Delhi High Court
Sri Guru Singh Sabha vs South Delhi Municipal Corporation And ... on 7 July, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 7th July, 2016
+ W.P.(C) 4651/2014
SRI GURU SINGH SABHA ..... Petitioner
Through: Mr. A.S. Chandhiok, Sr. Adv. with
Ms. Arneena Sharma and Ms. Sweta
Kakkad, Advs.
Versus
SOUTH DELHI MUNICIPAL CORPORATION
AND ORS ..... Respondents
Through: Mr. Gaurang Kanth and Mr. Sujoy
Chatterjee, Adv. for SDMC.
Mr. Yash S. Vijay, Adv. for Mr.
Sanjoy Ghose, Adv. for GNCTD.
Mr. Kush Sharma, Adv. for DDA.
Mr. Vinod Kumar Tiwari, Adv. for R-
5/UOI.
AND
+ W.P.(C) 5817/2014
GREATER KAILASH-II WELFARE ASSOCIATION..... Petitioner
Through: Mr. Sumit Chander, Adv.
Versus
SOUTH DELHI MUNICIPAL CORPORATION ..... Respondent
Through: Ms. Mini Pushkarna and Ms.
Yoothica Pallavi, Advs.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
W.P.(C) Nos.4651/2014 & 5817/2014 Page 1 of 44
1. Both petitions concern a plot of land in the layout plan of the
residential colony of Greater Kailash, Part-II (GK-II) on which the
respondent no.1 South Delhi Municipal Corporation (SDMC) is going ahead
with the development / construction of a Community Centre-cum-Club and
residential accommodation for its employees. The petitioner in W.P.(C)
No.4651/2014 is a Society of the residents of the colony of GK-II which has
constructed and manages a Gurudwara adjacent to the said plot of land and
has filed this petition objecting to the said development / construction by
SDMC inter alia on the ground that the land aforesaid was ear-marked for
the purpose of a school and cannot be used for the purpose of a Community
Centre-cum-Club and residential accommodation for employees of the
SDMC and offering to itself establish a school on the said plot of land. The
petitioner in W.P.(C) no.5817/2014 is a Society, also consisting of residents
of the colony of GK-II and also objects to the construction / development
underway inter alia on the ground that the same would create a concrete
jungle to the prejudice of the existing residents of the colony.
2. W.P.(C) no.4651/2014 came up before this Court first on 28th July,
2014 when though notice thereof was issued but the interim relief sought of
restraining the SDMC from going ahead with the work of development /
W.P.(C) Nos.4651/2014 & 5817/2014 Page 2 of 44
construction on the said land not granted. However vide order dated 19th
November, 2014, the construction being carried out was made subject to the
further orders in the writ petition and it was clarified that the same would not
create any special equities in favour of the SDMC. Similarly, no interim
relief was granted in W.P.(C) No.5817/2014 also.
3. The aforesaid plot of land has a long history. The colony of GK-II in
which it is situated was developed by a private developer "DLF", after
having the layout plan thereof approved in the year 1959 from the Standing
Committee of the then Municipal Corporation of Delhi (MCD) and a
completion plan in pursuance thereto was approved in the year 1971. In the
said layout plan, the said plot was shown for community facilities. However
notwithstanding the colony having been fully developed and inhabited, use
of the said land for community facilities remained stalled owing to a dispute
between DLF, which besides the said colony of GK-II had also developed a
large number of other residential colonies in Delhi, and the MCD with
respect to the title of such sites sanctioned in each of the colonies for
community facilities. The said dispute remained pending in the Court till
1989. Ultimately, in the year 1989, a settlement was arrived at between
DLF and the MCD and in which settlement, the sites in different colonies
W.P.(C) Nos.4651/2014 & 5817/2014 Page 3 of 44
were inter alia divided / allocated between DLF and MCD and the subject
site fell to the allocation of MCD.
4. However thereafter also the aforesaid plot of land remained un-
utilised and it is the case of the petitioners that a part thereof was developed
by the MCD itself as „Udai Shankar Park‟ and the remaining land was used
by the residents, from time to time, for holding Diwali Utsav, Durga Puja,
etc.
5. The petitioner in W.P.(C) No.4651/2014 earlier filed W.P.(C)
No.4478/1994 pleading i) that at the time when it had established the
Gurudwara and when the residents of the locality had built their houses in
the colony of GK-II, the subject land was shown in the layout plan of the
colony for the purposes of a school; ii) that MCD had however on 28th
September, 1994 laid a foundation stone on the subject land for establishing
a public swimming pool; iii) that without issuing a statutory notice inviting
objections for changing the ear-marked purpose of the „school land‟ to
„swimming pool‟ and without the permission of the Delhi Urban Arts
Commission (DUAC) and without altering the sanctioned layout plan, the
land could not be used for a swimming pool; and, iv) that a school at the said
W.P.(C) Nos.4651/2014 & 5817/2014 Page 4 of 44
site was required for the residents of the colony and use of the land as
proposed for the swimming pool was contrary to law.
6. The aforesaid W.P.(C) no.4478/1994 was disposed of on 29th April,
1998 recording the statement of the counsel for the MCD that it will not
change the user of the subject land except in accordance with law and till
such change, no construction activity shall be carried out on the plot.
7. W.P.(C) No.4651/2014 was filed, pleading:
(i) that on 17th November, 2003, a note was prepared by the
Commissioner, MCD suggesting that the subject land originally
meant for school be utilised for construction of staff quarters
for MCD including the Commissioner‟s residence;
(ii) that through a Standing Committee resolution of MCD dated
30th July, 2003, a modification of the layout plan of the colony
was sought to be done by carving out a plot measuring 2000 sq.
