Delhi District Court
Delhi Development Authority vs Sh. Rakesh Mahajan on 16 July, 2016
IN THE COURT OF MS. ANU MALHOTRA: DISTRICT &
SESSIONS JUDGE (SOUTH DISTRICT) : SAKET: NEW
DELHI
MCD Appeal No. 04/13
ID No.: 02406C0061392013
Delhi Development Authority
Through its Vice Chairman,
Vikas Sadan, I.N.A.
New Delhi. ........Appellant
Versus
1 Sh. Rakesh Mahajan
S/o Late Sh. M.M. Mahajan
2 Sh. Rakesh Mahajan (HUF)
Through its Karta Sh. Rakesh Mahajan
3 Smt. Nalini Mahajan
W/o Sh. Rakesh Mahajan
4 Sh. Kunal Mahajan
S/o Sh. Rakesh Mahajan
All R/o 31, Central Drive,
Chhatarpur, DLF Farms,
Chhattarpur, New Delhi30.
5 Sh. Lalit Jain
S/o Sh. L.C. Jain
6 Lalit Jain (HUF)
Through its Karta Sh. Lalit Jain.
MCD Appeal No.04/13. Page 1 of 27
7 Sh. Pradeep Jain
S/o Sh. L.C. Jain
8 Pradeep Jain (HUF)
Through its Karta Sh. Pradeep Jain
9 Smt. Parmukta Jain
W/o Sh. Pradeep Jain.
10 Smt. Neelam Jain,
W/o Sh. Lalit Jain
Respondents no.5 to 10 are residents of
C1/28, Safdarjung Development Area, New Delhi16.
11 South Delhi Municipal Corporation Through Its Commissioner, South West District, Civi Centre, Minto Road, New Delhi 02 .......Respondents Instituted on: 05.03.2013 Judgment reserved on: 13.07.2016 Judgment pronounced on: 16.07.2016 J U D G M E N T This judgment shall dispose off the present MCD Appeal No.04/13 instituted U/s 347D of the Delhi Municipal Corporation Act, 1957 by the Delhi Development Authority, through its Vice Chairman, New Delhi assailing the impugned judgment dated 07.12.12 of the Ld. PO, Appellate Tribunal, MCD in the Appeal MCD Appeal No.04/13. Page 2 of 27 No.24/AT/MCD/2009 in the case titled Sh. Rakesh Mahajan & Others Vs. Municipal Corporation of Delhi & Another, vide which it was inter alia observed by the Ld. PO, Appellate Tribunal, MCD that admittedly the land i.e. a plot measuring 6 Bigha and 7 Biswas bearing Khasra no.1230/2 (Old No.2792/2026/1675/8) situated in village Mehrauli which was owned and possessed by Sh. Rakesh Mahahan & Others i.e. through Sh. Rakesh Mahahan (HUF), Smt. Nalini Mahajan, Sh. Kunal Mahajan, Sh. Lalit Jain, Sh. Pradeep Jain i.e. Pradeep Jain (HUF), Smt. Parmukta Jain, Smt. Neelam Jain i.e. all the appellants in the appeal bearing No.24/AT/MCD/2009 who are arrayed as the respondents no.1 to 10to the present appeal, that it was a private land duly mutated in their names in the revenue records and that the land use of that property was residential and as per the notification dated 05.06.1999, a group housing complex may be constructed on the same. It was also observed by the Ld. PO, Appellate Tribunal, MCD to the effect that apart from these facts, the record also indicated that :
• That DDA prepared a scheme on 21.12.1987 in the name of 'Vasant Kunj Residential Scheme' for planned development of the area including upon subject land and initiated steps to acquire the same through writing a letter first time to the Land & Building Department, Delhi Government on 23.08.1989. • That DDA had issued various letters and reminders to the government for the purpose of acquisition of the subject land MCD Appeal No.04/13. Page 3 of 27 since 23.08.1989 but till date no notification Under Section 4 of the Land Acquisition Act has been issued in the last 23 years, though some surveys were conducted.
• That due to non acquisition of the subject property for the last 23 years, the DDA could not implement the scheme of planned development on it.
• That area has already been denotified vide notification dated 20.08.1996 and DDA has left with no jurisdiction over the same and all the building activities have already been transferred to the MCD.
• That appellants in order to construct group housing complex on this subject land applied to the MCD for sanction of the layout plan on 23.08.2007.
• That Standing Committee of the MCD rejected the request of sanction of the layout plan through impugned order 23.12.2008 on the ground that DDA had not agreed to issue issue NOC as the land had been described as a part of the Self Financing Scheme of Vasant Kunj.
