Excerpts from WP 8523/2003 (Shiv Narayan v/s DDA & Ors), December 2003
This writ petition under Article 226 of the Constitution of India is being filed as Public Interest Litigation seeking directions for a-priori scheme(s) for implementation of Master Plan entitlements of old settlements in Mehrauli-Mahipalpur area (New Delhi) and for stoppage of new schemes unmindful of the provisions of the Delhi Master Plan and Central Ground Water Authority notification and, hence, violative of Delhi Development Act, 1957.
Delhi Development Act was enacted for the sole purpose of planned development, overall objective of which is set out in the Delhi Master Plan since 1962 as ‘balanced and integrated development to take care of present and future growth’, leading to explicit provisions for integrating old settlements in new developments.
In Mehrauli-Mahipalpur area land acquired from villages for development according to Plan has been and continues to be used for new schemes with no basis in the Master Plan. These have failed to implement old settlements’ Plan entitlements by way of housing expansion / provision, facilities like schools and work places, services like transport, water, etc. Instead, they have caused problems for old settlements and damage to the area’s environmental and heritage resources.
Repeated representations, including by due process of Public Notice, etc, for implementation of Plan entitlements and against new schemes in violation of the Plan have been ignored and are poised to become infructuous with unplanned schemes using up land needed for Plan entitlements.
- This writ petition under Article 226 of the Constitution of India is being filed as a Public Interest Litigation for a-priori scheme(s) for implementation of Master Plan entitlements of old settlements in Mehrauli-Mahipalpur area and stoppage of new schemes unmindful of the provisions of Delhi Master Plan and Central Ground Water Authority’s notification, hence, violative of the Delhi Development Act, 1957.
- The Petitioner is filing this petition bonafide in public interest to enforce the fundamental rights of citizens in old settlements. The Petitioner, a citizen of India, is actively involved in development activities in Mahipalpur as President of Gram Sewa Samiti and in Mehrauli-Mahipalpur area as a convenor of Master Plan Implementation Support Group (‘MPISG’), a synergy platform of citizens’ groups supporting development according to Delhi Master Plan, which has brought and supported others in bringing to this Hon’ble Court’s attention cases of Plan violations, as in WP 4978/2002, WP 5007&5009/2002 and WP 6980/2002, in last of which the Petitioner is also petitioner.
- FACTS OF THE CASE: Respondent No.1 (Delhi Development Authority) was constituted under the Delhi Development Act of 1957 (‘Act’). Respondent No.2 (Union Ministry of Urban Development) is the nodal ministry of Respondent No.1. Respondent No.3 (Government of Delhi) and Respondent No.4 (Municipal Corporation of Delhi) have responsibilities vis-à-vis Delhi Master Plan by virtue of representation on Authority under s.3 of the Act and on high-level policy committee for guidelines for sanctioning schemes, etc, under Clause 3 of Master Plan Development Code. Respondent No.5 (Ministry of Civil Aviation) is on Technical Committee to assist the said high-level policy committee and concerned with the area due to proximity to International Airport. Respondent No.6 (Delhi Metro Rail Corporation) plans a Metro corridor in the area. Respondent No.7 (Central Ground Water Authority) has notified the area for its critical ground water regime.
- In 1957 Delhi Development Act came into force and DDA was created solely “to promote and secure the development of Delhi according to plan” (s.6). The Act contemplates, by way of ‘plan’, only Master Plan (s.7) and Zonal Plans (s.8), for which due process is set out for preparation and approval (s.10) and modification (s.11A). It is only for development according to Master Plan / Zonal Plans that DDA is empowered to “acquire, hold, manage and dispose off land and property” (s.6) under policy of compulsory acquisition (s.15), purpose of which is explicated in Master Plan for Delhi (MPD-1962), which says, “All this land will remain under public ownership and developed plots or undeveloped land will be leased out …on an equitable basis, so that the benefit of planned growth accrues to the common man” (p.7). This is consonant with the overall aim of planned development set out in MPD-1962 as ‘balanced and integrated development to take care of present and future growth’ (p.5). Use of public land for ‘schemes’, etc, not embedded in Master Plan / Zonal Plans and / or jeopardizing balanced and integrated development or benefit to the common man is beyond jurisdiction under s.6.
- Apropos integration of existing settlements into new development MPD-1962 says: “Any village or abadi overtaken by urban development should not be left as such, as otherwise, the city will be pockmarked with the type of slums such as Kotla Mubarakpur but should be redeveloped and integrated” (p.27). MPD-2001 reiterates, “Development of village should be an integral part of the development scheme of the area” and “around these settlements educational, health and recreational facilities and work areas should be developed for the benefit of the village population”, and also that “Village settlements of historic significance should be conserved” (p.7). The Master Plan also has explicit provisions for “non-conforming” uses, ie, uses existing prior to the Plan and not in conformity with Plan proposals. These effectively provide for priority interventions to integrate them into planned development.
- It is submitted that s.3, s.9 to 11A, etc, and Monitoring Framework and the following provisions of MPD-2001 allow for coordinated Plan implementation by all agencies:
- a. Clause 3 of Development Code (p.51) requires a “special high level policy making committee” with representatives of MoUD, DDA, Delhi Administration, NDMC, MCD and DUAC to “formulate policy guidelines for sanction of all layout plans, comprehensive schemes, redevelopment schemes, urban renewal schemes and multi-storeyed buildings in all land use categories”, duly “assisted by a Technical Committee” with DDA, local bodies, Civil Aviation, Water Supply and Sewage Undertaking, etc.
- b. The chapter on infrastructure states, “long range plans to a reasonable level of details for implementation during the period up to 2001 should be prepared by the concerned department, i.e for water and sewage by the Water and Sewage Disposal Undertaking, for electricity by Delhi Electricity Supply Undertaking, for storm water drains and floods by the Flood Control and Irrigation Department of Delhi Administration in consultation with the Delhi Development Authority”. (p.32)
- Apropos old settlements in Mehrauli Mahipalpur area, it is submitted that Mahipalpur is 400-years-old and Masudpur and Kishangarh villages over 100-years old and settlements in Rangpuri Pahari, Andheria Morh and Kusumpur Pahari were established in, respectively, ‘50s, ‘60s and ‘70s on gaon sabha land of Rangpuri, Chattarpur and Mahipalpur.
- In MPD-1962 Mehrauli-Mahipalpur (M-M) area was designated beyond urbanisable limits. In revised MPD-2001 approved in 1990 Mahipalpur, Kishangarh, Masudpur and Kusumpur Pahari fell in F-Zone, for which Zonal Plan was approved in 1998, and Rangpuri Pahari and Andheri Morh fell in J-Zone, Zonal Plan for which has yet to be made. Excerpts from MPD-1962 and MPD-2001 land use plans indicating location of old settlements as well as new schemes in M-M area are annexed as ANNEXURE/P-1.
- When Vasant Kunj scheme was developed in the ‘80s all old settlements came within the purview of MPD-1962 provision requiring “village or abadi overtaken by urban development … be redeveloped and integrated”. It is noteworthy that MPD-1962 limited southward expansion into M-M area due to constrained water sources and use of land for Plan entitlements of existing settlements rather than for stressful new development is also consonant with environmental and heritage imperatives for the area and, indeed, the city.
- It is contended that all new development in the area (locations indicated in ANNEXURE-P/1) was devoid of basis in Master Plan / Zonal Plan:
- a. Vasant Kunj was built in the ‘80s (ie, before MPD-2001 and F-Zone Plan came into force) in an area MPD-1962 designated non-urbanisable, partly inviolable Green Belt.
- b. Further ‘projects’ in violation of the Plan include:
- (i) DDA sports complex and GoNCTD Institute of Liver Sciences south of D-2 Vasant Kunj (in Green Belt), a news report about which is at ANNEXURE-P/2.
- (ii) GoNCTD A/C Mandi at Andheria Morh (in J-Zone Regional Park – Mehrauli ridge), news report of 08.10.03 about which is at ANNEXURE-P/3.
- (iii) CISF flats in Mahipalpur Hauz, possibly contrary also to ASI notices to authorities, reported in news report of 13.06.02, annexed as ANNEXURE-P/4.
- c. Two large ‘schemes’ starting are also ‘unplanned’:
- (i) Vasant Kunj Phase-2 on 315 hectares, contemplated in MPD-2001 as residential scheme (174 Ha green, 112 Ha residential, 25 Ha institutional and 4 Ha commercial), was repeatedly modified till F-zone Plan of 1998 changed it to mainly International Hotels’ Complex, with shopping mall, etc. The Hon’ble Supreme Court stopped the hotels’ project. Tender of 16.11.03 for Mall of 47 acres (19 Ha) adjoining a park of 650 acres (260 Ha) suggests the scheme has been modified again though, to the best of the Petitioners’ knowledge, Public Notice for Zonal Plan modification u/s.11A was not issued. Moreover, mandatory Monitoring would have found excess rather than deficit of up-market commerce in the area and such development unsustainable also in terms of CGWA ban. Tender advertisement, table showing land use proposals since MPD-2001 and news report of 27.11.03 quoting CGWA Member Secretary about the Mall are annexed as ANNEXURE-P/5 (COLLY).
- (ii) Sultangarhi scheme (in J-Zone Green Belt) started in 2002 was stopped by this Hon’ble Court and deemed fit for inquiry in judgement of 16.09.02 in WP 4978/2002. As per news report of 23.06.03 DDA ‘cleared’ the scheme – without making public the outcome of court-ordered inquiry or Public Notice of 15.09.02 (in which 1700 families filed objections) and despite on-going vigilance enquiry that later found tendering irregularities as per report of 21.10.03. A news report of 27.11.03 again refers to approval of Sultangarhi scheme. Said reports are annexed as ANNEXURE-P/6 (COLLY).
- d. As per report of 27.11.03 in ANNEXURE-P/6 (COLLY), besides Sultangarhi mega-housing, change of land use of Mehrauli villages to commercial is also proposed, basis of which, as for Mall, is unclear in view of undeveloped planned commercial sites in the area.
- Not only are unplanned schemes / projects using up land and water resources needed according to Plan for development / redevelopment and integration of old settlements, they are also unmindful of Plan entitlements to facilities, work places, etc, in the vicinity. In particular:
- a. While the Plan contemplates only neighbourhood schools for all local students, planned school sites in Vasant Kunj are mostly being used profitably in violation of the Plan, leaving students in old settlements cramped in old schools on unplanned sites. Citizens’ groups in MPISG are approaching this Hon’ble Court in this matter.
- b. While the Plan requires workplaces to be developed in the vicinity for village residents and in residential area this is possible only in commercial facilities, no effort is made to implement these provisions through, say, priority in allotment to village residents. This issue is pending before this Hon’ble court in WP 6980/2002.
- c. Recent surveys for Mehrauli-Sultangarhi Metro corridor appear not to have included studies for “restructuring of land uses” required by Zonal Plan (para-10.1, p.18). The corridor does not go to Mahipalpur (which has half the area’s population), even as a 4 km corridor for only 1-lakh residents of Vasant Kunj is unlikely to be economically viable.
- d. Implementation of Plan provisions for integration, such as through priority allotments or land use restructuring, is facilitated by leasehold disposal policy. Even as challenge to freehold disposal of commercial space is pending before this Hon’ble Court in WP 6980/2002, a ‘scheme’ for conversion to freehold has been launched – with press notice of 09.08.03, annexed as ANNEXURE-P/7, rather than due process of s.11A, required since leasehold tenure is part of the Plan.
- Apart from non-implementation of Plan entitlements to land and facilities, new development in violation of the Plan has led to serious problems for old settlements, as follows:
- a. Failure to develop ‘down-market’ uses according to Plan in new schemes has reduced old settlements to veritable dumps for these. The issue of proliferation of shops in villages due to planned shops not being appropriately developed / disposed is raised in WP 6980/2002, pending before this Hon’ble Court. In WP 5007 & 5009/2002, DDA has ‘justified’ failure to develop service providers’ housing as per statutory provisions on the plea that “Vasant Kunj lies in close proximity to areas like Massodpur, Kishan Garh and Mahipal Pur” (para-5].
