society that this plot of Nursery School shall be available in open auction and plaintiff no. 7 can also bid in the auction. 3.7 Defendant no. 1 had also put a board on the site stating that the site in question is a Nursery School site of F-Block, Ashok Vihar, Delhi and this board of DDA existed on the plot upto 08.10.1997. 3.8 On 08.10.1997, some of the alleged office bearers of defendant no. 2 came to the site and attempted to uproot the board displayed by defendant no. 1 stating clearly that the site is meant for Nursery School. 3.9 The defendant no. 2 started asserting that it has got allotment of this plot of land to run a "COMMUNITY HALL".
3.10 The plaintiffs and other neighbours objected to this as they do not find any necessity of any such Community Hall in this locality as the Suit No. 40/2013 D.K.Jain Vs DDA Page 5 of 35 facility has already been provided to them at a very near place in E- Block, F-Block of Ashok Vihar.
3.11 The said plot of Nursery School as described above in the site plan is admittedly earmarked for Nursery School and the user of the same cannot be changed for any purpose other than school. 3.12 In the evening of 08.10.1997 the alleged office bears of defendant no. 2 again came on the site and painted the board displayed by defendant no. 1 on the site.
3.13 The plaintiffs including the Chairman of plaintiff no. 7 again objected to it and had showed them the lay out plan of DDA, which shows this plot as Nursery School.
3.14 Thereafter, plaintiffs met concerned officers of DDA on 09.10.1997 and bought to their notice the illegal allotment of the plot in question and also told them that as per site plan filed by DDA in Suit No. 255/96 in the court of Mr. D.K. Sharma, Civil Judge, Delhi the plot is question is earmarked and meant for Nursery School. Defendant no. 2 who had already started cutting plants, small trees from the site, was also requested to stop their construction activities in this plot but to no effect.
3.15 Plaintiffs no. 1 to 6 and present applicants apprehend that the plot allegedly allotted to the defendant no. 2 i.e. M/s Punjabi Bradari would also be a source of great public nuisance to the residents as defendant no. 2 proposes to use the plot for construction of a Hall for the purposes of Daily Satsang, Marriages and Mournings. If such activities are allowed to be carried out in or around the residential houses, it will be a source of great nuisance to the residents of the locality and particularly the neighbours. It is commonly known that in such gathering people assemble in large numbers and cause great disturbance to the neighbours. It will also disturb the peace, privacy and tranquility of the residents. As such the objections of plaintiffs remains that the plot in question which as per original site plan is meant for Suit No. 40/2013 D.K.Jain Vs DDA Page 6 of 35 Nursery school and is not for community hall. Under these circumstances, plaintiffs, left with no other alternative, filed the present suit for permanent injunction and declaration so as to restrain the defendants from converting the site of Nursery School into a 'COMMUNITY HALL' or for any other purpose.
4 In its WS Defendant no.1/DDA has taken preliminary objections:-
4.1 That the plaintiffs have no locus standi to file the present suit.
4.2 That the civil court has no jurisdiction to entertain the present suit.
4.3 That the suit has not been properly valued for the purpose of court fee and jurisdiction.
4.4 That the suit of the plaintiffs is not maintainable for want of notice under Section 53-B of DDA Act, 1957.
5 On merits, defendant no. 1 has submitted that initially half acres of land had been provided for nursery school in the lay out plan of Ashok Vihar but the Master Plan MPD-2001 which came into operation in 1988 provided for the allotment of land admeasuring 800 sq. mtrs. for nursery school in view of change of unit area of nursery school.
Accordingly, defendant no. 2 divided the half acre plot into three plots for nursery school, community hall and dispensary. The plot for nursery school was allotted to DAV Management Committee. That DAV College Trust Management Society again approached defendant no. 1 for allotment of land for mentally retarded children and the said request was considered by Area Planning Wing/Institutional Allotment Committee. That the Hon'ble L.G., Delhi on the basis of report of Area Planning Wing, recommended allotment of 786 sq. mtrs. plot adjacent to the site already allotted to DAV Committee for nursery school and the said allotment was finally made vide letter dated 21.03.1996 and physical possession was handed over on 02.08.1996.
6 Defendant no. 1 has further stated in the written statement that at Suit No. 40/2013 D.K.Jain Vs DDA Page 7 of 35 the time of the allotment of two sites to DAV Society, no objection was raised by the plaintiffs or other residents of the locality and that it is not open to the plaintiffs to challenge the allotment of site for community hall by defendant no. 1 to defendant no. 2. That the allotment to defendant no. 2 has been made in conformity with the Master Plan and Zonal Plan prepared by Area Planning Wing and approved by the competent authority. That Section 11-A of DDA Act conferred authority on DDA to make any modification in the master plan or the Zonal Development Plan and as such the plot which was meant for institutional use had been allotted for institutional purposes only to which there can be no objection by the plaintiffs. That the possession of the said plot has also been handed over by defendant no. 1 to defendant no. 2 after defendant no. 2 made payment of premium of land.
7 In reply defendant no. 2 filed written statement in which preliminary objections were taken as under:-
7.1 That the plaintiffs have not sought permission of the court to file suit in representative capacity and as such the suit is hit by Order 1 Rule 8 of CPC.
7.2 That the suit is not maintainable because as per Notification No. O-13011/21/93-DLIS dated 20.09.1995 issued by Govt. of India, Ministry of Urban Affairs and Employment, the site for nursery school can be converted/allotted for community hall and as such there is no illegality on the part of defendant no.1 in allotment of site in question for community hall.
7.3 That the plot in question measuring 2300 sq. mtrs. was divided into three equal parts by defendant no. 1 in accordance with law as per requirements and out of the three plots, two plots were allotted to DAV Management Committee, one for Shishu Bal Kendra and other for Mentally Retarded Children.
7.4 That the jurisdiction of civil court is barred Section 347-B and 347-B of Delhi Municipal Corporation Act.Suit No. 40/2013 D.K.Jain Vs DDA Page 8 of 35
7.5 That the relief of declaration was claimed by the plaintiffs by way of amendment of plaint vide application dated 04.03.2002 and the same was allowed vide order dated 16.04.2002 and as such the said relief is beyond the period of limitation.
7.6 That the suit is barred by principle of estopple as plaintiffs became party to the change of user of plot of land as the plot of land got allotted by plaintiffs for school for mentally retarded children was meant for community hall and the user of said plot of land was changed at the instance of plaintiffs for use as a school for mentally retarded children.
