Delhi High Court
Sub. Major Ishar Dass Suri & Others vs Union Of India & Others on 10 December, 2010
Author: Anil Kumar
Bench: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: December 10, 2010
W.P. (C).No. 1288/1984
Defence Colony Association „Block A‟ .... Petitioner
Through: Mr. D.P.Singh Advocate with
Ms. Suchitra Srivastava Advocate for
Petitioner.
Versus
Union of India & Ors. .... Respondents
Through: Anil Nauriya Advocate and Ms.
Smita Hazarika Advocate for Respondent
no.3
Mr. Ravinder Aggarwal Advocate with
Mr. Nitish Gupta Advocate for Union of
India.
+ W.P. (C).No. 1342/1984
Sub. Major Ishar Dass Suri & Others .... Petitioners
Through:Mr. D.P.Singh Advocate with
Ms. Suchitra Srivastava Advocate for
Petitioner
Versus
Union of India & Others .... Respondents
Through: Anil Nauriya Advocate and Ms.
Smita Hazarika Advocate for Respondent
no.5
Mr. Ravinder Aggarwal Advocate with
Mr. Nitish Gupta Advocate for Union of
India
WP(C) 1288/1984 & WP(C) 1342/1984 Page 1 of 27
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
Both these writ petitions WP(C) 1288 of 1984 and WP(C) 1342 of 1984 are disposed of by a common order as facts involved are similar and the relief claimed are also similar except that the Municipal Corporation of Delhi has also been impleaded as a party in the WP(C) 1342 of 1984. First petition is by the association of residents of `A‟ Block whereas the second petition is filed by some of the residents of `A‟ Block of Defence Colony. The petitioners seek transfer of land admeasuring about 2.8 acres at nominal price in Defence Colony in their favor and cancellation of allotment/sale of land in favor of Delhi Children‟s Theatre Group and not to construct any theatre building on the land allotted to them.
WP(C) No. 1288 of 1984
1. The petitioner is a society duly registered under the Societies Registration Act, 1860 and is a representative body of the residents of „Block A‟ of Defence Colony, New Delhi. Sh. N.S.Suri, General Secretary of the petitioner is alleged to be duly authorized and empowered to WP(C) 1288/1984 & WP(C) 1342/1984 Page 2 of 27 institute and file the present petition in terms of the resolution dated 13th May, 1984.
2. The petitioner is seeking issuance of a writ of mandamus directing respondents nos. 1 and 2, Government of India and Land & Development Officer, to transfer the plot of land admeasuring 2.8 acres shown in red in the site plan annexed with the petition, in favour of the petitioner association and also for quashing of sale/transfer of the plot admeasuring 0.72 acres in favor of the respondent no.3, Delhi Children Little Theatre, by respondent no.2, Land and Development Officer, and also prohibiting respondent no.3 from raising a theatre building or any other construction on the plot.
3. The facts relevant for this writ petition are that in the year 1947 for rehabilitation of the officers of the armed forces, Navy and Air force, who had migrated to India on partition, certain colonies were set up by the Central Government in the erstwhile village „Kirlokari‟ now known as „Defence Colony‟. The residential plots were planned, developed and allotted to the displaced persons by the Directorate of Resettlement, Ministry of Defence. According to the petitioner, it was represented to them by the Directorate of Resettlement that the „red‟ portion as shown in the site plan annexed with the petition admeasuring approximately 2.8 acres was earmarked for the JCOs (Junior Commissioned Officer‟s) Club for recreational purpose. Acting on this representation, the plots were purchased by the members of the petitioner association for WP(C) 1288/1984 & WP(C) 1342/1984 Page 3 of 27 construction of residential houses opposite to the open land earmarked for JCO‟s club. It is the case of the petitioner that they were made to pay Rs.22 per square yard for residential plots and Rs.23 per square yard for the corner plots which price was much higher than the price of land in the adjoining colonies and that the price of land paid by the residents included the cost of land as well as the development charges of the entire open land including the land earmarked for the JCOs club. The respondents were, therefore, required to execute the necessary transfer/lease deeds in respect of the said land in favour of the petitioner. It is alleged that various representations were made to the Central Government which were responded and no action was taken by the respondents. A representation dated 18th February, 1963 was also made by the petitioner seeking transfer/allotment of the said plot for JCOs club followed by another representation dated 20th August, 1970 to the then Prime Minister seeking a direction for sale /transfer of the plot of land in dispute for JCOs club. An offer to pay a nominal value for land was also made to the respondent nos. 1 & 2. Despite the offer no transfer/allotment has been effected by the respondents in favour of the petitioner.
