Delhi District Court
North Delhi Municipal Corporation vs ) Truck Owners Welfare Society - Delhi on 26 November, 2015
IN THE COURT OF SH. YOGESH KHANNA
DISTRICT & SESSIONS JUDGE (NORTHWEST)
ROOM NO. 401, ROHINI COURTS, DELHI
MCD APPEAL NO. 11/12
North Delhi Municipal Corporation
Through its Commissioner
Civic Centre, Minto Road
New Delhi ........Appellant
Vs.
1) Truck Owners Welfare Society - Delhi
Through its President Sh. Kultaran Singh
Having its office at :
BG531, Sanjay Gandhi Transport Nagar
Delhi - 110042
2) Azad Market Welfare Association
Through its General Secretary
Azad Market, Delhi ..........Respondents
Date of institution : 31.07.2012
Date of clarifications : 10.11.2015
Date of Judgment : 26.11.2015
MCD Appeal No. 11/12 Page 1 of 25
JUDGMENT
1) This Judgment shall govern the disposal of an appeal filed by the appellant against the Judgment dated 23.04.2012 passed by the Learned Additional District & Sessions Judge cum Presiding Officer, Appellate Tribunal, MCD, whereby the learned Appellate Tribunal, MCD, had kept in abeyance, the resolution no. 547 dated 10.09.2008 and resolution no. 610 dated 21.02.2005 and has directed to maintain the status quo regarding fresh allotment of any further plots/shops etc. in Sanjay Gandhi Transport Nagar, PhaseI (in short SGTN) in pursuance of the resolution no. 547 dated 10.09.2008 and resolution no. 610 dated 21.02.2005. It was further ordered that no individual plan for construction of any building shall be passed in respect of those allottees who have already been given allotment letters in the area on the basis of the above resolutions, but the MCD shall be at liberty to initiate fresh proceedings for change of layout plan after considering the objections of the respondent no. 1 society as well as of the general public by MCD Appeal No. 11/12 Page 2 of 25 giving public notice in the newspapers and also to call the reports from the Fire Department, Police Department, Disaster Management Department and from other important offices before putting up the matter before the Standing Committee again and various provisions of Master Plan 2021 have also to be taken into consideration before dealing with any revision in layout plan.
2) The brief facts which led to filing of the present appeal are that with a view to decongest the city, the scheme for establishing SGTN was initiated in the year 1976 and that in the year 1983 the land was made available to MCD by DDA and that in the year 1984, a plan of 69.94 hectares of SGTN, PhaseI, was prepared by the Town Planning Department and the same was approved by the Standing Committee vide its resolution no. 118 dated 01.03.1984. Subsequently, the plan of SGTN, Phase2, measuring 14 hectares was also prepared by the Town Planning Department and was approved by the Standing Committee vide its resolution no. 240 dated 27.03.1985.
MCD Appeal No. 11/12 Page 3 of 25In the year 2004, the Office of the Director/SGTN got a revised layout plan prepared through a Planning Consultant. The consultancy job was entrusted to the School of Planning and Architecture. While preparing the revised layout plan of PhaseII, four facilities sites of PhaseI, SGTN, were also converted into regular plots (godowns/workshop plots) by the Consultants. The revised layout plan of PhaseI with four facilities sites of SGTN was got approved by the Office of Director/SGTN from the Corporation vide its resolution no. 610 dated 21.02.2005. The revised layout plan prepared by the Consultant was not referred to the Town Planning Department prior to placing it before the Corporation. Earlier Pocket - A out of the four sites of PhaseI was only approved by the Standing Committee vide its resolution no. 659 dated 29.03.2000 for implementing the facilities like commercial offices, restaurants, small shops, public convenience, parking etc., but subsequently the modifications were carried out on the approved layout plans of Phase I & II by the Office of Director/SGTN and referred to Town Planning Department for consideration. After MCD Appeal No. 11/12 Page 4 of 25 scrutinizing the proposal, the case was placed before LOSC vide item no. 42/08 dated 09.05.2008 and the following decision was taken : "The case was discussed and it was decided that the layout plan both for PhaseI and PhaseII, be worked out again defining the areas required and provided under plots, commonly facilities, green and roads etc. and be brought back to LOSC again".
