IN THE HIGH COURT OF DELHI AT NEW DELHI

(Extraordinary Civil Writ Jurisdiction)

Writ Petition (Civil) No. 6500 of 2005

In the matter of:

Gita Dewan Verma ... Petitioner

Versus

1. Delhi Metro Rail Corporation through its Managing Director, having its office at 3rd Floor, NBCC Plaza, Bhishm Pitamah Marg, New Delhi – 110003
2. Government of National Capital Territory of Delhi through its Chief Secretary, having its office at GNCTD Secretariat, IP Estate, New Delhi – 110002
3. Ministry of Urban Development, Govt of India through its Secretary, having its office at Nirman Bhawan, New Delhi – 110011
4. Delhi Development Authority through its Chairman, having its office at Vikas Sadan, INA, New Delhi – 110023 ...Respondents

PETITION UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA

To,

The Hon’ble Chief Justice and his Lordship’s Companion Judges of the Hon’ble High Court of Delhi at New Delhi.

The humble petition of the Petitioner abovenamed MOST RESPECTFULLY SHOWETH:

1. That the Petitioner is a qualified planner and is filing the present petition under Article 226 and 227 of the Constitution of India against the failure of Respondents to consider her responses dated 08/01/2003, 13/05/2004 and 15/10/2004 to Public Notices dated 16/12/2002, 16/04/2004 and 18/09/2004, respectively, issued by Respondent No.4 under s.11A of the Delhi Development Act 1957 (“the Act”) regarding “property development” by Respondent No.1, inter alia, on lands situated at Shastri Park on the Yamuna riverbed (“the Site”). The “property development” exercise of Respondent No.1 also includes the construction of an Information Technology Park (“IT Park”) at the Site. In the Petitioner’s submission, any activity of the Respondents towards the construction of IT Park, without complying with section 11A of the Act is illegal and impermissible in law.
2. That Respondent No. 1 has been formed with equal equity participation of Respondent No.2 and the Respondent No. 3 herein and is a company incorporated under the provisions of the Companies Act, 1956, for the purpose of Delhi Mass Rapid Transit System. Respondent No. 1 has also been undertaking “Property Development”, including by the development of commercial IT Park at the Site. The description of IT Park project from the website of Respondent No.1, photographs of its showcasing at the pavilion of Respondent No.2 in the India International Trade Fair in November 2004 and photographs of the site are annexed herewith as Annexure – P1 (Colly).
3. That Respondent No.2 is the Government of National Capital Territory of Delhi and holds equal equity in Respondent No. 1 together with Respondent No.3. Respondent No. 2 has been actively pursuing the Delhi Metro project including the construction of commercial IT Park at the Site.
4. That Respondent No.3 is the Ministry of Urban Development in the Government of India/central government, holding equal equity in Respondent No.1, and has proposed the modifications to Delhi Master Plan / Zonal Plan that form the subject matter of the Public Notices dated 16/12/2002, 16/04/2004 and 18/09/2004 issued under s.11A of the Act. Respondent No.3 exercises control over Respondent No.4 in terms of s.41 of the Act.
5. That Respondent No.4 is an authority created under the Act to promote and secure the development of Delhi according to the Delhi Master Plan and Zonal Development Plans. It has issued the Public Notices dated 16/12/2002, 16/04/2004 and 18/09/2004 under s.11A of the Act. The said Public Notices relate to “property development” by Respondent No.1 at the Site.
6. That the events leading up to the filing of the present petition are briefly as follows:
   • 6.1. In 2002 Respondent No.1 started “property development” projects, etc, along the metro corridor, including on sites earmarked for recreational (green) land use in Delhi Master Plan and on the riverbed, also duly notified by Central Ground Water Authority (“CGWA”). These projects were started by Respondent No.1 despite the failure of Respondent No.4 to follow the mandatory process laid down in section 11A of the Act. It is pertinent that in another case involving similar illegal development started by Respondent No.4 in a CGWA notified green belt / ridge area without s.11A process for Plan modification prescribed under section 11A of the Act, vide order dated 16/09/2002 in CWP No. 4978/2002, a division bench of this Honble Court not only restrained the Respondent No.4 herein from carrying out any further construction activity in the said project pending complete compliance with section 11A of the Act but also directed that an inquiry be conducted by its Chairman so that authorities do not perpetuate identical illegalities. A copy of the Order dated 16/09/2002 passed in WP (C) 4978/2002 is annexed herewith and marked as Annexure – P2.
   • 6.2. On 16/12/2002 the Respondent No.4 issued Public Notice under s.11A of the Act for post-facto Plan modification for “property development” projects already started by Respondent No.1, inter alia, at the Site. The inadequately publicized Public Notice of 16/12/2002 informed the public at large that modifications were being proposed by Respondent No.3 in the Delhi Master Plan/Zonal Development plans for change of land use of various pockets for “property development” at MRTS stations and depots in the Shahdara to Tis Hazari MRTS Corridor. The Public Notice invited objections / suggestions in writing from any person with respect to the proposed modifications within a period of thirty days from the date of issuance of the notice. The Petitioner submitted her objections / suggestions dated 18/01/2003 to the said Public Notice. The typed version of the Public Notice dated 16/12/2002 and the Petitioner’s objections/suggestions dated 08/01/2003 to the said Public Notice are annexed herewith and marked as Annexure – P3 (Colly).
   • 6.3. The sites mentioned in Public Notice of 16/12/2002 included 51.9 ha at Shastri Park. Though the Public Notice proposed to change the existing Master Plan land use at the Site from “Riverbed/green” to “Transportation”, Respondent No.1 instead appointed a design consultant for commercial IT Park at the Site. In 2003 Delhi Urban Arts Commission (an authority under Respondent No.3) cleared the design proposal for the IT Park, Respondent No.2 processed a proposal for according a Special Economic Zone status for it and Respondent No.1 started construction on it. The Chief Minister of the State of Delhi, i.e. Respondent No.3, subsequently personally inspected the site. Typed version of news reports dated 02/12/2002, 23/09/2003, 25/09/2003 and 06/02/2004 in this regard are annexed herewith and marked as ANNEXURE-P4 (Colly).
   • 6.4. Meanwhile, vide order of 03/03/2003 passed in WP (C) 2112/2002, a Division Bench of this Hon’ble Court directed the removal of all unauthorised structures on the Yamuna riverbed. However, despite the direction of this Hon’ble Court, Respondent No.1 persisted with the construction of the IT Park at the Site.
   • 6.5. On 16/04/2004 Respondent No.4 issued another Public Notice under s.11A of the Act inviting objections and suggestions on a proposal to modify Delhi Master Plan to, inter-alia, permit “property development” on sites up to a maximum area of 3 ha at all Metro stations, except in Recreational Use Zone. The Petitioner submitted her objections/suggestions dated 13/05/2004 to the said Public Notice. Typed version of the Public Notice dated 16/04/2004 and the Petitioner’s objections/suggestions dated 13/05/2004 thereto are annexed herewith and marked as Annexure – P5 (Colly).
   • 6.6. The “proposals” for modification of Delhi Master Plan, as contained in the Public Notices of 16/12/2002 and 16/04/2004, were mutually inconsistent inasmuch as that sites mentioned in the former were mostly larger than 3 Ha and involved land use change from Recreational / riverbed. The 6 Ha IT Park on the riverbed was not permissible under either proposal, but its construction continued and on 18/09/2004 Respondent No.4 issued another Public Notice under s.11A of the Act for a proposal for changing land use of six hectares of land at Shastri Park from “agriculture and water body” to “commercial (IT Park)”. The Patitioner submitted her objections/suggestions dated 15/10/2004 thereto. Typed version of the Public Notice dated 18/09/2004 and the Petitioner’s objections/suggestions dated 15/10/2004 thereto are annexed herewith and marked as Annexure – P6 (Colly).
   • 6.7. Even after issuance of Public Notice of 18/09/2004 that, in effect, admitted the illegality of the IT Park under construction since 2003, construction continued as before. The Petitioner made several representations to Respondent No.4 for disposal of her objections/suggestions to the Public Notice in issue and for action against continuing construction on IT Park; to Respondent No. 3 for examining the legality and propriety of the actions of Respondent No.4 from the perspective of s.41(3) of the Act; to request intervention of Ministry of Environment (in view of amendment of 07/07/2004 to bring construction projects within the purview of the Environmental Impact Assessment Notification), National Capital Region Planning Board (in view of recommendations of draft National Capital Region Plan 2021 approved on 28/10/2004 for protection of the riverbed for ground water recharge), to the Standing Parliamentary Committee for Urban Development (in continuation of memoranda submitted in response to its public notice inviting views on function of DDA pursuant to CBI exposing the DDA scam); to the President of India; and to the Chief Justice of India. The Petitioner seeks the leave of this Hon’ble Court to place on record the aforesaid representations made by the Petitioner if necessary or if so directed by this Hon’ble Court.
   • 6.8. Notwithstanding the pending objections of the Petitioner to the Public Notices dated 16/12/2002, 16/04/2004 and 18/09/2004 and representations made by the Petitioner from time to time, construction on the IT Park continues unabated till date. The IT Park continues to be marketed by the Respondents. Respondent No. 2 showcased the IT Park at the India International Trade Fair in November 2004; Chief Minister of the State of Delhi personally reviewed its progress on 01/12/2004; Respondent No.1 even moved this Hon’ble Court for directions to other authorities for clearance of “encroachments” around the IT Park at the Site; and on 15/02/2005 newspapers reported that Minister in charge of Respondent No.3 had said, “steps had been taken to permit property development along the Delhi Metro Rail corridors as well as the metro stations” and its Secretary had issued “oral orders” in this regard. Typed version of news reports of 01/11/2004, 02/12/2004, 23/12/2004 and 15/02/2004 in this regard are collectively annexed herewith and marked as Annexure – P7 (Colly).
   • 6.9. At a meeting of Respondent No.4 that was reportedly held on 28/02/2005, the Lt. Governor of Delhi (ie, the ex-officio chairman of Respondent No.4 and several other members of the Authority reportedly expressed their serious displeasure at the post-facto land use change practice being adopted by Respondent No.4, inter alia, with reference to the IT Park at the Site amongst other areas. Certain members of the Authority also reportedly expressed their view that almost 150 objections had been filed against the allowing of construction on the Yamuna Flood Plains and the said objections have been rendered meaningless as the activity objected to has already been commenced. Further, in its annual budget for 2005-2006, approved on 29/03/2005, Respondent No.4 has made provision of Rs 240 crores for Respondent No.1, ie, 10% of its total outlay of Rs. 2400 crores for this year, purportedly for “co-finance” even as s.23 of the Act prohibits use of the Fund of Respondent No.4 for any purpose other than administration of the Act, whose sole object is to promote and secure the development of Delhi according to Plan. The annual budget of Respondent No.4 was approved on 29/03/2005. It is submitted that the various activities of Respondent No.1, especially its “property development”, are in violation of the Plan and hence are liable to be penalized rather than meriting contribution of “co-finance” by Respondent No.4. Typed version of the news reports about disapproval expressed at Authority meeting of 28/02/2005 about post-facto land use change for IT Park, etc, and about DDA’s annual budget approved on 29/03/2005 are annexed herewith and marked as ANNEXURE-P/8 (Colly).
   • 6.10. Simultaneously, IT Park also found mention in the annual budget of Respondent No.2, with Finance Minister’s budget speech on 23/03/2005 saying in para-88 (curiously under the heading of “Industry”): “Mr Speaker Sir, industrial development is a pre-condition for economic development. An Information Technology Park is being set up by DMRC at Shastri Park at a cost of about Rs. 174 crore. Our Government has provided an interest free loan of Rs, 20 crore to DMRC for this project. Two blocks of 30,000 sq.mt. each have been constructed during the current year and will be operationalised soon”. And on 02/04/2005 the illegal IT Park on the riverbed was “inaugurated” by Chief Minister. Typed version of the news report in this regard is annexed herewith and marked as ANNEXURE-P/9.
   • 6.11. In the face of non-conformity with Delhi Master Plan and non-compliance with the mandatory provisions of the Act, particularly s.11A, the ongoing construction activity on commercial IT Park on the Yamuna Riverbed is unauthorised and illegal. The continued wilful failure of the Respondents to act in accordance with the provisions of the Act despite the Petitioner’s objections/suggestions to this effect discloses a non-bonafide intention on the part of the Respondents. The intention of the Respondents appears to be to completely ignore and circumvent the safeguard provisions of the Act, particularly s.11A, while persisting with the illegal constructions and commercial investments in a manner that subsequently it would not be feasible to reverse the aforesaid activities even by due process of law.
7. That under the aforegoing facts and circumstances, the Petitioner has been constrained to approach this Hon’ble Court through the present petition. Further, the Petitioner does not have any other alternate efficacious remedy in law.
8. That the Petitioner relies upon the following amongst other grounds viz.:

