Delhi High Court
Harsh Gupta And Ors. vs New Delhi Municipal Committee And Ors. on 24 July, 1995
Equivalent citations: 1995IIIAD(DELHI)1001, 1995(34)DRJ316, 1995 A I H C 6213, (1995) 34 DRJ 316
JUDGMENT Anil Dev Singh, J.
(1) This is a writ petition whereby the petitioners call in question the action of the first respondent, New Delhi Municipal Committee (now New Delhi Municipal Council) in constructing shops on the road berm/pavement of Sardar Hashmi Road.
(2) The petitioners are the residents of Todarmal Road. who had taken plots from the 4th respondent on 99 years lease and had constructed residential housesthereon. The petitioners claim that illegal construction of shops is being carried out by the first respondent in the vicinity of their houses in violation of the Delhi Urban Art Commission Act, 1973 and the Delhi Development Authority Act, 1957 (for short the Dda Act)., it is also asserted that the land over which the construction is being raised does not belong to the first respondent. It is further averred that the land belongs to the Govt. of India and without the permission of the 4th respondent, Land & Development Officer, three shops have already been constructed and eight more arc in the process of construction on the pavement of Safdar Hashmi Marg near Mandi House. It is stated that the first respondent has not obtained the permission of the 5th respondent, Delhi Urban Art Commission for raising the construction.
(3) It is also pointed out that there are two markets in the proximity of the petitioners' colony, one being Bengali Market at a distance of 150 meters and the other being Refugee Market about 250 meters from their houses. The colony is very small and two markets have been satisfactorily serving the needs of the residents. There was no demand from the residents for additional marketing facilities. On the pavement of Safdar Hashnii Marg, two mother dairy booths for selling milk, butler and vegetables arc already functioning. Subsequently three more cubicles each measuring 6 feet in width and 10 feel in depth were constructed and were auctioned by the first respondent. These kiosks/shops were allotted to the highest bidders. The said three shops, according to the petitioners, came up over night about one and a half months before filing of the present petition.
(4) In reply to the writ petition the first respondent has taken a stand that in view of the development of the area and coming up of the various State Guest Houses and cultural centres, it had become essential to construct eight more stalls, out of which four are to be allocated to the stall holders who are being removed from high security area and the remaining four are to be allotted to the squatters sitting unauthorisedly on the berms of the road. It is also averred that the construction in question does not contravene the Dda Act or the Master Plan or the Zonal Development Plan.
(5) Learned counsel appearing for the petitioners Mr. Endlaw submitted that the first respondent does not have any right to raise construction over the pavements as the streets have been vested in the first respondent only for a limited purpose of keeping the same in good repair. He further contended that the first respondent does not own the soil of the street. It has merely a right to manage and control the surface of the soil in order to maintain the street as a street. He also contended that there is no provision permitting the first respondent to raise structures on the street. It was also stressed that pavement was part of public path way and the open spaces on either side of the road cannot be obstructed by raising construction as they are meant for public to pass and repass on the high way. In this regard he relied upon The Municipal Board, Manglaur vs. Mahudeoji Maharaj, , Municipal Committee vs. Mohammad Ibrahim Air 1935 Lahore 196 and Emperor vs. Vishvanath Nana Karpe and Ors. 1926 Bombay 535. It was next contended by the learned counsel for the petitioners that the first respondent had not taken the permission of the Delhi Urban Art Commission for raising the construction and creating a mini market on the pavement. Besides the action of the first respondent in raising the construction was arbitrary and in violation of the Dda Act, the Master and the Zonal Development Plans.
(6) MR.DAYAL, learned counsel for the first respondent submitted that the land over the street vests in the first respondent for all purposes and it had the right to raise construction on the foothpath. It is vehemently refuted that in the event of construction of the kiosks/shops on the footpath sufficient space will not he left for the use of the general public. Mr.Dayal also contended that the first respondent was not required to secure permission of the Delhi Urban Art Commission under the Delhi Urban Art Commission Act for erecting the stalls/kiosks. He further submitted that the action of the first respondent in raising the construction was neither arbitrary nor violated any of the provisions of the Dda Act or the Master Plan or the Zonal Development Plan.
(7) I have considered the submissions of the learned counsel for the parties and Ms.Kaajal Chandra for Shri Ram Centre. It is not necessary to go into the question of nature of the vesting of the street in the first respondent i.e. whether the street vests in the first respondent for the limited purpose of maintaining it or whether the vesting is for all purposes including raising of construction over it, as on the other points raised by the petitioners, the writ petition must succeed. Accordingly I proceed to decide the other questions namely, whether the construction of kiosks on the pavement along Safdar Hashmi Marg contravenes the provisions of the Dda Act, Master Plan or the Zonal Development Plan, whether the permission of the Delhi Urban Art Commission was required before raising the construction and whether the action of the first respondent was arbitrary.