• That DDA earlier prepared an Agenda containing 'no objection' in favour of the appellants, if MCD considers their proposal for developemt of land as ground housing complex subject to certain conditions.
It was also observed vide the impugned judgment that from the statement of Sh. Such Chandhiok, Assistant Town Planner MCD Appeal No.04/13. Page 4 of 27 dated 27.04.2010 made before the Ld. PO, Appellate Tribunal, MCD, it was clear that no NOC from the DDA was required prior to sanctioning of the layout plan in respect of the subject land, it inter alia having been observed to the effect that the area in question had already been denotified and all the building activities were lying with the MCD and there was no requirement on the part of the MCD to obtain any NOC from the DDA and reliance was placed on the verdict of the Hon'ble High Court of Delhi in the case titled DLF Universal Ltd. Vs. Greater Kailash II Welfare Association 2006 II AD (Delhi) 639 and it was further observed that any objection raised by DDA suo moto was meaningless and was of no value and the land in question was a private land exclusively belonging to the appellants and was never to be acquired, so the appellants being the full owners of the subject property were competent to apply for the sanction of the building plan or layout plan and that DDA had no role to intervene merely on the pretext that it had prepared a scheme for the development of that land and applied to the government for the acquisition of the same and that government had not acceded to the request of the DDA for acquisition of the land in question for the last 23 years despite various letters and reminders and it could be presumed that government was not interested for acquiring the same for the benefit of the DDA.
Vide the impugned judgment, it was also observed to the effect that on an affidavit of the Vice Chairman of the DDA had come on the record and it was informed by the Director (LM), Sh. S.N. MCD Appeal No.04/13. Page 5 of 27 Gupta on 22.11.2012 most probably the notification U/s 4 of the land Acquisition Act would be issued qua the subject property within two months and from the affidavit of the Vice Chairman, it appeared that a lot of efforts had been made to acquire the property and thus, time was sought by the DDA for awaiting the notification for two months from the Appellate Tribunal and it was also submitted that in case no notification was issued, then any order could be passed.
Vide the impugned judgment dated 07.12.12 of the Ld. PO, Appellate Tribunal, MCD in the Appeal No.24/AT/MCD/2009, the appeal was allowed against the impugned order dated 23.12.2008 of the Deputy Town Plannaer (L) of the MCD qua the layout plan of a group housing in Khasra No.1230/2/B1, Vasant Kunj, New Delhi, whereby it was conveyed that the Standing Committee vide resolution no.902 dated 17.11.2008 had rejected the proposal since DDA did not agree to issue the NOC for the proposed scheme as the land was a part of self financing scheme of Vasant Kunj and the matter remanded for consideration to the MCD to start reconsidering the application of the appellants for sanctioning the layout plan after the expiry of the month of January, 2013 if no notification U/s 4 of the Land Acquisition Act qua the subject property and its possession was not taken by the Land & Building Department or the DDA.
It was further observed vide the impugned that mere issuance of the notification U/s 4 of the Land Acquisition Act would not be sufficient to start reconsidering of the sanction of the layout plan as per law unless the possession of the subject land was not taken MCD Appeal No.04/13. Page 6 of 27 by the competent authority.
Vide the impugned judgment dated 07.12.12 of the Ld. PO, Appellate Tribunal, MCD, it was also observed to the effect that there was no need of any NOC for DDA for the time being as the subject property was not a private property and not acquired till date.
Notice of the appeal was issued to the respondents and reply to the appeal was submitted on behalf of the respondents no.1 to 10 and the respondent no.11, the SDMC was proceeded exparte vide order dated 12.08.13. The SDMC has, however, put in appearance thereafter through counsel.
Vide order dated 11.08.2014 of the Ld. Predecessor District & Sessions Judge, South, it was observed as follows :
"This case presents a very disturbing state of background facts. The parcel of land which is the subject matter of the controversy raised through the appeal at hand is admittedly a private property belonging to respondent nos. 1 to 10 (hereinafter referred to collectively as "the private land owner"). The private land owner claims to have purchased this parcel of land ad measuring 6 bighas 7 biswas some time in 1995. He claims to have moved erstwhile Municipal Corporation of Delhi (MCD), of which South Delhi Municipal Corporation (SDMC)/respondent no. 11 is the successor, for grant of sanction of layout plans in terms of sections 312313 of DMC Act, 1957. The land in question is surrounded by what has come to be known as residential scheme of BI, Vasant Kunj, which was developed by Delhi Development Authority (DDA). It is the stand of DDA that under the zonal development plan, notified on 25.12.1987, the entire area of BI, Vasant Kunj, which includes within it this parcel of private land, was notified for use and development as residential locality. It appears from the documents on record that DDA even in 1989 had initiated a process for this parcel of land also to be acquired by the Land & Building MCD Appeal No.04/13. Page 7 of 27 Department of Govt. of NCT of Delhi. The material on record also indicates that reminders have been sent from time to time by DDA to the Govt. of NCT of Dehli but with no steps whatsoever having been taken by the government towards acquisition of this land till date. It has been submitted that the Land Acquisition Collector had also even prepared a draft notification under section 4 of the (since repealed) Land Acquisition Act for acquisition but no such notification admittedly has been issued till date.