GROUNDS

1. 1. Because the provisions of s11A of the Act are mandatory in nature and cannot be ignored. It has been consistently held by this Hon’ble Court that strict compliance with the requirements of s.11A is mandatory. The Petitioner submits that the permission, if any, granted by Respondent No.4 to Respondent Nos.1 and 2, in respect of the ongoing construction of IT Park on the Site is dehors the Act, due to non-compliance with provisions of section 11A of the Act.
   2. Because the Respondent No.4 is under a statutory duty to dispose off the objections dated 08/01/2003, 13/05/2004 and 15/10/2004 submitted by the Petitioner in response to the Public Notices dated 16/12/2002, 16/04/2004 and 18/09/2004 issued by Respondent No.4 under section 11A of the Act. It is stated that the objections submitted by the Petitioner are pending consideration till date.
   3. Because the duty to consider and dispose off, in a time-bound manner, the objections that may be submitted in response to a Public Notice under section 11A of the Act, prior to the implementation of the modifications proposed in the Public Notice; passing of a speaking and reasoned order thereon by the Authority under the Act; and communication of such an order to the concerned objector, is inherent to section 11A of the Act.
   4. Because section 11A of the Act is central to the implementation of the Delhi Master Plan and the provisions of the Act. It is submitted that there cannot be an ex post facto approval of schemes and projects carried out in contravention of the Act as such an approach is clearly contrary to the scheme of the Act and particularly section 11A thereof.
   5. Because the continuance of construction activity despite failure to comply with the requirements of section 11A has the effect of rendering the said provision and other consequential provisions of the Act superfluous. It is submitted that the provisions of the Act pertaining to the Public Notice issued under section 11A thereof clearly acknowledge and envisage participation of public at large, including qualified planners like the Petitioner, in the planning process for the city. Hence the said provisions of the Act including section 11A thereof not only constitute a safeguard against even inadvertent infringement of entitlements guaranteed under the mandatory Master Plan provisions but also the only lawful process by which independent qualified planners like the Petitioner can participate in planning process.
   6. Because the Public Notices dated 16/04/2004 and 18/09/2004 are bad in law and not sustainable as the proposals stated therein are in conflict with the proposals stated in Public Notice dated 16/12/2002 and the later Public Notices could have been issued only after the responses to the Public Notice dated 16/12/2002 had been considered by Respondent No.4.
   7. Because vide order dated 03/03/2003 passed in Civil Writ No.2112 of 2002 this Hon’ble Court had directed the removal of all unauthorised structures from the riverbed. It is submitted that in the absence of compliance with the requirements of s.11A of the Act, all the constructions made and in the process of being made at the Site unauthorised and contrary to the order dated 03/03/2003 passed by this Hon’ble Court.
   8. Because the ongoing construction activity clearly amounts to a misguided exercise of the powers conferred by the Act whilst at the same time amounting to a display of scant regard for the provisions thereof. It is a well settled proposition of law that when a statute prescribes a particular manner or method for the performance of a function or an act or for the exercise of a power vested thereunder, then such function or act ought to be performed and such power ought to be exercised in that manner alone. In the instant case, the Respondents, who all fall within the definition of “State” as defined in Article 12 of the Constitution of India, have failed to act in accordance with the provisions of the Act and such other laws, rule and regulations, as may be applicable. Further, the conduct of the Respondents is patently unjust and arbitrary and as such in violation of Article 14 of the Constitution of India.
   9. Because the compliance with section 11A of the Act including submission of objections by the Petitioner and consideration thereof by the Authority under the Act, are not mere procedural requirements. From the perspective of the Petitioner the aforesaid requirements have a substantive element as the objections of the Petitioner are essentially based on Master Plan violations. It is submitted that the proposed modifications of the Delhi Master Plan affect important alterations in the character of the plan and extent of land uses and are clearly prohibited under section 11A of the Act. Insofar as the proposed modifications relate to the riverbed, they also pre-empt the mandatory Zonal Plan for the riverbed (O-Zone) that has yet to be prepared and notified by due process inclusive of Public Notice under s.10 for 90 days.
   10. Because the ongoing construction of IT Park on the Yamuna riverbed is prohibited under section 14 of the Act on account of being contrary to the existing Delhi Master Plan. Accordingly, a statutory obligation is cast upon Respondent No. 4 to invoke and exercise the powers vested in it under sections 29 to 31A of the Act in respect of the unauthorised construction activity being carried out by Respondent No. 1. It is submitted that till date, Respondent No.4 has failed to discharge the aforesaid statutory obligation.
   11. Because the ongoing activity at the commercial IT Park on the Site runs contrary to the proviso to s.6 of the Act. The said ongoing activity is precluded on account of notifications of August 2000 issued by CGWA under Environmental Protection Act, 1986 and amendment of 07/07/2004 to EIA notification of 1994 and stipulations of draft National Capital Region Plan 2021. The Petitioner seeks the leave of this Hon’ble Court to refer to and rely upon the said notifications, etc, at the time of hearing.
2. That the Petitioner is a citizen of India and has not filed any other writ petition in this Hon’ble Court or any other High Court in the Country or in the Supreme Court of India claiming the same reliefs as claimed in the present petition.
3. That the Respondents are situated in Delhi. Hence, this Hon’ble Court has the territorial jurisdiction to entertain and decide the present petition.

PRAYER

In view of the grounds mentioned hereinabove and the facts and circumstances of the case, the Petitioner respectfully prays that this Hon’ble Court may graciously be pleased to:

1. Issue a writ of Mandamus or any other appropriate writs, orders or directions of like nature directing Respondent No.4 to consider and dispose off in a time-bound manner, the objections/suggestions dated 08/01/2003, 13/05/2004 and 15/10/2004 submitted by the Petitioner to the Public Notices dated 16/12/2002, 16/04/2004 and 18/09/2004, respectively, issued by Respondent No.4; and communicate to the Petitioner the grounds of such disposal.
2. Issue a writ of Mandamus or any other appropriate writs, orders or directions of like nature directing Respondent No. 1 not to proceed with the construction activities of the IT Park on the Yamuna Riverbed pending said consideration and disposal of the objections / suggestions of the Petitioner by the Respondent No.4 in the manner prayed for in prayer clause (a) hereinabove;
3. Issue a writ of Mandamus or any other appropriate writ, order or direction of like nature directing Respondent No.2 to furnish to the Petitioner the details of clearances / finances, inter-alia, including the grant of Special Economic Zone status to the IT Park at the Site and the environmental clearances granted by Respondent No.2 to Respondent No.1 in respect of the IT Park at the site;
4. Issue a writ of Mandamus or any other appropriate writ, order or direction of like nature directing Respondent No.4 to exercise the powers vested in it under the provisions of the Act pertaining to unauthorised construction/development not conforming to the Delhi Master Plan and/or the Zonal Development Plan, including for levying penalties / misuse charges, in respect of the construction activities of the IT Park on the Yamuna riverbed by Respondent No.1;
5. Issue a writ of Mandamus or any other appropriate writ, order or direction of like nature directing Respondent No.3 to examine, in the light of powers vested in it under the provisions of the Act, particularly s.41 and s.42 thereof and in its capacity as the nodal ministry of Respondent No.4, the legality and propriety of actions taken by Respondent No.4 purportedly under the provisions of the Act including the utilisation of funds vis-à-vis activities of Respondent No.1;
6. Pass such other further order(s) as this Hon’ble Court may deem fit and proper in the interest of justice.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL FOREVER REMAIN GRATEFUL.

sd/-

Petitioner

Through

KG Gopalakrishnan / S. Muralidhar

Advocates for the Petitioner

283, Supreme Enclave, Mayur Vihar, Phase – I, Delhi – 110091.

Place: Delhi

Dated: 07/04/2005

IN THE HIGH COURT OF DELHI AT NEW DELHI

(Extraordinary Civil Writ Jurisdiction)

CMP No. 4557 of 2005

IN

Writ Petition (Civil) No. 6500 of 2005

In the matter of:

Gita Dewan Verma ... Petitioner/ Applicant

Versus

Delhi Metro Rail Corporation & Ors. ...Respondents

MOST RESPECTFULLY SHOWETH:

1. That the Applicant herein has filed the accompanying Civil Writ Petition seeking, inter-alia, issuance of writs in the nature of Certiorari and Mandamus in respect of the construction of an Information Technology Park at Shastri Park, Delhi on the Yamuna Riverbed. The contents of the same are not being repeated herein for the sake of brevity and to avoid repetition. The same may be treated as part and parcel of the present application.
2. That the aforementioned construction activity being carried out by Respondent No.1 with the approval of Respondent No.2, 3, and 4 is in contravention of the provisions of the Delhi Development Act, 1957 (“the Act”) and is as such unauthorised and liable to be stopped forthwith. The Petitioner has submitted objections, inter-alia, to this effect in response to the Public Notices issued by Respondent No.4 under section 11A of the Act from time to time. However, till date the said objections are pending consideration with Respondent No.4 while the Respondents continue to expend huge amounts of the exchequers’ money towards the unauthorised construction activities in issue apart from attempting to make commercial gains out of the said activities.
3. That under the circumstances, unless the ongoing unauthorised construction activities are stopped and kept in abeyance forthwith during the pendency of the present proceedings, the same shall result in expenditure at an irreversible scale apart from the creation of third party rights, inter-alia, in respect of the structures being erected on the riverbed, etc.
4. That it would be in the interest of justice if Respondent No.1 is restrained from proceeding further with the unauthorised construction activity at Shastri Park, Delhi during the pendency of the proceedings.
5. That the Petitioner has a strong prima facie case on merits. The balance of convenience is in favour of restraining the Respondent No.1 from proceeding with the unauthorised construction activities at Shastri Park as the Petitioner and the general public at large would be subjected to irreparable injury. Further, if the ongoing unauthorised construction activities at Shastri Park are not stopped, then the same would amount to perpetuation of an illegality.