(8) In order to appreciate the contention of the parties it would be necessary to refer to the representations of the various persons/bodies, including the residents of the Todarmal Lane/Babar Lane, Sangeet Bharti, Shri Ram Centre of Art and Culture and the Resident Commissioner, Haryana, to the first respondent and the Delhi Urban Art Commission in regard to the shops and the existing taxi stand and the shops under construction on the pavement of Safdar Hashmi Marg near Mandi House Case first is a letter of Ms. Sunita Mukhcrjec, Resident Commissioner, Himachal Pradesh, New Delhi to the Administrator, New Delhi Municipal Committee. This letter dated October 30, 1992 (page 112 of the writ record). In this communication it was pointed out that the construction of shops which had come up in front of Himachal Bhawan would create nuisance to the guests besides being a security risk and disturb the peaceful atmosphere of the institutional area. The next is a letter dated November 3, 1992 from the Executive Vice President of Shri Ram Centre of Art and Culture to the first respondent. This letter is in the nature of a complaint in regard to the setting up of a taxi stand at Safdar Hashmi Marg. It points out that the taxi stand in the recent years had spread over the pavement covering the area meant for parking. Besides a motor repair workshop had come up for repairing the taxies and private cars. Objection was also taken to the smoke emitted and the noise created by vehicles at the taxi stand. This was said to he causing environmental pollution. Exception was also taken to the fact that number of people at the taxi stand had increased and the walls of the Centre were often being used by them as urinals thereby creating nuisance. It was pointed out that foreign diplomats and dignitaries were regular visitors to the Centre and even foreign troupes were performing there. The letter also referred to the complaints of the visitors about the filth and foul smell resulting from the location of the taxi stand. An apprehension was also expressed that if this goes on unchecked, the area would become as offensive to the faculties of sight and smell as any other slum area. In the end, it was requested that the taxi stand should be shifted in the interest of cultural complex. Again on October 29, 1992 the Executive Vice Chairman of Shri Ram Centre of Art and Culture wrote to the first respondent in which it was again emphasised that the taxi stand was creating unhygienic conditions in the area. Besides a complaint was made about the construction of some shops on Safdar Hashmi Marg, adjoining the outer wall of Sangeet Bharti building. It was pointed out that the cultural complex of the capital is located in Mandi House which comprises a number of aesthetically designed and architecturally beautiful buildings including prestigious Rabindra Bhawan, Shri Ram Centre, Kamani Auditorium, Little Threatre Group, Himachal Bhawan, Ficci Auditorium, Museum of Natural History, Triveni Kala Sangam etc. It was explained that the complex was regularly visited by artists, high dignitaries from all over India, foreign diplomats and distinguished visitors from abroad, it was stressed that the area in question, where creativity and aesthetics combine to produce the best in performing arts, should be protected so that it remains the cynosure of the capital. and retains its character. There is yet another letter of August 2, 1994 of the Executive Trustee of Shri Ram Centre addressed to the Administrator, NDMC. This letter talks of undesirable effect of shops which had been constructed along the wall of Sangeet Bharti. It points out that an assurance was given by the Ndmc that the shops would be allotted after fully looking to the storage capacity and maintenance of hygienic conditions. It was also regretted that these shops had been occupied by Dhaba Operators, which was undesirable being next to children's nursery school as all all kinds of people would be visiting them. Besides a row of shops had suddenly come up over night, next to mother dairy booth, spoiling the character of the cultural complex. There was also a remonstration against the mechanics and the drivers of the taxi stand, who were using the Centre's toilets and walls for urinating. The persons operating at the taxi stand were held responsible for spreading grease and littering dirt all along the pavemen In the next letter dated May 19, 1994 of the Executive Vice President of the Shri Ram Centre to the first respondent, the same problems created by the construction of the shops and the taxi stand was highlighted. The letter in so far it is relevant reads as under:-
(PAGES117-118 of the writ record) "THE Taxi Stand opposite the Shri Ram Centre continue to grow. The Taxis arc now spread all over on either side of the Safdar Hashmi Marg, A Motor Repair Workshop has mushroomed, and consequently the numbers of mechanics is increasing and they all continue to use our Centre's toilets and the wall of the Centre as a urinal. Earlier Ndmc did take action in this matter, but the Taxi Drivers got a stay order from the court.
WE are now writing to request you to have the Taxi Stand shifted from here. You will appreciate that the matter is of the utmost urgency and should receive top priority.
ANOTHER problem is of the unauthorised Tea Shop along the wall of Sangeet Bharti Institute next to our Centre. There is no water supply or drainage provided and as a result the tea shop area is unhygienic and dirty.
THE construction of 5 shops along the Sangeet Bharti wall will also pose similar problems once they are occupied. Since there is no place provided for any storage there is bound to be some untidy spillover. When the shops arc operating owners/employees of shops will sleep overnight in and around these shops litter and garbage will increase. Most importantly, no provision has been made for toilets with these shops nor is there any provision for fresh tap water. This will definitely result in a health hazard.