4. Petitioner also allegedly made representations to the Ministry of Works and Housing requesting the Ministry to expedite the process of allotment. According to the petitioner by a letter dated 31st October, 1972 of the Ministry of Works and Housing, the petitioner was assured WP(C) 1288/1984 & WP(C) 1342/1984 Page 4 of 27 that the allotment of the said land would be made to the petitioner. Thereafter, the petitioner made innumerable representations to the Ministry of Works and Housing; Ministry of Labour, Employment and Rehabilitation; the Central Minister, Mr.Buta Singh and Director General of Resettlement for expediting the process of allotment of the said land to the petitioner, but all has remained in vain.
5. According to the petitioner the respondents are under an obligation to transfer the said land to the petitioner association either free of cost or on payment of a nominal rate of Rs 5000/- per acre in terms of the press note issued in 1965. The petitioner contended that since the plots were purchased by the petitioner on the representation of the respondents that there would be a JCOs club in the area, consequently, the principle of estoppel would be applicable and the respondents are estopped from resiling from its earlier representation and they cannot sell the said land to any other agency or organization.
6. The petitioner further contended that by virtue of continuous, uninterrupted and hostile possession of the entire piece of land earmarked for JCOs club for over 30 years, the petitioner has become the owner of the said plot of land. The petitioner pleaded that despite numerous representations made to the respondents for allotment of land to the petitioner association, the respondents instead allotted to the respondent no. 3 a plot of land admeasuring 0.72 acres on a nominal consideration of Rs. 25,000/-for erecting a theatre building WP(C) 1288/1984 & WP(C) 1342/1984 Page 5 of 27 despite the same being shown as earmarked for JCOs club in the zonal development land, as well as in the Master Plan which was prepared by the DDA. This allotment was contrary to numerous assurances given by the Governmental agencies to the petitioner that the allotment to the petitioner association is under consideration. According to the petitioner on 10th May, 1984 the respondent no.3 with the aid of police came on the disputed site where a park was existing containing swings, see-saw etc. and by using force started constructing a boundary wall. In the process the respondent no.3 had removed swings, seesaw and other children games from the park. This caused a loss of Rs.50,000/- to the petitioner association. The petitioner by way of this petition has challenged the transfer of 0.72 acres of the land by the respondent nos. 1 & 2 to respondent no.3 for erecting a theatre building on the ground that the allotment and construction of theatre is unjust, illegal, capricious and violative of the statutory provisions.
7. The Petitioner has challenged the allotments made by the respondent no.2 in favor of respondent no.3 for the purpose of constructing a theatre on the ground that same is in violation of land use prescribed for the said piece of land in the Master Plan and the Zonal Development Plan which is "recreational" and that the Delhi Children Theatre group does not fall within the definition of "recreational" and the construction is also in violation of the Building Bye-laws framed by the MCD as the area is purely residential and WP(C) 1288/1984 & WP(C) 1342/1984 Page 6 of 27 cannot be used for the purpose of constructing a theatre. The petitioner being the original allottee, the offer for sale should have been made to the petitioner association first, on nominal value than the prevailing market price. The petitioner also contended that the principle of promissory estoppel would be applicable as the plots were purchased by the petitioner at the rates higher than the rates then prevailing for the similar land in the neighboring areas on the representation of the respondents that there would be a JCOs club in the area. It is asserted that the respondents cannot now resile from their promise and representations made to the petitioner.