PRAYER

In the facts and circumstances of the case, the Petitioner respectfully prays that this Hon’ble Court may graciously be pleased to:

1. Restrain Respondent No.1 from proceeding with the construction activities at Shastri Park, Delhi on the Yamuna Riverbed during the pendency of the present proceedings;
2. Restrain Respondents No.2, 3 and 4 from making budget provisions out of the public exchequer for the said constructions during the pendency of the present proceedings; (NEW, PL CHECK) and
3. Pass such other order(s) as this Hon’ble Court may deem fit and proper in the interest of justice and facts and circumstances of the case.

Petitioner /Applicant

Through

K G Gopalkrishnan / S Muralidhar

Advocate for the Petitioner

283, Supreme Enclave, Mayur Vihar, Phase – I, Delhi – 110091.

Place: Delhi

Dated: 07/04/2005

IN THE HIGH COURT OF DELHI AT NEW DELHI

(Extraordinary Civil Writ Jurisdiction)

C M No. 9018 of 2005

IN

Writ Petition (Civil) No. 6500 of 2005

In the matter of:

Gita Dewan Verma ...Petitioner/ Applicant

Versus

Delhi Metro Rail Corporation & Ors. ... Respondents

MOST RESPECTFULLY SHOWETH:

1. That the Applicant herein is the Petitioner in WP (C) No. 6500/2005. Therein the Applicant has prayed for issuance of writs in the nature of Mandamus in respect of disposal of responses to Public Notices issued under section 11A of Delhi Development Act for Master Plan modifications for metro property development and apropos metro property development underway at Shastri Park on the Yamuna Riverbed. The Applicant has also moved an application for interim directions viz. CMP No. 4557/2005 in WP (C) No. 6500/2005. Therein, the Applicant has, inter alia, specifically pleaded that:
   • "2. ...It is submitted that the ongoing construction activity is in contravention of the provisions of the Act and as such unauthorised and liable to be stopped forthwith. Furthermore, while the objections submitted by the Applicant are still pending consideration with Respondent No.4, the Respondents continue to allocate and expend huge amounts of the exchequers’ money towards the said unauthorised construction activities apart from attempting to make commercial gains therefrom.
   • 3. That under the circumstances, unless the ongoing unauthorised construction activities are stopped and kept in abeyance forthwith during the pendency of the present proceedings, the same shall result in huge expenditure to an irreversible extent apart from the creation of third party rights, inter-alia, in respect of the structures being erected on the riverbed, etc. Further, unless the unauthorised construction activities relating to the Information Technology Park at Shastri Park are stopped, the same shall result in perpetuation of an illegality."
   • The contents of WP (C) No. 6500/2005 and CMP No. 4557/2005 are not being repeated herein for the sake of brevity and to avoid repetition and may be treated as part and parcel of the present application. The Applicant seeks leave of this Hon’ble Court to refer to and rely upon the contents of the same at the time of hearing of the present application.
2. That vide order dated 13/04/2005 this Hon’ble Court had been pleased to issue notice in WP (C) No. 6500/2005 and CMP No. 4557/2005 while granting two weeks time to the Respondents to file counter affidavits and one week thereafter, to the Applicant to file a rejoinder thereto. It is pertinent to mention here that on the said date of hearing all the Respondents had entered appearance. Further, in view of the urgency in the matter, this Hon’ble Court had been pleased to grant a short date of hearing and list the matter on 23/05/2005.
3. That the Respondents failed to comply with the directions issued by this Hon’ble Court vide order dated 13/04/2005 and on 23/05/2005 the counsel for the Respondents sought further time to file counter affidavits and this Hon’ble Court was pleased to direct as follows:
   • “W.P(C) 6500/2005 Counsel for the respondents seek some more time to file counter affidavit. Let it be filed within four weeks. Rejoinder, if any, within one week thereafter. List on 29.8.2005.
   • CM No.4557/2005 Learned counsel for DMRC submits that the requisite permission from the concerned authorities have been obtained. Copies of the same shall be filed along with the counter affidavit. List on 29.8.2005."
   • The Respondents have failed to comply with the order dated 23/05/2005 as well and no counter affidavit has been filed on behalf of the respondents till date.
4. That Respondent No.1 has now invited tenders, to be opened on 01/08/2005 at 16:00 hrs, for 15 hectare “Entertainment / Recreational Facility” at Shastri Park on 15-years license basis. Copy of tender notice published in Times of India on 15/07/2005 is annexed herewith and marked as Annexure – A. Tyoed true copy of “Latest Tenders” page from the website of Respondent No.1, indicating also its invitation immediately after this Hon’ble Court’s afore-said order of 23/05/2005 of Bid applications for licensing spaces on fifth floor of the Information Technology Park, is annexed herewith and marked as Annexure – B. It is submitted that “Entertainment / Recreation Facility” is not a use contemplated in Public Notices for the site and, thereby, unauthorised and contrary to order of 03/03/2003 in WP (C) No. 2112/2002 for the Yamuna riverbed passed by a Division Bench of this Hon’ble Court, a typed true copy of which order is annexed herewith and marked as Annexure – C.
5. That in spite of the pendency of WP (C) No. 6500/2005 and CMP No. 4557/2005 and despite their failure to file counter-affidavits within the time stipulated by this Hon’ble Court, the Respondents are blatantly indulging in creating third party rights with a view to frustrate the present proceedings and reducing the ongoing proceedings to an academic exercise in futility.
6. That under the circumstances, it would be in the interest of justice if Respondent No.1 is restrained by this Hon’ble Court from proceeding with the tender process as stated in para – 4 hereof during the pendency of WP (C) No. 6500/2005. There is every likelihood that if the respondent authorities are not restrained from proceeding further with the tender process as prayed for, they will present this Hon’ble Court with a fait accompli which would not only be not in public interest but also contrary to interests of justice in the instant case.
7. That the Applicant has a strong prima facie case on merits and is very likely to succeed in WP (C) No. 6500/2005. The balance of convenience is entirely in favour of the Applicant. Irreparable loss and injury would be caused if the present application is not allowed by this Hon’ble Court.
8. That the present application is bona fide and in the interest of justice.

PRAYER

In view of the aforegoing submissions and facts and circumstances of the case, it is respectfully prayed that this Hon’ble Court may graciously be pleased to:

1. Restrain Respondent No.1 from proceeding with the tender process relating to “Entertainment and Recreational Facility” at Shastri Park as stated in para – 4 hereof during the pendency of WP (C) No. 6500/2005; and
2. Pass such other order(s) as this Hon’ble Court may deem fit and proper in the interest of justice and facts and circumstances of the case.

Applicant

Through

KG Gopalakrishnan/S. Muralidhar

Advocates for the Petitioner

283, Supreme Enclave, Mayur Vihar, Phase – I, Delhi – 110091.