THE Centre continues increasingly to be used by visiting foreign troupes and reputed theatre groups in Delhi and other metropolitan cities. It is being regularly visited by foreign dignitaries and international visitors throughout the year.
WE at the Centre would like to join hands with you in presenting to the visitor a clear and beautiful Delhi. Unfortunately if unplanned shops such as these keep increasing in and around Delhi the purpose will be defeated."
(9) To the same effect is another letter dated May 11, 1994 of the Executive Vice President of the Shri Ram Centre to the first respondent. Copies of most of these letters were sent to the Delhi Urban Art Commission. Responding to the aforesaid letters, the Urban Arts Commission by its undated letter, (page 122 of the writ record) wrote to the first respondent that suitable action in the matter should be taken. 10. There are also four letters of Sangeet Bharti to the first respondent complaining about the construction of the shops at Safdar Hashmi Marg. These letters are dated 20th, 23rd, 24th and 24th December, 1992. It appears that earlier the Delhi Urban Art Commission had declined permission to Sangeet Bharti for construction of the building on the following grounds reproduced in the latter's letter dated 24th December, 1992 to the former:-
(PAGE136 of the writ record) "THE plot is located at a very prominent round about facing Ravindra Bhavan and Mandi House and in the vicinity of Himachal Bhavan, Museum of Natural History Shri Ram Centre for Art and Triveni Kala Sangam, forming a significant complex.
THE form and the architectural expression of the proposed building would need further rationalisation so that it is in consonance with the development in the vicinity."
(10) In the aforesaid letter of Sangeet Bharti a question was posed as to how the construction of the shops by the first respondent conforms to the requirements mentioned by Delhi Urban Art Commission.
(11) There are also representations dated 16th August, 22nd August and 27th August, 1994 (pages 52 to 57 of the writ record) from the residents of Todarmal Road/Babbar Lane to the first respondent in regard to the construction of shops in front of their houses, highlighting the fact that the construction would create sanitation and cleanliness problems. It was pointed out therein that no provision for water supply had been made to the tea shop/Dhaba.(See: Representation dated 27th August, 1994 at page 52 of the writ record). Besides, an apprehension has been expressed that the shops When completed will attract undesirable elements affecting the security of the residents. Then there is a copy of the legal notice dated September 9, 1994 (page 49 of the court file) sent to the respondents on behalf of the petitioners on record. In this notice it is stated that 8 new shops are being constructed in front of the houses of the petitioners, that three shops in respect of which construction has been completed have been auctioned, that the shops are being constructed in a most haphazard and unplanned manner which will ultimately lead to slum type conditions and that there was never any demand by the residents for additional shops or mini market (See page 57 of the file). It appears that the first respondent failed to respond to these representations.
(12) It is not denied in the counter affidavit that several social and cultural institutions are located in the area. Rather it is admitted that the area has cultural complex comprising of various institutions, in its vicinity. As already noted the letter of the Delhi Urban Art Commission to Sangeet Bharti, to which a reference was made in the representation of the latter dated 24th December, 1992 (page 136 of the writ record), admits that the area forms a 'significant complex'. One of the ostensible reasons put forth by the first respondent for erecting the kiosks/shops is for catering to the daily needs of the cultural centres and the residents of the area. As is apparent both the residents as well as the cultural centres have opposed the setting up of the shops on the pavement. No document has been placed on record by the first respondent to show that there was a demand by the residents of the area and the cultural centres for providing the stalls on the pavement alongside Safdar Hashmi Marg in the Mandi House area. The assertion of the first respondent therefore, seems to be incorrect.
(13) At this stage it will be convenient to refer to some of the paras of the Zonal Development Plan and the relevant provisions of the Dda Act.
(14) Para 5.1.3 of the Zonal Development Plan shows that several cultural institutions are located near Mandi House. The area has been classfied as Sub-Zone D- 3. This para in so far as it is relevant reads as under:- "MAJOR Public and semi public facilities near Ramlila Ground (D) and Social Cultural Institutions located near Mandi House (D-3) served the whole city."
(15) Para 5.3 of Zonal Development Plan records that Lutyen bungalow area, New Delhi comprises large sized plots and has very pleasant environment. It is also stated that the area is unique in its low density character in the heart of the city. It recommends that while formulating the redevelopment plans of this area, due care should be taken to ensure that its basic character is maintained.
(16) Appendix 'A" to the Zonal Development Plan shows that Sub-Zone D-3 has one local shopping centre and in the remarks column it stated that:- "NOTrequired, available in adjacent areas."
(17) This shows that more local shopping centres were not required. The first respondent on the other hand has not been able to point out either from the Master Plan or from the Zonal Development Plan that the area in question was reserved for a market or a minimarket comprising shops or stalls or kiosks. A land use must be permitted either by the Master Plan or the Zonal Development Plan.
