IN THE MATTER OF Delhi Science Forum,
Through its Secretary Prabir Purkayastha D-158, Ground Floor, Saket, New Delhi –10017
Delhi Development Authority,
Through its Vice Chairman, Shri P.K. Hota, Vikas Sadan, INA New Delhi -110023
2.Union of India,
Through the Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi.-110011
AND IN THE MATTER OF
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SEEKING THE INTERVETION OF THIS HON’BLE COURT FOR ISSUANCE OF A WRIT OF MANDAMUS TO THE RESPONDENTS NO.1 & 2 DELHI DEVELOPMENT AUTHORITY AND UNION OF INDIA THROUGH THE MINISTRY OF URBAN DEVELOPMENT TO FORTHWITH STOP THE ILLEGAL CONSTRUCTION ACTIVITY THAT IS BEING CARRIED ON A VACANT SITE NEAR THE CNG STATION WEST OF VASANT KUNJ (J-ZONE) CONTARY TO THE MASTER PLAN.
The Hon'ble Chief Justice and His Lordship Companion Judges of the Hon'ble High Court of Delhi at New Delhi.
The humble petition of the Petitioner above named:
MOST RESPECTFULLY SHOWETH
This writ petition under Article 226 of the Constitution of India is being filed as Public Interest Litigation seeking a Writ of Mandamus to the respondent No.1 & 2, the Delhi Development Authority and the Union of India in Ministry of Urban Development to forthwith stop the illegal construction activity being carried on near the CNG Station west of Vasant Kunj (J-Zone) contrary to the Master Plan of Delhi and in utter violation of the provisions of Delhi Development Act, 1957.
1.1. The petitioner submits that the Delhi Development Authority, Respondent No.1, in abdication of its statutory functions under the Delhi Development Act, 1957 (’Act’) is continuing to proceed with the illegal construction without seeking the mandatory approvals including the concurrence of the Delhi Jal Board (DJB) and despite reservations of the Central Ground Water Authority (CGWA), which has notified the area on account of depletion of ground water. Apart from the said action being illegal and arbitrary and violative of Article 14 of the Constitution of India as well the provisions of the Act, the illegal construction would also severely endanger the availability of ground water to the population in the area of Vasant Kunj which is a predominantly ground water dependent area and is already facing a severe water crisis. The continuing illegal construction is in violation of the citizens’ right to life under Article 21 and the right of residence under Article 19(1)(a) of the Constitution of India.
1.2 The petitioner is filing this petition bonafide in public interest to enforce and protect the fundamental rights of the persons living in Vasant Kunj and its neighbouring areas in Delhi.The petitioner is a non-governmental organisation engaged in scientific research on several issues inter alia concerning the conservation of natural resources and in particular the environment.The petitioner has been engaged in issues concerned with the planned development of Delhi as well as availability of ground water to its citizens. The petitioner has earlier moved the Courts including the Hon’ble Supreme Court of India by way of PIL on issues of public interest and public policy including the functioning of statutory authorities. The petitioner brought before the Hon’ble Supreme Court the issue concerning the telecom policy of the Government of India, which case is reported as Delhi Science Forum Vs. Union of India, (1996) 2 SCC 405.
FACTS OF THE CASE:
The respondent No.1 is the Delhi Development Authority (DDA) which has been constituted under the Delhi Development Act, 1957 (`Act’). The respondent No.2 is the Ministry of Urban Development, Union of India. Respondent No.2 is the nodal ministry for respondent No.1- DDA.
Under Section 6 of the Act the objects of the DDA “shall be to promote and secure the development of Delhi according to the Plan and for that purpose the Authority shall have the power to acquire, hold, manage and dispose of land and other property, to carry out building, engineering, mining and other operations, to execute works in connection with supply of water and electricity, disposal of sewage and other services and amenities and generally to do anything necessary or expedient for purposes of such development and for purposes incidental thereto”.
Under S. 5 of the Act, the D.D.A is to constitute an Advisory Council for the purposes of advising the DDA on the preparation of master plan.Section 7(2) of the Act requires DDA to “carry out a civic survey of, and prepare a master plan for, Delhi.” Under Section 7(2) of the Act, the master plan shall
define the various zones into which Delhi may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out ; and
b) serve as a basic pattern of framework within which the zonal development plans of the various zones may be prepared”.
The master plan as contemplated under S.7 of the Act was approved in 1962. This master plan was further revised and the revised master plan was approved in 1990.
4.2 Under S.8, simultaneous with the preparation of the master plan, or as soon as may be thereafter, the DDA shall proceed with the preparation of a zonal development plan for each of the zones into which Delhi may be divided.