mtrs. from the subject land for construction of a community hall
for the use by MCD as a club;
(iii) that the Standing Committee of the MCD, vide resolution dated
24th March, 2006, purportedly in exercise of powers under
Section 313 of the Delhi Municipal Corporation Act, 1957
(MCD Act), approved utilisation of the land in question for
construction of official residence of the Commissioner of MCD
W.P.(C) Nos.4651/2014 & 5817/2014 Page 5 of 44
and staff quarters and for utilisation of the proposed community
hall as community hall / recreational club for MCD staff;
(iv) however Section 313, falling in Chapter XV of the MCD Act,
deals with the issue of streets only;
(v) that the Commissioner, SDMC (in whose jurisdiction the
subject land fell on trifurcation of MCD) had vide letter dated
18th April, 2013 to the Municipal Secretary objected to
allocation of Rs.10 crores only against the project cost of Rs.92
crores for the aforesaid construction / development on the MCD
lands;
(vi) that from the aforesaid letter, it is also borne out that in addition
to staff quarters and the Commissioner‟s residence, there was a
plan to construct a 19 floor tower to accommodate 38 numbers
Type V quarters and 40 numbers Type VI quarters plus a 20
floor tower;
(vii) that the area is already highly congested and such massive
development / construction thereon would further congest the
area;
(viii) that though residents of the colony protested but foundation
stone for the proposed community centre was laid on 14th June,
2014 and some fully grown trees on the land were felled on 26th
June, 2014;
W.P.(C) Nos.4651/2014 & 5817/2014 Page 6 of 44
(ix) that the Residents Welfare Association (RWA) of GK-II filed
Original Application No.132/2014 before the National Green
Tribunal (NGT), Principal Bench, New Delhi against the felling
of trees and the NGT granted a status quo order and directed
that no further felling of trees be carried out; and,
(x) that the land is ear-marked for a school which is required and
which a number of entities were willing to establish.
8. The pleadings in W.P.(C) No.5817/2014 are similar save that in
addition, it is pleaded:
(i) that it is a term of the Settlement Deed dated 24th July, 1989
between the MCD and the DLF that the sites for school, health
centres and community centres would be utilised for the
purposes shown in the approved lay-out plan and that the
community centres and public building sites of GK-II could be
used for construction of community hall or any other user
permissible under the public and semi-public facilities
including social and cultural institutions as per the zoning
regulations of the master plan;
(ii) that as per the approved lay out plan of the colony, subject land
was ear-marked for three pre-primary schools, one basic
primary school and one religious building;
W.P.(C) Nos.4651/2014 & 5817/2014 Page 7 of 44
(iii) that vide Resolution No.312 dated 30th July, 2003, the approved
layout plan of the colony was modified to provide for
construction of a community hall on the subject land and which
was further modified vide Resolution No.75 dated 1 st June,
2004 to provide that the said community hall would be made
part of the complex to be used as community hall / recreational
club for the MCD staff;
(iv) that the Resolution dated 1st June, 2004 is also contrary to the
Settlement Deed dated 24th July, 1989 between MCD and DLF;
(v) that there is no provision in the MCD Act that the open space
left for school or park in a private colony can be used by MCD
as an owner for its own purpose;
(vi) that the SDMC is merely the custodian of the said land and
cannot claim any ownership rights with respect thereto; and,
(vii) that the SDMC is misusing public money for constructing a
lavish recreational club for its staff in the garb of making a
community hall for residents.
9. It is the stand of the respondent no.1 SDMC in its counter affidavit in
W.P.(C) No.4651/2014 i) that the aforesaid site measuring about 3.5 acres
located at E-Block, Greater Kailash, Part-II was taken over by erstwhile
MCD from DLF along with 75 other sites under amicable settlement
approved by the Standing Committee vide Resolution No.383 dated 3 rd May,
W.P.(C) Nos.4651/2014 & 5817/2014 Page 8 of 44
1989; ii) that later on, MCD vide Resolution dated 1 st June, 2004 modified
the layout plan of GK-II by utilising the site at E-Block for the construction
of MCD staff quarters including the Commissioner‟s residence with the
condition that the plot measuring 2000 sq. mtrs. approved by the Standing
Committee vide Resolution No.312 dated 30th July, 2003 for construction of
community hall shall be part of the complex; iii) that the aforesaid
modification of the layout plan was without any change in the Zonal
Development Plan or Master Plan of Delhi (MPD) inasmuch as, as per the
Zonal Development Plan of Zone „F‟ under MPD-2001 and MPD-2021, the
land use of the site under reference is Gross Residential Area and the
community facilities sites are permitted in Gross Residential Area; iv) that
moreover this is an activity related to layout level and not Zonal Plan /
Master Plan level; v) that the petition insofar as impugning the modification
of the Layout Plan is not maintainable as an appeal lies to the Appellate
Tribunal, Municipal Corporation of Delhi (ATMCD) thereagainst under
Section 347B of the MCD Act; vi) it has been held by this Court in Shanti
Devi Gupta Vs. Delhi Development Authority AIR 1994 Delhi 229 that for
change in the Layout Plan, no approval or sanction of the Central
Government is required; vii) that it has been held by this Court in W.P.(C)
W.P.(C) Nos.4651/2014 & 5817/2014 Page 9 of 44
No.9077/2005 titled RWA Guru Nanak Pura Vs. MCD that once the
prescribed land use as per the Zonal Development Plan and the Master Plan
is residential, no error capable of interference can be found in the resolution
of the MCD sanctioning residential plots where earlier a park existed and
that the remedy before the Appellate Tribunal being available against
modifications of Layout Plan, writ petition is not maintainable; viii) that the
education department has given no objection for developing the school sites
for Recreation Centre as there is no demand for opening a Primary School in
GK-II; ix) that no permission from DUAC is required to be taken with
respect to the subject land as in terms of the decision taken in the meeting
held on 25th January, 2006 of DUAC, its functions shall cover consideration
of proposals pertaining to development of district centres, sub-district
centres, community centres, areas ear-marked for Government,
administrative buildings and for residential complexes, public building /
complexes on more than 2 hectares in area or taller than 26 meters in height
or having plot area more than 1000 sq. mtrs. abutting 24 mtrs. or more wide
road; x) that the area of the subject land is not more than 2 hectares and the
building as proposed to be constructed is not taller than 26 mtrs. and the road
abutting the subject land is not 24 mtrs. or more wide; the road abutting the
W.P.(C) Nos.4651/2014 & 5817/2014 Page 10 of 44
subject land is only 18 mtrs. wide; xi) that the respondent no.1 SDMC has
started the work of building housing complex for its employees on the
subject land only after following due process of law and after obtaining
requisite approval from the concerned authorities; xii) denying that any note
as alleged was prepared on 17th November, 2003, xiii) that NGT has rejected
all the contentions of the RWA; and, xiv) that the area of GK-II and its
neighbouring area of Chitranjan Park already have sufficient number of
schools and there is no shortage of schools.
10. The respondent no.4 Delhi Development Authority (DDA) in its
counter affidavit in W.P.(C) No.4651/2014 has merely pleaded that as per
Clause 3(11) of MPD-2021, Layout Plans / Site Plans and Building Plans
shall be approved by the Local Bodies and Authorities in their areas of
jurisdiction and has reproduced Table 4.2 titled "Infrastructure Requirement
for layout at Residential Neighbourhood level of the MPD-2021" and as per
which there has to be one Primary School on land ad-measuring 0.20 to
0.40 hectares and one Senior Secondary School on land ad-measuring 0.60
to 0.80 hectares and further stated that the land is situated in the jurisdiction
of MCD and thus the DDA has no role.