(18) Section 7 of the Dda Act provides that Dda shall prepare a Master Planter Delhi, defining the various zones into which the city is to be divided for the purpose of development and indicate the manner in which the land in each zone is proposed to be used and the stages by which any development will be carried out. The Master Plan is required to serve as a basic pattern or frame work within which the Zonal Development Plan for each zone may be prepared. Besides the Master Plan may provide for any other matter which is necessarry for the proper development of Delhi. Section 8 of the Dda Act lays down that simultaneously with the preparation of the Master Plan or as soon as may be thereafter, the authority shall proceed with the preparation of a Zonal Development plan for each of the zones into which Delhi may be divided. It also provides that Zonal Development Plan may contain a site plan and use plan for the development of the zone and show the approximate location and extent of land uses proposed in the zone for such things as public buildings and other public works and utilities, roads, housing, recreation, industry, business,- markets, schools, hospitals and public and private open spaces and other categories of public and private uses. It may specie the standards of population density and building density. It may also show every area in the zone which may, in the opinion of the Authority, be required or declared for development or re-development. Thus the Master Plan lays down the parameters, and the framework within which the Zonal Development Plan within each zone is to operate. As is evident from section 8 of the Dda Act, Zonal Development Plan has to work out the details of the land use.
(19) After the commencement of the Dda Act, no development of land is to be undertaken or carried out in any area by any person or body including a department of the Government without complying with the provisions of Section 12 of the Dda Act, which provides:-
"(1)As soon as may be after the commencement of this Act, the Central Government may, by notification in the Official Gazette, declare any area in Delhi to be a development area for the purposes of this Act: Provided that no such declaration shall be made unless a proposal for such declaration has been referred by the Central Government to the Authority and the Municipal Corporation of Delhi for expressing their views thereon within thirty days from the date of the receipt of the reference or within such further period as the Central Government may allow and the period so specified or allowed has expired.
(2)Save. as otherwise provided in this Act, the Authority shall not undertake or carry out any development of land in any area which is not a development area.
(3)After the commencement of this Act no development of land shall be undertaken Or carried out in any area by any person or body (including a department of Government) unless,--
(I)where that area is a development area, permission for such development has been obtained in writing from the Authority in accordance with the provision of this Act, (II)where that area is an area other than a development area, approval of, or sanction for, such development has been obtained in writing from the local authority concerned or any officer or authority thereof empowered or authorised in this behalf, in accordance with the provisions made by or under the law governing such authority or the only such provisions have been made, in accordance with the provisions of the regulations relating to the grant of permission for development made under the Delhi (Control of Building Operations) Act, 1955 (53 of 1955), and in force immediately before the commencement of this Act:
PROVIDED that the local authority concerned may (subject to the provisions of Section 53-A) amend those regulations in their application to such area.
(4)After the coming into operation of any of the plans in any area no development shall be undertaken or carried out in that area unless such development is also in accordance with such plans.
(5)Notwithstanding anything contained in sub-sections (3) and (4) development of any land begun by any department of Government or any local authority before the commencement of this Act may be completed by that department or local authority without compliance with the requirements of those sub-sections."
(20) Having regard to the above, it is obvious that the first respondent was required to obtain permission of the concerned authority under the Dda Act before undertaking construction of the shops or kiosks or stalls. No such permission has been placed on record by the first respondent nor is it asserted that any such permission was taken by it. According to sub-section (5) of section 12 of the Dda Act even a local authority is not exempted from complying with the requirements of sub-sections (3) and (4) thereof, which necessitate permission of the appropriate authority for undertaking any development operations after the commencement of the Act. Besides the development has to be in accordance with the plans in force in an area.
(21) From the correspondence referred heretofore, the pleadings of the parties and the Zonal Development Plan, it appears that the cultural complex near Mandi House is the focus of socio cultural life of Delhi. It has acquired a distinct character which needs to be maintained. The first respondent has failed to consider the question as to how the shops/kiosks will integrate with the cultural complex. It needs to be emphasised that the building plans of Sangeet Bharti were not approved by the first respondent on the advice of Delhi Urban Art Commission on the ground that "the form and the aesthetic expression of the proposed building would need further rationalisation so that it is in consonance with the development in tht vicinity". On the same basis how can the emergence of a market be in consonance with the cultural complex.
(22) Having regard to the size of the shops, there would be every possibility of over spilling of the wares, goods and services on the pavement, which even otherwise is a common feature quite prominently visible in the market places. Setting up of the shops may further add to unhygienic conditions as a large number of people will frequent them. As is also evident from the representations neither the residents nor the institutions located in the area want the construction of shops. If there is no demand of the residents or the cultural centres for the construction of these shops, then one may justly ask for whose benefit is the first respondent raising the construction. The answer is not far to seek as the respondent has itself explained in its counter affidavit that four of these shops will be allotted to stall holders who are being removed from the high security area. It is not indicated as to which is this high security area. Except this cryptic and vague assertion, there is no other explanation for construction of four out of eight shops. With regard to the remaining four shops, it is stated that they will be allotted to squatters who are occupying the pavements on Safdar Hashmi Marg. Along with their rejoinder the petitioners have placed on record tender application forms issued by the first respondent for licencing of shops/kiosks at various places including eight shops on Safdar Hashmi Marg. The memorandum of information for licencing of shops (page 102 of the writ record) shows that tenders have been invited for these shops. The story of allotment of these shops to squatters appears to be an after thought. There is no explanation why tenders have been invited if the shops were to be allotted to squatters. Moreover the squatters can be accommodated in the areas identified by the Thareja Committee set up by the apex Court. It is not the case of the first respondent that Thareja Committee has identified the area in question for accommodating the squatters. In the counter affidavit there is no such assertion. In any event Thareja Committee has passed an order sealing these shops.
