Delhi High Court - Orders
Navjiwan Residents Welfare ... vs South Delhi Municipal Corporation & Anr on 3 November, 2022
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
$~43
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 531/2021, CM. APPLs. 1421 & 3680/2021
NAVJIWAN RESIDENTS WELFARE ASSOCIATION ....Petitioner
Through: Ms.Tasneem Ahmadi and
Ms.Mahima Rathi, Advocates
versus
SOUTH DELHI MUNICIPAL CORPORATION & ANR.
..... Respondents
Through: Ms.Richa Dhawan and Mr.Anuj
Chaturvedi, Standing Counsels with
Ms.Vanshika Agarwal, Advocate for
SDMC.
Mr.Rajeev Kumar Yadav and
Dr.D.N.Singh, Advocates for
respondent No.2.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
ORDER
% 03.11.2022
1. By way of the present petition filed under Articles 226/227 of the Constitution of India, the petitioner, a registered society of Navjiwan Vihar Colony having more than 275 households, seeks direction to respondent No.1 to withdraw its letter dated 01.01.2021.
2. Ms.Tasneem Ahmadi, learned counsel appearing for the petitioner- Association, submits at the outset that the petitioner has consent of approximately 93% residents of the Colony in filing the instant petition.
She further submits that vide the impugned letter dated 01.01.2021, respondent No.1 has observed that entry and exit gates installed in the Colony are not being operated as per the 'Policy/Guidelines for Installation Digitally Signed By:SANGEETA ANAND Signing Date:09.11.2022 11:45:39 of Gates for Security Purpose in Colonies' dated 25.06.2007 inasmuch as they are not open between 5:00 a.m. to 11:00 p.m. Reportedly, the letter further states that the gates are opened/closed by a boom barrier.
3. Learned counsel for the petitioner-Association has invited attention of the Court to order dated 07.03.2006 passed in Navjeevan Vihar DDA Market Association v. The DDA & Ors., W.P.(C) 3845/2005, wherein it was observed as under:
"36. Reasons why gates and barricades were set up by the Residents Welfare Association have been noted by me in the preceding paras of my order herein above. These have become a necessity for the day unless the police is able to guarantee the safety of the residents and their properties in Delhi. In the instant case, the gates set up by the residents are not illegal for the reason the Corporation granted the necessary permission way back in November 1995. The argument of learned Counsel for the shopkeepers that the gates are illegal has to be rejected. It has to be noted that under Section 320 of the Delhi Municipal Corporation Act it is permissible to erect gates and barricades on public streets after obtaining permission from the Commissioner of the Corporation.
xxx xxx xxx
38. I accordingly hold that the Residents Welfare Association is entitled to maintain the gates/barricades which would be re-erected by the MCD, but subject to terms of the letter dated 30.11.1995.
xxx xxx xxx
56. I accordingly direct that in case the SHO of the local police station does not create a police picket in the market and does not station at least 2 policemen round the clock, it would be open to the Residents Welfare Association to screen outsiders who visit the colony. It would be open to the Association to prevent entry to a person who does not give a good reason to enter the colony."
Digitally Signed By:SANGEETA ANAND Signing Date:09.11.2022 11:45:39
4. It is submitted that the Engineering Department, MCD has come up with the aforesaid guidelines vide Circular No. D/664/SE(P)-I dated 25.06.2007, which reads as under:
"POLICY/GUIDELINES FOR INSTALLATION OF GATES FOR SECURITY PURPOSE IN COLONIES.
CIRCULAR As per provision of section 320 of DMC Act, "No person shall, except with the permission of the Commissioner, MCD granted in this behalf erect or set up any wall, fence, rail post step, booth or other structure whether fixed or movable or whether of permanent or temporary nature, or any fixture in or upon any street or upon or over any open channel, drain, well or tank". Accordingly, Corporation vide resolution no. 67 dated 25.05.04 approved guidelines for provision of limited entries at one or two points in the colony and copy of resolution was circulated vide E-in-C circular No. F.506/E-in- C/2004/27 dated 21.06.04 for necessary action/Compliance at Zonal level by all concerned.
Some Resident Welfare Associations filed petitions in the High Court regarding dispute for installation of Iron gates on roads in their colonies. Hon'ble High Court vide orders dated 08.09.05 directed Commissioner, MCD to formulate, either byelaws or guidelines pertaining to erection of gates on public roads etc. by inviting suggestions from Resident Welfare Associations and Commissioner of Police, further directed that no gates would be permitted to be erected on any road till revised guidelines are notified.