- b. Sewerage from Vasant Kunj is discharged into Mahipalpur Hauz and in the Petitioner’s Hearing on 27.01.03 of Public Notice for Sultangarhi scheme, DDA claimed ‘permission’ for this and said the problem would be solved with Vasant Kunj Phase 2, but now tender for Mall in that has been issued while the problem has yet to be solved.
- c. Unplanned schemes have stressed ground water. Against a designed demand of nearly 4 MGD for Vasant Kunj alone, DJB is able to supply just 1.3 MGD river water to the area, resulting in massive ground water withdrawal. Old wells have dried up. In 1999 CGWA notified the area. Though proviso to s.6 expressly prohibits “disregard by the Authority of any law for the time being in force”, unplanned schemes continue unmindful of CGWA notification and reservations, such as expressed in letters that are part of pleadings in WP 4978/2002 about Sultangarhi or report of 27.11.03 in ANNEXURE-P/5 (COLLY) about Vasant Kunj Phase 2 Mall.
- d. Besides due to withdrawal, unplanned development has stressed the critical ground water regime by destroying natural recharge area – directly and by burdening old settlements with ‘down-market’ uses, causing them to ‘implode’ and their water bodies to get encroached. Since the area has historic water structures, such as 14th century Bundh and Hauz in Mahipalpur, this has also meant loss of heritage, as witnessed in the breach of Mahipalpur Bundh in July 2003, news report of 15.07.03 about which is annexed as ANNEXURE-P/8.
- Mahipalpur’ historic water structures, for which intervention has been sought since 1997, also illustrate all-round indifference towards Master Plan responsibilities:
- a. The news report at ANNEXURE-4 had Vice Chairman of DDA, duty-bound to implement the Plan, inclusive of monitoring, saying, “if there is a water harvesting system …we would certainly like to look into the case”.
- b. A report of 21.07.02, annexed as ANNEXURE-P/9, had Commissioner of MCD, duty-bound to provide village improvements, speaking of studies in Mahipalpur, unmindful of GoNCTD surveys in 1997 and 2001.
- c. News report of 15.07.03 about Mahipalpur bundh breach at ANNEXURE-8, had Chief Engineer Flood Control, required to have made drainage plans, saying, “We don’t want to involve ourselves”.
- d. The same report had DC, required to act against violation of CGWA ban in population-adding unplanned schemes, saying, "Much as I would like to preserve the heritage, it isn’t possible because of the growth in population”.
- e. Contrary to purpose of presence on Technical Committee, DJB (supplying 1.3 MGD river water against the area’s demand of about 10 MGD) approved Sutangarhi scheme as per DDA letter annexed as ANNEXURE-P/10. A query about DJB/GoNCTD view on unplanned schemes and basis for CM disparaging the Plan was merely forwarded to DDA, vide CMO letter, annexed as ANNEXURE-P/11.
- f. In July, when bundh breach led to flooding near IGI Airport, Civil Aviation ministry, represented on Technical Committee, was considering commercial use of Safdarjung Airport site by way of shopping malls. A letter of 22.07.03 suggested shifting Sultangarhi scheme there to help drainage interventions for safety of IGI Airport. MoCA replied vide letter of 28.07.03 to say the matter would be looked into, but has not responded to subsequent letters, including one of 20.10.03 with reference to news reports about Vasant Kunj Mall.
- g. Meanwhile, GoNCTD did not respond even to requests for inclusion in its ‘bhagidari’ schemes for water bodies or for villages and MCD and DDA did not respond to queries about status of water bodies in the area on an NGO list of 508 reportedly placed in Court.
- Citizens’ groups and Planner to MPISG have raised all the above issues with the authorities, including in large numbers through due process of Public Notice. A list of representations to authorities is at ANNEXURE-P/12. Requests for long overdue implementation of Plan entitlements of old settlements and challenges to unplanned new development continue to be disregarded, leaving the Petitioner no remedy but to approach this Hon’ble Court.
- A. Delhi Master Plan is a statutory document drawn up in accordance with s.7 of the Delhi Development Act (‘Act’). s.14 of the Act clearly stipulates that the provisions of the Master Plan are mandatory and use of land and buildings in contravention thereof is prohibited. This legal position has been reiterated by the Hon’ble Supreme Court as well as this Hon’ble Court.
- B. The Petitioners submit that in Mehrauli-Mahipalpur area new development since Vasant Kunj is by way of schemes and projects that are not embedded in the Master Plan / Zonal Plan and, hence, cannot be construed as planned development under the Act. Nor can it be construed as lawful Plan modification in terms of the due process of s.11A read with the Plan Monitoring and Review provisions of the Master Plan (MPD-2001).
- C. The Petitioners submit that Delhi Jal Board is able to provide river water supply to the area only for part of the demand of just Vasant Kunj and the rest of the demand for water is met from the critical ground water regime. Central Ground Water Authority has banned tube-wells in the area vide notification of 24.05.1999 in exercise of powers under s.5 of the Environment (Protection) Act, 1986. New development involving violation of this ban is prohibited by proviso to s.6 of Delhi Development Act.
- D. 1700 objections filed in response to Public Notice of 15.09.02 for Sultangarhi scheme, which largely apply to Shopping Mall as well, have yet to be disposed of. This Hon’ble Court, in judgement of 16.09.02 in WP 4978/2002, had stopped and sought inquiry into the Sultangarhi scheme on grounds of due process of s.11A not having been followed and of violation of CGWA notification. These grounds also apply to Vasant Kunj Phase-2 / Shopping Mall and other unplanned projects.
- E. The Petitioners submit that development in violation of the Master Plan attracts penal clauses contained in s.29 and s.30 of the Act and such development by authorities represented on Delhi Development Authority under the Act is violative of Article 14 of the Constitution of India.
- F. The Petitioners submit that s.21(2) of the Act envisages priority in disposal of sites for ‘persons who are living and carrying on business or other activities on the land’ and the Master Plan clearly stipulates integration of old settlements into new development in pursuit of overall aim of planned development explicated in MPD-1962 as ‘balanced and integrated development to take care of present and future growth’. New development altogether failing to integrate old settlements violates s.20(2) and, in effect, subverts the aim of planned development and, by extension, of the Act.
- G. The Petitioners submit that, since s.6 of the Act stipulates that powers to acquire land are only for the purpose of development according to Plan, wilful up-market new development without basis in the Master Plan represents abuse of powers of compulsory land acquisition under s.15 of the Act and neglect of Plan responsibilities for benefit of villages from whom this land has been acquired represents nothing short of abandonment of statutory mandate.
- H. The Petitioners submit that powers under s.15 of the Act are part of land policy for which MPD-1962 says, “All this land will remain under public ownership and developed plots or undeveloped land will be leased out …on an equitable basis”. Leasehold tenure is part of the Master Plan and a key instrument for enforcing its provisions, including those for integrating old settlements in new development. Freehold scheme is contrary to land policy to facilitate balanced equitable planned development and its announcement without due process of s.11A is violative of the Act.
- I. The Petitioner submits that the provisions of the Act and the Master Plan translate the recognition of the fundamental right to a planned and healthy environment and permit equal as well as equitable access to all sections of society, while safeguarding heritage and environmental resources for posterity. New development, which reflects non-application of mind on the part of authorities to the relevant statutory provisions and the binding provisions of the Master Plan, violates the fundamental right of citizens guaranteed by a collective reading of Articles 14, 19 and 21 of the Constitution of India.
- a. issue a Writ, Order or Direction in the nature of Mandamus to the Respondent authorities to furnish details of action taken / proposed (along with time-schedule) for integration in their activities in Mehrauli-Mahipalpur area of old settlements in terms of development / redevelopment, provision of facilities, work places, etc, in the vicinity and conservation of heritage and environmental resources (especially historic water structures), as per Master Plan provisions and Monitoring framework.
- b. issue a Writ, Order or Direction calling for all projects / schemes in Mehrauli-Mahipalpur area since approval of MPD-2001 in 1990 (especially as indicated in paras-10 and 11) proof of legality in terms of CGWA clearance and of Delhi Development Act (ie, of conformity with Master Plan / Zonal Plan or of due process for Plan modification) as well as basis for priority over integration of old settlements (in terms of Plan Monitoring and/or recommendations of authorities on high-level policy committee / Technical committee).
- c. issue a Writ, Order or Direction stopping further work on these new projects/schemes, and quash shopping mall auction of 15.12.2003, pending prayers a & b above.
- d. pass such other order(s) as deemed fit by this Hon’ble Court in the facts and circumstances of the case.
WP 8523/2003: Additional Affidavit detailing out violations
I, Shiv Narayan s/o Late Shri Jaisi Ram, aged 66 years, resident of Village and PO Mahipalpur, New Delhi – 110037, do hereby solemnly affirm and state on oath as under:
- That I am the petitioner in the above-mentioned case, well conversant with the facts of the case and competent to affirm the present affidavit. That I am filing this additional affidavit pursuant to this Hon’ble Court’s directions of 10.12.2003.
- It is respectfully submitted that I am resident of the 400-year old Mahipalpur village since birth and that my ancestors have been residents here for several generations, with agricultural lands that were acquired for the planned development of Delhi since ‘80s. Since 1961 I have been MCD schoolmaster, including in villages Mehrauli, Masudpur and Mahipalpur, and retired in 1997 as headmaster of MC Primary School (Girls) Nangal Dewat. I have been associated with Mahipalpur’s registered Gram Sewa Samiti since its inception in 1981 and am currently its President. Since 2000 I am also associated with Master Plan Implementation Support Group, a platform of apolitical and non-funded citizens’ groups synergistically supporting planned development, and am convenor in it for groups from villages. In these capacities, on behalf of village residents, I have made representations to authorities for Master Plan schemes for urban villages and filed detailed response to s.11A Public Notice of 15.09.2002 precipitated by this Hon’ble Court’s intervention to stop the Sultangarhi mega-housing in WP 4978/2002 vide judgement of 16.09.2002, reproduced herewith as ANNEXURE-A. With representatives of citizens’ groups from old bastis, flats and service providers, I am also petitioner in WP 6980/2002 and another fresh matter against Master Plan violations.
- It is respectfully submitted that I and others on Master Plan Implementation Support Group draw upon advice of Ms Gita Dewan Verma, a qualified Planner who has been consultant to several premier national and international agencies, Senior Fellow in Housing and Urban Development Corporation’s HSMI and visiting Professor in School of Planning and Architecture and TVB School of Habitat Studies, and has authored articles, papers and books on planning issues. On behalf of citizens’ groups in Mehrauli-Mahipalpur area she has, among other things, prepared 4 detailed illustrated reports on Master Plan violations that were sent to the authorities in 2001/2002. One of these was about the water crisis being the result of unplanned development. This was sent also to Delhi Science Forum, which subsequently moved this Hon’ble High Court in WP 4978/2002 and, in response to this and other representations by her, CGWA wrote to DDA letters that are part of WP 4978/2002 and reproduced herewith as ANNEXURE-B (COLLY). The other three reports – about violations on sites meant for schools, commercial facilities and housing – are included, with responses thereto, in part or whole in matters before this Hon’ble Court mentioned in para 11a, 11b and 12a of the instant writ petition. Apropos projects indicated in ANNEXURE-P/1, representations enumerated at ANNEXURE-P/12, are all based on qualified Planner advice and the present affidavit is likewise.
- It is submitted at the outset that while MPD-1962 defined 8 planning divisions with 136 Development Zones (p.87) for which Zonal Plans had to be prepared as per s.8 of the Act, MPD-2001 re-designated the Zones as Sub-Zones and the 8 Divisions, with 7 more in outlying areas, as Zones requiring Zonal Plans. In view of this simplification, to ensure Zonal Plan content is not diluted in terms of s.8, MPD-2001 Development Code (hereinafter ‘Code’) differentiates between use zone (designated in Land Use Plan) and use premises (designated in layout plan). Clauses-1 to 7 of the Code, reproduced herewith and marked as ANNEXURE-C, set out the manner in which use zones designated in the Master Plan / Zonal Plan are to be detailed out into Use Premises for various activities in Layout Plans for development according to Master Plan. The significance of Use Premises is stated in the Introduction to the Code, which says: “It is a systematic code to decide the use activity (use) in two levels: (i) conversion of use zone into use premises (layout); and (ii) Permission of use activities on use premises.” Accordingly, Master Plan / Zonal Plan at levels of Use Zone and Use Premises are set out herewith for projects indicated in ANNEXURE-P/1, falling in J-Zone (for which Zonal Plan is not approved) and F-Zone (relevant portion of Zonal Plan of which is reproduced at ANNEXURE-D).