The MCD declined to issue the sanction of the layout plans under sections 312313 DMC Act for want of Noobjection Certificate (NOC) from DDA. This led to the private land owner filing an appeal before the Appellate Tribunal, MCD under section 347A, DMC Act. The said matter eventually was taken by way of an appeal (against the order of the appellate tribunal) under section 347D DMC Act, as jurisdiction under the statutory provisions then vested in the Lieutenant Governor of Delhi. During the course of hearing on the said appeal before the Lieutenant Governor of Delhi, questions were raised and pursuant to directions of the Lieutenant Governor, inter alia, through his order dated 21.07.2010, DDA indicated to the appellate authority that the matter would have to await since the policy in respect of private developers was yet to be notified. It appears that the Lieutenant Governor, vide his order dated 06.04.2011, had issued timebound directions (one month) to DDA to decide the issue of NOC and to convey the decision in that regard to MCD under intimation to the Vice Chairman.
The said appeal under section 347D of DMC Act was later transferred to this court from the court of Lieutenant Governor pursuant to direction of Hon'ble Supreme Court of India in Criminal Appeal No. 5075 of 2005 titled 'Amrik Singh Layalpuri Vs. Union of India and Others'. The appeal registered as RCA No. 02/11 before this court was taken up for hearing and was decided vide judgment dated 10.02.2014. Given the nature of the controversy wherein the MCD had been declining the issue of sanction for the layout plans on the reasoning that the NOC from DDA was not forthcoming, it was directed that DDA be brought in as a party and the matter thereafter reheard by the appellate tribunal on the appeal presented before it under section 347A DMC Act.MCD Appeal No.04/13. Page 8 of 27
The appellate tribunal thereafter considered the issue afresh after joining DDA as a party. Various orders passed by the appellate tribunal in the course of proceedings (after remand) have been read out by the counsel for the private land owner. The said orders, and the effect of submissions made on behalf of DDA before the appellate tribunal, give the impression that while DDA has been insistent that the parcel of land forms part of the residential scheme as notified in the zonal development plan for the area and, therefore, the private developer cannot be allowed to have any activity in the nature intended to be undertaken, DDA was disinclined to give the NOC since its request for acquisition of this parcel of land had been pending with the government. It appears from the said proceedings before the appellate tribunal further that DDA was not averse to the sanction being granted by the MCD to the layout plans, should the request of DDA for acquisition not bear any fruit within the period of two months then specified.
Thus, the appellate tribunal allowed the appeal and accepted the request of DDA for two months more to be awaited for the acquisition proceedings to commence. It directed the MCD to start reconsidering the application for sanction of the layout plan after January, 2013 clearly concluding that there is no need for NOC from DDA since the subject property is a private property not acquired till date.
The appellant DDA waited for more than two months the period it had asked from appellate tribunal for acquisition action and came up in this appeal against the judgment dated 07.12.2012 in March,2013 questioning the directions mainly based on the observation that there is no need for NOC from DDA. Given the stand taken by the parties before this court in this appeal, direction was given vide order dated 28.09.2014 for the concerned officials of DDA to appear and explain the stand that DDA has a role to play visavis the property in question notwithstanding the admitted fact that the area has not been acquired or notified as part of development area under DDA.
In the wake of the abovesaid direction, the counsel for the appellant submitted on 22.05.2014 copy of the minutes dated 16.05.2014 of a meeting chaired by Vice Chairman, DDA. The copy MCD Appeal No.04/13. Page 9 of 27 of the minutes dated 06.08.2014 filed today are to be read in continuation of the said earlier minutes.
The sum and substance of the minutes of the meetings chaired by Vice Chairman, DDA in May, 2014 and August, 2014 is that DDA still insists that the land in question requires to be acquired and for this it claims to have even worked out the financial implications.
The counsel for DDA, in the course of hearing, submitted that given the development of BI, Vasant Kunj area by DDA for residential purposes, there can be no other development allowed except similar development "by DDA" on the land in question which, therefore, is "bound" to be acquired. The counsel for the appellant referred, inter alia, to the provisions contained in section 313 (1) & (4) of DMC Act, section 12 (4), 22A and 53A of DDA. She insisted that the land in question is part of residential scheme of BI, Vasant Kunj.