In compliance of the above decision of the LOSC, the details of plots have been worked out by the Director SGTN and the same was referred to Town Planning Department vide no. 2116/Dir./SGTN dated 06.06.2008 for modifying the layout plan of PhaseI and PhaseII, SGTN. After receiving the requirement of plots from the Director SGTN, the layout plan of PhaseII, SGTN was revised.
Furthermore, while remodifying the layout plan of PhaseI, it has been observed that out of four community facilities sites, only two (A & B) are sufficient to cater to the requirement of plots, as furnished by the Director SGTN. The plots which were carved out in the layout plan of PhaseI & II, SGTN, were more than the required plots furnished by MCD Appeal No. 11/12 Page 5 of 25 the Director, SGTN.
At that time, a contempt case (C) No. 816/2004 was pending and following directions were given by the Hon'ble High Court on 08.05.2008 :
"Pursuant to the orders dated 24.04.2008, Sh. V.K. Bugga, Chief Town Planner (MCD) is present with the record. He states that at his level revised layout plans would be finalized within 30 days and transmitted to the Standing Committee of the MCD for approval. He states that thereafter the role of Engineering Department of the MCD would come into play who would be obliged to carry out the necessary development. Simultaneously, the Director, Sanjay Gandhi Transport Nagar would be making allotments followed by possession being handed over".
Thus as required under Section 313 of the DMC Act, the revised layout plans of SGTN, Phase - I & II were prepared and placed before the Standing Committee for approval.
The respondents herein being apprehensive of the fact that since there is already so much congestion in SGTN, PhaseI, the carving out of more plots in sites A & B, the MCD Appeal No. 11/12 Page 6 of 25 plot marked for community facilities and market; and some horticulture land in Block G, would be disastrous for the occupants of the areas as there being only one entry/exit for the entire area as shown at point E in the plan. It was the concern of the respondent no. 1/truck owners welfare society that the land enmarked for community facilities in sites A & B and for horticulture in Block G was being misused for commercial use and extra load will be put upon parking and community facilities which still have not been developed despite the expiry of period of 26 years and that till date there is no fire station, police station, dispensary, community hall and green belt has been set up in the area and even the drainage system is badly chocked and inadequate. The Disaster Management Cell in its report pointed out that looking at the type of business activities being carried out in the area, besides installation of pollution meters to measure level and noise of chemical pollution, decongestion and formation of green belt areas was recommended.
The respondent no. 1 filed an appeal before the learned Appellate Tribunal MCD, Delhi, praying therein to MCD Appeal No. 11/12 Page 7 of 25 set aside the resolution no. 547 dated 10.09.2008 and resolution no. 610 dated 21.02.2005 and the learned Appellate Tribunal MCD vide its Judgment dated 23.04.2012 order status quo on such resolutions. Hence, the present appeal.
Notices of the appeal were issued to the respondents and they accordingly appeared before the Court.
3) I have heard the arguments addressed on behalf of both the parties and have also perused the entire record including the impugned Judgment.
4) It is pertinent to mention that the record shows that a proposal was mooted in the year 1976 to establish SGTN on "No Profit No Loss" basis to decongest the city. In this regard the applications were invited from the person engaged in transport and allied business. In all 1134 numbers of applicants were allotted plots in the draw of lots held on 27.12.1986. This phase was termed as SGTN PhaseI. Subsequently additional land was handed over by MCD Appeal No. 11/12 Page 8 of 25 DDA and fresh applications were invited in the year 1984, again from the person engaged in transport and allied business.
In the year 2001, a Screening Committee was constituted to ascertain the eligibility of the applicants. Out of 1085 number of applicants, 746 number of applicants were in the fray as eligible for allotment of plots. This phase was termed as Phase - II of SGTN.