W.P.(C) Nos.4651/2014 & 5817/2014 Page 11 of 44
11. The respondent no.2 Government of NCT of Delhi (GNCTD) in its
counter affidavit in W.P.(C) No.4651/2014 has also taken a stand that the
averments in the petition pertain to local body and do not concern the
respondent no.2 GNCTD.
12. No counter affidavit has been filed by the respondent no.3 DUAC or
the respondent no.5 Union of India (UOI).
13. No counter affidavit has been filed by the sole respondent SDMC in
W.P.(C) No.5817/2014 though written synopsis of submissions supported by
documents has been filed.
14. Hearing of the petitions was commenced on 20th July, 2015 when a
number of queries were raised from the counsels. Hearing was concluded on
14th January, 2016 and judgment reserved.
15. It was the contention of the senior counsel for the petitioner in
W.P.(C) No.4651/2014:
(a) that Section 313(1)(b) of the MCD Act requires a Layout Plan
to show the reservation or allotment of any site for any "street,
open space, park, recreation ground, school, market or any
other public purpose";
W.P.(C) Nos.4651/2014 & 5817/2014 Page 12 of 44
(b) that a reservation in the Layout Plan for a school cannot be
changed;
(c) that even the DDA in its minutes of the Second Technical
Committee held on 10th February, 2014 permitted alternate use
of vacant / un-allotted nursery school sites in developed Zones
A to H and urban extension (Dwarka, Rohini & Narela Project)
only for park if on road below 9 mtrs. and prohibited
community recreational club thereon;
(d) that the Layout Plan insofar as reserving the sites for open
spaces, park, recreational ground, school, market or any other
public purposes cannot be revised because the rights in the said
land in favour of the public are created at the time of such
reservation being sanctioned;
(e) that SDMC is not the owner of the subject land and is merely a
caretaker;
(f) that MCD previously having not permitted DLF change of user
with respect to the subject land, cannot now itself change the
user;
(g) that under the Settlement Deed dated 24th July, 1989 between
DLF and MCD also, the sites for schools, health centres and
community centres which had fallen to the share of DLF were
to be utilised for the purposes shown in the approved Layout
Plan of the colonies and could not be used for construction of
W.P.(C) Nos.4651/2014 & 5817/2014 Page 13 of 44
community hall or any other use as permissible under the public
and semi-public facilities including social and cultural
institutions as per Zoning Regulations of Master Plan;
(h) had the subject site fell to the share of DLF in the said
settlement, the purpose thereof could not have been changed
and since MCD extracted the said site from DLF, under the
Settlement, for itself, it also is not entitled to change the
purpose of the site which has fallen to its share;
(i) that even DLF who was the owner of the entire land underneath
the colony of GK-II, upon reservation of the subject site for a
school, was left with no absolute rights as owner therein;
(j) that the subject site even otherwise has vested in the MCD only
for the purpose of maintenance; attention in this regard is
invited to Sections 298 and 299 of the MCD Act particularly to
proviso to Sub-Section (2) of Section 299 of the MCD Act
requiring a reasonable opportunity to the residents likely to be
affected to be given;
(k) that the Resolution dated 1st June, 2004 became stale upon no
action in terms thereof being taken till the year 2014 as the
same was based on assessment then done of there being no need
for a school and the need for a school changed in 10 years;
(l) reliance was placed on Arjun Singh Vs. Deputy Mal Jain ILR
(1982) I Delhi 11, D.L.F. Housing & Construction (P) Ltd. Vs.
W.P.(C) Nos.4651/2014 & 5817/2014 Page 14 of 44
Delhi Municipal Corporation ILR (1969) Del 1055 (DB) and
Fomento Resorts and Hotels Ltd. Vs. Minguel Martins (2009)
3 SCC 571 on the concept of „Trust‟ in law; it was clarified that
though the Division Bench, in appeal, reversed Arjun Singh
supra but without examining Section 313 of the MCD Act;
(m) in the context of use of the word "reservation" in Section
313(1)(b) of the MCD Act, attention to the definition of
"reservation" in Black‟s Law Dictionary, Fifth Edition was
invited;
(n) reference was made to Green Park Association (Regd.)Society
Vs. Corporation of Delhi 2000 V AD (Delhi) 561 where,
relying on Pt. Chet Ram Vashist Vs. Municipal Corporation of
Delhi (1995) 1 SCC 47 it was held that a land for primary
school vested in MCD for maintenance could not, inspite of
change of land use thereof, be used for setting up office of the
Executive Engineer of the MCD as there was a difference
between ownership and vesting of land in MCD for
management purposes;
(o) D.L.F. Qutab Enclave Complex Educational Charitable Trust
Vs. State of Haryana (2003) 5 SCC 622, to which attention of
the counsels was drawn in the order dated 20th July, 2015 does
not dilute Pt. Chet Ram Vashist supra;
W.P.(C) Nos.4651/2014 & 5817/2014 Page 15 of 44
(p) Greater Kailash-II Welfare Association Vs. Municipal
Corporation of Delhi 42 (1990) DLT 87, to which also
attention of counsels was invited to in the order dated 20 th July,
2015, does not affect the rights asserted by the petitioner in
these petitions;
(q) reference was made to Shri Girish Vyas Vs. The State of
Maharastra (2012) 3 SCC 619 where, the shifting of an area
reserved for a amenity like primary school in favour of kin of
Chief Minister was quashed observing that the spaces for public
amenities, particularly educational institutions, are essential for
a decent urban life and that the planning process therefore
assumes significance in this behalf and it was argued that the
said observations would be binding on this Court as law under
Article 141 of the Constitution of India;
(r) attention was also invited to Articles 21A, 45, 243Q(C) and
Schedule II of the VIIth Schedule to emphasise that there is a
constitutional mandate for education and it was argued that a
statutory provision has to give way to the constitution;
(s) attention was also invited to Section 42(r) of the MCD Act
making establishment, maintenance and aid to schools for
primary education an obligatory function of the MCD;
(t) attention was invited to the provisions of the MPD-2021 to
contend that inspite of increase of as much as 40.6% in the
W.P.(C) Nos.4651/2014 & 5817/2014 Page 16 of 44
population of elderly and children, MCD / SDMC could not
have held that there is no need for a school;
(u) it was argued that the appellate remedy is not available because
the petition is for enforcement of fundamental rights and the
action of the MCD/SDMC is without jurisdiction;
(v) reliance is placed on Ahuja Property Developers (P) Ltd. Vs.