8. The respondents have contested the petition and have filed an affidavit of Sh. C.S.P Sastry, S/o Sh. Satya Narayan, Engineer officer, Land and Development office, Ministry of Works and Housing refuting the averments made in the petition. The respondents contended that the allotment of 0.72 acres of land to the Delhi Children Little Theatre is in accordance with the layout plan approved by the MCD under the relevant provisions of the Delhi Municipal Corporation Act, 1957 and that same is in conformity with the Master Plan which came into force on 1st September 1962 under section 9 of the Delhi Development Act, and that the allotment of land is also in conformity with the Zonal Development plan for the area approved by the Delhi Development Authority and the Central Government under section 9 of the Delhi Development Act. The respondents contended that the allotment of WP(C) 1288/1984 & WP(C) 1342/1984 Page 7 of 27 0.72 acres of land to Delhi Children Little Theatre in 1963 is in accordance with law and that the residual land of 2.185 acre belongs to the government of India and not to the residents of the colony as the cost of land for alleged JCO‟s club other than the plots was not paid by the residents nor was it included in the price of the residential plots. It is asserted that the Government is the owner of the land and has full liberty to allot the same to any institution or organization in accordance with rules for permitted land use.
9. According to the respondents in the original layout plan of the defence colony plots measuring 6.2 acres and 3 acres were earmarked for officer's Club in sector „C‟ and JCO‟s club in sector „A‟ respectively and the clubs were to be developed by Ministry of Defence. Since no interest was shown by the Ministry of Defence in developing the clubs, therefore, 6.2 acres plot was divided into four plots and allotted to various institutions and from the land earmarked for JCO‟s club, 0.72 acre was carved out and allotted to Delhi Little Children Theatre for construction of office, training centre and children Theatre on 16th April, 1963. The amendments in the layout plan of the Defence Colony was approved by the Municipal Corporation of Delhi. The respondents submitted that the land use of the plot of 2.185 acre shown for club is recreational according to the Zonal Development Plan and that 1 acre of land has already been allotted in sector „C‟ in 1975 and a club is functioning there and that the land allegedly earmarked for JCO‟s Club WP(C) 1288/1984 & WP(C) 1342/1984 Page 8 of 27 cannot be used for community centre without amendment to the Zonal Development Plan under Section 11A of the Delhi Development Authority Act, 1957. The respondent contended that the allotment of 0.72 acres of land out of 3 acre plot earmarked for social and cultural institution to Delhi Children Little Theatre in 1963 was also approved under the Zonal Development Plan.
10. The Respondents further contended that the lands were allotted to social and cultural institutions after verification by the Ministry of Works and Housing on payment of premium based on concessional predetermined rates by the Government and that the Delhi children Little Theatre, as well as the petitioner paid the premium at the specified rates for the plots of land allotted. According to the respondent the land where the Defence Colony is situated is a part of Nazul Land acquired in 1911 for construction of capital city of Delhi and that when the Defence Colony was constructed after partition of the country, only the cost of the land allotted to various residents was recovered from the allottes and that the ownership of all the vacant lands which were earmarked for the clubs and the other organization continue to vest with the Government of India. According to respondents when an allotment of a vacant land is made to a party or institution then in such a case premium at predetermined land rates is recovered for the purpose for which it is allotted on the basis of the rates in force at the time of allotment. The respondents asserted that WP(C) 1288/1984 & WP(C) 1342/1984 Page 9 of 27 the land use of the area of Defence Colony in terms of the Master Plan is residential and that social and cultural institutions are permitted in residential land use area according to the Master Plan and that allotment of land to Delhi Children Little Theatre board in accordance with the statutory local bye-laws and Master Plan and that the plot allotted to Delhi Children Little Theatre is reflected as "social and cultural institution" in the Zonal Development plan. According to the respondents the allotment of 0.72 acres of land made to Delhi Children Little Theatre was in strict conformity with the layout plan and approved by the Delhi Municipal Corporation, which was the competent authority before the advent of the Master Plan on 1st September, 1962 and that the land use of the remaining area of 2.185 acres is club. As per the Zonal Development plan this land belongs to the Government as the cost of this was not recovered from the residents nor was it included in the price of land for the residential plots and that if a community centre is to the constructed on this plot, it will require a change in land use. The respondents have therefore contended that the petitioner has no locus standi to claim ownership or question the allotment made to the Delhi Children Little Theatre.