The layout plans for SGTN, PhaseI and Phase - II were drawn and prepared by Chief Town Planner. In PhaseII, 330 number of plots were carved out. Since number of plots in PhaseII were less to satisfy the eligible candidates so such plots were considered quite inadequate to implement the PhaseII scheme. For this scheme, there was no categorical specification that which category of applicant would get what types of plots. There was probability of availability of three categories of plots viz. for godown, for workshop and for shops.
Keeping in view the inordinate delay in implementation of the scheme, it was felt that land available MCD Appeal No. 11/12 Page 9 of 25 at the site should be replanned so that the eligible applicants be accommodated.
Accordingly the work of revision of layout plan was entrusted to Professor A. K. Sharma, Department of Transport Planning, School of Planning and Architecture, New Delhi, as a Consultant and he prepared a revised layout plan and integrated plan of PhaseI and PhaseII was received from the Consultant.
While preparing the revised layout plan of Phase II, four facility sites of PhaseI, SGTN, were converted into regular plots/godown/workshops/plots by the Consultant. The Corporation vide Resolution No. 610 dated 21.02.2005 approved this revision which resulted in reduction in area under community facilities.
Subsequently, while remodifying the layout plan of PhaseI, it was observed by the Transport Department that out of four community facility sites, only two (A & B) are sufficient to cater to the requirement furnished by the Director, SGTN. Consequently, the plots C & D in layout plan were retained under community facilities. This proposal MCD Appeal No. 11/12 Page 10 of 25 was approved vide Resolution No. 547 dated 10.09.2008 with C & D sites marked for community facilities. The matter regarding development and maintenance of social and physical infrastructure like sewerage, drainage, roads, toilets and parking was taken up by the Director, SGTN.
Now in the meanwhile, tyre shops of tehbazari from Rani Jhansi Road and Gaushala Marg for widening of Kishan Ganj RRUB were to be relocated at SGTN, PhaseI. Yet again the revised proposal was prepared in conformity to the earlier approved layout plan of Relocation Scheme, SGTN, PhaseI, approved by the Standing Committee Resolution No. 1108 dated 21.01.2009. Besides relocation land of 1718/89 meter for shops etc., three entry/exist points through existing parking area for direct accessibility and unrestricted movement/ circulation were proposed. Further the area in between NH1 and proposed layout was proposed to be developed as extensively green with vegetation to avoid any penetration of traffic from NH 1 towards SGTN, PhaseI. The standard drawings were to be prepared by the Architecture Department with respect to the MCD Appeal No. 11/12 Page 11 of 25 consideration contained in approved Standing Committee, Resolution No. 906 dated 03.12.2008 in conformity to Building Bye Laws/MPD2021.
Now on the one hand, the MCD has been working on the revised layout plans for PhaseI and PhaseII to accommodate the eligible candidates, as also the traders of tyre market at Rani Jhansi Road and Gaushala Road and on the other hand various petitions were filed in the Hon'ble High Court concerning development of infrastructure, quick allotment of land and reduction of price viz. allotment without any commercial motives.
As noted above way back on 08.05.2008 in a contempt case no. 816/2014, the following order was passed :
"In pursuant to the orders dated 24.08.2008, Sh. V.K. Bugga, Chief Town Planner (MCD) is present with the record. He states that at his level revised layout plans would be finalized within 30 days and transmitted to the Standing Committee of the MCD for approval. He states that thereafter the role of Engineering Department of the MCD would come into play who would be obliged to carry out the necessary development.
Simultaneously the Director, Sanjay Gandhi MCD Appeal No. 11/12 Page 12 of 25 Transport Nagar, would be making allotments followed by possession being handed over".
This order was even quoted while passing Resolution No. 547 dated 10.09.2008.
Now reverting to the initial allotment. A draw of plots was done on 27.12.1986 and though the plots were though allotted but yet its possession was not handed over to the successful allottees.