4.3 Under S.8(2) a zonal development plan may contain a site plan and use-plan for the development of the zone and show the approximate locations and extent of land uses, specify standards of population and building density, indicate development and re-development areas, and contain provisions regarding any matter necessary for proper development of the zones according to the plan and for preventing buildings being erected haphazardly. The revised master plan approved in 1990 further clarifies (p.49) the purpose of the zonal plan as to “detail out the policies of the master plan, and act as a link between the Layout Plan and the Master Plan”. It says further, “In the absence of a zonal plan of any area the development shall be in accordance with the master plan.”
4.4 The master plan as well was zonal development plan has to be submitted by the DDA to the central government for approval. S.10(2) of the Act, which spells out the procedure to be followed in the preparation and approval of plans, requires DDA to “give reasonable opportunities to every local authority within whose local limits any land touched by the plan is situated, to make any representation with respect to the plan” before it is submitted to the central government for its approval. Clause-3 of the Development Code in the revised master plan approved in 1990 (p.51) requires the constitution of a high level policy making committee with representatives from Ministry of Urban Development, DDA, Delhi Administration, NDMC, MCD and Delhi Urban Arts Commission to “formulate policy guidelines for the sanctioning of all layout plans”, etc. This committee is to be assisted by a Technical Committee “with Chief Planners and Architects of the DDA, local bodies and representatives of Delhi Fire Service, Civil Aviation, Town & Country Planning Organisation, Ministry of Urban Development, Traffic Police, Delhi Urban Arts Commission and Water Supply and Sewage Disposal Undertaking.”
The basis for procedure for modification of plan under the Act is prescribed under S.11-A. Under S.11-A(1) the DDA may make modifications which “do not effect important alterations in the character of the plan and which do not relate to the extent of land-users or the standards of population density”. The revised master plan approved in 1990, taking note of the oversight of monitoring provisions in the plan as originally promulgated in 1962, included exhaustive provisions for plan monitoring and review. It says (p.92) “The plan monitoring would provide sufficient material for any modification required in the plan. Any other aspects because of emerging socio-economic and physical forces could be taken for study and to review the plan proposals. A comprehensive review encompassing all aspects should be taken up during 1994.” The revised master plan approved in 1990 says (p.49) for zonal plans of zones J to P, falling outside urbanisable limits, that these “shall be prepared as per the development needs”It says further “In the absence of zonal plan of any area the development shall be in accordance with the master plan.
5.2. Before making any modification in the plan, the DDA, or as the case may be, the central government, shall under S.11-A(3) “publish a notice in such form and manner as may be prescribed by rules made in this behalf inviting objections and suggestions from any person with respect of the proposed modifications before such date as may be specified in the notice, shall consider all objections and suggestions that may be received by the authority or the government”. All such modifications are expected to be published and where the DDA makes any modifications to the plans it shall report to the Central Government within 30 days of such modification. The Act and the Plan contemplate that modifications to the Plan are not to be made arbitrarily, but in a considered manner and on the basis of monitoring of the ground situation, in a way that major parameters of the plan, such as density and extent of landuse are not affected.
5.3 Under S.14 of the Act, the use of land and buildings in contravention of any plans in the zones is prohibited.
As per the revised master plan for Delhi the area south of Vasant Kunj falls in the J-Zone earmarked for ‘Green Belt’ and ‘Rural Zone’ (in the use zone category ‘Agriculture and Water Body’). To the best of the knowledge of the petitioner, there does not appear to be any zonal development plan for J-zone.
The master plan indicates that the site in question, namely the vacant plot of land near the CNG station on Mehrauli-Mahipalpur road, in Vasant Kunj falls in the J-Zone and is earmarked for ‘Green Belt’ (part of ‘inviolable green belt’ designated in the Master Plan approved in 1962). This is born out by examining the map titled ‘Union Territory of Delhi – Zones (Divisions)’ from the Master Plan document approved in 1990 annexed herewith and marked as Annexure-P/1; the List of Zones annexed herewith and marked as Annexure-P/2; the Landuse plan drawing from the revised Master Plan approved in 1990 (showing J-zone landuse as ‘Green Belt (as per MPD-62)’ and ‘Rural zone’ under category ‘Agriculture and ‘Water Body’) and map of area around Vasant Kunj at larger scale, annexed herewith and marked as Annexure-P/3 (Colly); and Landuse plan drawing from the Master Plan approved in 1962 (showing J-zone as well as Vasant Kunj area beyond urbanisable limits and indicating Green Belt referred to in the landuse drawing approved in 1990) and map of area around Vasant Kunj at larger scale, annexed herewith and marked as Annexure-P/4 (Colly);
Vasant Kunj and its neighbouring areas have severe water shortage. The master plan for Delhi was drawn up on the basis of the carrying capacity of the city – i.e. on a reasonable projection of the growth of population and the basic infrastructure including civic amenities like drinking water, needed for such population. Although in 1962 the master plan had placed the area occupied by not only the `J’ Zone (delineated as such in the revised plan approved in 1990) but also Vasant Kunj beyond urbanisable limits, in the ‘80s DDA started developing Vasant Kunj in departure from the master plan, including partly in inviolable green belt. Vasant Kunj was designed for a population of 92,191 and water requirement for it as per norms is of the order of 4 MGD. As against this, only 1.3 MGD is being supplied by way of river water and the rest is sourced from the already stressed ground water regime. Furthermore, on account of pre-existing settlements as well as rampant unplanned activities in Vasant Kunj and neighbouring areas, including construction of farm houses and large plot unauthorised colonies, the current demand for water is in the region of about 10 MGD. This has naturally led to depletion of ground water and worsening of the water scarcity. Unauthorised development in violation of the master plan is continuing in ‘J-zone’ under the nose of the DDA, which has not only remained indifferent to repeated protests by residents of Vasant Kunj, but is also itself carrying on development in disregard of both the master plan and depleting ground water.