(23) It appears that the action of the first respondent springs from expediency to settle four stall holders of the so called "high security area". Surely the dislocated stall holders cannot be dumped in an area which is the cultural hub of the city. Art and culture flourishes in an enrapturing environment. The very concept of making a mini market of 11 stalls in the cultural heart land of Delhi would be like pock marks on the face of the complex. Art and cultural enthusiasts, visiting the complex, will first have to encounter filth and squalor before encountering creativity and perfection which culture and art presents.
(24) The relevant questions to which the first respondent should have addressed itself before embarking upon its thoughtless act of raising construction are whether its action would be conducive to preserving the beauty, the character and the integrity of the cultural complex; would it improve the environment for inspiring art and cultural activities; whether the shops would not be a mismatch with the ambience of the cultural complex and would it not change the character of the area. These questions do not seem to have bothered the first respondent before it undertook the construction of the shops for the expelled stall holders from the so called 'high security area'. The first respondent was duty bound to consider the questions raised in the representations submitted before it by various persons against setting up of the stalls or taxi stand in the area in question. It does not appear from the counter affidavit filed by the first respondent that it considered the representations or informed the representees of its decision. The matter was undoubtedly one which affects 'life' and falls within the ambit of Article 21 of the Constitution. 'Life' in its expanding horizons includes all that gives meaning to a man's life, including his traditions, culture and heritage. (See: Ramsharan Autyanuprasi and another vs. Union of India and others , and Board of Trustees of the Port of Bombay vs. DilipKumar Raghavendranath Nadkarni and others . The right to life under Article 21 also takes within its sweep the right to decent environment which would allow him to grow in every aspect, physical, mental and intellectual. Art and culture is the manifestation of that growth in a human being. This requires a conginial atmosphere where such finer nuances of life can find expression and flower and bloom in order to make life meaningful. Where right under Article 21 was involved, the representees had a right to know why their representation was being ignored or being rejected. The first respondent should have taken into consideration all aspects of the matter and rendered a reasoned decision on the points raised in the representations.
(25) New Delhi was conceived as a garden city with buildings below tree heights except the buildings in the monumental grid. The buildings in between Government complex and Jama Masjid including the Connaught Place were to be kept below 48 feet so that a visual link is maintained with Jama Masjid (see zonal development plan para 5.1 pages 3 and 4 thereof). It is for anybody to see that there has been wholesale breach of this concept. The character of the city has been destroyed by violation of the Master and Zonal Development Plans. The authorities have done precious little to save and protect the vital characterstics of the historical city of Delhi. In Rawat Mal Jain v. Delhi Development Authority 1994 (4) apex decisions 749, this Court had noted the importance of the planning of the city with reference to the Master Plan and the Zonal Development Plan and in so doing it observed as follows:-
"10.It is thus apparent from the above that the Master Plan for Delhi perspective 2001 endeavors to achieve integrated growth of Delhi with emphasis on preservation of ecology and creation of physical and social environment for improved quality of life of its residents and also recognises the eminence of Delhi being the nerve centre of India. What takes place here, affects the rest of the country. It serves as a model for the other parts of the country to follow. Besides, it being the capital city, Delhi acts as the show window of the country. It must reflect what India stands for and must also present a mosaic of its art, culture, heritage and development. A city is a barometer which shows how organized and disciplined the inhabitants are. It also shows their aesthetic sense. Therefore, planned development of Delhi is extremely, essential and so are the land use restrictions. In case of change of land use many ill effects follow for example, if an area which is earmarked as green in the Master or Zonal Plan is used for commercial activity, it results in cutting of green lung of the city. Besides traffic and population densities go up in that particular area disturbing the civic amenities and infrastructure related thereto and integrated planning.
11.Conservation, "revitalisation, upgradation and improvement of environment depends upon many factors and one of the most important factors is conservation of existing "green" areas. Since land in land ground the capital has tremendous monetary value, land meant for gardens, parks, woodlands and for other green areas is under constant threat of being misused for being colonised or for commercial activities. More often than not misuser of land takes place by corrupting the system in order to ensure that planning controls are not enforced. Depletion of "green" areas has many lethal effects, the major one being degradation of environment. We are inclined to think that the level of pollution has a correlation or proportionality to the level of corruption and greed in the society. This tendency has to be curbed by enforcement of planning controls by the concerned authorities.