On the directions of Hon'ble Delhi High Court, suggestions from Resident Welfare Associations (RWA), general public & Police Department were received. Accordingly, revised policy has been approved by Commissioner, MCD for grant of permission to RWAs for installation of gates for security purpose jn Colonies as per below mentioned guidelines.:
Digitally Signed By:SANGEETA ANAND Signing Date:09.11.2022 11:45:39 Dy. Commissioner of MCD Zone concerned is authorized to give permission for erection of gates, subject to Resident Welfare Association adhere to following points.
1. RWA will prepare the layout plan of the colony showing the provision of Iron Gates at limited entry and exit points in the colony.
2. RWA will have to obtain no objection certificate (NOC) from Traffic Police Department of Delhi Police before applying to Dy.
Commissioner of concerned MCD Zone.
3. RWA will have to full fill following points:
a) The RWAs must be registered with the Registrar of Societies.
b) Gate should be installed in colonies where the right of way of road is upto 18.3 meter. The gates would be provided only if it is internal road of the colony and does not have buses plying on it.
c) The minimum width of the gate should be 5.0 meter and height of the gate should not be more than 3.0 meter. There should not be any barrier/advertisement on the top of gate so that the gate is free from any horizontal / vertical obstruction. However, if any board is needed, it should be more than 5.0 meter from the ground level.
d) Gates would be allowed only at main access point of the colony/block/pocket. The gates inside the block lanes/bye-lanes/ back lanes, and service lanes shall be allowed only on the specific recommendation of local police and only if these lanes have their opening towards the roads outside the colony.
e) The Iron Gates should be properly located and designed to avoid blockage of arterial or sub-arterial roads by putting Gates.
f) The Resident Welfare Associations shall ensure that there is Digitally Signed By:SANGEETA ANAND Signing Date:09.11.2022 11:45:39 consensus among the residents regarding putting up of any Gates so as to avoid dispute amongst residents.
g) In the event of any dispute regarding installation, opening/closing/manning of the gates, RWAs shall consult the ACP Sub Division and his decision shall be final.
h) The Gates should not cause unreasonable restrictions on right of way/thoroughfare passing through the Colony for access to other areas.
i) Proper written directions and layout plan of the colony indicating existence of gates and the regulation time of entrance/exit from these gates should be available at each such gate enabling a person/vehicle approach the colony easily, particularly, for essential services like Water, Electricity, Telephones, Sewer, Fire Brigade etc.
j) A proper lay out of the Colony indicating the existence of gates and the regulation time of entrance/exit from these gates should be given to the MCD Office along with the application.
k) The width of gate shall be such that emergency vehicles i.e. Fire Brigade, Police Vehicles, Ambulances and other emergency vehicles can reach any part of the Colony without any hindrance.
l) The gates so permitted, to be installed shall remain open during the daytime.
m) During the night after 11.00 p.m., gates may be closed upto 5.00 a.m, but entry and exit facility shall be made available to the residents and entry/exit shall be manned by the Watch and Ward to be appointed by the RWAs at their cost.
n) Wherever gates have been provided, there shall be a provision Digitally Signed By:SANGEETA ANAND Signing Date:09.11.2022 11:45:39 of wicket gate for easy access and entry for pedestrians.
o) Number of gates to be put up shall be decided depending upon the geographical location and topography of the colony, nature of traffic and traffic circulation as a whole. The gates so installed shall be strictly regulated according to the timings fixed.
p) The RWAs shall supply the information about the details of the security personnel deployed by them at the main and other gates to the local police station and DC Zone.
q) RWAs office bearers shall be fully responsible and accountable as per law on account of non-functioning of these gates in case of any emergency/ mishap. Hence their name should be displayed on RWA notice board along with their addresses & contact numbers.
r) No. funds will be provided by the M.C.D. out of its own budget or from discretionary funds of any area representative to RWAs for installation of gates in the colonies.
s) This revised policy shall be applicable to the existing gates also, hence gates already installed by RWAs in the colony should be got regularized by M.C.D within the period of six months.
t) No Commercial advertising is permitted on the gates except information about the colony.
u) Gates shall be properly fixed and they should be structurally safe. In case of any accident / mishap, office bearers of RWAs shall be fully responsible and accountable as per law.
v) Sanction for installation of the Iron Gate will be accorded within 45 days from the date of receiving of proposal from the concerned RWAs.
