Delhi High Court
Shri Ajit Singh And Ors. vs Delhi Development Authority on 5 September, 2005
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
1. In on going process of urbanisation, to house the expanding population of the city of Delhi, lands were acquired by the Central Government and placed at the disposal of Delhi Development Authority under Section 22 of Delhi Development Act,1957. These lands were in Narela.
2. As per the Master Plan of Delhi,2001 amended vide notification dated 17.1.1991, No. K-13011/9/90-DDVA/1B issued under Section 11A of Delhi Development Act, 268 hect. of land falling in Zone I-1 was designated land use :-
a) Residential : 158 Hect.
b) Public and semipublic facilities : 56 Hect,
c) Recreational : 27 Hect.
d) Circulation : 27 Hect.
3. Zonal Development Plan was prepared. Pockets where land had to be put to recreational use, public and semi public facilities as also residential use were identified therein.
4. Land comprised in Pocket-11 was earmarked, partly for carving plots to be allotted under Large Scale Acquisition and Development and Disposal of Land In Delhi,1961 Policy and partly for institutional housing. The said Zonal Development Plan has been annexed as Annexure P-1 to the writ petition.
5. Petitioners were allotted a plot bearing No. 26 admeasuring 208.93 sq. mtrs. in pocket-11 as they were entitled to be allotted a plot as their lands were acquired.
6. Grievance of the petitioners in the writ petition is to the decision taken by DDA to carve out small plots on the land designated as institutional housing for the purpose of allotment to slum dwellers who are being proposed to be settled as a consequence of relocation.
7. It is urged in the petition that the petitioners accepted a plot which was offered to them on the basis of the existing Zonal Development Plan and, therefore, DDA would be estopped under the doctrine of promissory estoppel to change the land use of the land designated as institutional housing. It is additionally urged that without amending the Zonal Development Plan, DDA cannot change the land use of the land in question.
8. Notwithstanding that the challenge to the action of DDA as laid in the writ petition is restricted on the two grounds aforenoted, during arguments, Shri D.K. Rustogi, learned counsel for the petitioners made submissions arising out of the decision of this court reported as , Wazirpur Bartan Nirmata Sangh v. U.O.I. Counsel urged that as per the said decision, those who had trespassed upon public land and set up jhuggis after 31.1.1990 could not be allotted alternativsites for the purpose of rehabilitation and relocation.
9. As per counter affidavit filed by DDA, the Zonal Development Plan designated land use of the disputed site as available for housing i.e. residential purpose, albeit for institutional housing; as long as land use was not changed, it hardly mattered whether it was used for the purpose of residence of slum dwellers or residence of those employed in the institutions. As per DDA, the Lay Out Screening Committee of DDA took into consideration the population density norms as prescribed by Master Plan of Delhi-2001. It was found that if 236 plots admeasuring 18 sq. mtrs. and 664 plots admeasuring 12.5 sq. mtrs. were carved out on the land in dispute and allotted to slum dwellers, population density norms would not be adversely affected. It is the positive case of DDA that Master Plan norms pertaining to population density in the area are being adhered to. It is stated by DDA that carving out residential plots on the land in question is not in violation of the Master Plan or Zonal Development Plan. It is the case of DDA that micro level planning at the level of preparation of lay out including changes therein has been accepted by this Court in various judicial pronouncements as falling within the exclusive domin of DDA, not requiring any amendment to the Master Plan or the Zonal Development Plan.
10. Submissions made by counsel for the petitioners relying on the decision of the Division Bench of this Court in Wazirpur Bartan Nirmata Sangh is not being dealt with by me for the simple reason that there are no pleadings in the writ petition to this effect. Had the petitioners raised a grievance on this account, DDA would have responded. It is not known whether slum dwellers being relocated had created a slum prior to the cut off date prescribed by Division Bench of this Court. It settled law that no arguments can be raised on a question of fact not pleaded. Issue raised by the petitioners is not a pure question of law but requires an investigation into the factual arena, being whether the slum dwellers being relocated occupied public land and created a slum prior or after 31.1.1990.