M.C.D. 42 (1990) DLT 474 to contend that just like in the
context of Section 345A of the MCD Act, the Courts have read
an opportunity of hearing implicit in an action for sealing, so
would the position be in the case of change of Layout plan;
(w) reliance was placed on Union of India Vs. Tantia Construction
Pvt. Ltd. (2011) 5 SCC 697 and on Shiv Kumar Chadha Vs.
Municipal Corporation of Delhi (1993) 3 SCR 522 to contend
that alternative remedy is not an absolute bar to the invocation
of writ jurisdiction; and,
(x) that the denial by the SDMC in its counter affidavit of the note
dated 17th November, 2003 of the Commissioner of MCD is
contrary to the documents filed by the petitioner.
16. Per contra, the counsel for the respondent no.1 SDMC has argued:
(i) that the writ remedy is not available in view of the alternative
remedy of appeal before the ATMCD;
W.P.(C) Nos.4651/2014 & 5817/2014 Page 17 of 44
(ii) that the proposed community hall on the subject land is also for
the residents of the colony; a copy of the Resolution No.352
dated 24th February, 2014 of the MCD was handed over in this
regard;
(iii) that under the Settlement Deed dated 24th July, 1989 between
MCD and DLF, MCD became the full and complete owner of
the subject site and all the rights, title and interest of DLF,
which was admittedly the owner thereof, thereunder stood
transferred to the MCD;
(iv) that the argument of public trust is misconceived;
(v) that the Layout Plan is within the domain of the MCD;
(vi) that in the Zonal Development Plan of the locality, the use of
the subject land is prescribed for Gross Residential Purpose;
(vii) that the change in the Layout Plan does not involve the Zonal
Plan or the Master Plan;
(viii) attention was invited to the provisions of Chapter 17 titled
„Development Code‟ of MPD-2021 and on the basis thereof
also it was argued that the Layout Plan is within the domain of
the MCD only;
(ix) reliance was placed on Delhi Land and Finance Universal Ltd.
Vs. Arjun Singh AIR 1986 Delhi 381 (DB) (this is the
judgment in appeal from Arjun Singh Vs. Deputy Mal Jain
W.P.(C) Nos.4651/2014 & 5817/2014 Page 18 of 44
supra cited by senior counsel for the petitioner) where the
challenge to the sale of two plots ear-marked for public
building in the colony of Model Town also developed by DLF
on the ground that the earmarking of the plot for public building
created a trust and DLF was not entitled to sell the land and
holding that no such trust was created; it was thus argued that
the whole contention of the senior counsel for the petitioners
relating to public trust is misconceived;
(x) reliance in this regard was placed on Greater Kailash-II
Welfare Association (supra) where also the argument of public
trust was rejected;
(xi) that the issue in Pt. Chet Ram Vashist (supra) was entirely
different and the same has no applicability to the present
controversy;
(xii) reliance was placed on Shanti Devi Gupta Vs. D.D.A. AIR
1994 Delhi 299 (DB) holding that departure from Layout Plan
cannot be equated with violation of Master Plan or Zonal
Development Plan which are statutory;
(xiii) reliance was placed on The State of Bombay Vs. R.S. Nanji
AIR 1956 SC 294 holding that requisition of premises by
Bombay Government to provide living accommodation for the
employees of the State Road Transport Corporation was for a
public purpose; attention in this regard was invited to Sections
W.P.(C) Nos.4651/2014 & 5817/2014 Page 19 of 44
43(n)&(o) and 55 of the DMC Act which are pari materia to
the provisions of the Road Transport Corporations Act, 1950;
(xiv) reference was made to Lal Chand Public Charitable Trust Vs.
Delhi Wakf Board 189 (2012) DLT 397 where it was observed
that MCD / SDMC becomes the new owner of the plots allotted
to it under the Settlement Deed dated 24th July, 1989;
(xv) it was argued that MCD / SDMC was thus fully entitled to
change the Layout Plan.
17. The senior counsel for the petitioner, in rejoinder, argued:
(a) that the Layout Plan approved of the colony on 15 th April, 1966
was modified on 3rd May, 1989 to include additional land and to
provide for construction of group housing where the same is
under construction by DLF but in the said modification also the
use of the subject land remained the same;
(b) that the Resolution dated 24th February, 2014 of the SDMC
handed over by the counsel during the hearing was not
mentioned in either of two counter affidavits dated 12th August,
2014 and 13th January, 2015 filed;
(c) that no credence can be given to the Resolution dated 24 th
February, 2014 being without any pleadings;
(d) that Supreme Court in Pt. Chet Ram Vashist (supra) approved
Arjun Singh (supra) wherein the contention of MCD was that
W.P.(C) Nos.4651/2014 & 5817/2014 Page 20 of 44
DLF, after reservation of the plot in the proposed layout plans
for diverse public purpose mentioned, agreed to the use of the
said plots for public purpose for the benefit of persons other
than itself and for the accomplishment of those particular public
purposes which were specified in the plan and in doing so
necessarily divested itself of all the beneficial use of the plots
and agreed to an obligation being annexed to itself in order to
use the subject plots for the benefit of others and not for any
other purposes and it was argued that MCD is bound by the said
argument;
(e) that the transfer even if any of ownership by DLF in favour of
MCD of the subject plot under the Settlement Deed dated 24th
July, 1989 cannot be de hors the obligation attached to the said
plot;
(f) that just like the lands underneath the streets vests in MCD only
for the purpose of maintenance, so is the position with respect
to lands which vested in the MCD / SDMC under the aforesaid
settlement;
(g) that as per the special position enjoyed by Delhi under the
Constitution of India, land continues to vest in the Union of
India and does not belong to the State;
(h) that the SDMC, as a fiduciary holder of the land cannot exercise
a right to construct thereon for its own purpose;
W.P.(C) Nos.4651/2014 & 5817/2014 Page 21 of 44
(i) that the Division Bench of this Court in Arjun Singh (supra)
did not deal with Section 313 of the MCD Act;
(j) that the ratio in Pt. Chet Ram Vashist (supra) was only slightly
modified in D.L.F. Qutab Enclave Complex Educational
Charitable Trust (supra);
(k) attention was drawn to K.L. Sachdeva Vs. M.C.D. 2013 (136)
DRJ 157 but which is not found to be of any relevance to the
present case;
(l) that SDMC is a State within the meaning of Article 12 of the
Constitution of India and even as owner of the subject land
cannot change the purpose or use thereof thereby undoing the
reservation made for public purpose;
(m) that there is more need for schools now than earlier;
(n) attention was invited to the letter dated 13th September, 1988 of
the petitioner to the Lieutenant Governor of Delhi offering to
construct the school on the subject land;
(o) that the Resolution dated 24th February, 2014 handed over by
the counsel for the respondent no.1 SDMC during the hearing is
without the backing of the Layout Plan and in the Layout Plan
the land continues to be shown as a school and there is no
community centre as is proposed;
W.P.(C) Nos.4651/2014 & 5817/2014 Page 22 of 44
(p) that the actions of the SDMC are also in violation of the Right
of Children to Free and Compulsory Education Act, 2009;
(q) that SDMC could have at best changed the use from that of a
primary school to a secondary school if there is no need for a
primary school but could not have changed the use to
residential as has been done;
(r) that the time prescribed for approaching the ATMCD has in any
case been lost and the petitioner cannot now be relegated to the
ATMCD.