12.Therefore, in order to protect ecology and environment and for reducing levels of Carbon dioxide and other noxious gases green areas, parks and forests in and around Delhi including the Ridge area cannot be tampered with and must be preserved even though sometimes it may be detrimental to the interest of an individual who may be using the same for a purpose not authorised by law. The interest of an individual or group of individuals must give way to the larger interests of the society as otherwise this great ancient city having rich cultural heritage and links in the past will whither, being already over populated and smog stricken. To utilise an area against permitted user disturbs the whole planning of the city. Therefore, usurping of parks and green areas for commercial and building activity must be checked to prevent ecological imbalance. In the years of 1990s which have been declared by the United Nations Assembly to be years of environmental law, the ecology of Delhi must be given more attention for its preservation and protection. The enforcement of planning controls will go a long way in this direction. The officers responsible for enforcement of planning controls must view the violations of permitted land use seriously. "Government must fix responsibility for any official laxity and take appropriate action for this misfeasance. Land use indicated in Master Plan can be enforced as it has a statutory backing, which is apparent from the various provisions of the Dd Act, namely. Section 7, 8 and 14 thereof. Section 7 of the Dd Act deals with the preparation of a Master Plan for Delhi.
13.According to the above, the authority is required to carry out a civic survey of Delhi and prepare a Master Plan for Delhi. It also lays down as to what the Master Plan shall contain. It postulates the division of Delhi into zones for the purposes of development. It also indicates the manner in which the land in each zone is to be used. Section 8 provides for preparation of Zonal Development plan for each of the zones into which Delhi may be divided.
14.Section 14 interdicts the use of the land and building for a purpose which is not authorised by the Master Plan or Zonal Plan.
15.from the aforesaid provisions it dearly follows that the Master Plan and Zonal Development Plan has a statutory force and the land cannot be used for a purpose which is not permitted or authorised by the same. The case in point is Municipal Corporation of Delhi Vs. Kishan Doss and another Air 1969 (2) S.C.R.166 wherein it was held that when any particular and definite use of land is indicated in the Master Plan, a different use of it cannot bepermitted. In P.S.Gill and others Vs. Union of India and others it has been held by a Division Bench of this Court that on coming into operation of the Master Plan or the Zonal Development Plan, the land cannot be used or developed except in accordance with the plan.
16.The first Master Plan for Delhi came into force on September 1, 1962. Despite the lapse of more than three decades the Master Plan has not achieved its purpose. As is well known Delhi has large number of unauthorised colonies in contravention of the planning controls. There are many number of cases of violation of the prescribed land use. The new Master Plan namely, "Master Plan for Delhi Perspective 2001" which came into force in August 1, 1990 must achieved its purpose for which it has been brought into force. Unless strict measures are adopted and the master plan is enforced in letter and spirit, the document will merely remain a piece of literary work with high sounding words but no action.
17.It is neither quite lawful nor quite right for the appellants to use the., land for a purpose other than the one assigned for it. The appellants, therefore, cannot be permitted to use the land for the purpose of commercial activity which is not a permitted user., They cannot seek the equitable jurisdiction of this court for obtaining an ad-interim order which tantamount to legitimising their illegal activities.
(26) Therefore, it is apparent from the above decision that land cannot be used for a purpose which is not authorised by the Master Plan or a Zonal Development Plan.
(27) I was told by Mr.Maheshwar Dayal that the stall holders will maintain hygienic conditions. This appears to be a tall claim which is as distant from ground realities as is chalk from cheese. A nonchalant attitude of the first respondent to the maintenance of sanitary and hygienic conditions by the existing shop keepers in various areas belies the claim of the learned counsel. The petitioners point out that there are no water connections to the stalls which are selling food items in the area. How can in such circumstances hygiene be maintained.
(28) From the aforesaid discussion, I am of the considered view that the first respondent had decided to construct shops/kiosks/stalls on pavement of Safdar Hashmi Marg, Mandi House area without taking into consideration the relevant factors and without following the procedure of law. Besides the action is arbitrary. Before embarking upon the construction, it ought to have decided the representations of the residents by a speaking order.
(29) Next I turn to the question whether the matter fell within the purview of Delhi Urban Art Commission. While issuing notice in the writ petition, the Division Bench had expressed a doubt whether the first respondent had obtained permission from the Delhi Urban Art Commission for raising the consturction. Pursuant to the observations of the Division Bench, the first respondent appears to have sought permission of the Delhi Urban Art Commission by their letter dated September 20, 1994 (Annexure 2 to the reply of the first respondent at page 74 of the writ record)., The Delhi Urban Art Commission was of the view that the matter did not fall within its purview. The view taken by the Delhi Urban Art Commission, respondent No.5 is contrary to the Delhi Urban Art Commission Act, 1973. In order to appreciate the question it will be necessary to examine the same in the light of relevant provisions of the Delhi Urban Art Commission Act.