Now in the year 1999, W.P. No. 833/99 was filed by such allottees and it was ordered by the Hon'ble High Court that allotment and physical possession are to be given @ Rs. 425/ per sq. meters as ground rent and Rs. 55/ towards electrification charges. Various allottees disputed such additional charges and the said W.P. was disposed of vide order dated 23.10.2010 holding that who have defaulted to pay Rs. 425/, the MCD shall be at liberty to recover Rs. 4500/ per sq. meters. It was a common order applicable to all allottees.
Further in LPA no. 884/2004, the MCD was MCD Appeal No. 11/12 Page 13 of 25 directed to hand over physical possession of the plots to respective allottees in terms of interim order dated 25.05.2006 of the Hon'ble Single Judge. Such LPA was disposed of as withdrawn on 05.02.2008.
Later various writ petitions, one being no. 1285/2013 titled as "DCM Old Tyres Associations vs. MCD"
and petition nos. 5793/2013 and 414/2013 both titled as "Azad Market Old Tyres Association vs. MCD" were clubbed together and various orders were passed by the Hon'ble High Court. The endeavour was to give possession of plots to allottees and to facilitate the same.
In CM No. 827/13 in WP No. 414/13, an order dated 18.12.2014 was passed on an application of Old Tyre Association, wherein the MCD was directed to provide basic amenities and facilities such as water, electricity, sewage, parking etc. Further vide order dated 09.10.2014, Delhi Fire Service, Delhi Police, Delhi Jal Board and NDMC were impleaded as respondents to such writ petitions. Further vide order dated 28.10.2014 the Hon'ble High Court was apprised MCD Appeal No. 11/12 Page 14 of 25 that roads have been constructed, electricity lines have been laid, but drains have not been connected with main drainage.
Further vide order dated 20.11.2014, the Hon'ble High Court directed the EngineerinChief of Delhi Jal Board and NDMC officials to appear and that vide order dated 18.12.2014, the Court was apprised that the area is energized and individual meters have been alloted. The MCD was directed to hold a meeting with the Chief Executive Officer, Delhi Jal Board and concerned Chief Engineer and was further ordered that the issue of sewerage and water supply to SGTN be sorted out. The Commissioner, North MCD, was directed to allot the land for construction of Police Station and Fire Station in accordance with Master Plan 2021.
These writ petitions also reveal that the Hon'ble High Court was aware about the fact that there existed a dispute qua green area being allotted. In fact, it was a subject matter of WP No. 603/2013.
Further WP No. 1285/2013 and WP No. 5797/2013 were taken together and vide order dated MCD Appeal No. 11/12 Page 15 of 25 20.11.2014, it was observed by the Hon'ble High Court that upon receipt of money and on completion of formalities, the MCD shall hand over the physical possession of the plots to the members of tyre association, as expeditiously, but not later then 10 days. Later it was apprised to the Court that draw of lots for remaining 68 plots shall be held on
26.11.2014.
On 18.12.2014 Sh. Sunil Wadhwa, Licensing Inspector, informed the Hon'ble High Court that 93 allottees of SGTN have paid their outstanding dues and that "No Dues Certificates" have been issued to 91 of them. The Incensing Inspector undertook that the possession shall be handed over to the allottees of SGTN by 23rd / 24th of December, 2014 by Deputy Director.
Further vide order dated 28.09.2015, all writ petitions have been disposed of by granting 2 ½ months to the tyre association and allottes at SGTN to carry out construction. Further it was ordered that the shop / premises of such petitioners which have been demolished, be not allowed to be rebuilt and that 2 ½ months time is granted to MCD Appeal No. 11/12 Page 16 of 25 shift to SGTN.