-Sd/-
Addl. Commissioner (Engg.)"
Digitally Signed By:SANGEETA ANAND Signing Date:09.11.2022 11:45:39
5. On previous date of hearing, a submission was made on behalf of respondent No.2/Sh. Shaival Sahai that there is not enough walkway for pedestrians on account of the gates/boom barriers installed at the entry and exit points.
6. A Status Report in the form of an affidavit has been placed on record on behalf of respondent No.1. Relevant excerpt from the same is reproduced hereunder:-
"2. That there are two colony gates in Navjiwan Vihar residential colony having the opening on Shivalik-Geetanjali road. One gate is being used as entry gate and other is being used as exit gate.
3. That the permission was obtained by the Navjiwan Vihar welfare association from erstwhile MCD for installation of gate vide letter No. 1890/ZAC/SZ/9S dated 30.11.1995. This permission was allowed only for installation of colony gates and not for installation automatic / manual boom barriers. As on today, there is policy guidelines issued by the department / Respondent for installation of colony gates only vide circular No. D/664/SE(P)-I dated 25.06.2007. As per policy guidelines, all the gates are to be kept open from 5:00 AM to 11:00 PM. The copy of the circular No. D/664/SE(P)-I dated 25.06.2007 is herewith annexed as Annexure "R-1".
4. That there is no policy guideline framed by the Respondent for installation of automatic / manual boom barriers yet. There is dispute between the Navjiwan Vihar welfare association and some of the residents over the operation of colony gates and automatic / manual boom barriers. The Navjiwan Vihar welfare association is intended to open the boom barriers only when there is entry or exit of any vehicles through the gates. At present, colony gates are open from 5:00 AM to 11:00 PM.
6. That as per judgment of Hon'ble High Court Delhi dated 07.03.2006 in W.P. (C) 3845/2005, all the gates, barriers & guard rooms/cabin are allowed by the Hon'ble Court vide its judgment dt. 07.03.2006. The operative paras of judgment dated 07.03.2006 is Digitally Signed By:SANGEETA ANAND Signing Date:09.11.2022 11:45:39 reproduced as under: -
"But before penning down my order I would take on record statement made by Shri Ajay Kumar, Deputy Commissioner, South Zone who is present in Court to the effect that the gates/barricades and security cabin demolished by the MCD on 01.03.21006 would be re-erected, i.e. restored to their original position. He assures that the structural strength and stability shall be as it originally existed and that he would ensure the structural stability and soundness of the gates. He states that needful would be done within a period of 1 week from today. He expresses regrets for what transpired on 01.03.2006. Taking on record his statement and binding him to the same I accept his apology and do not initiate action under Cont.Cas.(C) No. 538/2006. The same id dismissed"
7. That a case was also filed before this Hon'ble court vide WP. (C) 7938/2020 titled as Shaival Sahay VIS SDMC & Ors. The matter was disposed off on 03.11.2020 by Hon'ble Court subject to the following directions mentioned in para No.7 of order sheet.
"In the circumstances, this petition shall be treated as the petitioner's representation to the Corporation, with shall look into the matter in right earnest and in case it finds any breach of the policy conditions, it shall issue directions for corrective steps. The parties shall be heard by the Corporation within three weeks from today. The hearing may be conducted via video-conferencing, if so preferred by the petitioner, through counsel as well. The order of the Corporation shall be made available to the parties within two weeks thereafter"
The copy of the order dated 03.11.2020 is herewith annexed as Annexure "R-2"
8. That in compliance of direction of Hon'ble Court dated 03.11.2020, personnel hearing was afforded in the office of Respondent and grievances of both the parties were heard on 24.11.2020. The speaking order was issued vide letter dated Digitally Signed By:SANGEETA ANAND Signing Date:09.11.2022 11:45:39 08.12.2020. The copy of the letter 08.12.2020 is annexed herewith as Annexure "R-3". The pointwise prayer made by the petitioner and the departmental clarification/stand thereto are as under:-
S. Prayer made by Clarification/stand of the No. petitioner department a. Pass an appropriate Installation of barriers has been writ, order and allowed by the Hon'ble Court direction particularly vide its order dated 07.03.2006 in the nature of in W.P. (C) 3845/2005. The mandamus whereby operation of barrier is manual or directing the automatic, it is not going to Respondents to remove make any difference. It is only automated boom technological development with barrier installed at passage of time.