18. The counsel for the petitioner and the counsel for the respondent
SDMC in W.P.(C) No.5817/2014 have adopted the arguments in W.P.(C)
No.4651/2014.
19. The rule, of jurisdiction under Article 226 of the Constitution being
not exercised if alternative efficacious remedy is available, is a flexible one
and does not create any absolute bar. These petitions having been
entertained, having remained pending in this Court for nearly two years,
interim order making the construction on the subject land subject to the
outcome of these petitions having been passed, and the counsels having been
heard fully on the merits of the controversy, no case for dismissal of the
petitions on the ground of availability of alternative remedy before the
W.P.(C) Nos.4651/2014 & 5817/2014 Page 23 of 44
ATMCD is made out. Even otherwise, I tend to agree with the contention of
the senior counsel for the petitioner in W.P.(C) No.4651/2014 that
considering the nature and grounds of the challenge by the petitioners to the
modification of the layout plan of the colony of GK-II, the challenge before
the ATMCD would not serve the purpose. ATMCD is not a Court but a
Tribunal of limited jurisdiction and can entertain a challenge to the
modification of the layout plan only on the grounds of the same being
contrary to the provisions of the Act and not on other grounds also as are
urged by the petitioners. I therefore do not find any merit in the objection of
SDMC as to the maintainability of the writ petitions.
20. Sections 312 and 313 of the MCD Act are as under:
"312. Owners' obligation when dealing with land as building
sites--If the owner of any land utilises, sells, leases out or
otherwise disposes of such land for the construction of
buildings thereon he shall lay down and make a street or streets
giving access to the plots into which the land may be divided
and connecting with an existing public or private street.
313. Lay-out plans--(1) Before utilising, selling or otherwise
dealing with any land under section 312, the owner thereof
shall send to the Commissioner a written application with a lay-
out plan of the land showing the following particulars,
namely:--
W.P.(C) Nos.4651/2014 & 5817/2014 Page 24 of 44
(a) the plots into which the land is proposed to be divided
for the erection of buildings thereon and the purpose or
purposes for which such buildings are to be used;
(b) the reservation or allotment of any site for any street,
open space, park, recreation ground, school, market or
any other public purpose;
(c) the intended level, direction and width of street or
streets;
(d) the regular line of street or streets;
(e) the arrangements to be made for levelling, paving,
metalling, flagging, channelling, sewering, draining,
conserving and lighting street or streets;
(2) The provisions of this Act and the bye-laws made thereunder
as to width of the public streets and the height of buildings
abutting thereon, shall apply in the case of streets referred to in
sub-section (1) and all the particulars referred to in that sub-
section shall be subject to the sanction of the Standing
Committee.
(3) Within sixty days after the receipt of any application under
sub-section (1) the Standing Committee shall either accord
sanction to the lay-out plan on such conditions as it may think
fit or disallow it or ask for further information with respect to it.
(4) Such sanction shall be refused--
(a) if the particulars shown in the lay-out plan would
conflict with any arrangements which have been made or
which are in the opinion of the Standing Committee likely
to be made for carrying out any general scheme of
development of Delhi whether contained in the master
plan or a zonal development plan prepared for Delhi or
not; or
(b) if the said lay-out plan does not conform to the
provisions of this Act and bye-laws made thereunder; or
W.P.(C) Nos.4651/2014 & 5817/2014 Page 25 of 44
(c) if any street proposed in the plan is not designed so as
to connect at one end with a street which is already open.
(5) No person shall utilise, sell or otherwise deal with any
land or lay-out or make any new street without or otherwise
than in conformity with the orders of the Standing Committee
and if further information is asked for, no step shall be taken to
utilise, sell or otherwise deal with the land or to lay-out or
make the street until orders have been passed upon receipt of
such information:
Provided that the passing of such orders shall not
be in any case delayed for more than sixty days after the
Standing Committee has received the information which
it considers necessary to enable it to deal with the said
application.
(6) The lay-out plan referred to earlier in this section shall, if
so required by the Standing Committee, be prepared by a
licensed town planner."
21. The undisputed facts are that at the time of sanction of the layout plan
of the colony of GK-II, the subject land was reserved, within the meaning of
Section 313(1)(b), for construction of a school and MCD / SDMC has
modified the layout plan to change the prescribed user of the said land from
that as a school to that as for residential accommodation for its employees,
community hall etc. and SDMC is now putting the land to use for its own
purpose i.e. of housing its employees as compared to use as a school for
benefit of public.
W.P.(C) Nos.4651/2014 & 5817/2014 Page 26 of 44
22. The questions, which according to me, arise for adjudication are:
(I) Whether layout plan once sanctioned, can be so modified;
(II) If the answer to the above question is in the affirmative,
whether such modification also extends to change of user prescribed
of land reserved for the purposes mentioned in Section 313(1)(b)
supra and if so, whether such modification is limited from one of the
purposes prescribed therein to another or the modification can also be
by changing the user for any other purpose;
(III) Whether the user of the subject land, as modified, is within the
purpose mentioned in Section 313(1)(b) of the Act;
(IV) Whether SDMC is merely a custodian of the said land or is the
owner thereof.
23. Since the counsels have contended the aforesaid questions to be no
longer res integra, I straightway proceed to examine the judgments cited in
this respect.