11. The respondent no.3, Delhi Children‟s Little Theatre, name of which has been changed to Delhi Children Theatre Group, refuted the averments made in the petition by an affidavit of Smt. Shyama Aggarwal, President of Delhi Children‟s Theatre Organisation. She WP(C) 1288/1984 & WP(C) 1342/1984 Page 10 of 27 contended that the petition is barred by time as the same has been filed after two decades of the allotment of land to respondent no.3. The land was allotted to respondent no.3 in 1963 and the physical possession was handed over on 10th October, 1966. The respondent no.3 has remained in the continuous possession of the allotted land despite the plot remaining unused for some time. The respondent no.3 also contended that the petitioners have no locus standi to institute the present petition as they are neither the allottees of the land nor the owners. It was also stated that there is no deviation in the land use as the activities of Delhi Children‟s Theatre falls in the category of „Social and Cultural Institution" and has been approved by the Government of India and is also approved under the Zonal Development plan and under section 9 of the Delhi Development Act. The respondent no.3 submitted that it is a social service organization and is not a „theatre‟ or a „cinema hall‟ instead the objective and purpose of this society is to advance education of children and to co-ordinate the activities of the schools and children organization. The plot of land is not used for constructing a theatre building, instead the respondent no.3 plans to erect a training centre for the children and same is not in contravention of the Building Bye-Laws and that the activities of the respondent no.3 are such which can be put to use in the residential colony. WP(C) 1288/1984 & WP(C) 1342/1984 Page 11 of 27 WP(C) 1342/1984
12. The petitioners are the residents of the Block „A‟, Defence Colony. After their association of Defence Colony `A‟ Block filed the writ petition being WP(C) 1288 of 1984, they filed above noted writ petition. They also sought quashing of the order passed by the respondent no.4, Land and development Officer in favor of respondent no.5, Delhi Children‟s Theatre Group, and a mandamus directing respondents to restore back the possession of the land in dispute to the petitioners.
13. They alleged that the Defence Colony was developed by the Military Engineering Service, Government of India, in the erstwhile village „Kirlokari‟ for the benefit of the officers of the defence services who were displaced from West Pakistan for the purpose of grant of compensation to them in lieu of the properties left behind by them in West Pakistan. According to the petitioners the Block „A‟ of the Defence Colony was earmarked for the officers who were earlier called the Viceroy‟s Commissioned Officers (VCOs) and after independence were re-designated as the Junior Commissioned Officers (JCOs). The petitioners relying on the sanctioned plan of the Defence Colony as approved by the Government of India and duly signed by the Chief Works Engineer and Military Engineering Service contended that the „red‟ portion as shown in the site plan admeasuring approximately 2.8 acres was earmarked for the JCOs (Junior Commissioned Officer‟s) Club for "recreational" purpose. According to them on account of this WP(C) 1288/1984 & WP(C) 1342/1984 Page 12 of 27 representation of the respondents, the plots were purchased by the petitioners for construction of residential houses opposite to the open land earmarked for JCO‟s club. It is the case of the petitioners that the price of land paid by the residents included the cost of amenities like roads, parks, shopping centre and open space including the land earmarked for the JCOs club.
14. According to the petitioners no contravention or deviation in respect of the user of land or otherwise is permissible once the Master plan and the zonal development plans were finalized and published in the manner under sections 7, 8, 9,10,11 and 11A of the Delhi Development Act, and that same is prohibited under section 14 of Delhi Development Act. The petitioners have relied on Buildings Byelaws no.98 (4) (a) to contend that construction of a theatre in a residential area is strictly prohibited. According to the petitioners the user of the land in dispute in terms of the Master Plan for Delhi published by the Delhi Development Authority in regard to land use of the area is "recreational".
15. The petitioners contended that respondent no.5, Delhi Children's Theatre Group, obtained allotment of the disputed portion of the site earmarked for the JCOs club in the year 1963 which land could not be transferred to the respondent no.5 as the residents of the Block `A‟ of Defence Colony paid for the land comprised of the disputed portion of the site and that the same does not vest with Land and Development WP(C) 1288/1984 & WP(C) 1342/1984 Page 13 of 27 Officer, respondent no.4. According to them the activities carried on by the said respondent is not recreational in terms of the Master Plan. The petitioners have challenged the allotment order on the ground that the activities carried on by the respondent no.5 does not in any manner have any relevance to the residents of the Defence Colony in general and to the residents of the `A‟ block in particular and therefore, the allotment of land to the respondent no.5 is bad.