Place: Delhi

Dated: 25 July, 2005

IN THE HIGH COURT OF DELHI AT NEW DELHI

Extraordinary Civil Writ Jurisdiction

Writ Petition (Civil) No. 6500 of 2005

Gita Dewan Verma... ... Petitioner

Versus

Delhi Metro Rail Corporation & Ors... ...Respondents

REJOINDER AFFIDAVIT OF THE PETITIONER TO THE COUNTER AFFIDAVITS ON BEHALF OF RESPONDENTS 1 (DMRC) AND 4 (DDA)

I, Gita Dewan Verma, daughter of Sudershan Dewan, aged 43 years, r/o 1356 D-I Vasant Kunj, New Delhi, do hereby solemnly affirm and state as under:

1. I am the petitioner in the above matter and am conversant with the facts, and circumstances of the case. I have read and understood the reply dated 5.8.2005 on behalf of Respondent No. 4 (DDA) to the writ petition and replies dated 28.7.2005 and 8.8.2005 on behalf of Respondent No. 1 (DMRC) to the application for stay and writ petition respectively. I am making this affidavit in Rejoinder to the aforementioned reply affidavits.
2. In the present writ petition (WP 6500/2005) the Petitioner has prayed for reliefs in respect of the objections/suggestions made by her in response to three statutory Public Notices for Master Plan modifications for “metro property development”. The copies of the written objections/suggestions made by the petitioner in response to the Public Notices have been enclosed as Annexures P3, P5 and P6 to the writ petition. The principal ground in the petition was that these objections/suggestions which were statutorily required to be disposed of under s.11 A of the Delhi Development Act 1957 (`Act’) had not been disposed of (Ground B at page 10). Further, in violation of the mandatory statutory requirement that permission of change of land use after following the s. 11 A procedure had to be accorded prior to permitting any construction activity on the land in question, the respondents were going ahead full swing with construction activities (para 6.8 page 7). Prayers (a) and (b) at page 13 of the writ petition sought specific writs of mandamus in relation to the said issues.
3. In view of the fact that the respondents were wilfully flouting the statutory provisions, and apprehending that the respondents may present this Hon’ble Court with a fait accompli, the petitioner had filed two separate applications for interim directions as under:
   1. CMP No. 4557/2005 (on 7.4.2005 along with the main writ petition) for interim directions in respect of development underway at Shastri Park on Yamuna Riverbed; and
   2. CMP No. 9018/2005 (on 25.7.2005) for restraining DMRC from proceeding with the tender process relating to “Entertainment and Recreational Facility” at Shastri Park.
4. This Hon’ble Court directed notices to issue in both the writ petition and CMP No.4557/2005 on 13/04/05. On 23/05/05 the court granted four more weeks to the respondents to file their replies. As regards CMP No. 9018/2005, this Hon’ble Court was pleased to direct on 27/07/05 that bids not be finalised till next hearing.
5. It may be mentioned that Respondents No.2 (GNCTD) and 3 (MoUD of Union of India) have not filed their respective replies till date. As far as the replies filed by Respondents Nos. 1 (DMRC) and 4 (DDA), these are incomplete and vague on account of the following reasons:
   1. Respondent No.4 (DDA) has filed neither para-wise reply nor any documents. Its Para-1 divulges dates of notifications pertaining to the three Public Notices, but Annexure-1, stated to be containing them, contains only the notices. Para-2 blandly claims compliance with s.11A. Para-3 and 7 make vague remarks about Order of 3.3.2003 in WP (C) No.2112/2002 without answering the contention that impugned projects are contrary to it. Para-4 merely reiterates fact of two of the Public Notices and Para-5 and 6 make unsubstantiated remarks about events between issuance of Public Notice for IT Park and its notification that bear no relation to the procedure under Rules, as set out at the end of this Rejoinder. The annexures to the counter affidavit of the DDA are copies of the public notices of 16.4.2004, 21.7.2004 (which is incomplete) and 16.12.2002. The relevant information regarding the disposal of the responses to the public notices has not been placed on record.
   2. As regards respondent No.1, in its reply it admits in Para-2 that “building for the IT Park had already been constructed on 15th March, 2005” whereas land use change notification (of which it has filed copy) was issued by the MoUD on 25/04/05. Paras 3 and 4 make vague remarks about a ‘Financial Plan’. The admittedly illegal IT Park is justified in terms of this in Para-5 and in Para-6 in terms of so-called ‘permissions for construction’ in Annexures-R1 to R10 – none of which are construable as such, as set out in detail subsequently in this Rejoinder. Yet Para-7 asserts construction is ‘totally legal’. Para-8 mentions inauguration by Chief Minister and names firms ‘allotted’ space in continuing ‘process of allotments’. What is significant is that respondent no.1 does not mention that it has invited bids for this twice during this petition, from 26.5.2005 and from 1.08.2005. The first pages of the bid application forms for those are reproduced from the website of the DMRC and annexed herewith as ANNEXURE-P-01 Colly.
6. Respondent No.1 has also filed, with its reply dated 8.8.2005 an affidavit dated 28.7.2005 in reply to CMP No. 9018/2005, in which it describes the proposed development as “Entertainment-cum-Amusement Park” “Comprising of various games, rides”, i.e., in likeness of ‘Appu Ghar’, whereas the tender was for “Entertainment/ Recreational Facility” and “development of high quality green space along with recreational and outdoor facilities”. Further, it claims in the affidavit that “no permanent structures will be constructed” and the “Park is being set up temporarily”. This contradicts the basic requirement that rides envisage safe and permanent structures and the tender form requires “non refundable entry licence fee” of 5 crores. Further, the licence issued is on offer for 15 years and “may be extended for a period of five (5) years at a time”. The page of the Tender application form belying “temporary” claims is annexed herewith as ANNEXURE-P-02.
7. The affidavit of respondent no.1, instead of providing proof of conformity of Entertainment-cum-Amusement Park with the Act, claims “approval”, without proof, from Lt. Governor, who is duty bound to initiate action against Plan violations, and from Central Water Commission (CWC), which is only a technical organisation not empowered to grant ‘approvals’. In fact the CWC had, in 2003, proposed (as per Annexure-R/5) a condition of no further activities while according what the Respondent calls ‘approval’ for IT Park and also (as per news item filed by the Petitioner in Annexure-P/4) rejected the 15 Ha Amusement Park proposal. By way of justification of Entertainment-cum-Amusement Park, the Respondent mentions in its affidavit not any techno-financial study but vague purported benefit of encroachment-avoidance (para-4), “larger public interest” (para-6) and “Welfare of Public at large” (para-7). This is untenable as precisely such notions were unequivocally rejected in judgment of this Hon’ble Court dated 16.9.2002 in WP (C) 4978/2002 which was a petition protesting up-market developments in violation of the Act. A copy of this judgment has been enclosed with the writ petition as Annexure-P/2. Significantly, in the said judgment this Hon’ble Court has while adversely commenting on the action of the DDA in bypassing the statutory requirements under s.11 A (pages 24-25 of the paper book) required the Chairman of the DDA to enquire “how the authorities of the first respondent (DDA) were allowed to take such decisions which admittedly are wholly illegal and without jurisdiction.”
8. In its aforementioned reply to CMP No. 9018/2005, the DMRC alleges that the “petitioner is only trying to obstruct the smooth progress of the project”. In this context, it is stated that the petitioner, a qualified Planner, has been raising concerns about “metro property development” being inconsistent with planning law and principles, incapable of optimally meeting resource objectives and patently prone to interferences by realty interests. The petitioner’s grievance arises out of the non-consideration by the respondent DDA of the objections filed by her in response to the public notice. The petitioner is aggrieved by such ad-hoc projects as they damage the credibility of her profession and by violations of planning procedures as they promote, especially when they involve premier agencies and firms, unethical professional practices. The petitioner had approached this Hon’ble Court not to press her professional viewpoint but for directions for its due consideration and for related actions that are required by law to, in effect, ensure adequately considered planning decisions and, thereby, healthy practice in the planning profession.