- J-ZONE PROJECTS: Stipulations for ‘Use Premises’ to be designated at time of layout preparation (Clauses 2(2), 2(3), 7(1) of the Code) and MPD-2001 provision (under heading ‘Zonal (Divisional) Plan’), that Zonal Plan “shall act as link between the Layout Plan and the Master Plan” preclude designation of Use Premises in absence of Zonal Plan. All J-Zone projects are, therefore, violative of the Master Plan at level of Use Premises. They also involve following Use Zone level violations: (a) SULTANGARHI MEGA-HOUSING (‘F’ in ANNEXURE-P/1) started being built in 2002 and was stopped by this Hon’ble Court in WP 4978/2002 on 16.09.2002. MPD-2001 Land Use plan earmarks the location in ‘White’, colour for Use Zones ‘A2 Green Belt’ and ‘A3 Rural’ (nos. 4.35 and 4.36 in Clause-4 of the Code), and specifies in the index for colours ‘Green Belt (as per MPD-1962)’. A collective reading of MPD-1962 and MPD-2001 Land Use plans shows the site is for ‘Green Belt’. Sub-Clause 8(ii)(b) of the Code permits in ‘A3 Rural Zone (including A2)’ only: “Rural Centre, public & semi-public facilities (within 0.5 km of the settlement), orchard, plant nursery, wireless and transmission, forest”, ie, not mega-housing. (b) SPORTS COMPLEX AND LIVER INSTITUTE SOUTH OF D-2 VASANT KUNJ (‘B’ in ANNEXURE-P/1) were announced in 2000 (latter originally as government hospital) and despite numerous representations, construction started in 2002. As in case of Sultangarhi, the site is ‘Green Belt’ in MPD-2001. Even Clause-8(ii)(b) permission for “facilities (within 0.5 km of the settlement)” does not apply since the only settlements within 0.5 km are Vasant Kunj (with adequate provision of facility sites in its layout plan) and Sainik-Farms style up-coming unauthorised colony / farmhouses (for which facilities in Green Belt / Rural Zone are not contemplated in MPD-2001). (c) AIR-CONDITIONED MANDI (‘C’ in ANNEXURE-P/1) was announced in 2003 and an APMC board (claiming maintenance of greens) and porta-cabin have come up. MPD-2001 Land Use Plan earmarks the location in ‘Dark Green’, colour for Use Zone ‘P1 Regional Park’ (no. 4.08 in Clause-4 of the Code), for which list of permissible activities in Clause-8(ii)(b) of the Code does not include air-conditioned wholesale commerce, air-conditioned or otherwise. (d) VASANT KUNJ (‘A’ in ANNEXURE-P/1) SECTOR-D POCKET-6 flats were disposed off as HIG scheme in 2002. MPD-2001 indicates Vasant Kunj in ‘Yellow’, for Residential use zone. Approved layout plan for Vasant Kunj (filed by DDA in WP 5007/2002 in September 2003) does not detail out the site. Use Premises are violative of MPD-2001 in terms of Clause-8(i)(a) class composition of residential use zone. As evident from letter from CGWA to DDA in ANNEXURE-B (COLLY), there has also been violation of CGWA notification and, hence, of s.6 of the Act.
- F-ZONE PROJECTS: Projects indicated as ‘D’ and ‘E’ in ANNEXURE-P/1 fall in sub-Zones (Zones in MPD-1962) F13 and F14, for which the F-Zone Plan says (sub) Zonal plans were not prepared (pp.2-3). F-Zone Plan does not detail out MPD-2001 provisions for the concerned areas, and plan requirements u/s.8 of the Act must, therefore, be met in Layout Plan – also required to take into account CGWA notification of 1999, ie, subsequent to F-Zone Plan of 1998, in view of proviso to s.6 of the Act – without which Use Premises cannot be lawfully designated. Accordingly, violations involved in projects earmarked ‘D’ and ‘E’ in ANNEXURE-P/1 are as follows: (a) C.I.S.F. FLATS IN MAHIPALPUR HAUZ (‘D’ in ANNEXURE-P/1) have been under construction since 2001 despite representations, including by the Petitioner at hearing of 27.01.03 for Public Notice for Sultangarhi scheme. MPD-2001 Land Use Plan earmarks the location in ‘criss-cross pattern’, indicating Use Zone ‘G3 Government Land (Use undetermined)’ (4.25 in Clause-4 of the Code). F-Zone Plan indicates the same for all of Sub-Zone F-14, thereby failing to meet requirements u/s.8 of the Act. It does indicate location of Mahipalpur village within this. Any lawful Layout Plan for the area would have protected the 14th century Mahipalpur Hauz in view, besides of MPD-2001 provisions for urban villages, heritage and environment, also of CGWA notification and a ‘Use Premise’ for CISF flats, not justifiable on basis of F-Zone Plan alone in terms of s.8 of the Act, is violative of these. (b) VASANT KUNJ PHASE-2 (‘E’ in ANNEXURE-P/1): MPD-2001 Land Use plan indicates the 315 Ha site primarily in ‘Yellow’ (Residential) and ‘Light Green’ (District Park), with two pockets in ‘Blue’ (Public/ Semi-Public) and small square in ‘Red’ (Commercial). (Details in ANNEXURE-P/5 p.27 are from proceedings of a workshop held at School of Planning and Architecture on 12-14 March 1997, at which then DDA Commissioner Planning made a presentation about the International Hotels Complex proposal for the site and the group that had moved the Hon’ble Supreme Court against this was also represented). F-Zone Plan indicates on the site only broad land use percentages and says in para-12.0, under ‘Proposed Modifications in the Master Plan’: “The following change if land uses are processed under the act. 1. Change of land use of App. 315 Hect. Area of International Hotel Complex, Vasant Vihar after the finalisation of proposal as per the approval of Govt.” F-Zone Plan, therefore, makes only a provisional proposal for the 315 Ha site, requiring, besides Govt. approval, Layout Plan under the Code before any Use Premise, such as for Mall, can be lawfully designated in terms of s.8 of the Act. Moreover, the reference in auction advertisements to a 250-Ha biodiversity park (even as F-Zone Plan proposal provides for only 140 Ha of Recreational Use), together with 19 Ha Mall and institutional / Hotel allotments already made, adds up to a ‘scheme’ that is neither according to MPD-2001 nor F-Zone Plan. Apropos the Mall it is further submitted that: (i) The site indicated in auction advertisements is marked in MPD-2001 Land Use plan as Public/Semi-Public (institutional) use zone, allocation for which F-Zone Plan increases from 25 Ha in MPD-2001 to 50 Ha. Without Layout Plan indicating Use Premises for institutional use, the Mall is violative of MPD-2001 in terms of Clause-7(2) of the Code, which requires ‘any change in location boundaries of predominant use of use premises’ to be incorporated in the Layout Plan. (ii) A Use Premise cannot be designated for ‘Mall’, since Clause-5 of the Code limits permissible activities to the 136 listed in the Schedule and this list does not include Mall. The same applies to ‘Service Apartments’ (plot-6 in auction advertisements). (iii) Mall can be part of a commercial centre, which must conform to Master Plan provisions for hierarchical commercial facilities for all types of commerce (including informal). In this regard, Clause-2(7) of the Code states, “Commercial Centre include a CBD, Distt. Centre, Community Centre, Local shopping centre and convenience shopping centre and non-hierarchy commercial centres”. Non-hierarchy commercial centres, indicated in MPD-2001 and referred to in para-7.2.2 on p.10 of the F-Zone Plan, do not mention Vasant Kunj Shopping Mall.
- It is submitted that numerous representations seeking clarification about / objecting to the prima facie Master Plan violations outlined above have been to no avail. These are enumerated in ANNEXURE-P/12. It is further submitted that the instant writ petition is not targeted against any particular violation but against the cumulative impact of a series of violations in the area. While changes to the Master Plan may be warranted in one or more of the above cases, they need to follow due process of s.11A of the Act and monitoring and review provisions incorporated in MPD-2001. Otherwise they are jeopardizing Master Plan policies, especially those for benefit of old settlements, and are contrary to provisions of the Act including, besides s.11A, ones relating to object (s.6), staging (s.7(2)(a)), jurisdiction for schemes (s.12(4)), use of funds (s.23(2)) and land disposal (s.21(3)), purpose of land acquisition powers (under s.15) inclusive of integration of existing activities (s.21(2)), etc.
W P (C) NO. 8523 OF 2003: DDA counter affidavit (February 2005)
IN THE HIGH COURT OF DELHI AT NEW DELHI W P (C) NO. 8523 OF 2003
SHIV NARAIN .…...PETITIONER
I, Rakesh Bhatnagar, Director (Commercial Lands) in the DDA, Vikas Sadan, New Delhi, do hereby solemnly state and affirm as under:-
- That I am the Director (Commercial Lands) in the DDA and being familiar with the facts and circumstances of the present case in my official capacity, am competent and authorized to swear this affidavit on behalf of the DDA. I have received inputs in the matter from the Planning and Engineering Wing of the DDA for the Zone in question and the same have also been incorporated in my reply affidavit to adequately answer the averments in the Writ petition.
- That I have gone through the contents of the present Writ Petition. In reply thereto, a concise affidavit is being filed dealing with the main contentions raised in the Writ Petition. The answering respondent craves leave of this Hon’ble Court to file a further detailed affidavit, if required, at a later stage.
- That all the averments in the Writ Petition which are not specifically admitted herein are deemed to be denied by the answering respondent.
- That the petitioner has filed the present petition seeking directions to the DDA and other respondent Authorities to furnish the details of the action taken / proposed for integration in their activities in Mehrauli-Mahipalpur area in terms of development / re-development, provision of facilities, work places etc. in the vicinity and conservation of heritage and environmental resources as per the Master Plan provisions. Directions have also been sought calling for proof of legality in terms of CGWA clearance and conformity with Master Plan / Zonal Plan for all projects / schemes for Mehrauli Mahipalpur area since the approval of MPD 2001 in 1990. There is further prayer whereby the petitioner has asked for quashing of the auction held on 15-12-03 for the Vasant Kunj Shopping Mall and stopping further work on this project until adequate information in terms of the earlier prayers is not supplied.
- That at the outset it is submitted that the petitioner in the garb of public interest litigation is actually only trying to create hindrance in the execution of the Vasant Kunj Shopping Mall project. It may be pointed out that earlier also a writ a petition was filed challenging the auction, which at the time was proposed to be held for the Vasant Kunj Shopping Mall. The said litigation went up to the Hon’ble supreme Court and it was only after the Hon’ble Supreme Court had given a clarification to the effect that there would be no illegality in carrying out the auction was the auction carried held on 15-12-03. In the said writ petition being Writ Petition (Civil) No.564/03 titled as Santosh Bhartiya V/s DDA”, a detailed counter affidavit was filed by the DDA wherein it has been explained that the land in question for the Vasant Kunj Shopping Mall was part of the 92 Hectares of land (constraint area), which was part of the clarification by this Hon’ble Court in 19-8-97 and, therefore, the same could be developed in terms of the directions given by the Hon’ble Court for the said purpose. It has also been explained that various allotments had been made in these 92 hectares of land and environmental clearances for such buildings had been obtained by the allottees of the said land from the DPCC i.e. Delhi Pollution Control Committee. The allottees of this area were also required to seek necessary clearances from the other Statutory Bodies. Thus, the directions given by the Hon’ble Supreme Court and this Hon’ble Court on 13-9-96 as well as on 19-08-97 were followed both in letter and in spirit.
- That it is submitted that the 92 Hectares of land on which the plots of the Vasant Kunj Shopping Mall have been auctioned has been continuously planned, developed and disposed of by the answering respondent from 1991 onwards. The Vasant Kunj shopping mall is a prestigious project undertaken by the DDA and is spread over 19 Hectares of land on a site earmarked for ‘Non Hierarchical Shopping Cum Commercial Complex’. The auction documents made it known to all the intending purchasers that they would be required to seek necessary clearances from the concerned statutory bodies including CGWA, DJB etc. It may be stated that at the time of auction the entire conditions of auction were read out to all present in the auction hall and all queries including environmental related ones were answered in detail. The petitioner is seeking to challenge this closed transaction and the present petition is an abuse of the process of the Court and deserves dismissal. Thus the question of the existence and validity of the Vasant Kunj Shopping Mall having been decided by the Hon’ble Supreme Court, it is not open to the petitioner to challenge the same again. In the present petition and the challenge of the same is only a ploy and hamper the development of the shopping Mall.