Per contra, the counsel for the private land owner vehemently argued that he has been harassed all these years since his efforts to exploit his private property have been stalled unfairly and unreasonably particularly as the government has shown disinterest in acquiring this parcel of land in as much as the proposals sent by DDA, followed by various reminders, have not evoked any response till date. The counsel further submitted that in view of section 55 of DDA, the DDA cannot any longer sit over the matter so as to assert its jurisdiction to dictate terms to the private land owner. He also submitted that the scheme for private developers has since been finalised and given the stand taken before the appellate tribunal, this appeal by DDA is not fair. He submitted that DDA has been adopting different positions at different stages which smack of mala fide. The counsel for the appellant fairly conceded that under the DMC Act, it is the prerogative of the SDMC to sanction the layout plan and that the purposes for which the same have been prepared are not in "conflict" with the residential scheme for the area notified by DDA under the Zonal Development Plan under section 313 (4) DMC Act read with section 12 (4) of DD Act. She also agreed that the land in question has not been "transferred" to or "placed" at the disposal of DDA and so section 22 A DD Act cannot be invoked. She MCD Appeal No.04/13. Page 10 of 27 did not show any rule, regulation or byelaw framed by SDMC as could be construed to be in contravention of any directions of DDA under section 53A, DD Act. She also fairly conceded that there is no notification issued by DDA or Central Government or Govt. of NCT of Delhi declaring the land in question to be required, by the Master Plan or Zonal Development Plan, to be subjected to compulsory acquisition or be kept as open space or unbuilt upon within the mischief of section 55 of DD Act.
The prime question raised remains unanswered and un addressed. A private citizen who had purchased the land in 1995 continues to be unable to put it to good use even after almost two decades having lapsed. The land has not been acquired till date. The private citizen cannot be made to wait indefinitely for the executive branch to take its decision.
Therefore, it is necessary that the Vice Chairman of DDA be directed to submit a detailed affidavit, inter alia, giving comprehensive information and clarifying the stand of DDA on the following matters:
(a) The reason why the land in question was not acquired when the surrounding land (later notified as residential scheme of BI, Vasant Kunj) was acquired ?
(b) Can a parcel of land not acquired by the government nor developed by DDA nor placed at its disposal be part of "residential scheme" of DDA ?
(c) The details of the communications flowing from DDA to Government, since beginning till date (in chronological order), on the proposal for the acquisition of the land in question with response(s) of the Govt. of NCT of Delhi thereupon.
(d) Has DDA ascertained from Govt. of NCT of Delhi the reasons as to why the land has not been notified for acquisition? If Govt. of NCT was not responding, was the matter taken before the Administrator at any stage for his directions?
(e) The jurisdiction of DDA visavis a piece of land which has neither been acquired nor notified for acquisition till date.
(f) The jurisdiction of DDA to block the utilisation of a parcel of land, which is not part of the notified development area, by its owner for purposes in sync with the Zonal Development Plan.
MCD Appeal No.04/13. Page 11 of 27(g) The effect of the scheme for private developer on the controversy at hand.
(h) Is it fair exercise of jurisdiction by a statutory body like DDA to indefinitely block enjoyment of the full potential of the private property only because it hopes to persuade the government at some future date to acquire it?
(i) Should the government to eventually take a decision not to acquire, would the DDA and its officers not be answerable for the wrongful loss caused to the private land owner
(j) Would DDA have any valid objection if SDMC were to consider the layout plans for sanction subject to right of the government to acquire it in accordance with law?
On 20.10.14, the affidavit of Sh. Balvinder Kumar, Vice Charman, DDA was submitted and the same is to the effect :
1. That in pursuance to the orders dated 11.08.14 passed by this Hon'ble Court, I am submitting my detailed affidavit giving comprehensive information and clarifying the stand of the DDA on the issues raised in the aforesaid orders.
2. That the deponent is duty bound to respond to the observations of this Hon'ble Court and to abide by the orders passed by this Hon'ble Court.
3. That land in question forms part of DDA's Residential Scheme.
The object of the Authority is to promote and secure the development of Delhi according to plan.
4. That a careful reading of the MPD2021 would further reflect that there are prescribed norms or development control for residential use zone as given in Clause 4.4 of MPD2021 for sanctioning any Group Housing Scheme, the infrastructure MCD Appeal No.04/13. Page 12 of 27 requirements like Education, Shopping, other Community facilities, Parking, Recreational Facilities, Open Spaces, and Transportation for layout of Residential Neighbourhood Level shall be considered. At the same time, Density of Population, Height of the Building, sub division of the plots, number of dwelling units to be built, permissible FAR, safety requirements, availability of electric sub stations, drainage, sewerage, underground water tanks would also be the other requisite infrastructural requirements.