8 On merits, defendant no. 2 has submitted that the plot in question has been allotted by defendant no. 1 to defendant no. 2 for community hall as per law and the possession of the said plot has also been taken by defendant no. 2. That there is no community hall in the locality and as such a community hall is essential for the welfare and utility for residents of E, F and G Blocks of Ashok Vihar. That plaintiff no. 7 had applied for allotment of plot in question and the said request was turned down by defendant no. 1 and for vindictive reasons the present suit has been filed. 9 Replication to the written statement was filed by the plaintiffs wherein all the contentions made in the written statements of the Defendants were denied and defendants reiterated the averments made in the plaint.
10 From the pleadings of the parties, following issues were framed on 20.02.2007 :-
(1) Whether the plaintiff is entitled to the decree of declaration as prayed for? OPP (2) Whether the plaintiff is entitled to the decree for permanent injunction as prayed for? OPP (3) Whether the plaintiff has no locus standi to file the present suit ?
OPD (4) Whether the jurisdiction of the court is barred u/S 347 B/347E of Suit No. 40/2013 D.K.Jain Vs DDA Page 9 of 35 the Delhi Municipal Corporation Act? OPD (5) Whether the suit is not maintainable as stated in preliminary objection no. 8 ? OPD (6) Whether the suit is bad for want of statutory notice ? OPD (7) Whether the suit is barred by estoppel ? OPD (8) Relief.
11 Issue-wise finding of issues:
ISSUE NO. 6(6) Whether the suit is bad for want of statutory notice? OPD 1.1 Onus to prove the said issue is upon the defendant.
1.2 As far as defendant no. 2 is concerned, the same is not a Government body and therefore no notice is required to serve upon defendant no. 2 before filing of a suit as per Section 80 of CPC. 1.3 As regards defendant no. 1, the same being a Government body governed by Special Act namely Delhi Development Act, 1957, notice is required to be given to defendant no. 1 before a suit is instituted against defendant no. 1 as per Section 53-B of Delhi Development Act. 1.4 The said Section is quoted as under:-
"53B. Notice be given of suits:- (1) No suit shall be instituted against the Authority, or any member thereof, or any of its officers or other employees, or any person acting under the directions of the Authority or any member or any officer or other employee of the - Authority in respect of any act done or purporting to have been done in pursuance of this Act or any rule or regulation made thereunder until the expiration of two months after notice in writing has been, in the case of the Authority, left at its office, and in any other case delivered to, or left at the office or place of abode, of, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff and unless the plaint contains a statement that such notice has been so left or delivered. (2) No suit such as is described in sub-section (1) shall, unless, it is suit for recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises. (3) Nothing contained in sub-section (1) shall, unless it is a Suit No. 40/2013 D.K.Jain Vs DDA Page 10 of 35 suit in which the only relief claimed is injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit."
1.5 It may be noted that the provisions in Section 53-B of Delhi Development Act are similar to the provisions of Section 80 of CPC. The object of the Section is manifestly to give the authority or to officer concerned sufficient notice of proposed case to be brought against it or him so that it or he may consider the position and decide for itself or himself whether the claim of the plaintiffs should be accepted or resisted. However, sub-section (2) of Section 53-B deals with the case in which a suit can be instituted without complying with the requirement of a notice envisaged by sub-section (1) of Section 53-B of Delhi Development Act. It is provided by sub-section (3) that in a suit in which the only relief claimed is an injunction, the objection of which would be defeated by giving of notice resulting in the postponement of the institution of the suit, the requirement of notice stands waived. The legislature has virtually waived off the requirement of a notice in cases of urgent relief claimed on the analogy of provisions of section 80(2) of CPC.
1.6 In D.P. Rai Ahuja Vs. DDA, 1974 RLR 664, it was held that the conditions which must be satisfied before the application of Section 53- B(3) of the Act could be attracted to a suit are:-
(a) The relief claimed is one for injunction, and
(b) object of suit would be defeated by giving of the notice or postponement of the institution of the suit.
1.7 The present suit was filed on 13.10.1997 and the only relief sought at the time of filing of the suit was of permanent injunction to the effect that the defendants be restrained from using any part of plot in question for any other purpose except nursery school and so as to restrain defendant no. 1 from changing the user of the site without proper procedure. Injunction was also sought to restrain defendant no. 2 from digging or making any construction on the plot in question. Thus, Suit No. 40/2013 D.K.Jain Vs DDA Page 11 of 35 at the time of filing of the suit both the requirements of sub-section(3) of Section 53-B of Delhi Development Act were fulfilled and as such no notice was required before filing of the present suit. 1.8 An argument was raised by the Ld. counsel for defendants that by the second amendment of the plaint as per order dated 08.10.2007, the present suit has been converted into a suit for permanent injunction and declaration and as such after the said amendment, the suit is no longer maintainable in absence of notice under Section 53-B of Delhi Development Act.
1.9 It may be noted that application under Order 6 Rule 17 CPC which was filed on 26.09.2007 and was allowed on 08.10.2007 and prayer for declaration was also sought. Reply to the said application was also filed by DDA on 04.10.2007 but in the said reply no objection was taken by the DDA to the effect that relief of declaration is being sought without giving notice to DDA. The order dated 08.10.2007 as regards amendment of the plaint attained finality and as such the DDA waived the requirement of notice at that stage of the proceedings. 1.10 Moreover, even otherwise the purpose of notice under Section 53-B of Delhi Development Act is to give DDA sufficient notice of the proposed case to be brought against it so that the DDA may consider the case and decide whether to accept the claim or to resist it. In the present case, the DDA was already having notice of the facts of the case since 1997 and DDA was also given the notice of application of amendment of the plaint in 2007. As such, the basic purpose of section 53-B of Delhi Development Act cannot be stated to have been frustrated by the plaintiffs by way of amendment in plaint in 2007. Further, Section 53-B of Delhi Development Act creates a bar to institution of a suit against DDA without service of notice. In the present case at the time of institution of the suit in 1997, the requirement of sub- section (3) of Section 53-B of Delhi Development Act were fully satisfied and as such the suit was not hit by Section 53-B Delhi Development Act Suit No. 40/2013 D.K.Jain Vs DDA Page 12 of 35 at the time of its institution. The Section is not applicable to the amendments brought in a suit duly instituted, at a later stage. If the DDA was aggrieved by the order dated 08.10.2007 vide which the amendment with respect to declaration was allowed, then, the DDA should have challenged the said order. However, after the said order as regards amendment of plaint attained finality, the DDA cannot seek dismissal of the suit under Section 53-B of Delhi Development Act. 1.11 This issue is accordingly decided in favour of plaintiffs and against the defendants.