- That it is pertinent to note along with the said development of 92 Hectares, DDA has identified an area of 223 Hectares for a proposed bio-diversity Park adjoining the Vasant Kunj Shopping Mall which is in line with the directions of EPCA dated 6-10-99. The spread of the bio-diversity park of 223 Hectares is substantially more than the 140 Hectares proposed for recreational activities in the Zonal Development Plan of Zone – F notified by the Government of India on 5-8-98. Thus, the DDA is taking steps to ensure all round development of the area.
- That with respect to the specific instances mentioned in the writ petition, the Deponent makes the following submissions:
- It is denied as stated in para 1 that the new schemes are unmindful of the provisions of the Master Plan, CGWA notification and violative of Delhi Development Act. It is also denied that all new development in the area was devoid of the basis in the Master Plan / Zonal Plan.
- The basic grievances of the petitioner are set out in paras 10 to 12. It is submitted that the scheme of Vasant Kunj was prepared under the provisions of MPD 1962 and the existing villages have been tried to be accommodated within the urban development. The Vasant Kunj Scheme has been developed and objections were invited while the change of land use was being processed as part of the modification in the Master Plan in the year 1985 wherein the Vasant Kunj area was shown as ‘Residential’. In the MPD 2001, integration of villages with the urban development have been suggested the Economically Weaker Section, the work place are generated by developing the residential areas where these people can have job related with the household assistance. It is also denied that the projects mentioned in para 10 (b) are in violation of the plans. With respect to the DDA’s Sports Complex and GNCTD Institute of Liver Sciences as mentioned in para 10 (b) (i), it is submitted that the land for the hospital was allotted in public interest by DDA to the Delhi Government. The Delhi Government is constructing the hospital and the change of land use is under process. With respect to the GNCTD A/c Mandi at Andheria Morh, as stated in para 10 (b) (ii), it is submitted that this land has been directly allotted by the Lt. Governor, Delhi to the GNCTD and no clearance from the DDA has been taken for the purpose. Only certain temporary structures are being put up for local sale of vegetables by the Farmers from the nearby areas, which are permissible under the Master Plan in a Regional Park. The same is being used only for a few hours in the morning on open plat-forms. With respect to the CISF flats in Mahipalpur as mentioned in para 10 (b) (iii), it is submitted that the CISF flats are falling in a use Zone entitled as ‘Government Land’ (Use Undetermined). It may be explained that the DDA has no role in the planning of the area nad the usage of such areas is to be determined by the Authority by whom the land is being used – in this case the Defence Ministry. A copy of the relevant extract of the Master Plan is annexed hereto as ANNEXURE-R 1. With respect to the averments in para 10 C (i), it is submitted that in the Zonal Plan for Zone F, the land use break up of 315 Ha has been given, out of which, the scheme has been cleared by the Hon’ble Supreme Court as well as MoUD for 92 Ha. and the remaining land is being considered for the development of bio-diversity park based on the recommendations of the Environmental (pollution & control) Authority. With respect to the averments in Para 10 c (ii), it is submitted that the Sultangarhi Scheme being referred to has already got the approval of the Govt. of India and the change of land use from ‘agricultural and rural use zone’ to ‘residential’ and ‘public and semi public facilities’ has been notified by the Govt. of India last year. The scheme, therefore, now has the validity of the relevant plans prepared for the area in question.
- That in reply to para 11(a), it is submitted that in the MPD 2001, the norms have been given with respect to the provisions of the school facilities related with the population. With respect to the averments in para 11(b), it is submitted that Vasant Kunj is a residential scheme wherein the Master Plan as well as in the Zonal Plan, no provisions have been kept for development of the work place. Only commercial centres have been proposed to cater to the commercial needs of the area. The averments in para 11(c) need to be specifically answered by the DMRC. It is submitted that planning is a specialized process and it would not be correct for the petitioner to decide or question the viability of the length of the Metro Corridor to be set up in the area in question. With respect to the averments in para 11(d), it is submitted that the scheme for conversion from leasehold to free hold and its applicability to various types of properties is an aspect which has been considered at the highest level and after due deliberation by the Ministry of Urban Development, which is the Authority to have formulated the scheme for conversion and the DDA is only an implementing agency of the provisions of the said scheme including the various amendments and modifications made in the said scheme by the Ministry.
- With respect to the submissions made in para12, it is submitted that the following is the position with regard to the averments made therein:-
- SEWERAGE: The DDA has its own pumping station in Vasant Kunj, phase-II where all sewage is collected and from there it is pumped to the main treatment plant.
- WATER SUPPLY: The lines are already complete. The water supply is to be released by the DJB after the coming into operation of the Sonia Vihar Water plant. However, it is submitted that the DDA / Private Individual Allottees take clearance from the DJB before starting any project.
- DRAINAGE: The DDA is expecting to get an out fall by June 2005. As of now, the effluent is being re-harvested in the deep ditches of the bio-diversity park after obtaining clearance from the CGWA in this regard.
- With respect to the averments in para 13, it is submitted that the position regarding drainage has already been explained in the preceding para. In this area, the DDA has taken up development of residential plots for shifting of the villagers of Nangal Dawat which scheme was partially modified about two years ago by the Area Planning Unit – 1.
It is therefore clear that the grievances of the petitioner in the present writ petition are not maintainable since the planning of the area is being done in accordance with the Master / Zonal Plan and any modification in the Master Plan or a change of land use has been processed under the provisions of the Delhi Development Act. The public projects have been conceived as a measure for the improvement of the city and in all such proposals of the DDA, the allottees are required to abide by all the conditions of clearance from the environmental Authorities including taking the measures necessary for checking pollution and all other requirements of law. These allottees are entitled to proceed with their projects only after all statutory clearance has been received. Thus it is clear that the grievances made by the petitioner are unfounded and the present petition merits dismissal.
CIVIL WRIT PETITION NO. 8523 OF 2003: MPISG Rejoinder (April 2005)
IN THE HIGH COURT OF DELHI AT NEW DELHI EXTRAORDINARY CIVIL WRIT JURISDICTION
CIVIL WRIT PETITION NO. 8523 OF 2003
|IN THE MATTER OF:||Shiv Narayan … Petitioner
Delhi Development Authority & Ors … Respondent
REJOINDER AFFIDAVIT ON BEHALF OF THE PETITIONER
I, Gita Dewan Verma, aged 43 years, resident of 1356 DI Vasant Kunj N Delhi - 70, do hereby solemnly affirm and state on oath as under:-
- That I am a qualified planner and part of the Master Plan Implementation Support Group with which the petitioner above named is also associated. As mentioned in para-3 of the additional affidavit dated 15.12.2003 of the petitioner, I have prepared four detailed illustrated reports on Master Plan violations that were sent to the authorities in 2001-02. As such, I am fully conversant with the facts and circumstances of the present case. I have been authorised by the petitioner to file this rejoinder on his behalf since he is away from Delhi and will not return in time for filing this rejoinder within the stipulated date.
- That on 22/09/04 this Hon’ble Court was pleased to issue notice to all 7 respondents, returnable on 1.12.2004, to file replies within 4 weeks; on 22/02/05 Respondent No.1, DDA, filed a concise affidavit seeking leave to file detailed affidavit if required; and on 23/02/05 this Hon’ble Court ordered: “DDA to file a reply within two weeks dealing with the specific averments made by the petitioner in the additional affidavit. Rejoinder, if any, within a week thereafter. To come up on 27.4.2005.” DDA has not filed further affidavit, and its concise affidavit does not specifically refer to paras 1 to 9 and 14 and the grounds of the writ petition or to the additional affidavit of 15/12/03 therein, contents of which are reiterated.
- That at the outset it is submitted that this petition was necessitated by Respondents’ indifference to this Hon’ble Court’s judgement of 16/09/2002 (Annexure-P/A to the additional affidavit) against the Sultangarhi scheme and identical illegalities. In the fourteen months between filing of it and of counter-affidavit by Respondent No.1, work on the projects that have been questioned in this petition have continued and expanded and clearly the respondent no.1 hopes to present this Hon’ble Court with a fait-accompli . The petitioner craves leave to produce photographs in support of this fact. The counter affidavit of respondent no.1 defends these projects without answering the Petitioner’s contentions. The counter affidavit also skirts the core issue of the petition, viz, failure by respondent no.1 to enforce mandatory provisions for integrating old settlements in new development and conservation of built and natural heritage. The contention of respondent no.1 that villages whose lands were acquired for planned development can provide domestic help in that development (para-8(b)); that planning is a specialized process and it would not be correct for citizens to question authorities about it (para-8(c)) are nothing short of assertion of wilful abandonment of statutory mandate of development according to Plan.
- In para-8(a) of its counter affidavit (which is stated to be in reply to para 10 of the writ petition), respondent no.1 denies that all new development in the area was devoid of basis in the Plan and contradicts this bland denial in para-8(b), as follows:
- It makes contradictory claims that Vasant Kunj scheme was prepared under MPD 1962 and that land use change for it was processed as part of MPD 2001.
- About GNCTD Liver Institute being built in Green Belt south of D2 Vasant Kunj, it says land use change “is under process” and about Sports Complex on adjoining plot even ex-post-facto land use change is not claimed.
- It admits GNCTD Mandi in Mehrauli ridge is without its permission and claims that only temporary structures, permissible in Regional Park, are being put up – even as structures were already up (and inaugurated by Chief Minister) on date of affidavit and are not temporary but built in masonry and even temporary wholesale use is not permitted on the site by Development Code sub-clause 8(ii)b (Permission of use Premises in the Remaining use Zones), which states: “P1 Regional Park: Regional Park, Residential Flat (For watch & ward), Picnic Hut, Park, Shooting Range, Zoological Garden, Bird Sanctuary, Botanical Garden, Local Government Office (Maintenance); Open Air Theatre, Police Post, Fire Post, Orchard Plant Nursery and Forest. Any structure in this use zone shall be of temporary nature.”
- About development in Mahipalpur Hauz, the Respondent claims “no role in the planning of the area”, earmarked ‘Government Land (Use Undetermined)’, referring to portion of Development Code (ANNEXURE-R1) that lists this use zone among those for which it says:“(b)(i) The permission of use premises in the following use zones shall be governed by the specific function of the use zone”. The “no role” claim is untenable, as s.12(3) prohibits development without DDA permission in development-area and the area in question is such area since DDA, prohibited by s.12(2) from carrying out development in any other area, has issued for change of use of 6.95 Ha in it to ‘Commercial’ a s.11A Public Notice on 07/11/04, annexed herewith as ANNEXURE-P/13.
- About Vasant Kunj Ph.2 the Respondent states in para-8(b) that “in Zonal Plan for Zone F, land use break up of 315 Ha has been given, out of which the scheme has been cleared by Hon’ble Supreme Court as well as MoUD for 92 Ha. and the remaining land is being considered for the development of bio-diversity park based on recommendations of Environmental (pollution & control) Authority”. It is submitted that Order of 19/08/1997 in SLP by the Respondent cannot be construed as clearance of a 92 Ha scheme not indicated as such in F-Zone Plan of 1998, nor can EPCA / MoUD substitute s.11A process for modifying F-Zone Plan.
- About Sultangarhi Scheme it claims land use change “has been notified by the Govt. of India last year. The scheme, therefore, now has the validity of the relevant plans”. It is submitted that “relevant plan” is J-Zone Plan, not yet notified, and land use change purportedly effected – in course of this petition – calls for proof, besides of notification, of compliance of Order of 16/09/02 for inquiry and of due consideration of over 1700 objections filed in response to s.11A Public Notice of 15/09/02, since issues raised in them and reiterated in para-11 to 13 of this petition remain unanswered.