In order to conserve the natural ground water sources, the government of India had, in exercise of its power under Section 3(3) of the Environment Protection Act, 1986, constituted an authority called the Central Ground Water Authority (CGWA) through Gazette Notification of 14th January 1997. Among the objectives of the CGWA was to regulate and control, and manage and develop the ground water in the country and to issue necessary regulatory directions for this purpose. One of the functions of the CGWA in the matter of regulation of ground water development is to impose regulatory measures. The CGWA in exercise of its statutory powers under the Environment Protection Act, 1986 has been issuing notifications prohibiting the extraction of ground water without its specific prior approval in several areas in the country. There are 11 such notified areas and among those one is the South West District of National Capital Territory of Delhi which includes Vasant Kunj.
9.1. By a notification dated 25.4.1999, the CGWA prohibited the construction and installation of any ground water abstraction structure without its specific approval by the CGWA in the Vasant Kunj area. A true copy of the relevant extract referring to the said notification in a publication of the CGWA is annexed herewith and marked as Annexure-P/5.
Delhi Jal Board (DJB), which is entrusted with the responsibility of making available water to the residents of Delhi, has also time and again been expressing in the media its inability to supply adequate water to the Vasant Kunj area, located at an elevated location at the tail-end of its distribution network. True copies of illustrative newspaper reports dated 9.05.2001 and 20.03.2002 are annexed herewith and collectively marked as Annexure-P/6 (Colly).
10.1. Despite the CGWA ban on ground water abstraction, residents as well as DJB have no choice but to dig illegal bore-wells for water supply in the area.
It is submitted that the DDA, before finalising or embarking upon any scheme, is bound to consult not only the DJB but also the CGWA in areas duly notified by it. While CGWA and DJB are not explicitly mentioned in the relevant provisions of the Act of 1957 or the master plan approved in 1990 in this regard (see para 4,.4), that is only because they came into existence after the revised master plan was approved.
The petitioner now craves leave to set out the sequence of events leading to the filing of the present Writ Petition:
12.2 On 25.9.2001, at a public function at Sultangarhi Tomb (West of Vasant Kunj and East of the CNG station), senior officials of the DDA and CGWA and the Minister of State for Water Resources gathered to lay down the foundation stone for a Water Harvesting Project. At this function the DDA displayed a scheme for an international heritage centre, competition housing, etc, in a large area bounded by the CNG Station in the north and the Sultangarhi tomb to the east, all falling in the `J’ Zone.
12.3. As mentioned hereinbefore, the said area falls in J Zone and has been earmarked ‘Green Belt’ in the master plan. The said plot of land, as per the master plan, cannot be used for any construction activity. To the best of the knowledge of the petitioner there is no approved change of use of the said plot of land and in any event the procedure to be followed for change of the said use as envisaged under the Act has not been followed. The petitioner also learns that there is no approval for the construction activity proposed by the Respondent No.1 as displayed by itself at the public function held on 25.9.2001.
12.4. A resident of Vasant Kunj Ms. Gita Dewan Verma who also is a qualified freelance planner, wrote to the CGWA on 26.9.2001 pointing out the fact that the Respondent No.1 had publicly displayed at a public function a scheme involving considerable amount of construction in the ridge periphery and the J-Zone and wanting to know if CGWA was making any intervention to stop this development, which would obviously stress ground water. A true copy of the said letter dated 26.9.2001 written by Ms. Gita Dewan Verma to the CGWA is annexed herewith and marked as Annexure-P/7 .