entry gate of colony in
complete violation of
MCD policy for
installation of gates;
and/or.
b. Pass further Once the permission has been
appropriate writ, obtained by RWA for
order and direction installation, the operation of
particularly in the colony gate is to be strictly
nature of mandamus followed by the RWA as per
whereby directing the policy guidelines issued by the
Respondents to keep department.
open both the entry
and exit gates of the
colony in accordance
with MCD policy for Hence, RWA may operate the
installation of gates in colony gate as per policy colony; and/or. guideline, otherwise permission will be withdrawn.
Digitally Signed By:SANGEETA ANAND Signing Date:09.11.2022 11:45:39 c. Pass further writ, As per aforesaid judgment of order and direction Hon'ble Court, the Guard Cabin particularly in the is allowed. At entry gate, there is nature of mandamus temporary tin shed having size whereby directing the 4.9x3.7 (mtr.) being used as respondents to remove Guard shelter. As compared to unauthorised normal Guard Cabin, this construction done by temporary Guard shelter is little constructing guard big in size.
room on public land at
entrance gate of
colony; and/or The RWA will make corrective
steps to modify the existing
Guard shelter Into smaller
Guard shelter of appropriate size
within three months from issue of
this order.
d. Pass further writ, NA
order and direction
particularly in the
nature of mandamus
whereby directing the
Respondents for
initiation of action
against officials of
respondent nos.1,2,3,
and 4 and office
bearers respondent no.
5 for allowing
installation of
automated boom
barrier in violation of
policy and provision of
DMC Act. And/or.
Digitally Signed
By:SANGEETA ANAND
Signing Date:09.11.2022
11:45:39
e. Pass any order/orders NA
as this Hon'ble Court
may deem fit and
proper in the facts and
circumstances of the
case and in the interest
of justice.
9. The field staff i.e. concern A.E./J.E. conducted the survey for last 10 days in respect of operation of colony agates. It was found that both the gates are open from 5:00 AM to 11:00 PM. as per policy guidelines issued by the respondent.
The boom barriers are being opened by The Navjiwan Vihar welfare association as and when any vehicle enters in the colony or goes out from the colony. It is again reiterated that there is no policy guidelines issued by the department/respondent with respect to installation of automatic/manual boom barriers in the colony. The copy of site photographs annexed herewith as Annexure R-4."
7. Learned Standing Counsel for respondent No.1 has assailed the fact that the petitioner-Association has installed a temporary tin shed at the entry gate, which is bigger than the requisite size.
8. In this regard, learned counsel for the petitioner, on instructions, submits that necessary steps have already been taken and the guard cabin has been reduced to its normal size.
9. In view of the aforesaid submission, learned Standing Counsel for respondent No.1, on instructions, submits that the impugned letter dated 01.01.2021 stands withdrawn by the answering respondent.
10. Learned counsel appearing for respondent No.2, on instructions, Digitally Signed By:SANGEETA ANAND Signing Date:09.11.2022 11:45:39 submits that the answering respondent has no objection to the installation of gates as well as manual boom barriers, however, no automatic boom barriers should have been installed. It is contended that an automatic boom barrier results in traffic congestion on account of delay in operating the same.
11. Insofar as traffic congestion is concerned, no material has been placed on record in support of the submission. As recorded hereinabove, respondent No.1 has taken a categorical stand that operation of barrier, either manual or automatic, does not make any difference as the latter is only technologically advanced. Alongwith the Status Report, certain photographs have also been placed on record which shows that there is enough walkway for pedestrians.
12. Considering the stand taken by respondent No.1 as well as earlier orders passed by this Court, the present petition is disposed of with a direction that the petitioner-Association shall ensure that the gates/barrier are operated as per the aforementioned guidelines issued by respondent No.1 (the erstwhile South Delhi Municipal Corporation) vide Circular dated 25.06.2007. Pending applications are disposed of as infructuous.
MANOJ KUMAR OHRI, J NOVEMBER 3, 2022/v Digitally Signed By:SANGEETA ANAND Signing Date:09.11.2022 11:45:39