- That in para-8(c) of its counter-affidavit the Respondent has not answered averments in para-11 about new development being unmindful of mandatory provisions for villages. Apropos facilities, it fails to mention non-compliance of this Hon’ble Court’s Order of 27/10/04 in WP 8954/2003 for stopping violations on school sites in 12 weeks. About freehold disposal that curtails options for targeting, say, shops as work places for villagers, it claims, with no basis in the Act, that it is “only an implementing agency” and MoUD “the Authority to have formulated the scheme”. Likewise, about planning imperatives for metro corridor, it passes the buck to DMRC, in which regard it is pertinent to mention that ASI has also objected to elevated corridor along Qutb/Mehrauli that DMRC has proposed even as F-Zone Plan, which DDA is duty-bound to enforce, contemplates underground metro near heritage precincts.
- That in para-8(d) and 8(e), the Respondent has not answered averments in para-12 and 13 about problems created for old settlements by new development in violation of Plan. Apropos water, it merely reiterates vague claims about Sonia Vihar, which is unlikely to meet even existing shortfall of river water supply in this area where the ground water crisis is already full-blown. Apropos sewerage, it has not answered what permission allowed discharge of Vasant Kunj sewerage into historic Mahipalpur Hauz and has now claimed CGWA permission to discharge drainage in so-called Biodiversity Park. About breach of historic 14th century Mahipalpur Bundh, it only refers, in para-8(e), to vague claims about drainage in general.
- That the Respondent’s reference in para-8(e) to illegal scheme (in J-Zone) for alternative plots for Nangal Dewat – even as neither alternative plots (not mandatory u/s.29) nor Nangal Dewat (not in Mehrauli-Mahipalpur area) is subject of this petition – is diversionary and its view on mandatory provisions for integration, aired in para-8(b) in the vein of an imperialist coloniser (“work place are generated by developing the residential areas where these people can have job related with household assistance”), is most exceptionable. It is pertinent that the Respondent has not answered para-12(a), which refers to its “justification” of its failure to develop mandatory EWS housing in Vasant Kunj on grounds of proximity to villages in petitions filed in this Hon’ble Court by slum citizens seeking relocation to nearby EWS housing site. It requires to be mentioned here that this site continues to be occupied by Sahara Restaurant of DDA scam fame. It is unfortunate that DDA demolished the settlement of the petitioners in those cases before replying to their petitions, just as it demolished in the course of this petition old workers’ settlements for Park/Malls scheme substituting the Plan scheme for Vasant Kunj Ph.2 inclusive of 35 Ha residential land, enough for mandatory EWS housing for service providers who otherwise live in / stress nearby villages.
- That Paras-5 to 7 of the Respondent’s concise affidavit justify Vasant Kunj Mall in terms of an “earlier” petition that went up to Hon’ble Supreme Court as WP (C) 564/2003, even as:
- As per para-18A of WP 564/2003, the so-called “earlier” writ was filed in this Hon’ble Court after the instant petition and mentioned with its first hearing on 10/12/03.
- On 08/03/04, Hon’ble Supreme Court ruled in it: “We are satisfied that the proposed Mall is on the area measuring 92 hectares of land, which has already been excluded by the order of this Court on 19th August, 1997. In that view of the matter, we do not find any merit in this petition. It is, accordingly, dismissed. However, this order will not preclude the petitioner from availing any remedy which may be available to him under law.”
- Even as the Order rejects only “that view” (relying on Orders of 1996/97) and this prior petition relies on F-Zone Plan of 1998, CGWA notification of 1999 and this Hon’ble Court’s Order of 16/09/2002, the Respondent continues to claim (para-6) that “the question of the existence and validity of Vasant Kunj Shopping Mall having been decided by the Hon’ble Supreme Court, it is not open to the petitioner to challenge the same again“.
- This Hon’ble Court had asked for the pleadings in WP (C) 564/2003. On 04/08/04 the Respondent produced copy of Order of 08/03/04 and on 01/12/04 a copy of the petition, but not its “detailed counter-affidavit” therein, which, as described in its instant concise affidavit, dwelled on “clearance” by Order of 19/08/97, besides false claim that the site is for ‘Non Hierarchical Shopping Cum Commercial Complex’ (which it is not, as pointed out in additional affidavit, para-6(ii)) and the illegal defence that 223 Ha Biodiversity Park is more than 140 Ha proposed for recreational use in F-Zone Plan (which increase also requires Plan modification by s.11A).
- Without answering challenges in para-10(c) and Annexure-P/5 of the petition and para-6 of additional affidavit and despite the explicit submission in para-8 of additional affidavit that this petition is not targeted at any particular violation but at cumulative impact of rampant violations, the Respondent reiterates its odd insistence that “the present petition and the challenge of the same is only a ploy to hamper development of the shopping Mall”. It is respectfully submitted that this petition is not hampering development of the Mall, for which marketing and excavation (including removal of china clay, red sand, rock, etc) is progressing, as is the Respondent’s “support” through media reports of further “plans” for the site, such as recent one about an international crafts complex, reproduced herewith asANNEXURE-P/14.
- That the Respondent’s lackadaisical attitude towards the Master Plan, reflected in its defence of violations that it is duty-bound to penalise, has emboldened violations by others:
- in the course of this petition GNCTD Budget speeches have referred to Mandi and Liver Institute
- on 20/02/04 cabinet ministers and LG laid foundation-stone for Malls / Park;
- on 22/02/05 CM inaugurated the Mandi; and
- unauthorised colonies are being carved out in the ridge next to Mandi and Sultangarhi
All this has happened despite numerous representations against illegalities, each of which representation has been ignored. A list of representations made in view of notice having been issued by this Hon’ble Court, and letter of Respondent No.3 forwarding to Respondents 1 and 4 those of 21/11/04 and of 22/11/04 are annexed herewith as ANNEXURE-P/15 (Colly).
- That the Respondent’s claim at the end of its concise affidavit that “planning of the area is being done in accordance with the Master / Zonal Plan” and any Plan modification has been duly processed is belied by its averments to the contrary; its contention that the “public projects have been conceived as a measure for the improvement of the city” holds no water since their legality has not been proved and illegal ground water withdrawal for their constructions is prescription for ecological catastrophe rather than city improvement; its submission that “allottees are entitled to proceed with their projects only after all statutory clearance has been received” calls for it to initiate action u/s.30 and 31 against ongoing constructions since they do not have statutory clearances; and its view that “grievances made by the petitioner are unfounded and the present petition merits dismissal” is devoid of basis even in its concise-affidavit that has entirely skirted the petitioner’s grievances. It is, therefore, prayed that the petition be allowed.
I, the deponent above named do hereby verify that the contents of the above affidavit are true and correct to the best of my knowledge and belief. That no part of it is false and nothing material has been concealed therefrom.
Verified by me at New Delhi, this 21st day of April, 2005.
ANNEXURE-P/13: Public Notice dated 07/11/2004 issued by DDA (for land use change to commercial in Mahipalpur Hauz)1
ANNEXURE-P/14: News report published in Express Newsline dated 15/04/2005 (DDA go-ahead for craft bazaar at Vasant Kunj)2
ANNEXURE-P/15 (colly): List of representations made pursuant to notice issued on 22/09/2004 (and copies of letters of 21/11/04, with 17/02/04, and 22/11/04 and GNCTD letter of 11/01/05 forwarding the same to DDA VC and MCD Commissioner and GNCTD letter of 23/02/05 forwarding letter of 01/02/05 from the petitioner to DDA VC, MCD Commissioner and GNCTD Dy Secretary Bhagidari for appropriate action)
MCD counter affidavit (April 2005)
IN THE HIGH COURT OF DELHI AT NEW DELHI CWP 8523 of 2003
In Re: Shiv Narayan … Petitioner Vs Delhi Development Authority & Ors. … Respondents
COUNTER AFFIDAVIT ON BEHALF OF THE RESPONDENT No.4 MUNICIPAL CORPORATION OF DELHI (MCD) TO THE WRIT PETITION FILED BY THE PETITIONER
I, Shamsher Singh, Senior Town Planner, Municipal Corporation of Delhi, do hereby solemnly affirm and declare as under:-
- That I am working as Senior Town Planner with Municipal Corporation of Delhi and I have gone through the contents of the writ petiotion and the documents annexed with the writ petition and I have also gone through the official records in connection with the case and am aware of the facts relating to this case on the basis of the above official records and I further state that I am fully authorised and competent to sign and swear this affidavit for and on behalf of the Respondent No.4, Municipal Corporation of Delhi, hereafter referred to as MCD.
- I further respectfully submit that unless specifically admitted the contents of writ petition may kindly be treated to be denied.
A) It is respectfully submitted that the area in question is a “development area” and falls under the jurisdiction of Delhi Development Authority (DDA) and therefore no cause of action against answering respondent. However, for the sake of clarity it is submitted that role of MCD would come into play only after the “area in question” is handed over to MCD, under formal orders of the Lieutenant Governor of NCT of Delhi and that too for the purpose of “limited to maintenance of”
- Internal roads
- Storm Water (SW) drains (along side road drains)
- Horticulture development, limited to internal parks, as main parks are kept by DDA and maintained by DDA itself
- Conservancy services (connected with garbage)
B) I respectfully submit that the procedure is that the MCD accepts an area from DDA for maintenance purposes, after it has been “developed” by DDA. If it is found that the area being transferred to MCD has not been fully developed, then the MCD claims “deficiency amount” and this amount is settled by the Lietenant Governor of NCT of Delhi, before he finally passes order of transfer of area from DDA to MCD. It is on the payment of above charges only that MCD accepts the said transfer. The liability of MCD with respect to services mentioned above, starts only after proper handing over / taking over of the said area as per the orders passed by Lieutenant Governor of NCT of Delhi.
C) I say that, as on date of swearing of this affidavit, the area in question in this writ petition is a “development area” and the DDA has not transferred it to MCD and therefore no cause of action stands against the MCD and it is prayed that the Municipal Corporation of Delhi be deleted from the array of respondents.
Reply on Merits
Para 1 & 2: That Para 1 and 2 of the present Writ Petition requires no comment as the same are a matter of record The Respondent No.4, MCD, claims having no knowledge of the same. It is submitted. that the contents of the ‘preliminary submissions may kindly be read as reply to this Para, contents of which are not being repeated for the sake of brevity.
Para 3: That in Para No.3 of the present Writ Petition the Petitioner himself has admitted that it is the Delhi Development Authority (DDA) which is a planning and development agency with a sole motive to promote and secure development of Delhi therefore no reply is called for from MCD. It is submitted that the contents of the ‘preliminary submissions may kindly be read as reply to this Para, contents of which are not being repeated for the sake of brevity.
Para 4: That Para 4 of the present Writ Petition requires no comments on behalf of MCD since the contents exclusively pertains to DDA. It is submitted that the contents of the ‘preliminary submissions may kindly be read as reply to this Para, contents of which are not being repeated for the sake of brevity.
Para 5: That since it is the Delhi Development Authority which is the Planning and the Development Agency, the reply to the contents of Para 5 of the present Writ Petition is to be filed by DDA and not by MCD. It is submitted that the contents of the ‘preliminary submissions may kindly be read as reply to this Para, contents of which are not being repeated for the sake of brevity.
Para 6. That regarding (a) and (b) of Para 6 of the present Writ Petition, the reply is to be filed by DDA as well as by the concerned services department. It is respectfully submitted that MCD is no where concerned / related with the said schemes or plans nor does it have any knowledge of the same. It is respectfully submitted that MCD has only been impleaded as a Performa party. It is submitted that the contents of the ‘preliminary submissions may kindly be read as reply to this Para, contents of which are not being repeated for the sake of brevity.
Para 7. That the contents of Para 7 of the present Writ Petition are not denied as the same are a matter of record. It is submitted that the contents of the ‘preliminary submissions may kindly be read as reply to this Para, contents of which are not being repeated for the sake of brevity.
Para 8. That the contents of Para 8 of the present Writ Petition are to be replied by DDA. It is submitted that MCD is nowhere concerned with it. It is submitted that the contents of the ‘preliminary submissions may kindly be read as reply to this Para, contents of which are not being repeated for the sake of brevity.
Para 9. That the contents of Para 9 of the present Writ Petition are to be replied by DDA, as the Vasant Kunj area was planned and developed by DDA. It is respectfully submitted that MCD is nowhere concerned with it. It is submitted that the contents of the ‘preliminary submissions may kindly be read as reply to this Para, contents of which are not being repeated for the sake of brevity.