9. What however the DMRC does not mention in its affidavit is that it before filing counter-affidavit it had published on its website a Addenda to the Tender dated 15.7.2005 for Recreation Facility at Shastri Park dated 27.7.2005, 1.8.2005 and 4.8.2005 for extending the bid-opening dates to, respectively, 5.8.2005, 15.8.2005 and 16/08/05. Further after filing its counter affidavit, on 9.8.2005 and 11.8.2005 further Addenda were published for, respectively, modifying a clause in the Tender and extending the bid opening date further to 22.8.2005. The respondent no.1 for reasons best known to it has nowhere mentioned on its website, and on any of the above occasions, that this Hon’ble Court has on 27.7.2005 restrained it from finalising the bids till further orders. Copies of the Addenda abovementioned are annexed herewith as ANNEXURE-P-03 Colly.
10. From the affidavits filed by respondent no.1 (DMRC) it appears that instead of a case for Amusement Park a clear case against IT Park has been made out. The Amusement Park proposal is for Recreational use activities on a site with MPD-2001 land use ‘Riverbed/Green’. No document has been placed on record to show that the land use has been modified by due process. The site in question falls within the 51.9 Ha for which land use was purportedly modified to ‘Transportation’ by s.11A notification of 5.11.2003. This has been filed by the Respondent no.1 in Annexure-RI. This modification by said notification is itself seriously flawed as it is based on an erroneous factual premise. As it is seen from para 2 of the said notification dated 5.11.2003, it proceeds on the premise that “whereas no objection/suggestion was received with regard to the proposed modification and whereas the Central Government have, after carefully considering all aspects of the matter, decided to modify the Master Plan.” However, the document filed at Annexure-R7 in the reply affidavit dated 8.8.2005 purporting to be the minutes of the meeting held under the Chairmanship of the Lt. Governor on 5.1.2004 “regarding property development of land with DMRC” makes it clear in para 3.1 that “four numbers of objections/ suggestions in response to the public notice published in the Gazette of India dated 16.12.2002… were received in the Office of the Commissioner-cum-Secretary, DDA, within stipulated period of 30 days”. The said minutes in para 3.2 also refers to the summary of objections/suggestions and “the planning observations” in Appendix-A which appendix however has not been enclosed by respondent no.1 along with the copy of the minutes. This much is clear that the statement made in para 2 of the notification dated 5.11.2003 is patently erroneous and the entire notification is therefore vitiated as being contrary to the records of the DDA and non-application of mind by the concerned authority that issued the notification. Therefore, the first purported change of land use in respect of the land in question at Shastri Park from ‘River bed/Green’ to ‘Transportation’ is itself flawed. Any subsequent modification of land use of the area question is equally vitiated and unsustainable in law. Furthermore, in the notification of 25/04/05 by which land use of 6 Ha within this area was further modified to ‘Commercial (IT Park)’, it would be noticed that the second land use change was made subject to two express conditions as under: (a) no further activities shall be taken up in the flood plain on the South side of the Metro Corridor in the Shastri Park Depot Area’; and (b) no additional land in flood plains in the Shastri Park area shall be sought for depot expansion. It is clear that the proposal for the entertainment park is on land that is on the south side of the metro corridor in the Shastri Park depot area. Thus, the condition on the basis of which the land use change from transportation to commercial is permitted has itself been violated. Thus, the IT Park is liable to be treated as offence inviting penalties under s.29 and cognisable under s.34A and be sealed under s.31A and demolished under s.30 of the Act. A schematic sketch showing the location of the proposed entertainment park vis-à-vis the IT Park is annexed herewith and marked as ANNEXURE-P-04.
11. Thus we have a situation where the IT Park prohibits the Amusement Park and if the IT Park were to be demolished for it, the Amusement Park would still invite penalties for being in violation of (twice modified) Master Plan land use for the site and perhaps also under s.78 (relating to ‘Damage to or destruction of certain metro railway properties’, which presumably include IT Park) of Delhi Metro Railway Act, 2002.
12. It is submitted that the notification dated 25.4.2005 (Annexure-R1) is liable to be set aside in view of, besides the afore-said circumstances of its issuance, defects in content, as follows:
    1. It claims land use change from ‘Agriculture and water body’ whereas Notification of 5.11.2003 (filed by Respondent No.1 in Annexure-R1) says MPD-2001 land use ‘Riverbed/Green’ stands modified to ‘Transportation’ for the whole area. This is without prejudice to the contention that the land use change effected by the notification dated 5.11.2003 is itself illegal.
    2. It violates the modification proposed in Public Notice of 16.4.2002, reiterated in para-4 of DDA’s counter-affidavit and, as per para-1 therein, notified on 20.1.2005, which allows metro property development of “maximum area of 3 Ha”.
    3. It refers to (30-day) Public Notice dated 21.7.2004, whereas Public Notice was published in newspapers on 18.9.2004, which warrants mention, if not explanation, in the Gazette for accuracy.
    4. It omits one of three CWC/ Yamuna Standing Committee conditions from Public Notice of 18.9.2004, filed by the Petitioner as Annexure-P/6 (typed copy of publication of which on 21.7.2004, filed by DDA, is incomplete).
13. In addition to the above, the petitioner is constrained to invite the attention of this Hon’ble Court to certain alarming features that are apparent from the Annexures that Respondent No.1 has filed along with its replies. These are as under:
    1. Annexure-4 to the reply filed by respondent no.1 is not a document proving building permission for the construction claimed to be ‘totally legal’ in view of ten Annexures. It is not even ‘notice of commencement of construction’ (required by 7.2.1 of Delhi Building Bye-Laws, 1983), as claimed in Para-6(c). It is the Notice required by bye-law 6.1 as building permit application that the Respondent claims, without proof, it submitted on unspecified date “in September, 2003” and that “authorities had not communicated any refusal of the said plans and the same are deemed to have been sanctioned” – even as deemed sanction (bye-law 6.7.4) cannot be presumed in this manner and cannot be presumed at all in the instant case. The fact that such deemed sanction was evidently not presumed is also clear, from Annexure-R7 which reveals that the Respondent no.1 continued to lobby for building permit after commencing the building activity. The afore-mentioned bye-laws are reproduced in full in ANNEXURE-P-05 to illustrate the gross misreading of the said provisions presumably resorted to in defence of self-sanctioned unauthorised construction.
    2. Annexures R5, R6, R8, R9 and R10 are communications with agencies that are not party to the instant proceedings and each one of these is clearly deliberately misconstrued to claim their concurrence, in the following manner:
       1. Annexure-R5 and R6 pertain to Central Water Commission (CWC). The CWC is not the body authorised give approvals. It will be seen from Annexure-R/5 that the DMRC had sought the ‘clearance’ of the CWC for developing an IT Park even while questioning the jurisdiction of the Yamuna Standing Committee. The CWC had proposed three conditions of which the third was ‘no commercial residential development shall be taken up in the area’. This letter requests DMRC “to confirm the above so that a final view can be taken in the matter.” So this letter is not a clearance as claimed.
       2. Annexure-R/6, which is a letter by the DMRC to the CWC indicates that DMRC did not accept the third condition quoted above. It even questioned the conclusion of the YSC that the land in question constituted part of the flood plain. After this, there is no other correspondence placed on record to indicate what transpired and whether in fact the CWC gave a final clearance at all.