5. The framing of the Master Plan and taking steps to bring it in to force is the exclusive function of the authority. The division of Delhi into various use zones is brought about only by the Master Plan and therefore, by the Authority. The local authority has nothing to do with it. The implementation of the Master Plan in respect of the User of building would also be the function of the authority.
6. That I submit that the subject land is surrounded from all sides by fully constructed DDA flats and the area is wholly occupied. Thus, in the opinion of the authority, it was considered that it would not be in the interest of planned development that a different Group Housing Complex is permitted to be raised within the four corners of Vasant Kunj Residential Scheme. Keeping in view the factual matrix of the case, the DDA in the interest of planned development was and is vigorously pursuing the matter with the LAB Department of Govt. of NCT of Delhi and Land Acquisition Collector, for acquisition of the subject land, so that it can be developed as per the approved Vasant Kunj Residential Scheme. However, there is no response from the MCD Appeal No.04/13. Page 13 of 27 Govt. of NCT of Delhi.
7. That the reply to the queries raised by this Hon'ble Court, is as under :
a) The reason why the land in question was not acquired when the surrounding land (later notified as residential scheme of B1, Vasant Kunj) was acquired?
In reply to the above query, it is submitted that land measuring 4820 Bighas in the village Mehrauli was notified for acquisition U/s Sec. 4 of the Land Acquisition Act, 1894 vide notification dated 23.01.1965. Declaration U/s 6 of the Land Acquisition Act, 1894 was issued vide notification dated 07.12.1966 in respect of land measuring 4615 Bighas 02 Biswas. Land included in declaration U/Sec. 6 of the Land Acquisition Act, 1894 had been acquired by various Award as indicated below :
Sl. No. Award No. Area Remarks
(BighaBiswa
1. 80/7071 48603
2. 80A/7071 Supp. 30104
3. 80B/7071 Supp. 3614
4. 80C/7071 Supp. 3818
5. 80D/7071 Supp. 2500
6. 80E/7071 Supp. 277816
7. 80F/7071 Supp. 9302
8. 80G/7071 Supp. 2811
TOTAL 378808
MCD Appeal No.04/13. Page 14 of 27
But the land measuring 06 Bigha - 07 Biswa claimed by Sh. Rakesh Mahajan falling in Khasra No.2797/2026/1675 is min. old (New 1230/2) was not included in any of the awards mentioned above, On the other hand, it was noticed that as per revenue record Land in question was Gram Sabha land. On urbanization of village Mehrauli Gram Sabha land vested in Central Goverment and the Central Goverment vide Notification No. So2190 dated 20.08.1974 placed the Gram Sabha land in various villages at the disposal of DDA under Section22 (I) of DD Act.
When DDA formulated Residential Scheme for the construction of Self Financing Housing Scheme (SFS), Vasant Kunj, in the area and when DDA stacked its building material at site for the construction of boundary wall around the land, one Sh. Kartar Singh and other filed a suit for Permanent Injunction on the ground that they have already been declared Bhoomidhar of the land in question by the Revenue Assistant (Addl. Collector) vide Order dated 30.07.1974. The suit was decided in favour of plaintiff and an appeal against the said order filed by DDA was dismissed.
The Union of India had filed an appeal against the Order of the Court of Revenue Assistant and said appeal was also dismissed. After dismissal of the Appeal filed by the DDA the requisition for the acquisition of land in question was sent to the Land & Building Department of GNCTD vide letter dated 23.08.1989. Thereafter, the DDA made sincere efforts for the acquisition of land in question.
MCD Appeal No.04/13. Page 15 of 27However, no reason could be found on the record as to why the land was not acquired by the L&B Department, GNCTD/LAC when the surrounding lands stood already acquired.
(b) Can a parcel of land not acquired by the Government nor developed by DDA nor placed at its disposal be part of "Residential Scheme" of DDA?
In reply to the above query, the deponent submits that when the DDA makes a residential scheme the Planning has to be done in respect of the entire area and not in bits & pieces. As soon as it came to the notice of the Authority that the land in question does not vest in Authority, immediately L&B Department GNCTD was requested to acquire the land in question. However no development works were executed on the land in question.
(c) The details of the communications flowing from DDA to Government, since beginning till date (in chronological order), on the proposal for the acquisition of the land in question with response(s) of the Govt. of NCT of Delhi thereupon?