11. The principle of promissory estopple is not absolute. Principle of promissory estopple permits the executive, in public interest to change its policies. That apart, it is highly doubtful whether the doctrine of promissory estopple stands attracted in the present case. Petitioners did not purchase their plot at an auction or through a contract. The large scale acquisition policy entitled the persons whose agricultural lands are acquired to be considered for allotment for a residental plot and if found eligible, to be allotted one. These persons can not insist as to which specific plot has to be allotted to them. They must accept what is offered. Inherently, in this scenario, a person cannot plead that he took the plobased on any assurance from the offered.
12. Legitimate expectation means that a representation is made that benefit of substantive nature will be granted and based on it a person acts. It results in the creation of a legitimate expectation which binds the person who makes the representation.
The principle is not absolute, in that, it admits of no exception. Lord Diplock in Hughes v. Department of Health and Social Security, 1985 AC 776 observed:
"Administrative policies may change with changing circumstances. The liberty to make such changes is something that is inherent in our constitutional form of government.
13. In decision reported as , Punjab Communications v. U.O.I and Ors., it was held:
"The result is that a change in policy can defeat a substantive legitimate expectation if it can be justified on Wednesbury reasonableness. We have noticed that in Hindustan Development Corp. case also it was laid down that the decision-maker has the choice in the balancing of the pros and cons relevant to the change in policy. It is, therefore, clear that the choice of the policy is for the decision-maker and not for the court. The legitimate substantive expectation merely permits the court to fin out if the change in policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made."
14. Besides, Zonal Development Plan does not carve out alternative residential plots. Zonal Development Plan does not sub-divide the land earmarked for institutional housing. I fail to understand as to how the petitioners could, under the circumstance state that they acted on the representation that the land in question would not be carved out into smaller plots.
15. Designated land use of the land in question is housing. It means residential use. I may take it that the use is institutional housing. What if DDA was to allot the land in question for housing to lower paid employee of institutions by carving out smaller residential plots? Could petitioners oppose the same? The answer is No.
16. Amongst others, preparation of Master Plan and Zonal Development Plans, are two of the statutory duties of the authority. These duties flow from Sections 7 and 8 of the Act. Section 7 and relevant part of Section 8 read as under:
Section 7(1) The Authority shall, as as soon as may be, carry out a civic survey of, and prepare a master plan for Delhi.
(2) The master plan shall-
(a)define the various zones into which Delhi may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out; and
(b) serve as a basic pattern of frame-work within which the zonal development plans of the various zones may be prepared.
(3) The master plan may provide for any other matter which is necessary for the proper development of Delhi.
Section 8(1) Simultaneously with the preparation of the master plan or as soon as may be thereafter, the Authority shall proceed with the preparation of a zonal development plan for each of the zones into which Delhi may be divided.
(2) A zonal development plan may-
(a)...
(b)...
(c)...
(d) in particular, contain provisions regarding all or any of the following matters, namely:
(i) the division of any site into plots for the erection of buildings;
(ii) to (x) ...
(xi) the restrictions regarding the use of any site for purposes other than erection of buildings; and
(xii) any other matter which is necessary for the proper development of the zone or any area thereof according to plan and for preventing buildings being erected haphazardly in such zone or area.
17. Section 9 of the Act reads:
9.(1) In this Section and in Sections 10, 11, 12 and 14 the word 'plan' means the master plan as well as the zonal development plan for a zone.
(2)Every plan shall, as soon as may be after its preparation, be submitted by the Authority to the Central Government for approval and that Government may either approve the plan without modifications or with such modifications as it may consider necessary or reject the plan with directions to the Authority to prepare a fresh plan according to such directions.
18. Section 10 of the Act specifies the procedure to be followed while preparing the plans. It reads:
10(1)Before preparing any plan finally and submitting it to the Central Government for approval, the Authority shall prepare a plan in draft and publish it by making a copy thereof available for inspection and publishing a notice in such form and manneras may be prescribed by rules made in this behalf inviting objections and suggestions from any person with respect to the draft plan before such date as may be specified in the notice.