       3. What is however apparent is that when the notification dated 25.4.2005 was issued, the aforementioned third condition was omitted. The reasons for this are not indicated anywhere. This is despite the fact that the Public Notice of 18.9.2004 mentioned all three of CWC’s conditions. If the third condition had remained, the Recreational Park park could not have been permitted on account, besides of being located to the south of metro corridor in contravention of the first condition, of floating of a business tender that makes it a commercial venture.
       4. Annexure R8, claimed in para-6(g) to be Delhi Urban Art Commission “approval for setting up IT Park”, is only letter of 9.9.2003 from DUAC to the Architect that only conveys “conceptual approval” “subject to the observations of the Sub-Committee being incorporated while routing the proposal through the concerned local body”. Since the building plans, purportedly submitted “in September 2003” did not get routed to DUAC through local body and the Respondent no.1 also did not re-submit them after purportedly presuming deemed sanction, it cannot claim DUAC “approval”.
       5. Annexure-R9, which Respondent No.1 claims in para-6(h) is “NOC from all safety point of view” from “Chief Fire Officer on thorough inspection of building” is actually “NOC from fire safety point of view granted for consideration subject to following conditions” (numbering 9) by Deputy Chief Fire Officer after re-inspection carried out on 22.3.2005, i.e., after the date of completion of construction stated in para-2, pursuant to letters from the Respondent no.1 and in presence of representatives also of M/s L&T. Annexure-R9 is in no way construable as NOC for development or disposal and, in fact, its condition no.9 (viz, “The basement shall be used as per Building Bye-laws. The unauthorised occupancy (if any) in the building including basement shall be verified by the authority concerned and taken action as necessary”) requires action against use and occupancy of the unauthorised building before the Respondent no.1 can claim the NOC even as fire-safety clearance.
       6. Annexure-R10, innocuously claimed in para-6(j) to be “NOC for height clearance” by Airport Authority of India, is NOC dated 16.7.2005 (pursuant to letter of 18.5.2005 from Chief Urban Manager of Respondent No.1, who has same name as its Chief Urban Planner) for construction by the Respondent at same site of a “proposed” building “to height of 53.50 /M”, which obviously pertains not to the 8-storied building completed on 15.3.2005 but to a different, up to twice as tall, one at the site, about which Respondent has not divulged anything else.
       7. The Petitioner wrote to the above agencies requests to be told if her above-stated assumptions are wrong and none has responded. Copies of the said letters are annexed herewith as ANNEXURE-P-06 (Colly).
    3. Annexure-R3 is the only document apropos the ‘Financial Plan’ claimed as project justification (as distinct from permissions) and is stated in para-6(b) to be MoUD permission of 23.7.2003 to DMRC. It is actually only letter from MoUD to MCD saying only that Cabinet had also approved property development while approving MRTS project – according to para-3, in 1996 – and is accompanied by similar prior letter, not mentioned in the source para, from GNCTD Transport Department to “whom it may concern”. Far from ‘permission’, these suggest absence of any defined framework for “metro property development”. Further, it is significant that this is also not contemplated in Delhi Metro Railway (Operation and Maintenance) Act, 2002. This perhaps explains why the respondents have not formulated a regime of rules and regulations for it under the said Act and have sought, instead, to seek recourse to the Delhi Development Act through substantive plan modification.
14. It is pertinent that land-based finance for infrastructure development is standard technique that is uniquely central to Delhi Development Act. Under this DDA’s Fund is envisaged to be a Revolving Fund linked to policy of large-scale land acquisition for development according to Plan. Infrastructure development finance for MRTS from property development by DDA is evidenced in the DDA’s annual budget for 2005-06 where DDA has made a provision of Rs.240 crores for the DMRC i.e., 10% of its total outlay of Rs.2400 crores, purportedly for ‘co-finance’. However, unless all development related to MRTS is consonant with the Plan, even this would, as has been pointed out in para-6.9 of the writ petition, violate s.23 of the Act which prohibits the use of the Fund of the DDA for any purpose other than administration of the Act, whose sole object is to promote and secure the development of Delhi according to Plan.
15. The petitioner submits that if in addition to infrastructure finance from DDA’s Fund most remunerative sites are also made over to DMRC for unfettered “metro property development”, as proposed vide the Public Notice of 16.4.2004 purportedly notified on 20.1.2005 (para-1 in reply affidavit of DDA), then MRTS will be at the cost of DDA’s financial viability as well as of cost of land availability for the purposes of the Act. The petitioner submits that the MRTS Financial Plan requirement of raising a percentage of the cost from property development could well be met by transfers from the general DDA Fund or by reserving proceeds from development according to Plan on one or two prime sites to, instead of being ploughed back into DDA’s Fund, accrue to DMRC. However, what is being permitted to DMRC since 2002 is a curious form of ‘metro property development’ wherein land in excess of what is required for the MRTS (e.g, 51.9 Ha for Shastri Park Depot) is transferred to DMRC. This is then claimed to be surplus and under threat of encroachment (as for 6 Ha IT Park to CWC in Annexure-R5 and in para-4 of Reply to CMP 9018/2005 for 15 Ha Amusement Park with 2.7 Ha parking area). This is followed by desperate attempts to have DMRC’s projects and plans ‘cleared’ unmindful of the legal requirements, as is evident from what has been stated hereinabove. These so-called ‘clearances’ are then used to ‘justify’ use of s.11A to legitimise unplanned and unjustifiable schemes.
16. The petitioner also wishes to point out certain disturbing facts in regard to the role and conduct of the Government of the National Capital Territory of Delhi, respondent no.2 herein and in particular its then Lt. Governor in the present matter. Annexure-R2 pertains to meetings taken by then Lt. Governor. This is claimed in para-6(a) of the reply of the DMRC to be approval of 9.9.2002 by LG of “proposal for setting up an IT Park”. It is actually a letter of 2.11.2002 from DDA forwarding to MoUD a proposal “discussed and agreed in the meeting taken by Hon’ble LG on 9.9.2002”. Moreover, the said letter pertains only to approval for issuing Public Notice that was issued on 16.12.2002. Neither the letter nor the Public Notice mention IT Park. That the letter is endorsed to respondent No.1 at best proves that a proposal including IT Park was thrust upon DDA by the Respondent through Raj Niwas. It is significant that a week after the meeting of 9.9.2002, by judgment of 16.9.2002 in W.P.No.4978/2002, this Hon’ble Court ordered an inquiry by the DDA Chairman (LG, ex-officio) into an identically project, reference to which has been made earlier. To the best of the petitioner’s knowledge, such inquiry was not conducted.
17. In para 6(f) of its reply, DMRC claims that on 5.1.2004 at a meeting held at Raj Niwas “under the Chairmanship of the Lt. Governor of Delhi it was decided that DDA would give NOC to DMRC for development of IT Park.” In support of this statement, the document at Annexure-R7 has been annexed. It will be seen that Annexure-R/7 contains ‘record of discussions’ of a meeting held on 5.1.2004 at Raj Niwas – with appendices missing and typing errors. A significant omission is of the area figure in decision at no.2 that led to Public Notice of 16.4.2004 for unfettered property-development up to 3 Ha at all stations. The minutes in fact point to interferences in due process of all three Public Notices. In respect of IT Park, this document, far from legitimising the action of the DMRC, actually point to the fact that the DMRC had started the building activity even before any such NOC or approval was given. The line at the end of para 3.3 “as desired, the matter is put up for consideration of the Authority” clearly indicates that the paras previous to this were only in the form of proposals/ observations and not the decision of the LG or the DDA. The resolution appended at the end of the document is completely vague as to any application of mind by the Authority to the legal requirements and consequences. This has serious implications and puts a question mark on the role of the LG who was in fact duty bound to initiate action under ss.30 and 31 of the Act in respect of the construction already started by the DMRC. Action was required to be initiated against such construction activity also by the DDA Vice Chairman and Commissioner (Planning) to whom the minutes were also sent.