2 ISSUE No. 4 & 5(4) Whether the jurisdiction of the court is barred u/S 347 B/347E of the Delhi Municipal Corporation Act? OPD (5) Whether the suit is not maintainable as stated in preliminary objection no. 8 ? OPD 2.1 Onus to prove the said issues is upon the defendants. 2.2 As per order dated 20.02.2007, the onus to prove the said issues is upon the defendants. It has not been stated in the order that whether the preliminary objection no. 8 as referred to in issue no. 5 pertains to written statement of defendant no. 1 or defendant no. 2. The issues were framed on 20.02.2007 and after the framing of issues, amendment of plaint was allowed on 08.10.2007, however, no fresh issues were framed thereafter. Hence, the written statements on record as on 20.02.2007 have been perused to go through preliminary objection no. 8 in order to understand issue no. 5. A perusal of record reveals that as on 20.02.2007 there was no preliminary objection no. 8 in the written statement of defendant no. 1/DDA. In the written statement of defendant no. 2, preliminary objection no. 8 is with respect to the jurisdiction of the court in view of Section 347-B and 347-E of Delhi Municipal Corporation Act, therefore issue no. 5 is to the effect as to whether the jurisdiction of this court is barred by Section 347-B and 347-E of Delhi Municipal Corporation Act.
Suit No. 40/2013 D.K.Jain Vs DDA Page 13 of 352.3 Accordingly, issue no. 4 & 5 are taken up together. 2.4 Section 347-B and 347-E of Delhi Municipal Corporation Act is as under:-
"....347B. Appeals against certain orders or notices issued under the Act:-
(1) Any person aggrieved by any of the following orders made or notices issued under this Act, may prefer an appeal against such order or notice to the Appellate Tribunal, namely:--
(a) an order according or disallowing sanction to a lay-out plan under section 313;
(b) an order directing the alteration or demolition of any street under section 314;
(c) a notice under sub-section (1) of section 315;
(d) a notice under sub-section (2) of section 317;
(e) an order directing the disposal of things removed under Chapter XV or seized under section 334, or an order rejecting the claim of any person for the balance of the proceeds of sale of things so disposed of;
(f) an order sanctioning or refusing to sanction the erection of any building or the execution of any work under section 336;
(g) an order withholding sanction under the proviso to sub- section (1) of section 337;
(h) an order cancelling a sanction under section 338;
(i) an order requiring the rounding off, splaying or cutting off the height of a building intended to be erected, or for the acquisition of any portion of a site, under section 339;
(j) an order disallowing the erection of any building or the execution of any work under section 340;
(k) an order requiring the stoppage of any erection or work under section 344;
(l) an order requiring the alteration of any building or work under section 345;
(m) an order directing the sealing of unauthorised constructions under section 345A;
(n) an order refusing to grant permission under sub-section (2) of section 346;
(o) an order granting or refusing permission under section 347;
(p) any such other order or notice relating to or arising out of planned development under the provisions of this Act as may be prescribed by rules.
(2) An appeal under this section shall be filed within thirty days from the date of the order or notice appealed against:
Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period. (3) An appeal to the Appellate Tribunal shall be made in such form and shall be accompanied by a copy of the order or notice appealed against and by such fees as may be prescribed by rules."
"347E. Bar of jurisdiction of courts (1) After the commencement of section 7 of the Delhi Municipal Corporation (Amendment) Act, 1984, no court shall entertain any suit, Suit No. 40/2013 D.K.Jain Vs DDA Page 14 of 35 application or other proceedings in respect of any order or notice appealable under section 343 or section 347B and no such order or notice shall be called in question otherwise than by preferring an appeal under those sections.
(2) Notwithstanding anything contained in sub-section (1), every suit, application or other proceeding pending in any court immediately before the commencement of section 7 of the Delhi Municipal Corporation (Amendment) Act, 1984, in respect of any order or notice appealable under section 343 or section 347B, shall continue to be dealt with and disposed of by that court as if the said section had not been brought into force." (emphasis supplied) 2.5 As per Section 347-B and 347-E of Delhi Municipal Corporation Act, no court shall entertain a suit in respect of any order on notice appealable under Section 343 and 347-B of Delhi Municipal Corporation Act and no such order or notice shall be called in question otherwise than by preferring an appeal under those sections.
2.6 In the present case, the plaintiffs have sought the cancellation of the building plans sanctioned by defendant no. 5 MCD for purpose of construction of community hall on the suit land. As per Clause-(f) of sub- section (1) of Section 347-B of Delhi Municipal Corporation Act, an order sanctioning or refusing to sanction the erection of any building or the execution of any work under Section 336 is appealable before the Appellate Tribunal constituted under Section Section 347-A of Delhi Municipal Corporation Act.
2.7 As per section Section 333 of Delhi Municipal Corporation Act, any person who intends to erect a building has to apply for sanction for construction of the building, by giving notice in writing of his intention to the Commissioner, MCD and the Commissioner shall sanction the erection of the building under Section 336 of Delhi Municipal Corporation Act unless such building contravenes any of the provisions of sub-section(2) of Section 336 or the provision of Section 340 of Delhi Municipal Corporation Act. Therefore, prima facie the relief sought by the plaintiffs for the cancellation of the building plan sanctioned by defendant no.5 / MCD seems to be covered by Section 347-D Clause F of 347-B (1) of Delhi Municipal Corporation Act, 1957. 2.8 The plaintiffs have relied upon a judgment titled Shiv Kumar Suit No. 40/2013 D.K.Jain Vs DDA Page 15 of 35 Chaddha Vs. Municipal Corporation of Delhi, JT 1993 (3) SC 238 in order to show that the present suit is maintainable against defendant no.5 / MCD. However, the facts of the said case are entirely different. In the said case it was observed by Hon'ble Supreme Court that inspite of the bar prescribed under sub-sections (4) and (5) of Section 343 and Section 347-E of DMC Act over the power of the courts, under certain special circumstances, the court can examine whether the dispute falls within the ambit of the said Act or not. In the present case, there is no dispute that the property is governed by Delhi Municipal Corporation Act and therefore, there is no dispute as regards the applicability of the Act to the suit premises. In the opinion of the court the present case as regards relief claimed against MCD is squarely covered by Section 347- E of DMC Act and as such the suit is not maintainable against defendant no.5 / MCD. Accordingly, this issue decided against the plaintiffs and in favour of defendants.
3 ISSUE No.3(3) Whether the plaintiff has no locus standi to file the present suit ? OPD 3.1 The onus to prove the said issue is upon the defendant. 3.2 The objection that the plaintiffs have no locus standi to file the present suit was raised by defendant no. 1 in para-2 of the preliminary objections of the written statement dated 22.10.2007. Similarly, defendant no. 2, in para-2 of preliminary objections in written statement dated 18.09.2002 submitted that the suit is in representative capacity and the plaintiffs have not sought permission of the court to file the suit in representative capacity and as such the suit is hit by provision of order 1 rule 8 of CPC.