12.6 The resident welfare associations (RWAs) in Vasant kunj have also been raising protest against the illegal construction activities in Vasant Kunj as well as the illegal digging of borewells in the area which has seriously impaired the already depleted ground water situation. In a meeting the RWAs had with Commissioner(Planning) DDA, the approved lay out plan of Vasant Kunj was handed over to them by the Commissioner. The area to the West of Sultangarhi Tomb is not covered by this approved layout plan. It may be mentioned that the concept of a lay out plan, without an intermediate zonal plan, has not been recognised by the Act. As mentioned previously, the Master Plan also envisages the zonal plan as the “link between the Layout Plan and the Master Plan”. In other words, a layout plan may not ‘link to’ master plan without zonal plan and, in such situation, cannot be considered automatically as falling within DDA’s mandate of securing development according to plan, since the Act speaks only of master plan and zonal plan in this context. Furthermore, the Act does not envisage any process for approval of a DDA scheme or layout plan without the benefit of conformity to zonal plan or master plan. Since layout plans are internally approved by DDA, such schemes carry even greater risk of arbitrariness with reference to the master plan. Despite several requests made by residents a copy of the approved zonal development plan for J-zone has not been provided till date. The Petitioner reliably learns that this plan has not been prepared by the DDA.
12.7 On 18.3.2002, the Master Plan Implementation Support Group (MPISG), a platform of several groups in Vasant Kunj interested in its planned development, wrote to the DDA drawing its attention to the commencement of construction on the housing component of the scheme on the vacant site next to the CNG Station in Vasant Kunj and demanding that the work at the site be held in abeyance till such time the DDA is able to justify the statutory/technical basis for the scheme. In particular the MPISG pointed out that the proposed scheme that was under way was violative of the master plan inasmuch it was located in J-zone which was earmarked for rural/agricultural land use and for which, furthermore, zonal plan appeared not to have been prepared / approved. A map of the area indicating the location where construction on the DDA scheme has started is annexed herewith and marked as Annexure-P/8. A true copy of the letter 18.3.2002 written by the MPISG to DDA is annexed herewith and marked as Annexure-P/9.
12.8 On 1.4.2002, with the construction on the said site continuing unabated, the MPISG wrote a further letter to the DDA asking that further work on the site be immediately stopped. A true copy of the letter dated 1.4.2002 written by the MPISG to the DDA is annexed herewith and marked as Annexure-P/10. A further reminder was sent on 11.4.2002. A copy of the reminder dated 11.4.2002 written by the MPISG to the DDA is annexed herewith and marked as Annexure-P/11. Despite these letters of protest, the DDA not only failed to stop the work on the site in question, but has blatantly gone ahead with the clearing of trees on the site and also allowing the digging of a borewell, displaying complete indifference to its statutory obligations. Annexed herewith as Annexure-P/9 (Colly) is a set of photographs that show the carrying on of illegal construction activity on the said vacant site.
12.9 On 18.6.2002 Ms. Gita Dewan Verma wrote to the Ministry of Urban Development, Government of India, Respondent No. 2, drawing its attention to the unapproved scheme of the DDA which was being implemented in the vacant site near the CNG Station in Vasant Kunj. In particular it was pointed out in the letter that the serious water crisis in Vasant Kunj area did not justifty the scheme and that the implementation of such a scheme would add to the already growing demand for water. On the contrary it might be appropriate to use the site for recharging the ground water which otherwise would not happen once the construction activity was completed. The letter also pointed out that on 12.6.2002 Bhumipuja was carried out at the site despite the directions of the Chief Minister (who is also Chairperson of DJB) to the contrary and that on the night of 14.06.02 a Bore well was also dug despite the CGWA ban. It was specifically pointed out that this construction would be contrary to the master plan. The letter requested that the Respondent No.2 should immediately instruct the DDA to stop the construction so that no further damage to the environment was done. A true copy of the letter dated 18.6.2002 written by Ms. Gita Dewan Verma to the Respondent No.2 is annexed herewith and marked as Annexure-P/13.
12.10 . On 20.6.2002 Ms. Verma wrote another detailed letter to the DDA wherein, among other things, she pointed out that the proposed scheme of the DDA did not have the mandatory approvals for land use change and that the scheme ought not to have been permitted to be commenced without the mandatory procedure under the Act being completed. It was pointed out that the construction activity on the land which had gone on since March 2002 and resulted in felling in the re-charge area and digging of an illegal borewell should never have been permitted. A true copy of the letter dated 20.6.2002 written by Ms. Verma to the DDA is annexed herewith and marked as Annexure-P/14.