24. The Division Bench of this Court in Arjun Singh supra was
concerned with a challenge to the sale, by DLF Land and Finance Universal
Limited, which had developed the colony of Model Town in Delhi, of two
plots ear-marked for public building in the layout plan sanctioned by the
MCD of the said colony, to M/s Lal Chand Public Charitable Trust which in
W.P.(C) Nos.4651/2014 & 5817/2014 Page 27 of 44
turn had granted lease thereof in favour of Jain Sabha Dharamarth Trust and
Aggarwal Dharmarth Trust. The learned Single Judge of this Court (in
Arjun Singh Vs. Deputy Mal Jain supra) relying on Section 313(1)(b) of
the Act supra held that the setting aside of the land of the said two plots for
public purpose created a trust. On appeal, the Division Bench held that for
there to be a trust, there has to be confidence reposed in some other and a
mere declaration by the owner that he will hold land for public purpose does
not mean that a trust is created. The reasoning given by the learned Single
Judge, of a "constructive trust" and of a "resulting trust" was also not agreed
with. It was further held that just as a developer or a coloniser cannot be
compelled to also construct houses on the plots ear-marked in the layout
plan for residences and or to construct and maintain streets marked in the
layout plan and the land underneath streets has to vest in the MCD and the
land marked for park etc. would also have to be in the hands of some other
public body and just like the land ear-marked for markets could be
developed into market either by the developer or coloniser or by anyone to
whom he may sell that land, so is the reservation of plots for making a
public building; the developer or coloniser is not required to develop the
public building himself. Accordingly, sale of the plots to M/s Lal Chand
W.P.(C) Nos.4651/2014 & 5817/2014 Page 28 of 44
Public Charitable Trust and the leasing by M/s Lal Chand Public Charitable
Trust of the plots to other public charitable trusts was upheld with the rider
that such plots could be utilized only by a charitable body for a charitable
building and it was further held that a building which is used for a public
purpose will still retain the character of utilisation of the plot for public
purpose. The senior counsel for the petitioner is thus not correct in saying
that the Division Bench in Arjun Singh supra did not examine Section
313(1)(a) and (b) of the Act.
25. The Division Bench of this Court in Greater Kailash-II Welfare
Association supra was concerned with a challenge to the resolution dated 3rd
May, 1989 of the Standing Committee of the MCD followed by the
Settlement Deed dated 24th July, 1989 supra between DLF and MCD on the
ground that by the said Settlement Deed the rights of the residents of the
colony of GK-II were adversely affected and that undue favour had been
shown to DLF and that the layout plan once sanctioned of the colony could
not be altered. The Division Bench found that MCD, while sanctioning
layout plan of the colonies developed by DLF had ear-marked open spaces
therein for parks, roads and other services or for public utility building and
as many as ten litigations were pending between DLF and MCD with respect
W.P.(C) Nos.4651/2014 & 5817/2014 Page 29 of 44
to the said open sites which according to MCD were to be transferred by
DLF to MCD and according to DLF were not so required to be transferred to
MCD. The Division Bench noticed the earlier judgment of the Division
Bench of this Court in Arjun Singh supra holding that the ear-marking of
the plots would not preclude DLF from transferring the plots and held (i)
that the Settlement Deed aforesaid was to bring to an end litigation of the
last 25 years and during which litigation all such sites in all the colonies had
remained un-utilised; (ii) that DLF was the owner of the land on which the
colonies had been developed; (iii) that the settlement was for the benefit of
public, to enable the said sites to be utilised and there was no question of any
fraud; iv) that the power of the MCD under Section 313 to sanction a plan,
by virtue of the General Clauses Act, 1897 includes the power to amend the
layout plan; (v) as long as the amended layout plan is in accordance with the
Bye-laws and other rules and regulations, there can be no objection thereto;
and, (vi) that the Settlement Deed was not in violation of any law.
26. The question with which the Supreme Court was concerned in Pt.
Chet Ram Vashist supra was, whether in the absence of any provision in the
MCD Act empowering MCD to sanction the plan for building activities with
the condition that open spaces for parks and schools be transferred to the
W.P.(C) Nos.4651/2014 & 5817/2014 Page 30 of 44
MCD free of cost, MCD was entitled to demand the same. The facts in
which the said question arose were i) that in the layout plan sanctioned for
the colony, the water supply to the colony was to be by tube wells, till the
municipal supply of water reached the colony; ii) two plots in the colony
were set apart for installation of the tube wells; iii) in the layout plan,
restrictions were placed on building activities; iv) on municipal water supply
being made available to the colony, the developer / coloniser applied for
modification of layout plan to remove restrictions placed on building
activity; v) the Standing Committee of the MCD passed a resolution
allowing building activity subject to the condition that the open spaces for
parks and schools be transferred to MCD free of cost; the two plots reserved
for tube wells were also asked to be used as open park; and, vi) the
grievance of the developer / coloniser was with respect to the condition of
transfer of open spaces for parks and schools to the MCD free of costs.
Supreme Court after examining Section 313 supra held (a) that the same
does not entitle MCD to claim any right of interest in the property of the
owner; (b) that the power of MCD under Section 313(3) to impose
conditions has to be understood so as to advance the objective of the
provision and the purpose to serve which it has been enacted; (c) MCD has
W.P.(C) Nos.4651/2014 & 5817/2014 Page 31 of 44
been given a right to examine that the layout plan is not contrary to any
provision of the Act or Rules framed thereunder; (d) for instance, MCD
thereunder, can impose conditions like leaving an open space or require that
the length and width of the rooms shall not be less than a particular
measurement or that a coloniser shall have to provide amenities and facilities
to those who shall purchase land or building in the colony but does not
entitle the MCD to impose a condition for transfer of the land in favour of
MCD free of cost; (e) the power to impose conditions cannot be construed to
mean that MCD, before sanctioning a layout plan cannot claim that it will
sanction only if owner surrenders a portion of the land in MCD‟s favour free
of cost; (f) that would be violation of civil rights which vest in every person
to own and hold land; (g) the Resolution of MCD directing owner to transfer
land reserved for tube wells, parks, school in favour of MCD free of cost
was depriving the owner of his property and vesting the same in favour of
MCD, against the law; (h) MCD, as custodian of civil amenities and services
can only claim a right to regulate, manage and supervise and look after such
amenities; (i) that reserving any site for any street, open space, park, school
etc. in a layout plan is normally a public purpose as it is inherent in such
reservation that it shall be used by the public in general; (j) the effect of such
W.P.(C) Nos.4651/2014 & 5817/2014 Page 32 of 44
reservation is that the owner ceases to be a legal owner of the land in dispute
and he holds the land for the benefit of the society or of the public in
general--it may result in creating an obligation in the nature of a trust and
may preclude the owner from transferring or selling his interest in it and the
interest which is left in the owner is a residuary interest which may be
nothing more than a right to hold that land in trust for the specific purpose
specified in the sanctioned plan but the same still does not entitle the MCD
to claim that the land so specified should be transferred to it free of cost; (k)
MCD, by virtue of the land being specified as open space in the layout plan,
may get a right as a custodian of public interest to manage it in the interest
of the society in general but the right to manage as local body is not the
same thing as to claim transfer of the property to itself. However, finding
that the developer / coloniser had not immediately rasied objection in this
regard and that MCD had been exercising rights over the land for long and
finding it not appropriate to disturb the settled state of affairs, it was directed
that MCD shall continue to exercise such rights over the land which was ear-
marked for school, park etc. but would not change the user thereof and the
said land shall be in the beneficial enjoyment of the residents of the colony
concerned.