18. In view of the above, it is imperative that this Hon’ble Court summons the entire records of the case from respondents 2, 3 and 4 for appropriate directions to be issued.
19. As regards the order dated 3.3.2003 passed by this Hon’ble Court in CW No.2112 of 2002 (Annexure-C to the CMP No.9018 of 2005):
    1. Respondent No.1 has stated “it is wrong and denied that setting up of an Entertainment Park is in any manner contrary to the order”, but has not informed this Hon’ble Court about the outcome of its W.P.No.19808/2004, in which it sought directions for encroachment removal from Shastri Park. Typed true copy of Order of 17.12.2004 directing LG to treat the petition as representation and matching representation made by the Petitioner and others in context of Public Notice responses for IT Park are annexed herewith as ANNEXURE-P-07 (colly).
    2. Respondent No.4 has opined that by order of 3.3.2003 authorities were directed to remove “all unauthorized occupants / encroacher upon Yamuna riverbed who have encroached upon the riverbed without having any right therein” (para-3) and/or “unauthorized structures in habitation areas from Yamuna river which are/were discharging sewage water and other filth in the river” (para-7) and that the “intention of the Hon’ble Court while passing the order dated 3.3.2003 was to check the pollution in the River and to remove unauthorised structures on the riverbed and its embankments”. It has not stated how it has assured itself that development at Shastri Park (including depot where trains are washed) is not polluting the river or the ground water. Nor has it explained the anomaly of regularising an unauthorised IT Park in DMP-2001 ‘Riverbed/Green’ by notification of 25.4.2005 and order of 3.5.2005, in suo-motu matter in which only authorities are informing the court, for clearance without relocation of slums from the river embankment (not river bed) for being encroachment on water body. The typed true copy of order dated 3.5.2005 in WP 689/2004 and the petitioner’s representation to LG about it are at ANNEXURE-P-08 (Colly).
20. In rejoinder to the counter affidavit of respondent no.4 (DDA) and in particular the purported disposal of the objections to the public notices, the petitioner submits that there are serious lapses in terms of Delhi Development Master Plan and Zonal Development Plan Rules, 1959. Typed true copy of the relevant Chapter-III of the said Rules is annexed herewith as ANNEXURE-P-09. The petitioner sets out hereinbelow the lapses in procedure as are evident from the following statements by DDA in its para-5 and 6:
    1. that 150 objections and suggestions were considered by “Special Screening Board” constituted “for discussions thereon and for approval of the change of land use for the Metro-project”. This contradicts Rule 8 (Appointment of Board for enquiry and hearing) which requires the Authority to appoint a Board “for hearing and considering any representation, objection and suggestion”.
    2. that “Respondent No.4 after detailed discussions recommended the change in the land use keeping in view the public purpose as defacto solution”. This contradicts Rule 9 (Enquiry and hearing) which requires “hearing by the Board of any person, or local authority in connection with any objection, representation or suggestion made by such person or local authority or any person who may be allowed a personal hearing in connection with such representation, objection or suggestion”. Further, while the proviso permits it to “disallow personal hearing to any person, if it is of the opinion that the objection or suggestion made by such person is inconsequential, trivial or irrelevant”, it is not quite open to the Board to reject 150 responses to favour “defacto solution”.
    3. that “it was also noted” that CWC had “cleared the proposal”. As already pointed out this ‘clearance’, was sought by Respondent No.1. However, Rule 7 requires the Authority to independently seek the view of “every local authority” and in view of Rule 9 the Board had no cause to note so-called clearance of CWC while not hearing, say, the Petitioner or authorities such as of GNCTD responsible for compliance with notifications of CGWA and for Environmental Impact Assessment mentioned in the Petitioner’s response and basis of prayer (c).
    4. that “the proposal” was “considered in meeting of the Authority held on 28.02.2005”. On the other hand, Rule 10 (report of Enquiry) requires the Board to submit “report of enquiry” to the Authority and Rule 11 requires the Authority to consider that “and” any other matter. It is pertinent that the Respondent no.4 has neither confirmed nor denied the criticism at Authority meeting reported in news report of 9.3.2005, referred to in para-6.9 in the Petition, quoting GNCTD members on the Authority, while Respondent No.1 has specifically referred to subsequent inauguration by Chief Minister.
    5. that “thereafter the matter was referred to the Ministry of Urban Development for issuing a final notification… issued on 25.4.2005”. Significantly, no copy of the notification has been annexed and there is no reference to the notice to announce the approved amendment, as required by Rule 13(2).
21. The petitioner reiterates that the essential grievance made in the writ petition about non-consideration and disposal of the objections/ suggestions of the petitioner in response to the public notices pertaining to ‘metro property development’ remains unanswered by the respondents 1 and 4. The mere fact that notifications have been issued (and apropos Public Notice of 16.4.2004 claimed without proof to have been issued) cannot possibly excuse the respondent no.4 from complying with the mandatory provisions of the law. In any event, the notifications dated 5.11.2003 and 25.4.2005, as has been pointed out above, are themselves illegal and unsustainable in law.
22. To summarise the contentions of the petitioner in this rejoinder:
    1. The so-called permissions and clearances obtained by respondent no.1 DMRC are in fact not borne out by the documents annexed by DMRC to its reply.
    2. The facts reveal the clear violation of the procedural requirements for effecting land use change as contemplated by s.11A of the Act read with the Delhi Development Master Plan and Zonal Development Plan Rules, 1959.
    3. The notification dated 5.11.2003, effecting the first land use change in respect of the area in question, is vitiated in law as it is based on incorrect factual premises.
    4. The notification dated 25.4.2005 is also vitiated by non-application of mind to the legal requirements.
    5. The so-called entertainment and amusement park is wholly violative of the very condition on which the IT Park was permitted. Thus, the IT Park is itself illegal. Further, even if the IT Park were to be demolished for it, the Amusement Park would still invite penalties for being in violation of (twice modified) land use for the site.
    6. The notification purportedly issued on 20.1.05 for the modification proposed vide Public Notice dated 16.4.02 has not even been revealed.
    7. Serious questions arise about the role played by respondent nos.2 and 3 as well as then Lt. Governor in according ‘clearances’ and ‘approvals’ to the DMRC.
    8. The objections/ suggestions of the petitioner to the public notices remain to be disposed of in accordance with law.
    9. In view of the serious illegalities at every stage of the proceedings, it is imperative for this Hon’ble Court in the interests of justice to grant stay of all further construction activity in relation to the IT Park on the Yamuna riverbed and all further proceedings in relation to the ‘entertainment and recreational facility’ at Shastri Park.
    10. This Hon’ble Court should call for the entire original records pertaining to the matter from respondents 2, 3 and 4 and pass appropriate orders.