3.3 The plaintiffs in the last amended plaint dated 19.09.2007 submitted that plaintiff no. 1 to 6 are the owners/allottees of houses in Phase-I of Ashok Vihar, Delhi and that plaintiff no. 7 is an Educational Society and one of the aims and objections of the said society is to Suit No. 40/2013 D.K.Jain Vs DDA Page 16 of 35 impart education in and around Delhi.
3.4 Plaintiffs no. 1 to 6 have filed the present case on the ground that they had purchased their respective plots from defendant no. 1 with the understanding that their plots/houses are located in front of the plot meant for Nursery School and that after some time, a nursery school would come up on the said plot which usually remains in operation in the earlier part of the day with no scope of any disturbance in evenings. The plaintiffs have come to the court as the said plot which was meant for nursery school was divided into three parts and one of the said parts was allocated for nursery school, another part for school for mentally challenged and the third plot had been allotted to defendant no. 2 society for Community Hall. The objection of the plaintiffs is that if a community hall is constructed in the third portion of the said plot which was originally meant for nursery school then several activities like marriages, satsang and mournings will take place in the said hall which will be a source of great nuisance to the residents of the society and particularly the neighbours.
3.5 It is admitted case of the parties that originally the entire plot was reserved for nursery school and it was only after coming into force of the Master Plan-2001 in the year 1998, that the said plot was divided into three plots i.e. nursery school, community hall cum library and dispensary.
3.6 Thus, it is admitted case of the defendants that originally the plot was meant for nursery school and that its usages has been changed subsequently for three purposes i.e. for nursery school, community hall cum library and dispensary.
3.7 It is also an admitted case that the site for dispensary was thereafter interchanged with the site for community hall cum library and the site for dispensary was finally given to DAV Management for opening a school for mentally retarded children. The dispute has arisen after the said site was allotted to defendant no.2 and after defendant Suit No. 40/2013 D.K.Jain Vs DDA Page 17 of 35 no.2 started construction on the said plot. The plea of the plaintiffs is that the plot in question is too small to be used as a community hall even as per MPD 2001 and MPD 2021. They have also contended that if the suit plot which is very small in size is permitted to be used as community hall then the same shall cause inconvenience to the residents of the society and as the plaintiffs no. 1 to 6 are the residents of the society, therefore, they have filed the present case. 3.8 In the opinion of the court, plaintiffs no.1 to 6 being the residents of the society in which the plot in question is situated have the locus standi to file the present case and to challenge the use of the plot in question if the same is not being used as per the rules and regulations of DDA and MPD 2001 and MPD 2021. Therefore, this issue is decided in favour of the plaintiffs and against the defendants.
4 ISSUE No.7(7) Whether the suit is barred by estoppel? OPD 4.1 The onus to prove this issue is upon the defendant. 4.2 In the order sheet dated 20.02.2007, it has not been mentioned as to upon whom the onus to prove this issue lies. However, a perusal of the record reveals that the aforesaid objection was taken by defendant no.2 in its written statement in preliminary objection no.11. Therefore, the onus to prove this issue was upon defendant no.2. 4.3 Defendant no.2 in preliminary objection no.11 of written statement has submitted that the plaintiff became a party to the change of the user of the plot and got the adjacent plot allotted for school for mentally retarded children. Defendant no.2 has alleged that use of the plot of land which was meant for community hall was changed at the instance of plaintiffs for use as a school and as such the plaintiffs are estopped from challenging the authority of Govt. of India and DDA to order change of user of the plot of land in question to community hall. 4.4 However, defendant no.2 has failed to place any document in order to show that it was at the instance of the plaintiffs that the user of the Suit No. 40/2013 D.K.Jain Vs DDA Page 18 of 35 one of the plots was changed from community hall to that of school. Defendant no.2 has failed to prove any evidence to show that the plaintiffs were a party to the change of user of land and as such in absence of any evidence on record as regards this issue, this issue is decided against the defendants and in favour of the plaintiffs.
5 ISSUE NO. 1(1) Whether the plaintiff is entitled to the decree of declaration as prayed for? OPP The onus to prove this issue was on the plaintiff. 5.1 The defendants have taken the objection that the said relief of declaration is barred by law of limitation as the said relief was incorporated by the plaintiffs subsequently by way of amendment as per order dated 16.04.2002 i.e. after the expiry of three years from the date of cause of action.
5.1.1 The application for incorporating the relief of declaration/cancellation was filed by the plaintiffs on 4.4.2002 and the relief sought was to declare the allotment of plot in question by defendant no.1 to defendant no. 2 as null and void and to declare the sanction plans of building sanctioned by defendant no.5 as null and void.
5.1.2 As per the plaintiffs in para 10 of the amended plaint, filed after the amendment was allowed on 16.04.2002, the cause of action arose in 1997 and was continuing as defendant no.2 was and is adamant to construct community hall on the plot earmarked for a school.
5.1.3 The relevant articles of Limitation Act dealing with the limitation for filing suit of declaration are as under:-
PART III-Suits relating to Declarations
56. To declare the forgery of Three When the issue or an instrument issued or years registration becomes known registered. to the plaintiff.Suit No. 40/2013 D.K.Jain Vs DDA Page 19 of 35
57. To obtain a declaration Three When the alleged adoption that an alleged adoption is years becomes known to the invalid, or never, in fact, plaintiff.
took place.
58. To obtain any other Three When the right to sue first declaration. years accrues.
5.1.4 The present case is covered by Article 58 of the Limitation Act and as per the said article the limitation to file a suit for declaration is three years from the day when the right to sue first accrues. 5.1.5 In the present case the right to sue as per para 10 of the plaint accrued in 1997 and the suit was also filed in 1997, but at that time no relief of declaration was prayed. The relief of declaration came on record for the first time in 2002, i.e. much after the expiry of period of three years from the date on which right to sue first accrued in 1997. 5.1.6 Accordingly, the relief of declaration is time barred and as such no declaration as prayed for can be granted to the plaintiffs. Similarly, the relief of cancellation is also time barred under Article 591 of the Limitation Act.
5.2 However, even otherwise the declaration sought with respect to the building plan sanctioned by defendant no. 5, is not maintainable as the suit itself is not maintainable against defendant no.5 under section 347- E of Delhi Municipal Corporation Act.
