Delhi High Court
Sarojini Market Shopkeeper ... vs Union Of India (Uoi) And Anr. on 6 December, 2004
Equivalent citations: 2005(81)DRJ334
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
1. Rule. Heard for disposal.
2. Case of sibling rivalry, Sarojini Market Shopkeepers Association has brought the present action being aggrieved by a decision and its implementation by NDMC to convert 65 tehbazari sites granted by NDMC to various persons into permanent sites. NDMC decided and commenced erection of partition walls, laying concrete roof slabs etc. at the site of the tehbazari, where thadas were covered with asbestosis sheets over iron angles.
3. Case of the petitioner is that conversion of the tehbazari site into permanent stalls is contrary to the master plan and zonal development plan for the area in question.
4. It is urged by the petitioners that as per the mandate of the Delhi Development Act, 1957, no development can take place, not even by a statutory authority, which is contrary to the Master Plan for Delhi.
5. Response of NDMC is that representations were received by allottees of the thadas to the effect that vagaries of nature were impeding their business and on humanitarian grounds they be permitted to convert temporarily covered tehbazari into permanently covered sites. NDMC took decision, on humanitarian ground, to erect permanent constructions by way of stalls and allot the same to the allottees of the thadas.
6. Matter was referred to the Government of India, Ministry of Urban Development. On 12.3.2004 a decision has been taken. Decision reads as under:-
Minutes of the meeting held on 12.3.2004 at 3.00 PM to discuss the issues connected with construction of vegetable stalls in the Sarojini Nagar Market. The following were present:-
1. Shri P. K. Pradhan, JS(DL)
2. Shri A. Madhukumar Reddy, L&DO
3. Shri B. K. Jain, Director (DC), DDA.
4. Shri Amit Das, Joint Director (PLG), DDA
5. Shri M. L. Range, Director (Estates), NDMC.
6. Shri Karam Chand, Dy. Chief Architect, NDMC.
7. Shri G. P. Sharma, 'SE(BM), NDMC
8. Shri K. K. Verma, XEN(BM), NDMC.
9. Shri V. Sreekumar, PRO, L&DO.
Initiating the discussion, JS(DL) requested Director (DC), DDA to elaborate on the Master Plan provisions in respect of Sarojini Nagar Market. He referred to the communication of DDA to NDMC with copy to Ministry in which it has been mentioned that keeping in view the approved layout plan of S. N. Market, provision of toilets, ESS, dustbins and vegetable stalls may be considered by NDMC.
2. Shri. B. K. Jain, Director (DC) DDA mentioned that MPD 2001 provides for retention of the S.N. Market as existing. It states that no additions/alterations shall be permitted and unauthorized encroachment shall be removed. The Master Plan also stipulates that 3 to 4 units of informal shops for 10 formal shops can be allowed in the commercial use zone. He clarified that the vegetable stall of temporary nature can be treated as informal shops. He also specified that if the stalls are of temporary nature, relaxation of set back rules is not necessary. However, provision of such stalls should be as per the prescribed norms i.e. 3 to 4 informal shops to 10 formal shops. Moreover, there should not be permanent structure like brick masonry with concrete roof.
3. Director (Estates), NDMC indicated that there are 200 formal shops in the S.N. Market and nearly 65 temporary stalls were allotted by NDMC on license basis. This, therefore, conforms to the norms. These stalls have been existing there for more than 30 years, serving to the local residents, this being predominantly a residential area. During this period, site wall around the stalls were constructed for protection. There were asbestos roofs which were being damaged; hence these roofs have now been made into concrete roofs for better protection and to avoid recurring expenditure.
4. During discussion, it was agreed that construction of brick masonry structures with concrete roof and rolling shutters would virtually make it into permanent stalls and would be violation of the existing Master Plan provisions. It was also pointed out that some of the stalls have been found to be running business other than vegetables such as jewellery shops, garment shops, etc. This violates the basic purpose of permitting temporary stalls for vegetables and which was meant to cater to the needs of local residents as these would not form part of the formal shops.