The requisition for acquisition of the land in question was made to the Land and Building Department of Govt. of NCT of Delhi vide letter dated 23.08.1989. Thereafter, DDA made sincere efforts for the acquisition of the land in question. Since 1989 various letters have been written to Land & Building Department and ADM/LAC(S) for issuance of notification U/Sec. 4, 6 & 17(i) of LA Act, 1894, in respect of Khasra No. 2797/2026/1675/8 min. old (1230/2 New) of Village MCD Appeal No.04/13. Page 16 of 27 Mehrauli, on following dates:
23.08.80, 12.01.1990, 08.05.1990, 10.04.91, 04.10.1993, 17.12.1996, 16.01.2002, 18.09.2012, 23.10.2012, 26.10.2012, 17.01.13, 04.10.2013, 14.11.2013, 20.01.2014, 10.02.2014 and 08.08.2016 (Annexure A1 Colly) It is also revealed from the record that on vigorous pursuance by DDA, ADM/LAC had prepared a draft notification U/Sec. 4,6 & 17(i) of the LA Act, after a joint survey conducted by the Revenue Staff of ADM/LAC, DDA and L&B Deptt. of GNCTD and same was forwarded to Dy. Secy. (LA), L&B Deptt. Vide letter No. ADM/LAC(South)/266768, dated 07.12.2007. (Annexure A2) It is also revealed from the record that Dy. Secretary (LA) L&B Deptt. had written letter dated 05.02.2008 (Annexure A3) to ADM/LAC (South), wherein Dy. Secretary informed him that the letter vide which Draft Notification was forwarded to their office, is not traceable in their office. In response to the letter of L&B Deptt. ADM/LAC(South) once again forwarded the Draft Notification under Section 4,6 & 17(i) along with Joint Survey Report , Aks Sizra, Field Book, Revenue Record and rough site plan with regard to the total area measuring 06 Bigha07 Biswa of village Mehrauli vide letter dated 27.11.2012 as mentioned in the letter dated 04.03.13(Annexure A4)which was followed by the reminder dated 28.02.14 (Annexure A5). But notification U/Sec. 4,6 and 17 (I) of LA Act 1894 has not been issued by L&B Department of GNCTD for the acquisition of land in question till date.MCD Appeal No.04/13. Page 17 of 27
(d) Has DDA ascertained from Govt. of NCT of Delhi the reasons as to why the land has not been notified for acquisition? If Govt. of NCT was not responding, was the matter taken before the Administrator at any stage for his directions?
In reply to the above query the deponent submits that the land in question along with other adjoining lands in village Mehrauli was notified under section 4 of LA Act, 1894 vide notification dated 23.01.65 and declaration under section 6 was made on 07.12.66 but the Award in respect of the land in question was not announced by the LAC/L&B Department GNCTD as already mentioned in reply to the preceding paras. The Govt. of NCT of Delhi has not communicated to the DDA any reasons as to why the said land has not been acquired after the declaration dated 07.12.66 under section 6 of LA Act, 1894 or notified for acquisition after the DDA's request sent on 23.08.89 and followed by repeated reminders. The reasons for not issuing notification U/sec. 4,6 & 17(1) of LA Act, 1894 are best known to the Land & Building Department of GNCTD. However non acquisition of the land in question by the L&B Department, GNCTD has not been placed by the DDA before the Hon'ble LG/Adminisrator Delhi. However this fact came to the notice of Hon'ble LG by way of appal against the orders of Appellate Tribunal, MCD.
(e) The jurisdiction of DDA visavis a piece of land which has neither been acquired nor notified for acquisition till date.
Under the Delhi Development Act the DDA has been conferred the responsibility to ensure the development according to the Master MCD Appeal No.04/13. Page 18 of 27 Plan, which is a statutory document however DDA gets jurisdiction over a piece of land only when the same is placed at its disposal after acquisition or it falls within the development area declared under Section 12 of DD Act.
(f) The jurisdiction of DDA to block the utilization of a parcel of land, which is not part of the notified development area, by its owner for purposes in sync with the Zonal Development Plan?
DDA has no jurisdiction to block the utilization of a parcel of land, not vesting in it or which is not part of the notified development area. However, the DDA is duty bound to ensure the development according to Master Plan and DDA in its opinion did not give NOC because a separate Group Housing Complex on a land which forms part of DDA's Scheme and it surrounded on all the four sides by DDA flats as it would have been in violation of the planned development of Delhi.
(g) The effect of the scheme for private developer on the controversy at hand.
In reply to the above query the deponent submits that the Govt. of India has approved the policy of large scale acquisition, development and disposal of the land in Delhi wherein the entire responsibility for acquisition, development and disposal of the land under the scheme was on the Chief Commission now Lt. Governor. The land under reference is part of the integrated scheme of B1, Vasant Kunj. This is an old scheme and the approved LOP included the dwelling units and other MCD Appeal No.04/13. Page 19 of 27 facilities such as parks, parking and roads etc. Therefore, if the development is undertaken by developers in contravention to the approved layout plan, the residents will be deprived of the facilities which were proposed in the approved Lay Out Plan. Moreover, the construction of multistory apartments may affect the right ventilation and easement right of the existing residents and may also result in litigation.