Now in this background when the fate of some of the allottees is hanging since the year 1986 and where the shopkeepers at the Azad Market, DCM Road etc. have been directed to construct their plot at SGTN within 2 ½ months and where there is a direction that whose shops at such market/DCM roads have been demolished for expansion / decongestion, cannot rebuilt their shops, then in such a situation, can such person be denied of their right to livelihood. The equity rather goes in their favour. Simply staying the impugned resolutions on the ground that some of the facilities are yet to be developed or an apprehension that green cover would diminish, is something which can be taken care of by properly monitoring the development of the area but certainly not at the cost of the livelihood of others, whose shops have since been ordered to be demolished at a promise of allotment at this place.
Now coming to the impugned order. The order has been passed, primarily, on the following grounds :
(a) remodification, being not in conformity with MCD Appeal No. 11/12 Page 17 of 25 Master Plan 2021, as various provisions viz., 6.1; 3.2.1 and 9.3 of Master Plan 2021 not considered;
(b) provisions of chapter 3 and chapter 13 MPD 2021 being not considered;
(c) green belt cannot be used for commercial purposes;
(d) the Hon'ble High Court has not directed that only the impugned plots be given.
Qua (a) viz., the remodification being not in conformity with the provisions 6.1; 3.2.1; 9.3 of MPD 2021, I have perused such provisions. Provision 6.1 talks about removal of unauthorized enroachments / projections on roads / government land for facilitating easy movement of traffic in Wholesale Market generated with hazardous materials and shifting of such material in the area assigned to it. It also talks about the new wholesale market for facilitating of intra urban freight movement and interchange of mode whereby serving, lodging and boarding, idle parking and other required facilities. Provision 6.2 talks about 'SubCity Level MCD Appeal No. 11/12 Page 18 of 25 Markets' and per location of Sanjay Gandhi Transport Centre only transport / warehousing activities are mentioned.
Now the learned Appellate Tribunal has taken a view that the transport business did not include the tyre business. Here I may add that if one peruses resolution no. 610 annexed as A9 to the appeal filed by the respondent no.1 before the learned Tribunal, one may find that in the year 1976 a proposal was mooted to decongest the City and applications were invited from the persons engaged in transport or allied business. Total 1464 applications were received out of which 1330 applicants were found eligible and out of them 1134 applicants were allotted plot in the draw of lots held on 27.12.1986. Further yet again the applications were invited in the year 1984 from the persons engaged in transport or allied business for allotment of plot/shop. Hence, since inception, the applications have been invited from the persons engaged even in the allied business of transport, hence, saying that tyre business is not an allied business, would be giving too narrow an interpretation to the phrase "transport/warehousing", especially when the learned MCD Appeal No. 11/12 Page 19 of 25 tribunal itself has observed that nature of business of transportation / warehousing require storage of goods / tyres in the godown of J. K. Tyres, Appollow Tyres, Birla Tyres etc. Hence, this narrow interpretation needs to be brushed aside.
Similarly provision 3.2.1 of MPD2021 relates to 'Green Belt'. This provision refers that land upto the depth of one peripheral village revenue boundary along the border of NCTD, wherever available, be maintained as Green Belt. Further land in Urban Extension is proposed to be broadly distributed in different land uses in the manner as shown in Table 3.2 of MPD 2021 and where the commercial land is there, 45% lands needs to be utilized for green belt.
Now if one peruse the copy of resolution number 1108 dated 21.01.2009, filed by NDMC / appellant herein, a revised proposal has been prepared, in conformity to the earlier approved layout plan of Reallocation Scheme, Sanjay Gandhi Transport Nagar, PhaseI, Delhi and its clause (g) says that the area in between NH1 and proposed layout have to be developed as extensively green with vegetation to MCD Appeal No. 11/12 Page 20 of 25 avoid any penetration of traffic from NH1 onwards SGTN PhI, besides other requirements. Thus the respondent is concerned with green belt covering and if a part of land, earlier enmarked as green belt, if utilized for development purposes, I do not understand how the action of NDMC / appellant herein would be against the provision 3.2.1 of MPD 2021. It is submitted by the learned counsel for the NDMC that even after such allotments, much land is available to develop as a green area.