W.P.(C) Nos.4651/2014 & 5817/2014 Page 33 of 44
27. It would thus be noticed, that the question with which these petitions
are concerned, viz. whether a reservation under Section 313(1)(b) once done
for a particular purpose can be changed for another purpose specified therein
or removed i.e. by prescribing the use of that land for a private purpose, as
compared to public purpose, did not fall for consideration in either of the
above cases. What the aforesaid judgments answer is, only question no.I of
the questions framed by me in para 22 above i.e. that the layout plan once
sanctioned, can be modified. It was held so expressly by the Division Bench
in Greater Kailash-II Welfare Association supra and Pt. Chet Ram
Vashisht supra also was a case of modification of layout plan and the
Supreme Court, though not faced with the issue, did not hold that layout plan
once sanctioned could not be modified.
28. Once, there is no bar to the modification / alteration of a layout plan, I
see no reason to limit the said power to Clauses (a),(c),(d) & (e) of Section
313(1) and to hold that the power of such modification / alteration does not
extend to the reservation under Section 313(1)(b) of the Act. There is
nothing in Section 313 or in any other provision to suggest so. The
reservation under Section 313(1)(b) of the MCD Act is not as per the ipsi
dixit of the developer / coloniser or of the Standing Committee of MCD.
W.P.(C) Nos.4651/2014 & 5817/2014 Page 34 of 44
The developer / coloniser is ordinarily interested in having the maximum
permissible area available for sale / development into residential and
commercial and would be interested in reserving only the minimum
prescribed area for streets, open spaces, parks, recreation grounds, schools,
markets or for any other public purpose and would not voluntarily reserve an
area in excess thereof, and for which he reaps no price, for such public
purposes. MCD also, cannot insist upon the developer / coloniser reserving
more than the prescribed area. Supreme Court, in Pt. Chet Ram Vashisht
supra also held that reservation of sites for streets, open spaces, parks,
schools etc. has to be in accordance with the prevalent bye-laws or other
parameters prescribed. If with the passage of time or for any other reason (as
in Pt. Chet Ram Vashist supra, where the need for tube well for which the
plot was ear-marked disappeared with the passage of time) the parameters of
the area required to be reserved for streets, open spaces, parks, recreation
grounds, schools, markets or for any other public purpose changes or the
need therefor disappears, I see no reason to hold that notwithstanding the
same, MCD or developer / coloniser are precluded from seeking such
modification. In fact, a situation may also arise where the residents
W.P.(C) Nos.4651/2014 & 5817/2014 Page 35 of 44
themselves may want the user to be changed as per the changed needs and
requirements of public/society.
29. The argument of the petitioners however is that once such a
reservation is made for a public purpose, rights in favour of public are
created in such land / sites and which cannot be taken away by modification
of layout plan. I do not agree. As aforesaid, though a Single Judge of this
Court in Arjun Singh Vs. Deputy Mal Jain supra held so but the Division
Bench in appeal, in Delhi Land and Finance Universal Ltd. Vs. Arjun
Singh supra held that there is no such trust created. I do not agree with the
contention of senior counsel for the petitioner that Pt. Ceht Ram Vashisht
supra holds otherwise. Though this Court, in that case had held (see
placitum „h‟ at page 50) that a fiduciary relationship in the nature of a trust
arises and the coloniser ceases to have the beneficial interest in the lands so
reserved for public purpose and that the beneficial enjoyment of said land
after sanction of layout plan vests in third parties but the Supreme Court held
the said reasoning of this Court to be not correct (see placitum „h‟ page 54)
and held such restriction to be only placing a bar on exercise of power by the
coloniser as owner on dealing with the reserved land except in accordance
with the resolution i.e. for the benefit of public in general and to this extent
W.P.(C) Nos.4651/2014 & 5817/2014 Page 36 of 44
creates an obligation in the nature of a trust and may preclude the coloniser
as owner from transferring or selling his interest in it but not interfering with
the ownership rights of the coloniser therein.
30. I may at this stage mention that Supreme Court in D.L.F. Qutab
Enclave Complex Educational Charitable Trust supra has held that
reservation of sites for construction of schools, community buildings etc.
while granting licence to a developer / coloniser for setting up of a colony
does not bar the developer / coloniser from transferring the said sites and
further held that the transfer would be subject to the same statutory
obligations which were placed on the developer / coloniser. It thus appears
that the reasoning given by the Division Bench of this Court in Arjun Singh
supra was approved of by the Supreme Court. In Pt. Chet Ram Vashisht,
Supreme Court was not directly concerned with the said issue and had only
observed that the coloniser „may‟ not be entitled to sell his interest in
reserved land.
31. It would thus be seen that the act of „reservation for public purpose‟
under Section 313(1)(b) does not divest the coloniser as owner of his
ownership rights and does not vest such ownership rights in the public so as
W.P.(C) Nos.4651/2014 & 5817/2014 Page 37 of 44
to say that the coloniser having lost ownership cannot take the benefit of
having the land which was so „reserved‟, „deserved‟, if has become
otherwise permissible in law or that the public only, after the initial
reservation, can deal with the said land. The „reservation‟ is only imposing
restrictions on ownership rights of coloniser and if the said restrictions are
no longer required to be continued, the coloniser as owner can apply for
removal thereof. Pt. Chet Ram Vashisht supra is not a precedent for the
proposition that „reservation‟ under Section 313(1)(b) is irreversible.
32. I therefore conclude and answer question no.II framed in para 22
above by concluding that the power of alternation / modification of layout
plan extends to, in accordance with prevalent bye-laws / needs /
requirements, change of user of land earlier reserved for one of the purposes
under Section 313(1)(b), not only to any other purpose specified therein but
also for other purposes not falling therein. Such interpretation of Section
313(1)(b), according to me is also in public interest as I feel that any land, of
which no more is being produced, should not be shackled so as to prevent
use thereof as per the needs from time to time of the fast changing society.