12.11. No reply was forthcoming from either the DDA or Ministry of Urban Development to either of the above letters. In the meanwhile, it transpired that the contractors, Larsen & Toubro (L&T), who had been entrusted with the work of executing the scheme undertook a massive excavation work on the site. This excavation was a mistake since it fell partly in the area of the other contractor, Alcon. To rectify the mistake, a fresh massive excavation was proposed by L&T in the same re-charge area. On coming to know of this, Ms. Verma again wrote on 26.2.2002 to the Ministry of Urban Development, Government of India, requesting that the illegal construction work should be immediately stopped. A true copy of the letter written by Ms. Verma dated 26.2.2002 to the Ministry of Urban Development, Government of India, is annexed herewith and marked as Annexure-P/15.
12.12. On 30.6.2002, there appeared in the Indian Express Sunday Newsline, a news report regarding the illegal construction by the DDA in the Vasant Kunj area. The news item pointed out that notwithstanding the ban imposed on digging of bore wells in the area by the CGWA and notwithstanding the fact that the DJB had ruled out the possibility of making any water available for the new flats, the DDA was proceeding with the construction activity on the said vacant site. It quoted the DDA Vice Chairman as having “brushed aside the fact that the permission had not been received from the Urban Development Ministry for changing the land use as given in the Master Plan”. The Vice Chairman was also quoted as having said that permission had been sought for and that “the process is being completed”. A true copy of the news item dated 30.6.2002 in the Indian Express Sunday Newsline is annexed herewith and marked as Annexure-P/16.
12.13. Upon seeing the above news item Ms. Gita Dewan Verma wrote again to the Ministry of Urban Development, Government of India pointing out that DDA had admitted that it did not have any permission from the Ministry of Urban Development but was still proceeding with the construction in flagrant violation of the Master Plan and the provisions of the DDA. Act A true copy of the letter dated 1st July 2002 written by Ms. Gita Dewan Verma to the Ministry of Urban Development, Government of India is annexed herewith and marked as Annexure-P/17.
12.14. On 3.7.2002, the Central Ground Water Authority wrote to the DDA referring to a letter of Ms. Verma and pointing out that there was substantial decline in ground water levels in the south and south west district of Delhi as a result of over development of ground water resources and that therefore “it shall be appropriate if DDA reviews its decision on further development vis-à-vis availability of water in notified areas so that further stress on ground water regime is avoided”. A true copy of the letter dated 3.7.2002, written by the Central Ground Water Authority to the DDA is annexed herewith and marked as Annexure-P/18.
12.15 In view of the letter of the CGWA, a copy of which was also sent to her, Ms. Gita Dewan Verma on 8.7.2002 again wrote to the Ministry of Urban Development Government of India. Summarising the sequence of events and enclosing, besides a copy of CGWA’s letter, previous correspondence with the Ministry, DDA, etc, for ready reference. The letter pointed out that DDA was proceeding with the construction work which had commenced in March 2002 without permission from the Central Government, as was mandatorily required in law since such activity was contrary to the land use specified in the master plan, and despite reservations of the CGWA, which had duly notified the area. A true copy of the letter dated 8.7.2002 written by Ms. Verma to the Ministry of Urban Development Government of India, is annexed herewith and marked as Annexure-P/19. A copy of this letter was also sent to the Petitioner.
The petitioner submits that despite the several attempts by the residents of Vasant kunj area to make the Respondent Nos.1 & 2 appreciate that the carrying on of construction activity in the vacant site near the Sultangarhi Tomb and Vasant Kunj CNG Station was clearly illegal and in contravention of the master plan and the Act, nothing whatsoever has been done to stop the said activity.
Faced with no other alternative the petitioner is now approaching this Hon’ble Court by way of the present Petition being filed as PIL for issuance of a Writ of Mandamus to the Respondents No. 1 & 2 to immediately stop all further construction on the site and further direct the respondent No.1 & 2 to restore the vacant site to its original position by removing all illegal construction that has so far been done and by closing the illegally dug bore well on the vacant site. In particular, the petition seeks cancellation of the DDA scheme for the construction of International Heritage Centre and Competition Housing as displayed by it on 25.9.2001.
That the petitioner has not filed any other writ petition or proceedings either in this Hon’ble Court or any other court for the relief prayed in the present writ petition and begs to prefer the present writ petition, inter alia, on the following amongst other grounds:
The petitioner submits that the scheme of the DDA for constructing an International Heritage Centre and HIG Housing in the vacant site of land adjoining CNG Station on Mehrauli Mahipalpur road in Vasant Kunj is wholly illegal and contrary to the provisions of the master plan of Delhi as revised and approved in 1990. The master plan which has been prepared, revised and approved under the Act is a legal document binding on every one, most of all, the DDA. It is submitted that vacant site of land on which the illegal construction is being carried out by the DDA falls in the J-Zone which has been earmarked in the master plan for ‘Green Belt’ . No construction activity of any kind is envisaged in the master plan as it currently stands. DDA is admittedly carrying on the said activity without any permission as required by law. It is submitted that DDA ought to be directed to stop the said illegal construction activity. It is submitted that the DDA has acted in contravention of the Act thus abdicating its essential functions and responsibilities thereunder.