9.3 of MPD 2021, also speaks about green areas. It is, though, argued that green belt cannot be utilized for commercial purposes. Now the perusal of the record do not suggest that the allotments are made for commercial benefits. Rather the purpose is, primarily to decongest the city.
Now the argument that the appellant is deriving commercial benefit by making allotment does not satisfy me as it is evident that such allotment is being made at a very meager rate of Rs.4,500/ per square meter with a prime object to relocate / resettle the wholesale markets i.e. tyre market situated at Azad Market, Delhi so as to decongest the MCD Appeal No. 11/12 Page 21 of 25 city to rehabilitate such traders and hence, such carving and allotment of plots in SGTN, PhaseI, cannot be said to be done purely for commercial purposes. Rather the same is with a motive to decongest the city and to provide way for the flyover and also to resettle/rehabilitate the occupants of the tyre markets.
Further denying of the right of livelihood to various applicants of market associations or to eligible allottees, whose fate stood hanging since the year 1986 and in whose favour various order have been passed by the Hon'ble High Court of Delhi in various writ petitions, then any order denying its benefit would be against the spirit of the orders passed by the Hon'ble High Court from time to time.
I may add here that already a piece of land admeasuring 1420.5 square meters has been allotted to Delhi Fire Service for establishing a fire station at Block A, Sanjay Gandhi Transport Nagar vide allotment letter bearing number 1426/DIR/SGTN/2006 dated 28.08.2006 and its demarcation and possession of the plot has been delivered to the Delhi MCD Appeal No. 11/12 Page 22 of 25 Fire Service for construction on 04.09.2008. Further yet another piece of land admeasuring 198 square meters has been allotted to Delhi Police for establishing a police post at Sanjay Gandhi Transport Nagar vide letter bearing number 1999/Dir/SGTN/2008 dated 31.01.2008.
Though it is an admitted fact that till date the area which is to be utilized for allotment of plots has not been fully developed. However, the NDMC alleges that most of the vacant land is either being used by the parking mafia or by the owners of different shops utilizing such open areas for manufacturing truck bodies and hence they are against the allotment of lands.
Thus the circumstances suggest that denying allotment to displaced person on the plea that they be placed at some other place would further delay the process of allotment and would rather be restarting it.
Though it is argued that the Hon'ble High Court of Delhi has never ordered the allotment of these very two piece of lands; but it is pertinent to mention that all the parties were aware since the year 2008 about the area enmarked for MCD Appeal No. 11/12 Page 23 of 25 allotment and now further delaying such process would not be in consonance with the decisions / orders passed by the Hon'ble High Court of Delhi in various writ petitions, more so when the NDMC is ready with their bulldozers to bring their shops to ground. In such a scenario where one has to balance the equities, one finds that the balance of convenience lies in favour of the displaced person/allotees, waiting since 1986; the Tribunal ought not to have stayed such resolutions. The grievance of the occupants qua development of different facilities, is already being monitored by the Hon'ble High Court of Delhi, as is being depicted by various orders passed in different writ petitions.
5) Hence in view of above discussion, the prayer of the appellant stands allowed and I hold that the staying of operation of the impugned resolutions was against the spirit of the Orders passed by the Hon'ble High Court of Delhi and accordingly, the impugned Judgment dated 23.04.2012 passed by the learned Addl. District & Sessions Judge cum PO Appellant Tribunal, MCD, Delhi, in Appeal MCD Appeal No. 11/12 Page 24 of 25 No. 700/AT/MCD/2010, stands set aside.
With these observations, the present appeal stands disposed of. The Trial Court Record be returned along with copy of this Judgment. Appeal file be consigned to the Record Room.
Announced in (Yogesh Khanna)
the open Court Distt. & Sessions Judge
today on NorthWest District
26.11.2015 Rohini Courts, Delhi
MCD Appeal No. 11/12 Page 25 of 25