(h) Is it fair exercise of jurisdiction by a statutory body like DDA to indefinitely block enjoyment of the full potential of the private property only because it hopes to persuade the government at some future date to acquire it?
No. DDA has not intentionally blocked the enjoyment of the full potential of the private property. The respondent having purchased the agricultural land in the year 1995 ought to have the knowledge that it is forming part of DDA's Scheme. The refusal to give NOC was only to ensure the planned development of Delhi. The land in question forms part of DDA's Residential Scheme.
(I) Should the government eventually take a decision not to acquire, would the DDA and its officers not be answerable for the wrongful loss caused to the private land owner.
That in response to the above, Deponent submits that the Government of NCTD till date has not sent any communication rejecting the request of the DDA to acquire the land in question and DDA has been bonafidely requesting the L&B Department, GNCTD MCD Appeal No.04/13. Page 20 of 27 for acquisition of the same so that the scheme already formulated can be executed on the ground. The DDA and its officers have not caused any wrongful loss to the private owners.
(j) Would DDA have any valid objection of SDMC were to consider the layout plans for sanction subject to right of the governement to acquire it in accordance with law?
In reply to the above query the deponent submits that as far as the acquisition is concerned the beneficiary department after satisfying the process under the New Land Acquisition Act can acquire any property either vacant or built up at any point of time. Till the said acquisition is complete, DDA is not in a position to give NOC to the SDMC considering the layout plan. 8 That the deponent has got the highest regards and respect for the orders passed by the Hon'ble Court and the same would be complied with in their true spirit.
9 That the deponent craves leave of this Hon'ble Court to submit further information/documents as per diredctions of the Hon'ble Court or otherwise.
and vide order dated 20.10.14, the Vice Chairman, DDA was directed to submit a further detailed affidavit to clarify the submissions made and the such affidavit was submitted and the same is to the effect :
1. That in pursuance to the orders dated 20.10.14 passed by this Hon'ble Court, I am submitting my further detailed affidavit MCD Appeal No.04/13. Page 21 of 27 clarifying the stand of the DDA regarding para 18(f) and (g) as contained in the orders dated 11.08.2014 passed by this Hou'ble Court.
2. That the present matter relates to grant of NOC by the DDA for sanction of building plan by the SDMC in respect of land measuring 6 bighas 7 biswas falling in Khasra No.1230/2, situated in Mehrauli Revenue Estate forming part of DDA's Vasant Kunj Residential Scheme.
3. That to ensure compliance of orders dated 20.10.14, a meeting was held on 14.11.14 under the chairmanship of the deponent, minutes of which were circulated on 20.11.14 wherein it was decided to get the valuation of land in question on the basis of current circle rates as notified by GNCTD be got done.
4 That the Chief Accounts Officer/FAH worked out the costing of the flats by taking into consideration the land cost based on circle rates and by adding 100% solatium which comes to Rs.355.21 lacs as per flat (measuring approx. 138 sq. mtrs) apart from other benefits as may be admissible under the New Land Acquisition Act. This costing will be liable to be revised after March, 2015.
5. That the HIG flats (measuring 132 to 164 sq. mtrs approx) in Jasola, Mukherjee Nagar and Motia Khan are being offered at the cost of Rs.108.66 lacs, 111.80 lacs and Rs.120.65 lacs respectively under the Housing Scheme, 2014. Even in the MCD Appeal No.04/13. Page 22 of 27 Housing Scheme 2010 in Vasant Kunj Residential Scheme furnished flats of an area measuring 173 to 176 sq. metrs were offered at the tentative cost of Rs.110112 lacs.
Therefore the costing of the proposed flats would be approx. three times of the cost of the flats offered under DDA Housing Scheme, 2014.
6. That the case was discussed at length in the meeting held on 05.12.14 and it was felt that DDA has not been able to get the land acquired from 1989 till date and it would not be viable to acquire the land for the scheme. It was thus decided that DDA should give NOC in terms of para 18(j) of the orders dated 11.08.14.