(30) 'BUILDING' under Section 2(a) of Delhi Urban Art Commission Act includes a structure or erection or part of structure which is intended to be used for residential, industrial, commercial or other purpose. Undoubtedly, the shops/stalls, as is apparent from the pleadings of the parties including tender notice, are to be used for commercial purposes. Therefore, these structures would come within the definition of the word "building". Next for consideration would be the meaning of the terms 'Building operations' and 'Development'. They are defined by Sections 2(b) and 2(e) of the Delhi Urban Art Commission Act respectively which read as under:-
"2(B)"building operations" includes rebuilding operations, structural alterations of, or additions to, buildings and other operations normally undertaken in connection with the construction of buildings;
2(E)"development" with its grammatical variations means the carrying out of building, engineering, mining or other operations in, on, over or under, land or the making of any material change in any building or land and includes re-development;
(31) According to the above, since construction of a structure for commercial purposes is included in the definition of the word 'building', any operation meant for construction thereof would also be included in the terms "building operations" and "development". The functions of the Commission are defined in Section 11(1) of the Urban Art Commission Act. According to it, it is the general duty of the Commission to advise the Central Government in the matter of preserving, developing and maintaining aesthetic quality or urban and environmental design within Delhi and to provide advise and guidance to any local body in respect of any project of "building or engineering operations" or any "development" proposal which is likely to affect the skyline or the quality of surrounding or any public amenity provided therein. Thus having regard to the provisions of Section 11(1), it is the function of the Commission to advise the Central Government in preserving, developing and maintaining the aesthetic quality of Delhi and also its environmental design. It has to advise and render guidance to the local authority in respect of "building operations" or "development" proposals which affect the skyline or the quality of surroundings or any public amenity. Besides, under Sub-Section 2 of Section Ii the Commission has the duty to scrutinise, approve, reject or modify proposals in respect of several matters including the following:-
"2(a) development of district centres, civic centres, areas earmarked for Government administrative buildings and for residential complexes, public parks and public gardens;
2(B)redevelopment of the area within the jurisdiction of New Delhi Municipal Committee including Connaught Place Complex and its environs, Central Vista, the entire bungalow area of Lutyens New Delhi, and such other areas as the Central Government may, by notification in the Official Gazette, specify;
2(H)any other project or lay-out which is calculated to beautify Delhi or to add .to its cultural vitality or to enhance the quality of the surroundings thereof;
(32) Thus under sub section 2(h) of section Ii any project or lay out which is calculated to beautify Delhi or to add to its cultural vitality or to enhance the quality of surroundings thereof is covered under the Urban Art Commission Act. Therefore, any project which is meant to enhance the beauty of Delhi or to increase its cultural vitality must receive the approval of the Delhi Urban Art Commission. In other words, if any action of the authority detracts from the provisions of Section 11(2) (h) it cannot be allowed by the Commission. For example, where a project instead of increasing the beauty of Delhi or adding to its cultural vitality or enhancing the quality of its surroundings mars its beauty, saps its cultural vitality and destroys the quality of its surroundings must be placed before the Commission for scrutiny. Otherwise the object and the spirit behind the provisions of the enactment would be defeated. As the provisions are meant to protect the beauty, cultural vitality and the quality of the surroundings of Delhi, each and every project which involves building operations or development proposals must be placed for approval before the Delhi Urban Art Commission. It would be seen that under sub-clause (f) of Section 11(2) of the Delhi Urban Art Commission Act proposal for street furniture and hoardings has to be placed before the Delhi Urban Art Commission. If such small matters have to be placed before the Commission, there is no reason why proposals for setting up of the structures which are to be used for commercial purposes should not go through the Delhi Urban Art Commission. If hoardings and street furniture can affect the aesthetic quality of the city, surely commercial structures would affect the same in a larger measure. Unless a proposal is placed before the Commission, how would it know whether the project will enhance the beauty, cultural vitality or the quality of the surroundings of Delhi. If a proposal is for the purpose of enhancing the beauty, cultural vitality and the surroundings of Delhi, it undoubtedly falls within the purview of the Commission. But does this mean that any proposal which does not enhance the beauty, cultural vitality and the surroundings of Delhi may not be mooted through the commission. I cannot accept this interpretation as it will defeat the spirit of the Delhi Urban Art Commission Act. Again under Section 12 thereof, it is the duty of the local body to refer development proposals to the scrutiny of the Delhi Urban Art Commission. At this stage, it will be convenient to set out the provisions of Section "12.Duty of local bodies to refer development proposals, etc., to the Commission Notwithstanding any thing contained in any other law for the time being in force, every local body shall, before according approval in respect of any building operations, engineering operations or development proposals referred to in sub-section (1) of Section 11 or intended to be undertaken in any area or locality specified in sub- section (2) of that section, refer the same to the Commission for scrutiny and the decision of the Commission in respect thereof shall be binding on such local body.