(2) The Authority shall also give reasonable opportunities to every local authority within whose local limits any land touched by the plan is situated, to make any representation with respect to the plan.
(3) After considering all objections, suggestions and representations that may have been received by the Authority, the Authority shall finally prepare the plan and submit it to the Central Government for its approval.
(4) Provisions may be made by rules made in this behalf with respect to the form and content of a plan and with respect to the procedure to be followed and any other matter, in connection with preparation, submission and approval of such plan.
(5) Subject to the foregoing provisions of this section the Central Government may direct the Authority to furnish such information as that Government may require for the purpose of approving any plan submitted to it under this section.
19. Date of operation of the plans is as under Section 11. It reads:
" 11. Immediately after a plan has been approved by the Central Government, the Authority shall publish in such manner as may be prescribed by regulations a notice stating that a plan has been approved and naming a place where a copy of the plan maybe inspected at all reasonable hours and upon the date of the first publication of the aforesaid notice the plan shall come into operation."
20. Procedure for modification of the plans if provided under Section 11A. It reads:
"11A.(1) The Authority may make any modifications to the master plan or the zonal development plan as it thinks fit, being modifications which, in its opinion, do no effect important alterations in the character of the plan and which do not relate the extent of land-users or the standards of population density.
(2) The Central Government may make any modifications to the master plan or the zonal development plan whether such modifications are of the nature specified in sub-section (1) or otherwise.
(3) Before making any modifications to the plan, the Authority or, as the case may be, the Central Government shall publish a notice in such form and manner as may be prescribed by rules made in this behalf inviting objections and suggestions from any person with respect to the proposed modifications before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the Central Government.
(4) Every modification made under provisions of this section shall be published in such manner as the Authority or the Central Govt., as the case may be, may specify and the modifications shall come into operation either on the date of the publication or on such other date as the Authority or the Central Govt. may fix.
(5) When the Authority makes any modifications to the plan under sub-section (1) it shall report to the Central Government the full particulars of such modifications within thirty days of the date on which such modifications come into operation.
(6) If any question arises whether the modifications which effect important alterations in the character of the plan or whether they relate to the extent of land-users or standards of population density, it shall be referred to the Central Govt. whose decision thereon shall be final.
(7) Any reference in any other Chapter, except Chapter III, to the master plan or the zonal development plan shall be construed as a reference to the master plan or the zonal development plan as modified under the provisions of this section."
21. Section 9 of the Act is clear. Reference to the word 'plan' in Section 9, 10 and 11 is to the Master Plan and Zonal Development Plan. Section 7 refers to the Master Plan and Section 8 refers to the Zonal Development Plan. Thus, Sections 7 to 11 relate to the Master Plan and Zonal Development Plans.
22. That Master Plan and Zonal Development Plans are statutory in character was not in dispute. That, once formulated and notified, development has to conform to these plans was not in dispute. That, these plans once notified could be modified, only in the manner provided by Section 11A was not disputed.
23. To understand the hierarchy of the Master Plan, Zonal Development Plan and the Layout Plan, the development code under the Master Plan has to be taken note of.
24. Some of the important clauses of the Development Code may be noted:
2(1) Use Zone means an area for any one of the specific dominant uses of the urban functions as provided for in clause 4.0.
2(2) Use Premises means one of the many sub-divisions, of a use zone, designated at the time of preparation of the layout plan, for a specific main use or activity and includes the use premises described in Schedule I. 2(3) Layout Plan means a sub-division plan indicating configuration and sizes of all use premises.
2(4) Zonal Development Plan means a plan for one of the zones (divisions) of the Union Territory of Delhi containing detailed information regarding provision of social infrastructure, parks and open spaces and circulation system.
3(1) The Union Territory of Delhi is divided into 37 use zones as mentioned in Clause 4.0.
3(2) Each use zone shall be further sub-divided into required number of use Premises out of 136 use premises described in Schedule-I with or without conditions.
3(6) Layout plans and building plans shall be approved by the Local Bodies and Authority in their areas of jurisdiction.