Para 10. That on the basis of the submissions made above, Para 10 of the present Writ Petition also needs to be replied by DDA, as the same relates to development of the Vasant Kunj area. It is submitted that the contents of the ‘preliminary submissions may kindly be read as reply to this Para, contents of which are not being repeated for the sake of brevity.
Para 11. That with regard to contents of Para 11 of the present Writ Petition it is respectfully submitted that the site for schools were allotted by DDA, which is the Planning and Development Agency and therefore it is the DDA which is the proper authority file the reply. It is submitted that the contents of the ‘preliminary submissions may kindly be read as reply to this Para, contents of which are not being repeated for the sake of brevity.
Para 12. That same view has been taken regarding Para 12 of the present Writ Petition also. since the issue in question pertains to planning and development, the reply is to be filed by DDA. It is submitted that the contents of the ‘preliminary submissions may kindly be read as reply to this Para, contents of which are not being repeated for the sake of brevity.
Para 13. That Para 13 (a) of the present Writ Petition also pertains exclusively to DDA and does not pertain to MCD, therefore no reply is called for from MCD. As far as contents of (g) of Para 13 are concerned, the surrounding area of Mahipal Pur have been planned and developed by DDA therefore the matter pertains to DDA and it is to be replied by DDA. It is submitted that the contents of the ‘preliminary submissions may kindly be read as reply to this Para, contents of which are not being repeated for the sake of brevity.
Para 14. That as has been stated above, the issue being related to planning and development, would require reply from DDA.
Para 16. That based on the above-mentioned submissions, sub-clause (a) to (h) mentioned as Grounds under the present Writ Petition is to be looked into and replied by DDA and concerned service Agencies. It is respectfully submitted herein that the MCD has absolutely no role to play in the said operation
Verified at New Delhi on this day of April 2005, that the contents of para No.1 to 15 of the counter affidavit are true and correct to my knowledge and as per official records maintained in the Office of Municipal Corporation of Delhi. Contents of Preliminary Submissions are true and correct to my knowledge and record as maintained in the office of Municipal Corportion of Delhi. Nothing material has been concealed therefrom.
DDA counter affidavit (August 2005)
IN THE HIGH COURT OF DELHI AT NEW DELHI
W P (C) NO. 8523 of 2003
SHIV NARAYAN … PETITIONER
DELHI DEVELOPMENT AUTHORITY … RESPONDENT
REPLY TO THE ADDITIONAL AFFIDAVIT FILED BY THE PETITIONER ON BEHALF OF THE RESPONDENTS (D.D.A)
I, R.K.Jain, director (Area Planning - I) in the DDA, Vikas Minar, New Delhi, do hereby solemnly state and affirm as under:-
- That I am Director (Area Planning - I) in the DDA, being familiar with the facts and circumstances of the present case in my official capacity, am competent and authorized to swear this reply affidavit on behalf of DDA.
- That I have gone through the contents of the present Writ Petition. In reply thereto, I submit as under:-
1-3) The contents of paras 1-3 are basically a matter of record and hence need no reply.
3) The contents of para 4 are admitted to the extent of the provisions of the Master Plan. It is further admitted that the Zonal Plan for Zone-J is yet to be processed for approval. The Zonal Plan for Zone-F was approved by Government of India on 5th June, 1998.
5) In reply to para 5, the details of the project initiated by DDA in Zone-J is as under:-
- a) The change of land use of the land under reference already stands notified by Govt. of India by Notification No.K 13011/3/2000-DDIB dated 29-1-2004.
b) The change of land use of the area under reference (which includes DDA Sports Complex and Government of NCT of Delhi Hospital / Institute has been taken up in the Technical Committee Meeting held on 3-2-05. Thereafter, the matter was taken up in the Authority Meeting held on 19-7-05 and the same has been approved. A part Lay Out plan showing the DDA Sports Complex and the GNCTD Hospital for Liver and Billiary is annexed hereto as ANNEXURE R A 1.
c) It is submitted that permission for construction of APMC Mandi at Andheria Morh has never been given by the DDA. The matter has been examined and it was found that the proposal for development of Farmers market at Amdheria More, Mehrauli was submitted in DDA by APMC vide letter dated 6-5-2003 seeking approval / permission for development of the market. In response, DDA, vide letter dated 18-6-03 informed the following to the APMC……
“The site which has been proposed for Farmers Market at Andheria More, Mehrauli falls in the Regional Park, where as per the MPD 2001 and orders of the Hon’ble Supreme Court no construction / permanent structure is permitted. In view of the above, the proposal for development of Farmers market can not be acceded to.”
Again the DDA, vide letters dated 9th July 2003, 14th August 2003, 8th April 2004 and 20th July 2004 informed APMC Azadpur, OLSLD to C.M. Public Grievance Cell, Delhi Sectt. that since the land is a part of the Regional Park / Ridge as per MPD 2001 and no development plans have been approved by DDA, APMC was requested to approach the Ridge Management Board for their clearance which a pre-requisite and as such N O C could not be issued to APMC. It may be noted that in the land use plan of Draft MPD 2001, the land under reference falls in Ridge / Regional Park. It is thus clear that the permission for construction of APMC Mandi at Andheria More was never given by the DDA.
d) DDA has taken up the Housing Project in Sector D, Vasant Kunj in conformity with the Land Use Plan. A copy of the Layout Plan of Sector D-6 Vasant Kunj is annexed hereto as ANNEXURE R A-2.
6) In reply to para 6, it is submitted that as per MPD 2001 in sib-zone F-13, about 315 Hectares of area was proposed to be utilized for various urban uses and subsequently as per the orders of EPCA in October, 1999, 223 Hectares area was proposed to be kept as ‘GREEN’ and Hon’ble Supreme Court has vide its order of August 1997, allowed construction in 92 Hectares of area where DDA had disposed of institutional and commercial plots as per the approved Layout plan. MOUD vide letter No.K 17011/3/95 DDIB dated 17-4-02 had conveyed the approval of Government for allotment / development of 92 Hectares of area as per land use. This matter has already been disposed of by the Hon’ble Supreme Court Order dated 8-3-04. As per the approved layout plan of 92 Hectares, 25 Hectares has been earmarked for Public and Semi Public Facilities. A copy of the layout plan is annexed herewith and marked as ANNEXURE RA-3. Shopping mall is a nomenclature for particular type of commercial activity and basically comprises of commercial shops, which are permitted in Comemrcial Use Zone. Copy of Supreme Court orders dated 19-8-97 are annexed herewith and marked as ANNEXURE RA-4.
7) It is denied in reply to para 7 that specific instances cited in paras 4 and 5 indicate that there has been any master plan violation. The detailed reply of paras 5 & 6 may be seen in this regard. It is reiterated that there is no Master Plan violation.
8) It is denied in reply to para 8 that there has been violation of any order contrary to the master. It is submitted that the DDA is adhering to the proper recourse under law where-ever any change in land use in the master plan are envisaged and the due process under section 11(a) of the Delhi Development Act is being followed before attempting to change the master plan.
9) The contents of para 9 need no reply. The petitioner may be put to strict proof to prove his averments made in the para.
(SANGEETA CHANDRA : ADVOCATE
Counsel for the Respondent)
Rejoinder (to MCD counter-affidavit of April 2005)
IN THE HIGH COURT OF DELHI AT NEW DELHI
EXTRAORDINARY CIVIL WRIT JURISDICTION
CIVIL WRIT PETITION NO. 8523 OF 2003
IN THE MATTER OF:
Shiv Narayan ... Petitioner
Delhi Development Authority & Ors ... Respondents
REJOINDER AFFIDAVIT ON BEHALF OF THE PETITIONER TO COUNTER-AFFIDAVIT ON BEHALF OF RESPONDENT No.4 (MCD)
I, Gita Dewan Verma, aged 44 years, resident of 1356 DI Vasant Kunj New Delhi - 70, do hereby solemnly affirm and state on oath as under:-
- That I am a qualified planner and part of the Master Plan Implementation Support Group with which the petitioner above named is also associated. For reasons stated in para-3 of the additional affidavit dated 15.12.2003 of the petitioner, I have been authorised by the Petitioner to file this rejoinder on his behalf since he is away from Delhi and will not return in time for filing this rejoinder affidavit.
- At the outset I hereby deny all the averments and submissions made by Respondent No.4 (MCD) in its counter affidavit under reply. I further reiterate all the averments and submissions made by the Petitioner in the Writ Petition.
REJOINDER TO PRELIMINARY SUBMISSIONS
A) The Respondent's contention (in its paras A and C) that no cause of action arises against it because Mehrauli-Mahipalpur is "development area" and under DDA is denied. It is submitted that:
(i) Delhi Municipal Corporation Act, 1957 (MCD Act) covers, by s.1(2) and s.2(10), the entire UT except Cantonment and New Delhi and its Fourteenth Schedule lists Mahipalpur as Ward 43 in Rural Nazafgarh Zone, Mehrauli as Ward 44 in South Zone.
(ii) The area in question includes rural J-Zone and villages and prior to Vasant Kunj scheme was entirely Rural Area in terms of s.2(52), attracting MCD statutory obligations under s.39 (Rural Areas Committee) and s.507 (Special Provisions as to rural areas), reproduced herewith asANNEXURE-P/16,
(iii) S.12 of Delhi Development Act (Declaration of development areas and development of land in those and other areas), far from alienating "development area" to DDA, empowers MCD to, say, prevent by proviso to s.12(1) "development area" declaration if detrimental to Rural Area, promote by s.12(3)(ii) schemes for integration in appurtenant area and as member of the Authority secure enforcement even within "development area" of Plan provisions for benefit of villages by s.12(3)(i).
B) The Respondent's contention (in paras A to C) that its role in the area will commence after handover with deficiency amount and be limited to certain maintenance tasks is denied. This is untenable in terms of aforesaid, among other, statutory provisions and belied by the fact that MCD is already engaged, besides in maintenance and taxation / licensing tasks, in running schools and dispensaries and works like improvements in slums, installation of street lights, construction of hawker kiosks / community toilets / school extensions in the area. Pursuant to court orders regarding byelaws in villages, it reportedly also constituted a sub-committee of 4 councillors including the one from Mahipalpur (Rajendri Sehrawat), news reports dated 25.06.04 and 19.12.04 of which are annexed herewith as ANNEXURE-P/17.
C) Apropos prayer for deletion from the array of respondents on basis of contentions about "development area", it is submitted that the Petition does not even pertain to "development area" and s.12 of DD Act read with s.39 and s.507 of MCD Act casts upon MCD obligations directly related to the Petitioner's prayers and the Respondent's prayer is a ploy to skirt reply and suppress facts of its contrary pursuits, notably, "local area plans" for urban villages, about which it is submitted that:
(a) MCD initiated with private parties an exercise to modify building byelaws to make them "area-specific", including for villages, revealed in an official seminar on 20.04.04 and reported in news reports such as the one at ANNEXURE-P/18(a).
(b) Following a presentation to LG on 01.11.04, CM directed MCD to frame byelaws for regularisation of unauthorised areas, as per news reports such as the one at ANNEXURE-P/18(b).
(c) By March 2005, MCD had short-listed private firms to prepare, purportedly as part of the byelaws exercise, "local area plans" in five areas (including one urban village), as per reports such as the one at ANNEXURE-P/18(c).
(d) While filing counter-affidavit claiming no role in this petition with prayer (a) for time bound plan for enforcement of Master Plan provisions for urban villages, MCD decided to commission private companies to draw up plans for 25 urban villages, as per a news report of 09.05.05, atANNEXURE-P/18(d).
REJOINDER TO PARA-WISE REPLY ON MERITS
- The Respondent's submissions about Preliminary Submissions in its para-wise reply to paras 1 to 13 are denied with reference to the foregoing. The same is not repeated para-wise.
- The Respondent's claim of no knowledge of contents of Para 1 and 2 is denied. It is aware of said content through, say, s.11A proceedings in which the Petitioner was objector and the Respondent was on the Board for hearing, as set out in rejoinder to the reply to para 14.