5.3 As far as declaration against defendant no 1 and 2, for declaring the allotment of plot by defendant no.1 to defendant no.2 as null and void is concerned the, the plaintiffs have sought the cancellation of allotment on four grounds:-
5.3.1 Firstly, because the allotment has been made to defendant no. 2 society, despite the fact that the chairman of the said society is a lifetime chairman.
1 To cancel or set aside an instrument or decree or for the rescission of a contract.Three years When the facts entitling the plaintiff to have the instrument or decree canceled or set aside or the contract rescinded first becomes known to him.Suit No. 40/2013 D.K.Jain Vs DDA Page 20 of 35
5.3.2 Secondly, because the allotment has been made to defendant no.2 society without the verification of credentials of the members of the said society despite such recommendation by Institutional Allotment Committee.
5.3.3 Thirdly, because the plot of a smaller size1 has been allotted for community hall in violation of Master Plan Delhi. 5.3.4 Lastly, because the plot was meant for nursery school and the user of the same can not be changed to that of community hall. 5.4 All these grounds have been discussed while deciding the next issue.6 ISSUE NO. 2
(2) Whether the plaintiff is entitled to the decree for permanent injunction as prayed for? OPP 6.1 The plaintiffs have prayed that defendants be restrained from using the plot in question for any other purpose, except as a nursery school and defendant no.2 be restrained from raising any construction on the plot in question and from using the said plot for the purpose of community hall.
6.2 Plaintiffs have claimed the aforesaid relief on four grounds as stated earlier, and they are reproduced as under:-
6.2.1 Firstly, because the allotment has been made to defendant no. 2 society, despite the fact that the chairman of the said society is a lifetime chairman.
6.2.2 Secondly, because the allotment has been made to defendant no.2 society without the verification of credentials of the members of the said society despite such recommendation by Institutional Allotment Committee.
6.2.3 Thirdly, because the plot of a smaller size2 has been allotted for community hall in violation of Master Plan Delhi.
1 i.e. plot of size of 786.6 square meters has been allotted instead of plot of 2000 square meters. 2 i.e. plot of size of 786.6 square meters has been allotted instead of plot of 2000 square meters.Suit No. 40/2013 D.K.Jain Vs DDA Page 21 of 35
6.2.4 Lastly, because the plot was meant for nursery school and the user of the same can not be changed to that of community hall. 6.3 In order to prove the aforesaid grounds and in support of the aforesaid issue the plaintiffs have examined four witnesses, PW-1 Sanjay Kumar, LDC, Record Room, Civil, Tis Hazari, PW-2 J.K. Bansal, Asstt., Institutional Land Branch, Vikas Sadan, New Delhi, PW-3 N.K. Thukral, Asstt. Director, Constitutional Branch, DDA, PW-4 J.C. Bindra (plaintiff no.2).
6.4 PW-1 Sanjay Kumar had brought the record of suit No. 72/99 titled Rajesh Behl Vs. DDA & Ors. and the certified copies of the plaint and WS of the said case were compared and exhibited as Ex. PW 1/1 and Ex. PW 1/2 respectively. The said witness was not cross examined by any of the defendants.
6.5 PW-2 J.K. Bansal had brought the original record from DDA, Vikas Sadan and the said record is Ex. PW 2/1 to Ex. PW 2/8. In his cross examination he also exhibited the documents Ex. PW 2/D 1 to Ex. PW 2/D 6.
6.6 PW-3 Sh. N.K.Thukral, Assistant Director, Constitutional Branch, Delhi also brought the smmoned record and the same is Ex. PW-3/1 to 3/7.
6.7 The last plaintiff witness is Plaintiff No.2, Sh. J.C Bindra and be relied upon documents already exhibited and three more documents i.e. Ex. PW-4/1 to Ex. PW-4/3.
6.8 Now the court shall take each ground one by one:-
6.9 Allotment to defendant no.2 having lifetime chairman:
6.9.1 The fact that defendant no.2 is having a lifetime chairman has been stated by the plaintiffs in para 10(e) of the plaint and in the corresponding paragraph of the written statement filed by defendant no.2, the said fact has not been specifically denied. Moreover, the said fact also stands proved from Rules and Regulations of defendnat no.2 society Ex.PW-3/4, as in the said document it is Suit No. 40/2013 D.K.Jain Vs DDA Page 22 of 35 written that "Mr. Som Nath Nagpal, B-33, Ashok Vihar, Delhi has been elected CHAIRMAN for life time".
6.9.2 The question before the court is whether the plot could be allotted to a society having life time chairman or not. 6.9.3 The plaintiffs have failed to show any rule or regulation which prohibits the DDA from allotting the plot in question to a registered society having life time chairman.
6.9.4 As per THE DELHI DEVELOPMENT AUTHORITY (DISPOSAL OF DEVELOPED NAZUL LAND) RULES, 1981 the allotment of Nazul Land1 to public institutions is governed by Rule 20 of the said rules. The said rule is as under:-
"20. Allotment to certain public institutions No allotment of Nazul land to public institution referred to in rule 5 shall be made unless-
(a) according to the aims and objects of that public institution-
(i) it directly subserves the interests of the population of the Union territory of Delhi;
(ii) it is generally conducive to the planned development of the Union Territory of Delhi;
(iii) it is apparent from the nature of work to be carried out by that public institution, that the same cannot, with equal efficiency, be carried out elsewhere than in that Union territory.
(b) it is a society registered under the Societies Registration Act, 1860 (21 of 1860) or such institution is owned and run by the Government or any Local Authority, or is constituted or established under any law 2[for the time being in force or it is a company, firm or trust for the purpose of establishment of hospitals, dispensaries or higher / technical education institutes;
(c) it is of non-profit making character;
(d) it is in possession of sufficient funds to meet the cost of
land and the construction of buildings for its use; and
(e) ......."
6.9.5 Thus as per the rules for allotment of Nazul Land, the same can be allotted to registered societies. Though, several conditions for the allotment of land to public institutions are prescribed by the aforesaid rules, but, there is no rule which prohibits the allotment of 1 Defined in section 2(i) as: "Nazul land" means the land placed at the disposal of the Authority and developed by or under the control and supervision of the Authority under section 22 of the Act;
Suit No. 40/2013 D.K.Jain Vs DDA Page 23 of 35nazul land to a registered society having lifetime chairman. In absence of any such rule, the allotment of land by DDA to defendant no.2, having lifetime chairman, cannot be stated to be in violation of any existing rules and regulations.
6.9.6 Thus, legally there is nothing wrong in the allotment of land in question by DDA to defendant no.2 which is registered society, having lifetime chairman.