16. The petitioner further contended that since the respondent no.5 did not make any effort to implement and enforce the order of allotment made by respondent no.4 in the year 1963, therefore, after a lapse of two decades the same cannot be given effect to. In April, 1984 for the first time efforts were made by the respondent no.5 to obtain possession of the disputed site, however, all its efforts were foiled by the residents of the `A‟-Block. The petitioners also stated there existed a park on the disputed site containing swings, see-saw etc. The respondent no.5, however, used police force to obtain possession of the plot and in the process had removed swings, seesaw and other children games and a temporary structure and signboard was put up there by dispossessing the residents of `A‟-Block. The petitioners have thus challenged the allotment made to the respondent no.5 by respondent no.4 on the ground of the same being made without jurisdiction since the property vest with the residents of Block `A‟ and not with the respondent no.4 and was utilized by them for children's park.
WP(C) 1288/1984 & WP(C) 1342/1984 Page 14 of 27
17. According to the petitioners in accordance with the Master plan of Delhi and the Zonal development plan, the plot is a "recreational" area in which no institutional activity or Theatre could be put up and the same is in contravention of Building Bye-Laws number 98(4). The petitioners also contended that allotment is in contravention of the Master Plan and Zonal Development Plan prepared and promulgated under the Delhi Development act, and also in terms of the Building Bye Laws made under the Municipal Corporation of Delhi Act, 1957. Further since the order has not been acted for over 20 years and as the land was always in the occupation of the residents for over 30 years, therefore, the residents had perfected their title to the disputed plot by adverse possession. The petitioners also contended that the principle of promissory estoppel would be applicable as the plots were purchased by the petitioners on the representation of the respondents that there would be a JCOs club in the area. According to the petitioners no allotment could have been made by respondent no.4 in favor of respondent no.5 without changing the user of land in accordance with Delhi Development Act and in compliance with the Building Bye Laws. The petitioners have also challenged the allotment on the ground that no notice/ opportunity was given to the petitioner's/JCO‟s club/A- Block resident‟s welfare association objecting to the change of user from "recreational" to "institutional" by the Delhi Development Authority. WP(C) 1288/1984 & WP(C) 1342/1984 Page 15 of 27
18. The respondent nos 1 and 4 have filed their reply to the petition by way of an affidavit of Sh. C.S.P Sastry, S/o Sh. Satya Narayan, Engineer officer, Land and Development office, Ministry of Works and Housing refuting the averments made in the writ petition. The respondents contended that the allotment of 0.72 acres of land to the `Delhi Children Little Theatre‟ is in accordance with the layout plan approved by the MCD under the relevant provisions of the Delhi Municipal Corporation Act, 1957 and that same is in conformity with the Master Plan which came into force on 1st September 1962 under section 9 of the Delhi Development Act, and it is also in conformity with the Zonal Development plan for the area approved by the Delhi Development Authority and the Central Government under section 9 of the Delhi Development Act. The respondents contended that the allotment of 0.72 acres of land to `Delhi Children Little Theatre‟ in 1963 was in accordance with law and that the residual land of 2.185 acre belongs to the government of India and not to the residents of the colony as the cost of the said land was not paid by the residents nor was it included in the price of land for the residential plots and that government being the owner of the land has full liberty to allot the same to any institution in accordance with permitted land use.
19. According to the respondents in the original layout plan of the Defence colony plots measuring 6.2 acres and 3 acres were earmarked for officer's Club in sector „C‟ and JCO‟s club in sector „A‟ respectively WP(C) 1288/1984 & WP(C) 1342/1984 Page 16 of 27 and the clubs were to be developed by Ministry of Defence. Since no interest was shown by the Ministry of Defence in developing the clubs, therefore, 6.2 acres plot was divided into four plots and allotted to various institutions and from the land earmarked for JCO‟s club 0.72 acre was carved out and allotted to Delhi Little Children Theatre for construction of office, training centre and children‟s theatre to the Delhi Little children Theatre on 16th April, 1963 and the amendments in the layout plan of the Defence colony was approved by the Municipal Corporation of Delhi. The respondents submitted that the land use of the plot of 2.185 acre shown for club is recreational according to the Zonal Development Plan and that 1 acre of land has already been allotted in sector „C‟ in 1975 and a club is functioning there and that the land earmarked for JCO‟s Club cannot be used for community centre without amendment to the Zonal Development Plan under Section 11A of the Delhi Development Authority Act, 1957. The respondents contended that the allotment of 0.72 acres of land out of 3 acre plot earmarked for social and cultural institution to Delhi Children Little Theatre in 1963 was also approved under the Zonal Development Plan.