The petitioner submits that DDA cannot seek to construct or permit construction on the said vacant site of land next to the CNG Station in Vasant Kunj contrary to the specific use for which it has been earmarked in the master plan. Admittedly the DDA has not yet obtained the permission for change of the use of the said land. yes"> However, without waiting for such permission, DDA has started execution of the said scheme. It is submitted that under Section 11-A of the DDA Act the procedure involved in the making of modifications to the plan contemplates the publication of notice by the DDA and inviting of objections from any person with respect to such proposed change. The DDA is thereafter bound to consider all such objections and suggestions and publish every such modifications that is sought to be made to the master plan. It is submitted that none of the steps as contemplated under Section 11-A of the Act have been initiated or followed by the DDA. The Petitioner further submits that in view of S.11 A(1) of the DDA Act, it is not possible to make any modification that substantially affects population density as per the Master Plan.
The Petitioner submits that in proceeding with the construction activity on the plot of land the DDA is acting in a wholly arbitrary manner, violative of Article 14 of the Constitution of India. The impugned action is absolutely irrational considering the fact that one of the primary responsibilities of the DDA is to undertake the planned development of Delhi. The DDA which is the authority drawing up the master plan cannot itself be seen to be violating it. On the contrary the Act and in particular Sections 29 & 30 prescribe penalties for violation of the master plan. The Act also envisages that buildings constructed in violation of plan would be demolished by the DDA. In these circumstances, it is inexplicable and wholly unjustified for the DDA itself to act in contravention of the master plan.
The Petitioner submits that the impugned action of the DDA as well as the Government of India, acting in tandem, are violative of the fundamental right to life of the residents of Vasant Kunj and neighbouring area. For several years now, the resident-citizens in Vasant Kunj have been facing severe water shortage and any further construction activity in the area would add to the demand for water. Apart from this the site in question next to the CNG Station is a water recharging area and any construction if permitted would impair natural ground water potential . To make matters worse, an illegal borewell has also been dug on the said site pursuant to the commencement of the construction activity. It is submitted that this action can only imperil the already precarious situation regarding the availability of water to the residents of Vasant Kunj, The impugned actions are therefore violative of the right to water for the residents of Vasant Kunj area which is integral and implicit in the right to life under Article 21 of the Constitution of India.
The Petitioner submits that the DDA was bound in law to consult and obtain the concurrence of the Central Ground Water Authority before proceeding with the construction activity since it impinges directly on the ground water regime. Since the CGWA has banned the digging of bore wells in the Vasant Kunj area by a statutory notification in exercise of its powers under Section 5 of the Environment (Protection) Act, 1986, the DDA was bound to first seek clearance of the CGWA before proceeding even to approve the plan for scheme in question , whose construction itself would need ground water. Admittedly the DDA has failed to do so as evident from the letter dated 3.7.2002 written by the CGWA to the DDA It is submitted that the DDA cannot act in violation of the notification dated 25.4.1999 issued by the CGWA which is another statutory body whose directions are binding on the DDA
The Petitioner further submits that the construction activity in question will cause irreversible damage to the environment in and around the Vasant Kunj area which abuts the ridge area of Delhi. It is important for the DDA, which is a statutory authority, to ensure that the environment is protected in the area and that no activity which would threaten the environment and the availability of natural resources of ground water is permitted. It is submitted that the continuance of the construction activity cannot but effect the environment beyond redemption and therefore ought to be stopped forthwith by this Hon’ble Court.
The Petitioner submits that the illegal construction activity going on in Vasant Kunj is clearly not in public interest and will cause irreparable harm and damage to the area and tremendous hardship to its residents. The whole purpose of having a master plan which is a statutory document (as are the zonal development plan and site plan as envisaged under S. 8 of the Act) would be defeated if the DDA were to be permitted to arbitrarily raise constructions on public lands in violation of the master plan. The DDA is not authorised to develop the land according to its whims and fancies ignoring the specific purpose for which the land has been earmarked.