5. After detailed discussions it was felt that since the walls and roofs have already been constructed, they may be allowed to continue to remain for the present rather than demolishing them and putting up fresh temporary structures. However, the rolling shutters should not be permitted and the shops would remain open. It was also suggested that a further view on the development of Market can be taken after the New Master Plan is finalized. Director (Estates), NDMC also assured that they would ensure that the temporary stalls are used only for vegetables and perishable goods and do not carry on other business like formal shops. The will take action against stall owners carrying on business other than vegetables and perishable goods.
6. Joint Secretary (DL) indicated that the suggestions made regarding continuance of the existing structures without shutters and permitting only vegetable and perishable goods stalls could perhaps be considered. However, the matter would be further examined in the Ministry and a final view would be taken with the approval of the competent authority.
The meeting ended with vote of thanks to the chair.
No. L&DO (PSIV/SNMKT/Court Case/2003/976 -
Government of India Ministry of Urban Development & Poverty Alleviation Land & Development Office New Delhi, dated 24th March, 2004 (V. Sreekumar) Public Relation Officer"
7. A perusal of the decision shows that as per existing master plan, NDMC could not have proceeded to convert 65 tehbazari sites to permanent sites by erecting permanent constructions.
8. Decision aforesaid, adjourns the matter to be considered in the context of new master plan which is in the process of being finalized.
9. NDMC, as a statutory authority would not be expected to act contrary to law. It must be kept in mind by NDMC that within the areas of its jurisdiction it is the body charged with the enforcement of the master plan. If NDMC were to violate the master plan itself, what example it could set for others needs hardly to be commented upon.
10. Counter-affidavit of NDMC would reveal that 196 shops in Sarojini Market were allotted by the Land and Development Office on lease. Towards the rear of the shop there were open court-yards with a WC. Towards the front was a varandah. Varandah space was contiguous i.e. running along the entire length of the market. First floor above the shops were transferred by L & DO by separate conveyance deed. User of the first floor was residential. No construction above the first floor was permitted.
11. In violation of the conveyance, counter affidavit filed by NDMC states; that the shopkeepers who were transferred the shops in Sarojini Nagar Market have effected illegal constructions in the form of coverage of court-yard. Additional space has been carved out. Some of which has been sublet. Even the first floor is being misused by the allottees by commercial purpose.
12. Learned counsel for the petitioner relies upon certain resolutions passed by NDMC permitting coverage of the open varandah.
13. There is no supplementary lease deed executed by L&DO. Master Plan continues to be the same on which the petitioner relies for action against the allottees of the tehbazari site.
14. Petitioner cannot take benefit of resolution of the NDMC which requires an action to be taken contrary to the Master Plan and enforce right based thereon, but when NDMC gives to allottees of the thadas something contrary to the Master Plan take a stand that NDMC cannot resolve contrary to the Master Plan.
15. Law as it stands today is that MPD-2001 continues to be in force. No development can take place contrary to the provisions of MPD-2001 and the Zonal Development Plan. It would be impermissible to take an action contrary to the master plan, but defer rectification action on the ground that may be, the future master plan for Delhi would provide otherwise.
16. Writ petition is disposed of with a direction to NDMC to remove all unauthorised encroachments/constructions in Sarojini Nagar Market area which are contrary to the Master Plan. This would include removal of unauthorised constructions and encroachments by the shopkeepers in Sarojini Nagar Market.
17. Since the petitioners came to court seeking a relief alleging that action of NDMC was contrary to law, petitioner must lead by example.
18. NDMC would at the first instance remove all encroachments and unauthorised constructions in Sarojini Nagar Market. Only thereafter would NDMC proceed, to remove unauthorised constructions effected by it in the shape of converting temporary thada sites by erecting permanent constructions thereon. These sites would be restored to the original position.
19. No costs.