(33) Having regard to the above provisions it must be held that all "building operations" or "development" proposals must be referred to the Urban Art Commission for its scrutiny. As has already been seen, the setting up of the structures whether stalls on shops or kiosks, certainly come within the definition of " building operations" and "development". "Therefore, there is no escape from the conclusion that the Delhi Urban Art Commission should have scrutinised the proposal of the first respondent for building shops/stalls/kiosks on the pavement of Safdar Hashmi Marg, The objectives and guidelines issued by the Delhi Urban Art Commission also can not justify its refusal to examine the proposal. The relevant portion of the introduction to 'of the "objectives and guidelines" reads as under:
"THE historic city of Delhi has been the capital of several kingdoms and empires through the ages. Its many magnificent monuments point to a glorious past.
LUTYEN'SNew Delhi is considered to be one of the most beautiful planned garden city Capitals ever built. But after independence, Delhi was forced to grow suddenly and enormously. This expansion was unfortunately, haphazard and ill- planned.
Fortunately, it was too late, the Government of India set up a Planning Board to prepare a Master Plan of the Capital for an orderly growth and to maintain the character and quality of the city, thus preserving its heritage. in 1962, the Delhi Master Plan was accepted by the Government for the future development of Delhi. A planning and development authority known as the Delhi Development Authority was set up under an Act for implementing the Master Plan. In spite of the Delhi Master Plan and the Delhi Development Authority functioning for over a decade, we have hardly made any progress in making Delhi a better place to live and work in, in an aesthetic and functional sense. The Delhi Development Authority and the other two local bodies are essentially concerned with the preparation of two dimensional zonal development plans, land-use plans and enforcement of zonal and building bye-laws mostly from a functional and engineering point of view. While developing/redeveloping, maintaining and preserving various parts of the city, there has hardly been any emphasis on the quality of the physical environment and visual character of the city. The aesthetic and visual character of Delhi, at least the better part of it, leaves much to be desired. In fact, certain beautiful areas have been ruined due to sheer negligence and indifference. The need for a high power design review board/commission to guide and control the aesthetic quality of urban and environmental city and its cultural values has been felt for some time past. 1.1 With a view to preserving, developing and maintaining the aesthetic quality of urban and environmental design of Delhi, the Government of India have established the Delhi Urban Art Commission under an Act of Parliament Act, namely the Delhi Urban Art Commission Act, 1973 (I of 1974). The Act has come into force with effect from 1st May, 1974. 1.2 Objectives of the Commission are:
A)To promote those qualities in the environment which bring value to the community.
B)To foster the attractiveness and functional utility of the community as a place to live and work.
C)To preserve the character and quality of our heritage by maintaining the integrity of those areas which have a discernible character or are of special historical significance.
D)To protect certain public investments in the area.
E)To prevent bad design and encourage good.
F)To raise the level of Community expectations for the quality of its environment.
(34) As is clear from above, the objectives note that despite the operation of the Master Plan and the functioning of the Delhi Development Authority for a long time, there has been no progress in making Delhi a better place aesthetically and functionally. If the Commission also turns a nelson's eye to what is happening in Delhi and to the haphazard setting up of the structures for commercial purposes, Delhi, which is already at the edge of a dark abyss, will be hurtled into it. The objectives of the Commission as set out above show that the Commission would function with a view to preserving, developing and maintaining the aesthetic design of Delhi. Discernible character of the cultural complex located near Mandi House is recognized by the Zonal Development Plan and also in the counter affidavit. If this is the position, then there is no reason why the Delhi Urban Art Commission failed to intervene in the matter and decide whether discernible character of the area would be maintained by setting up of the shops/stalls/kiosks for commercial purposes on the pavement alongside Mandi House. Beyond saying this on the guidelines it is not necessary to examine them any further as the action of the first respondent in constructing and setting up of the shops/stalls falls within the purview of Sections 11 and 12 of the Delhi Urban Art Commission Act. The guidelines cannot supplant the statutory provisions. Therefore, the New Delhi Municipal Council was bound to refer the proposal for construction of shops/stalls/kiosks for scrutiny of the Delhi Urban Art Commission and the latter was bound to give its decision in respect thereof. Any decision by the Commission would be binding on the New Delhi Municipal Council.
(35) For the aforesaid reasons, the writ petition succeeds and the rule is made absolute. The New Delhi Municipal Council is prohibited from raising the instant construction on the pavement adjoining Safdar Hashmi Marg unless and until:- 1) The Zonal Development Plan makes a provision for construction of shops/kiosks/stalls on the pavement of Safdar Hashmi Marg near Mandi House, New Delhi; 2) The representations of the residents including cultural institutions in the vicinity of the area arc decided by a reasoned order by the New Delhi Municipal Council after giving a reasonable opportunity of hearing to them; 3) Permission of the Delhi Urban Art Commission is obtained in writing by the New Delhi Municipal Council for raising the instant construction; and 4) Permission of the appropriate authority under section 12 of the Dda Act is obtained by the New Delhi Municipal Council for erecting shops/kiosks/stalls on the site in question.