(Gita Dewan Verma)

DEPONENT

VERIFICATION

I, the above named deponent do hereby solemnly affirm and declare to the contents of this affidavit are true and correct to the best of my knowledge. No part of it is false and nothing material has been concealed therefrom. Verified at New Delhi on this the 24th day of August, 2005.

(Gita Dewan Verma)

DEPONENT

Annexure-P-01 (Colly): First pages from bid application forms for space in IT Park issued from 26/05/05 and 01/08/05, from the website of the DMRC

Annexure-P-02: Page-5 of Tender application form for Recreational Park at Shastri Park, from the website of DMRC

Annexure-P-03 (Colly): Addenda dated 27.7.2005, 1.8.2005, 4.8.2005, 9.8.2005 and 11.8.2005 to Tender for Recreational Park, from the website of DMRC

Annexure-P-04: Schematic sketch showing location of the proposed Recreational /Amusement Park vis-à-vis the IT Park at Shastri Park

Annexure-P-05: Typed true copy of Byelaws 6.1, 6.7.4 and 7.2.1 of Delhi Building Bye-Laws, 1983

Annexure-P-06 (Colly): Typed true copies of letters dated 15.8.2005 from the Petitioner to Central Water Commission, Delhi Urban Arts Commission and Ministry of Civil Aviation regarding clearances claimed by Respondent No.1

Annexure-P-07 (Colly): Typed true copy of (a) order passed by Hon’ble High Court on 17.12.2004 in W.P.No.19808/2004, and (b) representation dated 26.12.2004 made by the Petitioner and others associated with ‘Master Plan Implementation Support Group’ to the Hon’ble LG with reference to news reports of order of 17.12.2004

Annexure-P-08 (Colly): Typed true copy of (a) order passed by Hon’ble High Court on 3.5.2005 in W.P.No.689/2004, and (b) representation dated 31.5.2005 made by the Petitioner to the Hon’ble LG with reference to order of 3.5.2005

Annexure-P-09: Typed true copy of Chapter III, Delhi Development Master Plan and Zonal Development Plan Rules, 1959.