20. The Respondents further contended that the lands were allotted to social and cultural institutions after verification by the Ministry of Works and Housing against payment of premium based on concessional predetermined rates by the Government and that the Delhi Children WP(C) 1288/1984 & WP(C) 1342/1984 Page 17 of 27 Little Theatre, as well as the petitioners paid the premium at the specified rates for the plots of land allotted. According to the respondents the land where the Defence Colony is situated is a part of Nazul Land acquired in 1911 for construction of capital city of Delhi and that when the Defence colony was constructed, after partition of the country, only the cost of the land allotted to various residents was recovered from the allottees and that the ownership of all the vacant lands such as that earmarked for the clubs and the like continued to vest with the Government of India. According to respondents when an allotment of vacant land is made to a party or institution, then in such a case premium at predetermined land rates is recovered for the purpose for which it is allotted on the basis of the rates in force at the time of allotment. The respondents asserted that the land use of the area of Defence colony in terms of the Master Plan is residential and that social and cultural institutions are permitted in residential land use area according to the Master Plan and that allotment of land to Delhi Children Little Theatre Board is in accordance with the statutory local bye-laws and Master Plan and that the plot allotted to Delhi Children Little Theatre is reflected as "social and cultural institution" in the Zonal Development plan. According to the respondents the allotment of 0.72 acres of land made to Delhi Children Little Theatre was in strict conformity with the layout plan and approved by the Delhi Municipal Corporation, which was the competent authority before the advent of the master plan on 1st September, 1962 and that the land use WP(C) 1288/1984 & WP(C) 1342/1984 Page 18 of 27 of the remaining area of 2.185 acres is club. As per the Zonal Development plan, this land belongs to the Government as the cost of this was not recovered from the residents nor was it included in the price of land for the residential plots and that if a community centre is to the constructed on this plot, it will require a change in land use. The respondents have, therefore, contended that the petitioners have no locus standi to claim ownership or question the allotment made to the Delhi Children Little Theatre.
21. The respondent no.5, Delhi Children‟s Theatre Group, refuted the averments made in the petition and filed an affidavit of Smt Shyama Aggarwal, President of Delhi Children‟s Theatre, taking similar pleas as were taken refuting the allegation made in the writ petition filed by the Association.
22. The respondent no.3, Municipal Corporation of Delhi, has also filed its reply to the petition by an affidavit of Sh. Ashok Malik, Sr. Draftman, Town Planning Department, Municipal Corporation of Delhi stating that as per the MCD records in the year 1961 the disputed site was notionally earmarked for JCO‟s club, however, in 1962 on the request of Engineer Officer (Lands), CPWD, a site measuring 0.72 acres was approved by the Commissioner, MCD vide decision of item No.5A dated 21st September, 1962 for allotment to Children‟s Little theatre and that 0.5 acres had been approved for JCO‟s club by the MCD by decision dated 717/Stg. dated 15th May, 1976. The respondent no.3 WP(C) 1288/1984 & WP(C) 1342/1984 Page 19 of 27 also stated that as per the Master Plan the land use is residential; as per Zonal plan the land use is Club and as per the lay out plan of MCD it is in accordance with the approval accorded by MCD. The respondent no.3 further stated that there is no deviation in the land use as the activity of the Delhi Children‟s little Theatre and that of JCO‟s club are included in the category "recreational" as defined in the master plan.
23. The Delhi Development Authority, has also filed its reply to the petition by an affidavit of Sh. Nathu Ram, Secretary, DDA submitting that the land in dispute vests in Land and Development officer and that it does not belong to the residents of the Block-A, Defence Colony. The respondent no.2 asserted that as per the approved Zonal development Plan, the use is indicated as partly for club and partly for social and cultural use (public and semi public use facilities
24. This Court has heard the learned counsel for the parties in detail. In order to claim the allotment of land in their favour the petitioners must establish their right on the land or an agreement between the petitioners and the respondents to transfer the land in accordance with the terms of the agreement. There is no agreement between the petitioner‟s Association of residents of block ' A‟ and the respondents. The agreements between the residents and the respondents in respect of their plots in Defence Colony in Block `A‟ have not been produced. Apparently these agreements would not be containing any clauses in respect of open land on which it is alleged that JCOs Club is to be WP(C) 1288/1984 & WP(C) 1342/1984 Page 20 of 27 constructed and the land is to be allotted to individual plot holders collectively.