7. That a careful reading of the MPD2021 would further reflect that there are prescribed norms or development controls for residential use zone as given in Clause 4.4 of MPD2021 for sanctioning any Group Housing Complex and the infrastructure requirements like Education, Shopping, other Community facilities, Parking, park, Recreational Facilities, Open Spaces, and Transportation for layout at Residential Neighbourhood Level. At the same time, Density of Population, Height of the Building, sub division of the plots, number of dwelling units to be built, permissible FAR, safety requirements, availability of electric sub stations, drainage, sewerage, underground water tanks would also be the other requisite infrastructural requirements. All these requirements MCD Appeal No.04/13. Page 23 of 27 were kept in mind before preparing "Vasant Kunj Residential Scheme". Thus, any Group Housing Complex which may be built on the subject land would have to be in league with the "
Vasant Kunj Residential Scheme".
8. That therefore, during the discussion Commissioner (Planning) & Chief Architect pointed out that such NOC should also be subject to the condition that the proposed layout should be in synchronization of the DDA's layout plan. However, it was clarified that DDA can not impose any condition which is contrary to any regulations / bylaw. In any case such NOC would be further subject to other permissions and approvals as required under the Master Plan and other statutory requirements like approval from DUAC, Fire, and Airport Authority of India etc. Exiting Building bye laws would also be complied with. The developer will also be liable to pay the betterment charges in terms of Section 37 of the DD Act.
9. That it was decided that Chief Architect may suitably incorporate these conditions in the letter to be issued regarding NOC. Copy of the Minutes held on 05.12.2014 under the Chairmanship of the deponent are annexed along with the present affidavit as ANNEXURE "A".
10 That the Deponent has got the highest regards and respect for the orders passed by this Hon'ble Court and the same would be complied with, in their true spirit.
MCD Appeal No.04/13. Page 24 of 27The NOC from the DDA till date has not been issued to the respondents no.1 to 10. On 13.07.16, Ms. Jaya Goel, Ld. Counsel for the appellant submitted copy of a letter dated 30.06.16 of the Senior Architect (HousingII/D & B) addressed to the Chief Town Planner, SDMC, vide which it was detailed :
"The matter is regarding private land measuring 8 Bighas & 7 Biswas in Khasra No.1230/2, Mehrauli Revenue Estate i.e. falling in DDA Housing Scheme at Vasant Kunj, SectorB, Pocket 1, in this regard, follwing is informed.
i) In case of private land in ZoneG, it was submitted to Chief Town Planner SDMC vide letters dated 29.04.2016 & 06.06.2016 that the land u/r being private land, the request cannot be acceded.
Copy of the case annexed at - A1 to A7.
ii) In the case of private land in ZoneJ status report was submitted to Additional Secretary LG dated 06.11.2015 that the land u/r being private land, the request cannot be acceded to.
Copy of the case annexed at - B1 to B4.
In view of above, it is submitted that the area under reference is a private unacquired land already denotified, the undersigned is directed to inform that the matter regarding NOC is to be seen by the Local Body i.e. SDMC."
Arguments were addressed on behalf of either side by Ld. Counsel Ms. Jaya Goel on behalf of the appellant and by Ld. Counsel Sh. B.S. Maan on behalf of the respondents no.1 to 10 and by ld.
MCD Appeal No.04/13. Page 25 of 27Counsel Ms. Promila Kapoor on behalf of the respondent no.11.
A perusal of the letter dated 30.06.16 of the Senior Architect (HousingII/D & B) makes it clear that the area under reference i.e. a plot measuring 6 Bigha and 7 Biswas bearing Khasra no.1230/2 (Old No.2792/2026/1675/8) situated in village Mehrauli was a private unacquired land and had already been denotified and that for the NOC to be issued, it was necessary for the applicants to inform the local body i.e. the SDMC.
The response dated 30.06.16 of the Senior Architect (HousingII/D & B) is not categorical qua the aspect of issuance of NOC in favour of the respondents no.1 to 10 by the appellant but makes it clear that the area under reference was a private unacquired land and had already been denotified, making it apparent, thus, that the NOC from the DDA was not required.
In view thereof, it is apparent that the present appeal i.e. MCD Appeal No.04/13 instituted U/s 347D of the Delhi Municipal Corporation Act, 1957 against the impugned judgment dated 07.12.12 of the Ld. PO, Appellate Tribunal, MCD in the Appeal No.24/AT/MCD/2009 filed against the impugned order dated 23.12.2008 of the Deputy Town Planner (L) of the MCD qua the layout plan of a group housing in Khasra No.1230/2/B1, Vasant Kunj, New Delhi cannot be sustained and is, thus, dismissed and the records thereof be consigned to the Record Room.
MCD Appeal No.04/13. Page 26 of 27The records of the Ld. PO, Appellate Tribunal, MCD be returned along with copy of this order.
Announced in the open Court (ANU MALHOTRA)
today on this 16th day of District & Sessions Judge (South)
July, 2016 Saket/New Delhi.
MCD Appeal No.04/13. Page 27 of 27