6.10 Allotment without verification of credentials:-
6.10.1 The plaintiffs have also submitted that despite the recommendation of the Institutional Allotment Committee (IAC) to allot the land to defendant no.2 society after verification of the credentials of its members, the plot was allotted to defendant no.2 without verification of the credentials of the society members of the society.
6.10.2 The relevant documents as regards this issue are Ex.PW-3/2 (letter dated 4.3.1997 from Office of Deputy Commissioner), Ex.PW-3/3 (Noting before and after the meeting IAC dated 19.06.97), Ex. PW-2/D3 (Minutes of IAC Meeting held on 19.06.1997). 6.10.3 The dates of the aforesaid documents are very relevant and they are discussed one by one.
6.10.4 Ex.PW-3/2 i.e. letter dated 4.3.1997 from Office of Deputy Commissioner mentions about the letter of DDA dated 5.12.1996 and states that the then President of defendnat no.2 namely Desh Raj Narang was involved in four criminal cases. The letter also mentions the details of the said four cases and the last four lines of the letter are as under:-
"There is nothing adverse against the Society Punjabi Biradri, G-55, Ashok Vihar, Phase-I, Delhi and its other 12(twelve) members of the governing body according to the concerned police station as well as DCP(SB) record."
The aforesaid letter clearly indicated that the antecedents of all the Suit No. 40/2013 D.K.Jain Vs DDA Page 24 of 35 members of defendant no.2 society were verified and criminal cases were found only against Sh. Desh Raj Narang. It is specifically stated that nothing adverse is found against defendant no.2 society and its twelve members.
6.10.5 The first noting in Ex.PW-3/3 (Noting before and after the meeting IAC dated 19.06.97) is as under:-
"that due to health reasons their President Shri. Desh Raj Narang has resigned and he is no more in the membership. Sh. J.N. Pahwa (Patron) has been appointed as new President who is from the thirteen members and character and antecedents have also been verified.
In view of the position explained above, it is stated that the society has completed the all other formalities, hence if agreed we may place this before the next IPSC for consideration."
6.10.6 The noting clearly mentions that the President of the society has changed and the new president is from amongst the 13 members of the society whose antecedents have been verified. 6.10.7 After, this noting the file was ordered to be placed before IPSC and finally this matter was discussed by Institutional Allotment Committee in its meeting dated 19.6.1997 and in Ex. PW-2/D3 i.e. Minutes of IAC Meeting held on 19.06.1997, at serial no.27 it was observed as under:-
"I.A.C recommended allotment of 786.6 sq. mtrs. of land at Ashok Vihar Phase I between Block F & G subject to re-verification of new members of society since there is change in the members"
6.10.8 After the aforesaid meeting the matter was discussed by Vice Chairman and Commissioner (Lands) and the relevant noting dated 27.6.1997 is as under:-
"The file was called by VC and the matter was discussed with me. The allotment was deferred by the IAC because the committee felt that, in view of the letter seeking clearance of the antecedents of the members of the society where it was found that the president has criminal antecedents, a fresh Suit No. 40/2013 D.K.Jain Vs DDA Page 25 of 35 verification of the remaining members is required. The same report clearly states that there is nothing against the other eleven members. Since the president has resigned and Sh. Pahwa, one of the eleven members without clean antecedents is now the president, VC and CLD felt that a fresh verification need not be insisted upon. The IAC will grant ex-post facto approval in the next meeting. The file will be put upto L.G. for considering the allotment."
6.10.9 The aforesaid documents clearly indicate that the antecedents of all the members of the society were verified and as such the argument that the allotment was made without verification of the antecedents of the members of the society is without merits. 6.10.10 Moreover, the plaintiffs have also failed to point out if any member of defendant no.2 society is having bad or suspicious antecedents.
6.11 Nursery School plot could not be allotted for Community Hall and that Size of plot is small for Community Hall as per Master Plan:-
6.11.1 The plaintiffs have submitted that the plot in question was meant for nursery school and that the user of the same cannot be changed so as to portion of the same for community hall and that the size of the plot in question is 786 sq. mtrs. and as per MPD-2001 and MPD-2021 a community hall can be built only in plot of 2000 sq. mtrs.
6.11.2 The fact that the entire plot of 2400 sq. mtrs. was originally meant for Nursery School, is not disputed. The said plot was divided into three parts in view of the notification dated 20.9.1995. 6.11.3 Ex. PW 2/3 is a very important document as it is the notification which permitted the use of Nursery School sites for other neighbourhood facilities. The notification reads as under:
"Notification No. K_13011/21/93_DDID, Government of India, Ministry of Urban Affairs & Employment (Delhi Division), dated 20.09.1995 Whereas certain modifications, which the Central Government propose to make in the Master Plan regarding Suit No. 40/2013 D.K.Jain Vs DDA Page 26 of 35 the areas mentioned here under published with the notice No. F.1 (7) / 80 MP dated 04.02.1994 in the Gazette dated 12.02.1994 in accordance with the provisions of Section 44 of the Delhi Development Act (61 of 1957) inviting objections / suggestions as required by the Section (3) of Section 11-A of the said Act, within thirty days from the date of the said notice;
Whereas 2 objections / suggestions were received from the public with regard to the said proposed modifications, which have been considered by the Authority; And Whereas the Central Government have, after carefully considering all aspects of the matter, decided to modify the Master Plan Delhi / Zonal Development plans; Now Therefore, in exercise of the power conferred by the Sub- Section (2) of Section 11-A of the said Act, the Central Government hereto makes the following modifications in the said Maser Plan for Delhi effect from the date of publication of this Notification in the Gazette of India. Notification "At page 157 of the Gazette of India Part 11 Section 3 Sub- Section (11) dated 01.08.1990 under heading NURSERY SCHOOL AND KINDERGARTEN SCHOOL (080) the following is added:
The following neighbourhood facilities are permissible in Nursery School sites according to the layout plan, whereas no such facilities are available in the vicinity:
i) Post Office.
ii) Community Hall cum Library
ii) Dispensary
iii) Health Centre
iv) Creche and Day Care Centre
v) Electric sub station (11 MV)
vi) Co-operative Store
vii) Milk Booth
viii) Fine Art School
ix) Maternity Home
x) Child Welfare Centre (Charitable)"
The reason behind the said notification has been clearly brought in Resolution No.140 dated 29.10.1981. The said resolution is reproduced below:
RESOLUTION NO. 140 DATED 29.10.81 ON POLICY REGARDING ALLOTMENT OF NURSERY SCHOOL SITES FOR USES OTHER THAN NURSERY SCHOOLS (F.1(7)/60-M.P.) PRECIS Suit No. 40/2013 D.K.Jain Vs DDA Page 27 of 35 As per standard prescribed in the Master Plan a number of nursery school sites varying in size from 0.25 acre to 0.75 acre each are being indicated on layout plans so as to serve housing clusters for a population of between 750-1000 persons. These sites are ancillary to the main use which is residential on plans prepared by the DDA, alone these are at present about 450 such site. A large number of these sites are not being asked for by the Municipal Corporation of Delhi, The Education Department of Delhi administration, the Social Welfare Department of Delhi Administration or even private organisation. An important reasons for sites not being demanded is a present trend towards comprehensive education at one location from KG to 12th Standard. Another reasons is that for KG / Montessori in small batches in private residential houses appears to be popular. The question that has now been pending for long is on the best use on the surplus sites of nursery school indicated in the plan.