- Reply to para 3 is denied. The para under reply specifically refers to MCD role under DD Act and the contention that no reply is required due to the Petitioner's admittance of DDA's role is ludicrous.
- Reply to para 4 & 5 is denied with reference to rejoinder to Preliminary Submissions. It is submitted that MCD has statutory obligations apropos rural area / villages that it cannot abdicate in name of DDA.
- Reply to para-6 is denied. It is specifically denied that MCD is impleaded as "performa party" and it is submitted that much of the Petitioner's grievance arises from MCD viewing itself as such vis-a-vis development according to statutory plans. The preference for claiming "deficiency amount" instead of discharging statutory obligations to prevent deficiencies, which the Respondent reveals in Reply to para-6, marks also its other initiatives, such as "policy" to permit misuse of farmhouses for a fee. It is pertinent that the Respondent has not answered, despite GNCTD (Respondent No.3) also forwarding to it, representation dated 21.11.04 about said "policy" with reference to PIL about it (Annexure-P/15(colly)). The orders passed by this Hon'ble Court in that PIL, viz, WP(C) No. 14261/2004, are reproduced from the internet and annexed herewith asANNEXURE-P/19 (colly).
- Apropos Reply to para 7 it is submitted that the Respondent, while not denying the age of old settlements (16th century to 1970s) in the area, has provided no information of its activities in them.
- Reply to Para 8 and Reply to Para 9 are denied. The Respondent's contention that it is nowhere concerned with contents of these paras amounts to suppression of facts about its role, in terms of s.12 of DD Act, in the transformation of the area from Rural Area.
- Reply to para 10 is denied. Projects mentioned in the para under reply are all large, with commensurate implications for MCD (including, in case of GNCTD Liver Institute and Mandi, hospital and wet-wholesale waste management in otherwise residential zone). The Respondent has not stated why it has permitted / not prevented them or what "deficiency amount" it will claim from the public exchequer on their account. It is pertinent that the GNCTD projects abut up-market unauthorised colonies / farmhouses and MCD Commissioner is a member of the four-member committee that MoUD (Respondent No.2) has set up to study recommendations for regularising unauthorised colonies, as per news item of 29.10.05 at ANNEXURE-P/20.
- Reply to para 11 is denied. The para under reply illustrates in four sub-paras illegalities on planned sites for facilities on account of pressures created by unplanned up-market projects. For the first of these, viz, sites for schools, the Respondent passes responsibility to DDA without reference even to the court matter mentioned in the para, viz, WP 8954-59/2003, disposed off by this Hon'ble Court by order dated 27.10.04. MCD was Respondent No.4 in that and has answered neither the representation for compliance that GNCTD forwarded to it on 23.02.05 nor subsequent representation dated 01.03.05 to urge, in context of "misuse-charge" style proposals for schools contrary to order of 27.10.04, reply in the instant matter. The aforesaid communications dated 23.02.05 and 01.03.05 and news item dated 26.02.05 about "misuse-charge" proposals for schools are annexed herewith as ANNEXURE-P/21 (colly). The Respondent has not bothered to comment on the other sub-paras, including one stating that the question of freehold disposal of commercial sites is pending before this Hon'ble Court in WP(C) No. 6980/2002. It has, however, announced decision to convert commercial properties under its control to freehold, as per news reports of 28.10.05 at ANNEXURE-P/22. The Respondent is trying to create an impression that it has no role in such matters and they pertain to DDA only, which is not correct.
- Reply to para 12, wherein the Respondent conveys same impression, is denied, more so since the para under reply pertains to impacts within villages where MCD has statutory obligations as old as itself.
- Reply to para 13 is denied. The Respondent has blandly passed responsibility to DDA with vague references to two of seven sub-paras in the para under reply, including sub-para (g) about an NGO PIL on water bodies in which it (not DDA) continues to be under orders of this Hon'ble court, as per news item dated 27.10.05 at ANNEXURE-P/23. It is noteworthy that the Respondent has not replied to sub-para (b) to clarify why it gave up its idea of mid 2002 to "pilot" a "local area plan" style exercise in Mahipalpur.
- Reply to para 14 is denied. The para under reply refers to s.11A Public Notice for Sultangarhi scheme, precipitated by the intervention of this Hon'ble Court in WP (C) 4978/2002. The Respondent has contended these issues require reply from DDA even as it was on the Board that heard on 27.01.03 the objections / suggestions of the Petitioner on which the instant petition is based. It is pertinent that the Respondent has not answered representation dated 22.11.04, also forwarded to it by GNCTD (Annexure-P/15), in respect of said issues.
- Reply to Grounds is denied. The Petitioner has prayed for a plan to enforce statutory entitlements on Grounds pertaining to DD Act and Master Plan and the Respondent has claimed "absolutely no role to play in the said operation" - in counter-affidavit filed while pursuing "local area plans" in line with a proposed Amendment to its Act, in duration of Public Notice for draft Master Plan 2021 in Board of Enquiry & Hearing for which its Commissioner is member. It is submitted that contrary to its claim of no role, the Respondent is actively engaged in subverting the Grounds of this Petition.
- That in the light of the above stated facts the petitioner most respectfully prays that this Hon'ble Court may kindly be pleased to allow the Writ Petition in terms of the prayers made therein.
Verified by me at New Delhi on this 14th day of November, 2005, that the contents of the above affidavit are true and correct to the best of my knowledge and belief as based on the records of the case. No part of it is false and nothing material has been concealed there from.
Rejoinder (to DDA Additional counter-affidavit of August 2005)
IN THE HIGH COURT OF DELHI AT NEW DELHI
EXTRAORDINARY CIVIL WRIT JURISDICTION
CIVIL WRIT PETITION NO. 8523 OF 2003
IN THE MATTER OF:
Shiv Narayan ... Petitioner
Delhi Development Authority & Ors ... Respondents
REJOINDER AFFIDAVIT ON BEHALF OF THE PETITIONER TO ADDITIONAL COUNTER-AFFIDAVIT BY RESPONDENT No.1 DDA
I, Gita Dewan Verma, aged 44 years, resident of 1356 DI Vasant Kunj New Delhi - 70, do hereby solemnly affirm and state on oath as under:-
- That I am a qualified planner and part of the Master Plan Implementation Support Group with which the petitioner above named is also associated. For reasons stated in para-3 of the additional affidavit dated 15.12.2003 of the petitioner, I have been authorised by the Petitioner to file this rejoinder on his behalf since he is away from Delhi and will not return in time for filing this rejoinder affidavit.
- At the outset I hereby deny all the averments and submissions made by Respondent No.1 (DDA) in its counter affidavit under reply. I further reiterate all the averments and submissions made by the Petitioner in the Writ Petition.
1-3. In Rejoinder to Reply to paras 1-3 it is submitted that the Respondent, while admitting that the contents of paras under reply (necessitated pursuant to the Respondent's allegations about the bonafide of the Petitioner, also reiterated in para-5 of its counter-affidavit of 21.02.05) has not placed on record its reasons either for inordinate delay in filing Reply or for failure to comply with the judgment passed by this Hon'ble Court on 16.09.02 in WP(C) 4978/2002 and duly consider objections / suggestions filed in Response to s.11A Public Notice dated 15.09.02 precipitated by the intervention of this Hon'ble Court in that matter.
4. In Rejoinder to reply to para 4 it is submitted there is nothing in the said para beyond the extent (of the provisions of the Master Plan) admitted by the Respondent.
5. In Rejoinder to Reply to Para-5 it is submitted that the Respondent has not denied either the project-specific violations set out in the sub-paras or the preliminary contention that all J-Zone projects are unlawful in terms of earmarking of sites / use premises without a duly notified J-Zone Plan. These illegalities, thereby, stand admitted. In sub-para-wise reply, however, instead of indicating steps to stop the illegal constructions, the Respondent refers to purported approvals secured in pendency of this Petition. In this common context, in Rejoinder to project-wise reply to sub-paras it is submitted as follows:
a) Apropos Sultangarhi Mega-Housing in Green Belt, the Respondent has neither filed land use change notification purportedly issued on 29.01.04 by Govt. of India (Respondent No.2, which has not filed reply) nor answered representations (Annexure-P/15(colly)) including one dated 22.11.04 forwarded to it by GNCTD (Respondent No.3, which has not filed reply). The worth of the notification issued in pendency of this petition as "approval" is denied. It is pertinent that as per the report of the CAG - relevant excerpt from which is reproduced herewith asANNEXURE-P/24 - MoUD appears to have excused the Chairman of the Respondent Authority from compliance of judgment of 16.09.02. Further, one of the two firms mentioned in the said report built its project (with unauthorised ground water use) in the period between notice of 22.09.04 and filing of first counter-affidavit on 21.02.05 in the instant petition.
b) Apropos DDA Sports Complex and GNCTD Institute for Liver & Billiary Sciences in Green Belt, validity of "part layout plan" (ANNEXURE-R-A1) and approval that the Authority purportedly accorded on 19.07.05 is denied. As can be seen from Annexure-P/12 (p.43 in the Petition), at time of filing, work on DDA Sports complex was at advanced stage and foundation stone for GNCTD Liver Institute had been laid (at a function graced by CM) and, from Annexure-P/15 in Rejoinder dated 21.04.05, substantive work on Liver Institute started after notice was issued on 22.09.04. The so-called "part layout plan" is a sketch of these illegalities in contempt of court. Neither post-facto approval nor approval of "change of land use" per se is open to the Authority and mandatory s.11A Public Notice inviting objections / suggestions has not been issued / filed by the Respondent. Meanwhile, not only is work (inclusive of ground water use) continuing, GNCTD has reportedly approved purchase of additional 2.63 Ha (not indicated in the "part layout plan" filed) for the Liver Institute. News item dated 16.10.05 about said approval is annexed herewith as ANNEXURE-P/25.
c) Apropos GNCTD (APMC) Mandi in (Ridge) Regional Park, the Respondent has reversed its stand (in para-8b of its affidavit of 21.02.05) to reveal that vide letters dated 18.06.03, 09.07.03 and 14.08.03 prior to and of 08.04.04 and 20.07.04 in the pendency of the present Petition it informed GNCTD of its disapproval. It has not taken the Hon'ble Court into confidence about what prevents it from initiating action according to law against the illegal Mandi, though in its earlier affidavit it has revealed that "this land has been directly allotted by the Lt. Governor" and, as mentioned in para-9 of Rejoinder thereto, the Mandi was inaugurated on 22.02.05 personally by CM (who had also laid foundation stone for the same in 2004) and an unauthorised colony is being carved out next to it.
d) Apropos D-6 Vasant Kunj, the Reply inclusive of ANNEXURE-R-A2 is denied. Instead of answering violations mentioned in the sub-para the Respondent has admitted to continuing the scheme despite CGWA disapproval vide letters of 2002 and even as the water supply scheme it was relying upon (as noted on p.3 of judgment of 16.09.02) has not materialised.
6. Reply to para-6 is denied. It is submitted that:
(a) The Respondent is obfuscating the issue with figures of 92 Ha and 223 Ha that have no basis in the land use provisions for the 315 Ha sub-zone as stipulated in the Master Plan and F-Zone Plan. These pertain to a 223 Ha scheme (International Hotels Complex), for design competition of which the remaining 92 Ha was termed "constraint area" (a term that is otherwise meaningless). The 223 Ha scheme was quashed by Hon'ble Supreme Court in 1996 and subsequently notified F-Zone Plan does not refer to the 223 Ha and 92 Ha figures.
(b) The Respondent's references to orders of the Hon'ble Supreme Court are exceptionable since the Petitioner's questions about violations of F-Zone Plan of 1998, CGWA notification of 1999 and this Hon'ble Court's judgment dated 16.02.05, have not been considered by the Apex Court. It is specifically denied:
(i) that the order of 19.08.97 "allowed" anything in the 92 Ha, since the said order merely clarified that 92 Ha not falling within the 223 Ha scheme quashed by order of 13.09.96 also did not fall in the purview of that order.
(ii) that the order of 08.03.04 "disposed off" anything about 92 Ha, in which regard contents of para-8 of Rejoinder dated 21.04.05 are reiterated.