25. The petitioner‟s Association has produced a layout plan certified by the secretary of the Association. The said plan is not admitted by the respondents. A Photocopy of the representation to the Defense Minister dated 18th February, 1963 has been produced however, nothing has been produced to show that this was sent to the Defense Minister. Another photocopy of letter dated 20th April, 1970 has also been produced along with photocopy of letter dated 9th September 1970 acknowledging the letter and stating that the latter has been forwarded to the appropriate Ministry for appropriate action. Copy of another letter dated 30th November, 1970 to the Prime Minister and copy of letter dated 29th May, 1971 to the Minister for Works, Housing and supply has also been produced. Another letter produced is dated 4th November, 1972. The Ministry of Works & Housing stating that the matter pertaining to the petitioner is under consideration. The matter of the petitioner about the allotment of land was transferred to other Ministry and the copies of communication in this regard have also been produced by the petitioners. The petitioners have also produced the representations made by letters dated 24th November, 1977, 10th January, 1984, 16th March, 1984, 26th March, 1984.
26. Individual plot holders in Block `A‟ have also produced an unsigned copy of the plan which was also produced by the Association WP(C) 1288/1984 & WP(C) 1342/1984 Page 21 of 27 and a photocopy of letter dated 20th December, 1956 handing over the possession of plot no. A-444; photocopy of complaint dated 19th June, 1984 to the Station House Officer of Defence Colony against Delhi Children Theatre.
27. None of the documents show that the petitioners have any right over the land whose allotment is sought by them. Mere representations made to the respondents from time to time and some of the communications on behalf of respondents that their representations are under consideration does not create any right in favour of petitioners which can be enforced by them. From the documents produced by the petitioners it cannot be inferred that any such promises were made by the respondents on the basis of which the petitioners can claim the reliefs as has been prayed by them in the above noted writ petitions.
28. On the contrary, the Land & Development office had informed the petitioners as back as on 18th April, 1962 that the land on which the rights are claimed by the petitioners belong to the Government. The petitioners are claiming the right on the land for the JCO‟s Club on the ground that while paying the consideration for the lease of the plot, part of the consideration for the open area including the land for the JCO‟s Club was also received by the respondents.
29. The said allegation has been categorically denied by L & DO in its counter affidavit contending categorically that the cost of the plot only was recovered from the residence of Block-A of the Defence Colony and WP(C) 1288/1984 & WP(C) 1342/1984 Page 22 of 27 no amount was charged in respect of vacant land which continued to vest with the Government of India. Besides the representations filed by the petitioners, no other document has been filed, which will reflect and show in any manner that the price of open land or portion of the price of the open land was included in the price of plot which was charged from the residents of „A‟ Block of the Defence Colony.
30. In the circumstances, neither the petitioners have paid any amount towards the cost of the land on which the JCO‟s Club was proposed at one time nor can they claim any right. There is no admission on the part of the respondents that the open land measuring 2.8 acres shall be transferred to the petitioners at a concessional or nominal price.
31. The petitioners have also failed to disclose or give particulars of any agreement on the basis of which the petitioners can claim rights in the said land or which can be specifically enforced. In any case, in view of the pleas and counter pleas of the parties, there are such disputed questions of facts which may not be determined in exercise of writ jurisdiction of this Court under Article 226 of the Constitution of India.
32. In State of Rajasthan v. Bhawani Singh, 1993 (Supp.) 1 SCC 206, the Supreme Court had held that the question of title to land, if disputed, cannot be satisfactorily gone into or adjudicated in a writ petition. In another judgment reported as AIR 1957 SC 529, Sohan Lal v. Union of India, it was held that the disputed questions of fact WP(C) 1288/1984 & WP(C) 1342/1984 Page 23 of 27 regarding title should not be gone into in a writ petition in exercise of jurisdiction under Article 226 of the Constitution of India.