2. At a meeting convened by the Lt. Governor of Delhi on 20.12.1979 to decide the future of these sites, it was for that alternatives uses for surplus sites be identified since these are likely to be encroached upon. Accordingly, a small committee of DDA officials under Commissioner (Planning), DDA recommended on 29.02.1980 as follows:
(a) For nursery schools which are part of group housing schemes no chance is necessary as the integrated design of these schemes do not enable nursery school sites to be used for any other purposes.
(b) For nursery schools shown within plotted development lay out sites which are surplus can be used for the following purposes provided these were lacking in the vicinity :
(i) Post offices.
(ii) Libraries-cum-community halls.
(iii) Dispensaries / OPD Type Health Centres,
(iv) Day-care Centre / Creches.
(v) In case of pressing demands, for electric sub-station (Not more than 11 KV) with proper security arrangements.
(vi) Residents' Co-operative Stores.
(vii) Milk Booths.
(viii) Youth Sports Centre.
(ix) Fine Art Schools.
3. The above recommendations were considered by the Technical Committee of the DDA on 24.07.1981 who recommended that there would be no objection for the use of surplus nursery school sites for uses like :
(i) Post Offices
(ii) Libraries-cum-community halls.
(iii) Dispensaries / OPD Type Health Centre
(iv) Day Care Centres / Creches.
They further recommended that other possible uses be further examined
4. On the basis of the Technical Committee recommendations and in view of shortages being experiences for some of the other integrated neighbourhood facilities, it is also felt that in additional to the above 4 alternatives uses for surplus nursery school sites recommended by the Technical Committee, the following may be also permitted :
(i) Electric Sub-Station upto 11 KV capacity, and only where no other site is available in the vicinity.Suit No. 40/2013 D.K.Jain Vs DDA Page 28 of 35
(ii) Residents Cooperation Stores and
(iii) Milk Booths
(iv) Fine Arts School.
5. It is for the consideration of the Authority whether uses recommended in Para 3 and Para 4 above be accepted Resolution The proposal contained in the agenda item be approved subject to the following :
"Only the surplus Nursery School sites be allotted for uses mentioned in the preamble after fulfilling the requirement of the neighbourhood."
Necessary action may be taken for amendment in the regulations regarding the use of these sites as approved.
6.11.4 The aforesaid notification dated 20.9.1995 is the basis of controversy between the parties as it was because of this notification that the plot of 2400 sq. meters in Ashok Vihar was divided into three plots for dispensary, community hall and nursery school. 6.11.5 It may be noted that the aforesaid notification is not under challenge and as such as per the said notification read with Delhi Development Act, the DDA is empowered to change the user of the plot in question for the purposes as mentioned in the aforesaid notification. It is in pursuance of the aforesaid notification that the plot of 2400 sq. mtrs. was divided into three plots for dispensary, community room and nursery school. As such the objection of the plaintiffs that the plot in question cannot be allotted by DDA for any purpose other than for nursery school is without merits. 6.11.6 Coming to the next issue as regards the size of the plot, DDA in written statement Ex. PW-1/2 filed by DDA in other case, has stated in para 15-16 on page 3 as under:-
"15-16. ........It is submitted that as per Policy dated 20.9.1995 referred to above, the Neighbourhood facilities such as Post Office, Community Hall-cum-Library, Dispensary, Health Services etc are permissible in Nursery School Site. Keeping in view the above Notification, the Nursery School site under reference at Ashok Vihar Ph.I was sub-divided/ear-marked for Dispensary, Community Room and Nursery School. It is wrong to allege that there is any change of land use of the site in Suit No. 40/2013 D.K.Jain Vs DDA Page 29 of 35 question. It is, however, submitted that layout plan of the Ashok Vihar has been modified but that does not entail any change of land use. It is wroth while to mention here that for providing facilities a hierarchy of Urban Development has been envisaged in the Master Plan-01, for a housing ares i.e. for an approximate population of 5000, there is provision of one community room. In this case, the proposal is actually of a community room. As per Master Plan
-01 an area of 660 sq. mtr. has been recommended for community room. Based on site condition there is little variation in the total area and an area of 786 sq. mtr. was carved out for community room."
6.11.7 The said paragraph of the written statement makes things absolutely clear as the said admission on the part of DDA is in consonance with the notification dated 20.9.1995 and also in consonance with the Master Plan-2001.
6.11.8 However, in the written statement filed by defendant no.1 in the present case the said defendant has reiterated the stand taken in aforesaid written statement, with one difference, that instead of community room, it is stated that the plot of 2400 sq. meters was divided into three plots for nursery school, community hall and dispensary. Thus, while in the written statement in other case Ex. PW 1/2, DDA submitted that the plot was divided into three portions for Nursery school, community room and dispensary, in the present case the DDA has submitted that the plot was divided into three portions for nursery school, community hall and dispensary. Thus, a question arises before the court as to whether the plot in question was earmarked for community room or whether the same was earmarked for community hall. For this purpose, the evidence of witnesses from DDA is highly relevant.
6.11.9 D1W1 Manohar Lal was examined by DDA in defence evidence and the relevant portion of his cross examination in this regard is as under:
"It is correct that the notification Ex. PW 2/3 dated 20.09.95 mentioned in Para 3 of my affidavit, it was observed that plot Suit No. 40/2013 D.K.Jain Vs DDA Page 30 of 35 for user of nursery school can be changed for other purpose including community hall cum library. As per the MPD 2021, the community hall is to be of 2000 sq. meters for population of 1 lac. The land which has been allotted to community centre is about 786 sq. meters. Vol. however, it was allotted before MPD 2021 as in MPD 2001, DDA was permitted to alote a plot of 660 sq. meter for population of 15,0001.............A plot measuring to 2000 sq. meters could have been allotted for community hall cum library. Again said a plot of lesser size could not be allotted for this purpose. The land allotted to Punjabl Biradari 786.60 sq, meters. The said land was allotted only for community hall. Lesser size of plot was allotted for population of 15000 people considering the necessity of people. The entire land was measuring 2360.46 sq. meters2.........."