(c) The so-called "layout plan" that the Respondent has annexed as ANNEXURE RA-3 is irrelevant to the petition. The said plan is titled "Layout Plan for Institutional Plots within the Constraint Area" and bears date of 19.12.1997 and note saying "approved by V.C. DDA on dated 7.1.98". This is by no means the duly approved sub-zonal / layout plan required (in terms of provisions set out in para 4, which the Respondent has admitted in its Reply) to detail out, before further development / disposal, the land use break-up for the 315 Ha sub-zone stipulated in the F-Zone Plan notified on 05.06.98. Further, it neither details out the site for Shopping Mall in terms of plots that were tendered for auction nor does it even indicate the so-called Aravalli Biodiversity Park that is under development. The Respondent has failed to produce an approved layout plan in which the Malls and Park project can claim legal basis.
(d) The Respondent has not filed "letter No.K 17011/8/95 DDIB dated 17-4-02" vide which MoUD has purportedly conveyed to it approval for "allotment / development in 92 Hectares of area as per land use". It is submitted that it is not necessary for MoUD to approve allotment / development according to Plan and not open to it do so in contravention of it. Any approval conveyed on 17.04.02 exclusively for 92 Ha cannot be in line with F-Zone Plan that does not recognise that figure.
(e) The Respondent's contention that "Shopping mall is a nomenclature for a particular type of commercial activity ... permitted in Commercial Use Zone" is denied as irrelevant. The site in question is not designated as Commercial Use Zone in either the Master Plan or the F-Zone Plan. The contents of sub-paras (i) to (iii) at end of para-6 under reply are reiterated.
(f) The Respondent's contention that "as per the orders of EPCA in October, 1993, 223 Hectares area was proposed to be kept as 'GREEN'" is denied as extraneous. It is not open to the Respondent to follow orders contrary to its mandate. The EPCA order / proposal is not reflected in subsequently notified F-Zone Plan. The Respondent has also not produced any order / proposal of anyone for so-called "Aravalli Biodiversity Park" on this site outside the Aravalli Ridge as delineated in the Master Plan, while within both portions of the delineated Ridge that fall in the area illegal projects (Mandi and Sultangarhi scheme) are underway. It is pertinent that the Respondent, while referring to EPCA order / proposal of 1993, has not placed on record mandatory clearances in terms of CGWA notification of 1999 and amended EIA notification of 07.07.04.
7. Reply to para-7 is denied as being irrelevant to the para under reply, which mentions only fact of unanswered representations with reference to Annexure-P/12. This fact has not been denied and is a continuing fact, as can be noticed from annexure-P/15(colly). The Respondent's submission / reiteration of no Master Plan violation with reference to its reply to paras 4 & 5 is denied with reference to Rejoinder thereto.
8. Reply to para-8 is vehemently denied. It is submitted that the reply is tantamount to missing the wood for the trees and the point that the grievance of the Petitioner does not arise from individual violations but from their cumulative impact. The Respondent's bland denial of any Plan violation is denied because it is belied by the rest of its Reply. Its insistence about adherence to due process of s.11A is denied because it is additionally belied by:
(a) Failure to produce proof of said adherence in case of Public Notice of 15.09.02, in which regard it is reiterated that this Petition arises, in effect, from inadequate consideration of those objections/suggestions including regarding non-compliance of judgment of 16.09.02.
(b) Admittance of consideration of recourse to s.11A for post-facto approval in case of DDA Sports Complex and GNCTD Liver Institute in the pendency of this matter.
(c) Failure to initiate action against GNCTD Mandi even after decision to not consider s.11A modification for it.
(d) Continuing justification of Malls and Park on sites indicated for other uses in Master Plan without s.11A process, in which regard it is pertinent that the Respondent is fully aware that in absence of a duly approved sub-zonal plans to detail out broad provisions of F-Zone Plan such schemes require Master Plan modifications through s.11A, as evidenced by the Public Notice issued by it on 07.11.04 and filed as Annexure-P/13 referred to in para-4(d) of Rejoinder dated 21.04.05. The contents of para-8 are reiterated.
9. That in the light of the above stated facts the petitioner most respectfully prays that this Hon'ble Court may kindly be pleased to allow the Writ Petition in terms of the prayers made therein.
Verified by me at New Delhi on this 14th day of November,2005, that the contents of the above affidavit are true and correct to the best of my knowledge and belief as based on the records of the case. No part of it is false and nothing material has been concealed there from.
Annexture P/01: Master Plan Landuse Plan indicating location of old settlements and new development In Mehrauli-Mahipalpur area
Express Newsline report of 04.09.03 about DDA Sports Complex and GoNCTD Institute Of Liver And Biliary Sciences coming up in Green Belt south of D-2 Vasant Kunj
Times Of India news report Of 08.10.03 about GoNCTD Air-Conditioned Mandi coming up at Andheria Morh in J-Zone Mehrauli Ridge
Express Newsline report Of 13.06.02 about historic Mahipalpur Bundh and Hauz
Annexture P/05: Vasant Kunj Phase-2 Shopping Mall (TENDER ADVERTISEMENT OF 16.11.03; LAND USE PROPOSALS SINCE MPD-2001; HT SOUTH DELHI REPORT OF 27.11.03)
LAND USE PROPOSALS SINCE MPD-2001
(TABLE - Source: DDA, 1997 [Table on p.32 of SPA Workshop))
With hotels’ project scrapped, the Mall is no more embedded in a Zonal Plan scheme. Tender advertisement indicates as site entire strip marked institutional in MPD-2001 and refers to bio-diversity park of 650 acres (260 Ha) in excess of Zonal Plan provision for recreational / District Park. The issue of excessive up-market commerce in the area being unsustainable is sub-judice in WP 6980/2002 and borne out by DDA having to lately resort to cutting prices to dispose off such space and from reservations of CGWA in the following news report.
| HT SOUTH DELHI REPORT OF 27.11.03
DDA at it once again in Vasant Kunj
DDA’s entry into the business of shopping malls by throwing open a big chunk of land on Nelson Mandela Marg for auction has come as a rude shock to planners and aware residents of Vasant Kunj. Spread over 47 acres with a built up capacity of two million square feet, the shopping mall will be built on the sensitive bio-diversity area of south-western ridge falling between JNU, Vasant Vihar, Vasant Kunj and Mahipalpur. The DDA was earlier stopped by the Supreme Court from building 14 five star hotels here in 1997. However, the Court had left 92 hectares free for development.
“In 1997, the DDA had misled the court, claiming that the ridge was two kilometres away from the proposed hotels site,” says Anil Sood of NGO Chetna. “Earlier, in August 1992, the DDA had conceded that the area came under the ridge when it asked the Irrigation and flood Control Department to realign the storm water pipe for sector C, Vasant Kunj along Nelson Mandela Road as otherwise it would pass through the ridge. DDA cannot escape from taking permission from the Environmental Pollution Control Authority, a body set up by Supreme Court,” adds Sood.
However, DDA chief architect S C Karnwal says that the area was already identified in the zonal plan of zone F and the plan for a shopping mall that has been finalised now is legal. Urban Planner Gita Dewan Verma contests this. “No commercial construction can be permitted there according to Master Plan norms. At the most, the DDA can have small convenient shopping centres. One would also like to know whether the DDA has brought out any public notice for the change of land use. And what about the backlog of building low-income housing flats, shops and kiosks which the DDA has admitted before the High Court?” she asks.
How will DDA construct a mall without water? A DDA source says the agency has not yet made provision for water either for construction or potable water. Member Secretary, Central Ground Water Authority (CGWA), Dr Saleem Roamani says there is no question of giving permission to DDA for digging tube wells. “We allow digging of tube wells only for drinking water in south west Delhi. We are strict even for DJB. How can we allow drawing of water for a commercial place?” says Dr Roamani. DJB also rules out the possibility of supplying water to the mall. “We are short by 1.2 MGD for VK. We can’t give more water,” says a source.
Annexture P/06 (Colly)
|Sultangarhi Scheme (News Report of 06.06.03 about work already done, News Report of 23.06.03 about scheme "clearance", News Report of 21.10.03 about vigilance inquiry, News Report of 27.11.03 referring to the scheme)|
Annexture P/07: DDA Press Notice of 09.08.03 about scheme for conversion from leasehold to freehold
| (Text from Hindustan Times, p.21)
DELHI DEVELOPMENT AUTHORITY
LAND DISPOSAL DEPARTMENT, VIKAS SADAN, INA, NEW DELHI
The Scheme of Conversion of leasehold land tenure in Delhi into freehold has now been extended to all built up commercial, industrial, mixed land use properties including DDA’s built up shops and commercial flats.
The application forms duly complete in all respects along with prescribed conversion and other charges may be deposited at the Vikas Sadan, (DDA Head Office), Near INA Market branches of either the Central Bank of India or the State Bank of India.
News report of 15.07.03 - Mahipalpur Bundh breach (Express Newsline: 14th century dam gives way, accusations gush out)
News report of 21.07.02 - MCD plans for village studies (Express Newsline: SPA to map 135 urban villages for MCD)
Annexture P/10: DDA letter of 25.09.02 about DJB concurrence on Sultangarhi scheme
DELHI DEVELOPMENT AUTHORITY, OFFICE OF THE CHIEF ENGINEER (SWZ, SHAHPUR JAT VILLAGE, NEW DELHI
NO. CE(SWZ)/18(18)Comp./VK/2045, Dt: 25/9/02
Ms. Geeta Dewan Verma, Planner, 1356, D-I, Vasant Kunj, New Delhi – 110070
Kindly refer to your representation dated 8.7.2002 addressed to Joint Secy. (D&L) Ministry of Urban Development GOI, Nirman Bhawan, New Delhi-110011 on the above mentioned subject. The contents of your representation have been gone through and found that you have given many reasons for not taking up the construction of further houses near CNG Station / Sultangarhi Tomb. One of the main reason is the shortage of water in Vasant Kunj. This very reason has been got examined through concerned SE, incharge of the area and he has reported that the construction of houses in Vasant Kunj area have been taken up with the approval of the Competent Authority. Though, it is not for the DDA to augment the peripheral water supply to Vasant Kunj and it is the responsibility of DJB, yet the DDA on its own has agreed to the payment of Rs. 1.92 Crores to DJB in order to augment the water supply to Vasant Kunj. DJB has already agreed and assured that the water supply will be provided for the new houses being taken up.
Annexture P/11: CMO letter of 02.07.03 forwarding to DDA query about DJB / GONCTD view on unplanned schemes and basis for CM disparaging the Master Plan
OFFICE OF THE CHIEF MINISTER : DELHI (PUBLIC GRIEVANCE CELL) DELHI SECRETARIAT, NEW DELHI – 110002
No : CMO/PGC/2003/20390 , Dated: 02-07-2003
Subject: CM’s remarks about Master Plan/Planners; plan violations by DDA purportedly with GNCT concurrence
I am directed to forward herewith a representation received from Shri./Smt./Ms. Gita Dewan Verma, dated 01/07/2003, on the subject cited above for further necessary action.
Action taken in this regard may kindly be informed to the representationist at the earliest under intimation to this office for kind perusal of the Hon’able Chief Minister, Delhi, please.
(Hari Om Gupta)
O.S.D to C.M
Email : [email protected]
Copy to Shri./Smt./Ms. Gita Dewan Verma, Planner, 1356, D-1, Vasant Kunj, New Delhi dated 01/07/2003. With the request to contact the above department for redressal of his/her grievances/requests.
(Hari Om Gupta)
O.S.D to C.M
Email : [email protected]
Annexture P/12: Representations by / on behalf of the petitioners
Representations for implementation of Plan entitlements have been made since 2000/2001, including by the following due processes, summarising earlier representations, etc:
Requests for implementation of Plan entitlements were made after Public Notice with reference to reports of ‘alternatives’:
About water bodies, intervention for which has been sought since 1997 and, since 2001-2002 in face of hit-or-miss “bhagidari” interventions unmindful of the complex hydro-geo-morphology of the area, following letters were later written:
About new development in disregard of the Plan, following representations have been made:
SPORTS COMPLEX / GoNCTD INSTITUTE SOUTH OF D2
A/C MANDI AT ANDHERIA MORH
VASANT KUNJ PHASE 2 / SHOPPING MALL
In 2002 MPISG Planner also sent to the authorities a report on the water crisis in the area being rooted in the crisis of unplanned development. Reports on other aspects of backlog on Plan provisions were also sent in 2001.