4. USE ZONES DESIGNATED There shall be 37 use zones classified in 9 categories namely; Residential, Commercial, Manufacturing, Recreational, Transportation, Utility, Government, Public and Semi-Public and Agriculture and Water Body. 37 use zones are as under:
5. USE PREMISES DESIGNATED There shall be 136 use premises as designated in Schedule I. There shall be 136 Uses/Use Activities with similar nomenclature as that of Use Premises.
6. LOCATION AND BOUNDARIES FOR USE ZONES 6(1) Any one of the 37 use zones may be located at one or more than one places as shown on the Land Use Plan.
6(2) The boundaries of various pockets of use zones are defined in land Use Plan by features like roads, railway tracks, drains etc. the area of each pocket of different use zones is as indicated in the Land Use Plan.
25. It is but obvious that the layout plans fall within the exclusive domain of the local bodies and authorities (see Clause 3.6 of the Development Code). It is further evident that the development code determines the land use at two levels (a) layout, and (b) permissible activity of the land.
26. Clause 8 (i) of the development code reads as under :"The objective of these regulations is to guide the preparation of layout plans for residential and industrial use zones. These regulations include norms for provision of facilities and circulation system. The service plans corresponding to these layout plans for provision of physical infrastructure like water supply, sewerage drainage, etc., shall conform to municipal bye-laws."
27. Clause 8 of the Code states that the object of said clause is to guide the preparation of lay out plans for residential and industrial use zones. Sub-clause (ii) of clause 8 specifies the land use activity to be followed while preparing a lay out. It specifies which of the 1 or more out of 136 activities can be allowed while preparing the lay out.
28. Scheme of the Act and the Master Plan shows that planning at the micro level has been left to the Local Bodies and the Authority for areas under their jurisdiction. This micro level planning, reflected in the lay out plan, in areas under jurisdiction of DDA, is the baby of the authority. The only curb on the power, is to follow the development norms and planning norms frozen by the Master Plan and Zonal Development Plan. Of course the Development Code as it is, is a part of the Master Plan.
29. Clause 4 read with clause 2(1) of the Development Code designates 9 categories to which an area can be put to a dominant use. These 9 categories can well be said to be the apex of the pyramid. Further, clause 4 enumerates 37 land uses within these 9categories. These 37 uses can well be said to be mid segment of the pyramid. Clause 2(2), 2(3), 3(2), 3(3), 3(6), 5 and 6 of the Development Code, read together enumerate 136 further division. These 136 can well be said to form the base of the pyramid
30. How this translates to a site can be graphically put as under:
Master Plan Zonal Development Plans Zonal Divisional Plans Lay Out Plans
31. Various decisions of this Court have held that preparation of layout plans is an in house procedure. See Shanti Devi Gupta v. DDA, , Triveni Educational and Social Welfare Society v. D.D.A and Anr. and 87(2000)DLT 603, BU Block Residents Welfare Association and Ors v. DDA and Ors.
32. There is no violation of the Delhi Development Act., Designated land use continues to be residential.
33. Before parting, I may note that one of the principle cause of proliferation of slums in Delhi is that DDA has not been earmarking housing for the weaker sections of the society around industrial estates and residential colonies. The concept of a service personnel block is conspicuously absent while developing residential and industrial estates. Low placed hands are required whether in an industrial or domestic sector. People would be attracted where jobs are to be found.
Fast experience shows that small clusters have come up around residential and industrial areas where jobs are available. Commensurate with the anticipated jobs which would be available as a result of residential areas as also industrial complex coming up, had DDA with foresight provided land for the economically weaker sections of the society to set up their homes, problem would not have arisen. When I look to the Zonal Development Plan relied upon, I do not find anyand earmarked for the economically weaker sections of the society. The entire area shows that only Pocket-7 has been earmarked as Janta Flats. All other areas are marked for either alternative plots, low income group, middle income group ad cooperative group housing society allotments.
34. The proposed allotment by DDA would harmonise and synthesize the have not with the haves. It cannot be lost sight of that cheap housing results in cheap labour being available for the better of the society. It ultimately serves a social purpose,
35. I find no infirmity in the acts of DDA. The writ petition is accordingly dismissed.
36. No costs.