It is therefore, most respectfully prayed that this Hon’ble Court may be pleased to:
Issue a Writ of Mandamus or any other appropriate Writ order or Direction directing the Respondents No.1 & 2, their agents, servants , jointly and severally forthwith stop all construction activity on the vacant site of land next to the CNG Station on Mehrauli Mahipalpur Road, Vasant Kunj (as described in the Plan annexed to the Writ Petition as Annexure -P/8 );
issue an appropriate Writ Order or Direction in the nature of Mandamus to Respondents No. 1 & 2 jointly and severally to remove all construction, material and to demolish any existing construction yes"> including closing of the illegally dug borewell on the vacant site of land next to the CNG Station, Vasant Kunj (as described in the Plan annexed to the Writ Petition);
issue an appropriate Writ Order or Direction in the nature of Mandamus to Respondents No. 1 & 2 jointly and severally to restore the vacant site of land next to the CNG Station, Vasant Kunj (as described in the Plan annexed to the Writ Petition) to its original status by closing and removing all the construction activities;
issue an appropriate Writ Order or Direction in the nature of Mandamus to Respondents No. 1 & 2 jointly and severally not to change the use of the land for any purpose other than for which it is primarily earmarked in the Delhi Master Plan and those approved in 1990 and as contemplated under the Delhi Development Act, 1957.
pass such other order or orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case,
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.
(S. Muralidhar ) & (Rukhsana Choudhary)
ADVOCATES FOR THE PETITIONER
283, 7th FLOOR, Supreme Enclave,
Mayur Vihar, Phase-I, DELHI-110 091.
DATED : July ,2002
Text of final judgement in the matter of DDA’s scheme near Sultangarhi / Vasant Kunj in J-zone
HIGH COURT OF DELHI AT NEW DELHI
CIVIL WRIT PETITION NO. 4978 OF 2002
Date of hearing: September 16, 2002
Date of decision: September 16, 2002
Delhi Science Forum PETITIONER
Through: Mr S.Muralidhar with
Ms. Rukhsana Choudhary
Delhi Development Authority and Anr. RESPONDENTS
Through: Mr Arun Jaitely, Sr. Advocate
with Ms. Anusuya Salwan for
Ms Raman Oberoi for
respondent No. 2
Coram: THE HON’BLE MR.JUSTICE S.B.SINHA, CHIEF JUSTICE
THE HON’BLE MR. JUSTICE A.K.SIKRI
S.B.SINHA, C.J. (Oral)
This writ petition which is in the nature of a public interest litigation raises a question of far reaching consequences and has wide ramifications. The Delhi Development Authority which is a creature of the Delhi Development Act 1957 acquired the land in question which was agricultural land being in J Zone allegedly for development. It stands admitted that no approval of the Central Government for use (sic change) of the land use in terms of S.11 A of the said Act has been obtained.
Admittedly, since the date of acquisition till 1999 the first respondent herein did not take any step to move the Central Government for taking any action in terms of section 11A of the Act. For three years the Central Government also did not take any steps pursuant to or in furtherance of the application filed by the first respondent herein for change in the land use. In the meantime, purported to be on the ground of protecting the land in question from further encroachment as also for other collateral purposes a mass housing project in Vasant Kunj for 416 HIG for Group I had been undertaken. Pursuant to or in furtherance of the said scheme, a notice inviting tenders had been issued and allegedly a contract has been awarded for completion of the said scheme. In this public interest litigation apart from highlighting the violation of the provisions of the Delhi Development Act and the rules framed thereunder, the petitioner herein had contended that the water level of the area has gone down to a great extent and as a matter of fact the water requirement of the area is of the order of 4 MGD and only 1.3 MGD has been supplied by way of river water and the rest is sourced from the already stressed ground water regime. Permission to dig certain bore wells were granted by the Central Ground Water Authority in terms of section.3 of the Environment Protection Act 1986 but it also prohibited extraction of the ground water without its specific prior approval by a notification dated 25.4.1999. The first respondent despite the said ban has been allegedly digging ground water in violation of the said ban. The first respondent however in its reply alleged that it has started special projects for supply of water in the area in question and whereas the construction of the flats may be completed by 2004 such water supply scheme would be completed by December, 2003. It now stands admitted that the construction have been started in clear violation of the provisions of the Delhi Development Act and the Rules framed thereunder. When we heard the matter in part on 11th September, 2002 it was prayed by Shri Arun Jaitley, learned Senior Advocate appearing on behalf of Respondent No.1 that Respondent No.2 herein be asked to inform this court about the progress made on the request of the first Respondent for change of the land rules (sic use).
Today Ms. Raman Oberoi has produced before us a purported fax message which is as under:
“Delhi Development Authority submitted a proposal with approval of Competent Authority on 17th November 1999 to Ministry of Urban Development for change of land use of an area measuring about 56 Hac. (138.40 acres) in the south of Mehrauli- Mahipalpur Road, New Delhi.
2. The details of the proposed land use modifications were as under:-
|Land pocket||Total Area||From||To||Area (Ha)|
|1. Land around Sultangarhi monument||28.0 Hac||Rural||Residential||11.0|
|Public & Semi-public||9.0|
|2. Land adjoining spinal injury Hospital||5.0 Hac||Rural||Residential||3.0|
|3. Land behind Sector D6 Vasant Kunj||23.0 Hac||Rural||Residential||23.0|
3 .On 14.7.2000 DDA again request Ministry of Urban Development for Central Government approval for issue of a Public Notice under S.11 A of DD Act 1957 for inviting objections/suggestions from the public for the proposed change of land use.