33. This cannot be disputed in the facts and circumstances that nothing has been produced by the petitioners to show that they are the owners of the land where JCO‟s Club was proposed. Nothing can be established on the basis of any documents filed by the parties that the petitioners have a right of pre-emption or preferential right in respect of land which was proposed for JCO's club. There are no admissions on the part of the respondents that the petitioners have any preferential right or any type of right in the said land. Some communication by the respondents to the petitioners stipulating that their representations are under consideration, would also not give any right to the petitioners nor will it be any admission for any right, in any manner, in the facts and circumstances of the present case.
34. From the pleas and contentions of the petitioners, it is also apparent that except the plea that the allotment of land by the respondent to Delhi Children‟s Little Theatre is in violation of the Master Plan or the Zonal Plan, the petitioners have not filed any documents on the basis of which it can be inferred that the allotment of land on lease is in violation of any statute, rules, Master Plan or Zonal Plan. Rather the plea of the respondents that use of the said land by the petitioners for JCO's club or for any other community purpose will WP(C) 1288/1984 & WP(C) 1342/1984 Page 24 of 27 require amendment to the Master Plan has not been rebutted successfully by the petitioners.
35. On behalf of the petitioners, written points for consideration have also been filed stipulating that the Delhi Children‟s Little Theatre, without any justifiable reason and wrongly has been given extension by respondents 1 to 4 for about 20 years mainly on account of reasons of financial restraints and there has been no effort by respondent No. 5 to show their financial credit worthiness to run the institution. The plea is contrary to the averments made in the writ petition and the rejoinder and cannot be allowed to be taken in the garb of points for consideration. The petitioners have failed to establish any rights on the land which has been allotted to the Delhi Children's Little Theatre. In the circumstances they cannot allege violation of any term of lease executed between the respondents no. 1 to 3 and the respondent no.5 in the facts and circumstances.
36. Similarly, the plea that the Delhi Children‟s Little Theatre does not have any activity worth the name till date is also not reflected from the pleadings of the parties. In any case, the case of the petitioners is not that the lease in favor of Delhi Children‟s Little Theatre be cancelled on account of not having any activity but the case set up in the writ petitions is that the allotment of the land is contrary to the Master Plan and the Zonal Plan and the procedural bye-laws. Consequently, even if, the respondent/Delhi Children‟s Little Theatre does not have any WP(C) 1288/1984 & WP(C) 1342/1984 Page 25 of 27 activity worth its name, the same shall not entitle the petitioners to have the lease in favor of the said society cancelled and for restoration of the possession of the land to the petitioners.
37. The plea regarding the land allotted to the Delhi Children‟s Little Theatre being in the middle of the four residential areas and from single storey houses in 1962 to 3-4 stories all around it will make it almost impossible for the infrastructure to bear any further pressure, also it is not acceptable in the facts and circumstances as on account of construction around the area allotted to Delhi Children‟s Little Theatre, the lease in favor of the said society cannot be cancelled nor the petitioner shall be entitled for restoration of possession of the land of the society to them. In any case, if the petitioners are not entitled for allotment of the land in their favor on the ground that they have a right in the same and it is to be allotted to them at a concessional rate, even if for some reason the lease of the said society is liable to be cancelled, the possession of the same cannot be restored to the petitioner.
38. In the entirety of the facts and circumstances, the petitioners have failed to make out a case seeking directions from this Court to issue a writ to Union of India and L & DO to transfer or sell or lease the land admeasuring 2.8 acres at concessional rates or free of cost in favor of the petitioners nor the petitioners are entitled for a direction to quash the sale of portion of the land admeasuring .72 acres made by the UOI and L& DO to the Delhi Children‟s Little Theatre.
WP(C) 1288/1984 & WP(C) 1342/1984 Page 26 of 27
39. In the circumstances the petitioners are not entitled for the relief claimed. The writ petitions are therefore, dismissed and the interim order dated 1st June,1984 in CWP 1288 of 1984 and interim order dated 6th March, 1985 in CM 1815/1984 in CWP 1342 of 1984 are vacated. In the facts and circumstances, the parties are however, left to bear their own costs.
December 10, 2010 ANIL KUMAR J.
rs
WP(C) 1288/1984 & WP(C) 1342/1984 Page 27 of 27