6.11.10 The said cross examination is to be read alongwith MPD 2001 and 2021. The relevant portion of MPD 2001 i.e. the relevant portion of Clause 8 (1) (a) is as under:
2. "The provision of requisite social infrastructure shall be governed by the following norms for residential neighbourhood of 15,000/-
population. In any residential sub-division plan minimum area reserved for infrastructure shall be 9.55 per person.
__________________________________________________________ S. No. Use Premises No. of Unit Total Units Area Land (in ha) Area (in ha)
(a) EDUCATION
1. Nursery School 6 0.08 0.48
2. Primary School 3 4.40 1.20
3. Senior Secondary School 2 1.60 3.20
(b) ............
(c) ............
__________________________________________________________ S. No. Use Premises No. of Unit Total Units Area Land (in ha) Area (in ha)
(d) OTHER COMMUNITY FACILITIES
7. Milk Booth 3 0.015 0.045
8. Religious 3 0.04 0.12
9. Community Room 3 0.066 0.198
10. Community Hall & Library 1 0.20 0.020 1 Cross dated 06.12.2013 2 Cross dated 07.12.2013 Suit No. 40/2013 D.K.Jain Vs DDA Page 31 of 35
(e) ...............
(f) ...............
__________________________________________________________ 6.11.11 The relevant portion with respect socio cultural activities of MPD 2001 is as under :
Standard for socio-cultural facilities for socio-culture needs of the community are :
1. Community room One for 5,000/- population Area 660 sqm.
2. Community Hall and Library One for 15,000 population Area 2,000 sqm. 3 ....................
4 ....................
5 ....................
6 ....................
6.11.12 The relevant portion with respect socio cultural activities of MPD 2021 is as under :
Table 13.16 : Planning Norms and Standards for Socio-Cultural Facilities Sl. No. Category Population / Unit Plot Area (approx.)
1. a. Banquet Hall 10000 8002000 sqm b. Multipurpose Community Hall which may 1.0 lakh 2000 sqm include provision for marriages small public gathering, function, eating joint, and library etc.
2. a. Community Recreational Club 1.0 lakh 2000 sqm b. Recreational Club 5.0 lakh 5000 sqm
3. Socio cultural activities such as auditorium 1.0 lakh 1000 sqm music, dance & drama centre / mediation & spiritual centre etc 4 .....................
5 ...................
6. ...................
6.11.13 It may be noted that the present plot was allotted to defendant no.2 vide allotment letter dated 27.08.1997 Ex. PW 2/D-4 and the allotment was made at a time when MPD 2001 was enforced. MPD 2021 came into existence only in 2007 by way of Suit No. 40/2013 D.K.Jain Vs DDA Page 32 of 35 notification dated 07.02.2007. It may be noted that in MPD 2001, a plot of 660 sqm. was to be provided for community room and a plot of 2000 sqm. was to be provided for community hall cum library. 6.11.14 In the present case, DDA in Ex. PW 1/2 stated that as per MPD 2001 an area of 660 sqm. was recommended for community room and as such the plot in question 786 sqm was carved out for community room. This stand was changed by the DDA in the WS filed in the present case, but the only witness examined by DDA namely Manhore Lal D-1 W-1 categorically stated that the plot could be allotted for community hall as in MPD 2001, DDA was permitted to allot a plot of 660 sqm. for population of 15,0001. 6.11.15 If the testimony of D-1W-1 is read with MPD 2001 then it becomes absolutely clear that the plot in question measuring 786 sqm. was earmarked for community room as admitted and asserted by DDA in Ex. PW 1/2 and the same was not earmarked for a community hall as alleged by DDA in the WS filed in the present case. Though the allotment letter Ex. PW 2/D-4 mentions that the allotment is for community hall, but actually it is an allotment of plot of 786 sqm. for the purposes of community room as per MPD 2001. It may be noted that neither in MPD 2001 nor in MPD 2021 any recommendation has been made as regards the size of the community hall. In MPD 2001, the recommendation with respect to the size of the plot is only for a 'community room' and 'community hall and library'.
6.11.16 In the present case though the allotment was made by the DDA keeping in mind the recommended the plot size of 660 sqm. for community room, but at the time of allotment, the purpose of allotment was mentioned as community hall.
6.11.17 Therefore, in the opinion of the court the allotment cannot be stated to be illegal, but as the plot in question has been allotted by 1 Cross dated 06.12.2013.Suit No. 40/2013 D.K.Jain Vs DDA Page 33 of 35
DDA keeping in mind the recommended plot size of 660 sqm. for socio-cultural facilities, therefore, the plot in question can be used for socio-cultural needs of the community as regards the building by laws provided for 660 sqm. plot for socio-cultural facilities / community room.
7 This issue is decided accordingly.
Relief In view of the aforesaid discussion, the suit of the plaintiffs is held to be not maintainable against defendant no.5 and the plaintiffs are also not entitled to any declaratory decree. However, the plaintiffs are entitled to injunction to the effect that the other defendants shall use or permit the plot to be used only as per the rules / regulation / building by laws for a community room for which MPD 2001 had recommended the plot size of 660 sqm. The said injunctions is then passed in favour of plaintiffs and against defendants no.1 to 4. Decree sheet be drawn accordingly. No order as to costs. File be consigned to Record Room.
Announced in the open court On this 21st day of December, 2013 (Saurabh Pratap Singh Laler) ACJ/ARC(West) Tis Hazari, Delhi / 21.12.2013 Suit No. 40/2013 D.K.Jain Vs DDA Page 34 of 35 Suit No.40/2013 21.12.2013 Present: Proxy counsel for parties.
Vide separate judgment of even date the suit of the plaintiff is held to be not maintainable against defendant no.5 and the plaintiffs are also not entitled to any declaratory decree. However, the plaintiffs are entitled to injunction to the effect that the other defendants shall use or permit the plot to be used only as per the rules / regulation / building by laws for a community room for which MPD 2001 had recommended the plot size of 660 sqm. The said injunctions is thus passed in favour of plaintiffs and against defendants no.1 to 4. Decree sheet be drawn accordingly. No order as to costs. File be consigned to Record Room.
(Saurabh Pratap Singh Laler) ACJ/ARC(West) Tis Hazari, Delhi / 21.12.2013 Suit No. 40/2013 D.K.Jain Vs DDA Page 35 of 35