W.P.(C) Nos.4651/2014 & 5817/2014 Page 38 of 44
33. That takes me to the merits of the modification to the layout plan
effected by the MCD. The senior counsel for the petitioner has not drawn
attention to any provision of the contemporaneous parameters prescribed,
prescribing a school / additional school for a colony of the size of GK-II. It
is only generally argued that the need for schools cannot disappear. As
against that, is the stand of MCD as a public body and which as per
judgments aforesaid also, is the custodian of such public rights, that there is
no need for such a school. In fact, the petitioners have not even shown any
provision of the time when the said layout plan was sanctioned, requiring the
reservation of a plot, as the size of the subject plot, for a school and have not
argued that the said provision has not changed. It cannot be lost sight of that
the layout plan making such reservation was sanctioned more than half a
century ago in the year 1959 and since then Delhi, which was a city, has
expanded to National Capital Region, MCD has been trifurcated and not
only have there been physical / infrastructural changes but also societal
changes in the needs, requirements and aspirations of the people. The
petitioners cannot obstruct a change without pleading and proving that the
same is contrary to prevalent parameters for a colony of the size and locale
of GK-II and which I am afraid the petitioners have failed to do. Petitioners
W.P.(C) Nos.4651/2014 & 5817/2014 Page 39 of 44
pegged their case only on the doctrine of „trust‟ and in which I have found
no merit.
34. Though the modification of layout plan was also alleged to be
contrary to the provisions of DDA and DUAC Acts but the said contention
also could not be substantiated.
35. Though in the light of the aforesaid view taken, need to adjudicate the
question III, framed in para 22 above i.e. whether providing for residence for
MCD employees is a public purpose or not within the meaning of Section
313(1)(b) of the Act, does not arise but for the sake of completeness, I may
state that in my view it does not qualify so. As has been clarified in Pt. Chet
Ram Vashist supra qua the words "on such conditions" in Section 313(3), so
also, in my view, the words „public purpose‟ in Section 313(1)(b) can only
mean purpose for the benefit of the future residents of the colony and which
though may include land for an electric sub-station or for a pump room or
tube well as in Pt. Chet Ram Vashist supra but can certainly not include
residence for the employees of MCD, particularly when the said employees
are not stated to be required to be residing in the colony for the purpose of
rendering municipal services to the residents of the colony only.
W.P.(C) Nos.4651/2014 & 5817/2014 Page 40 of 44
36. That takes me to the nature of the title of MCD to the said land.
37. It follows from Pt. Chet Ram Vashist supra that the developer /
coloniser remains the owner of the land reserved under Section 313(1)(b) but
which ownership is made subject to the said restrictions/reservation.
Following the said logic, upon transfer of the land under the Settlement
Deed dated 24th July, 1989 to MCD, MCD became the owner of the said
land, subject to the restrictions aforesaid. However, once the said
restrictions are removed, MCD became free to use the land as owner thereof
for whatsoever purpose it deems fit. No merit is found in the contention of
the senior counsel for the petitioner, of there being anything to the contrary
in the Settlement Deed dated 24th July, 1989. Rather, a reading of the said
Settlement Deed shows the rights as held by DLF in the subject land having
been transferred to MCD. Since, DLF was the owner subject to restrictions,
the same has to be the status of the MCD.
38. I am even otherwise of the view that at least the petitioner in W.P.(C)
No.5817/2014, who was also the petitioner in Greater Kailash-II Welfare
Association supra, is estopped from raising the said issue. The said
petitioner had challenged the settlement deed, under which SDMC claims
W.P.(C) Nos.4651/2014 & 5817/2014 Page 41 of 44
rights in the land, and failed therein. One of the arguments of the petitioner
therein was of the settlement deed being violative of Chapter 20C of the
Income Tax Act, meaning the petitioner was also admitting the settlement to
be by way of change of ownership. The petitioner then did not make any
claim of vesting of the land irreversibly in public. The petitioner now is
barred from contending so, on the principles of constructive res judicata and
issue estoppel. The petitioner in W.P.(C) No.4651/2014 also represents
interest of the same persons as petitioner in W.P.(C) No.5817/2014 and is
equally bound.
39. That brings me to Green Park Association (Regd.) Society supra. In
that case, a decree was passed restraining MCD from using a plot of land
ear-marked in the layout plan of the colony for the purpose of a school for
any other purpose. In opposition to the execution of the said decree, it was
pleaded that subsequent to the decree, the layout plan had been modified to
change the purpose of the land from that of a school to that of for the
purpose of an office of the Executive Engineer of the MCD. It was held that
modification of the layout plan was in violation of the decree. It was further
held that MCD being not the owner of the land could not have used the land
for its own purpose.
W.P.(C) Nos.4651/2014 & 5817/2014 Page 42 of 44
40. The position here is entirely different. While in Green Park
Association (Regd.) Society supra the land vested in the MCD only for
management, here vide the Settlement Deed dated 24th July, 1989, the land
stands transferred to the MCD/SDMC. Thus, the ratio of Green Park
Association (Regd.) Society supra cannot apply to the facts of the present
case.
41. Similarly, the other judgments cited by the senior counsel for the
petitioner are not found to be applicable to the present case.
42. I do not also find any merit in the argument of the senior counsel for
the petitioner that MCD is bound by the arguments made by it in an earlier
case. I am not aware of any principle of law or of estoppel to the said effect.
Arguments in a Court of Law, particularly as to interpretation of statutory
provisions, are made by counsels on their own understanding and
interpretation of legal provisions and the litigants whom they represent
cannot be said to be bound thereby for all times to come or stop from
contending to the contrary.
43. Sites, reserved in a layout plan for a school and qua which it has been
held as aforesaid, can also be sold / transferred by the coloniser / developer,
W.P.(C) Nos.4651/2014 & 5817/2014 Page 43 of 44
cannot be compared to public streets, so as to contend that public hearing, as
required to be given before closure of a public street, ought to be given
before change of user thereof. The only ground on which the petitioners
could have challenged such change was of the same being contrary to
prescribed parameters and which has not been done.
44. No merit is thus found in the petitions; dismissed.
45. Though the petitioners by pursuing these petitions have cast a cloud
on the right of the MCD to proceed with the development / construction
undertaken by it on the subject land and which cloud, I am sure, must have
impacted the progress of the construction inspite of there being no stay
thereagainst, but I refrain from imposing costs.
RAJIV SAHAI ENDLAW, J.
JULY 07, 2016/ „gsr/bs‟..
W.P.(C) Nos.4651/2014 & 5817/2014 Page 44 of 44