4. On 25.8.2000 Ministry sought clarification from DDA as to whether clearance for such change of land use has been obtained from National Capital Region Planning Board.
5.On 16.1.2001 DDA wrote to Chief Regional Planners of National Capital Region Planning Board for necessary clearance for proposed change of land use.
6. NCRPB wrote to DDA on 17.8.2001 that proposal is being examined by them and will be placed before the Planning Committee soon for consideration.
7. Vice-Chairman DDA requested Ministry of Urban Development on 22.8.2001 for processing of change of land use.
8. On 25.9.2001 a team of officers of DDA, Land and Building Deptt. , GNCT, Delhi Archaeological Survey of India and NCRPB visited the proposed site for change of land use.
9. The proposal for change of land use of an area measuring about 56 H ac (138 acres) from Rural use to Urban use in the south of Mehrauli- Mahipalpur Road, NCT Delhi was considered in the 47th Planning Committee meeting held on 23.2.2001 and after thorough deliberation and in view of the contiguity of the area with the built-up areas and taking note of all the views expressed, Planning Committee recommended the change of land use on 15.4.2002.
10. The proposal for considering change of land use was considered by the Ministry on 12.9.2002. The Ministry communicated to Commissioner (Planning) on 13.9.2002 its approval to issue Public Notice under S.11 A of Delhi Development Act for inviting objections/suggestions from the Public for proposed change of land use of an area measuring 56 H ac (138 acres) in the south of Mehrauli-Mahipalpur Road, New Delhi. DDA was also authorised to take further action accordingly.
It is strange that the first respondent herein has issued a public notice inviting objections/suggestions from the public in general within a period of 30 days from the date of publication thereon.
The said notice is also violative of Rule 5 read with Rule 12 of the Delhi Development (Master Plan and Zonal Development Plan) Rules 1959. In terms of the aforementioned Rules at least 90 days notice is required to be given.
It is a matter of great concern that a statutory authority which is statutorily to protect and preserve the statutory scheme itself has been violating the provisions of law. Violation of the land rules attracts the penal clause contained in s.29 of the Act. In terms of s.30 of the Act in the event when the development commences in contravention of the Master Plan or Zonal Development Plan or without the permission, approval or sanction referred to in s.12 or for other matters specified therein the first respondent is entitled to direct demolition of such construction. S.31 empowers the authority to direct stoppage of such development in exercise of its power conferred upon it under s.31 of the said Act. The said provisions to say the least are also applicable to the first respondent herein. We really wonder as to how a statutory authority who has the duty of maintaining the ecology of the city of Delhi had been violating the mandatory provisions of law with impunity. The submission of Mr.Jaitley, the learned Senior Advocate appearing on behalf of the first respondent is that no public interest would be subserved if we direct stoppage of construction of the building at this stage particularly when steps are being taken for obtaining the approval of the central government for change in the land rules (sic use) in terms of S. 11 A of the Act. From what we have noticed herebefore there cannot be any doubt whatsoever that all these steps taken by the first respondent are not only in violation of the statutory provisions, the same was highly unjust and arbitrary. Public interest in a case of this nature also demands that activities of the statutory authority be directed to confine it within the four corners of law. The statutory authorities cannot be allowed to act de hors the statute.
However high you may be the law is higher than you is also applicable to the first respondent who is authorised under the Act to implement the provisions thereof. In fact it is a fit case where the Chairman of the first respondent should see to it that how authorities of the first respondent herein were allowed to take such decisions which admittedly are wholly illegal and without jurisdiction. Although we are not oblivious of the fact that ultimately it may be the allottees of the flats who may suffer but once such illegalities are permitted the same in our opinion would give further incentive to a statutory authority like the first respondent herein to perpetuate the same and to indulge in other illegalities. So far as the submission of Mr.Jaitley to the effect that such a step had been taken with a view to prevent the land from being encroached upon we are of the opinion that the first respondent has enough statutory power and resources not only to prevent the land from being encroached upon but also to see that such encroachment are removed.
We therefore at this stage have no other option but to direct that no further constructions should be allowed to be raised on the land in question. This order shall not however prevent the respondents herein from taking steps from preventing any encroachment on the land in question and/or use the material collected at the site for any other purpose. It will also be open to the parties herein to proceed with the matter of obtaining approval from the central government in accordance with law. There cannot be any doubt whatsoever that if any approval is granted by the central government, permission is obtained, first respondent herein would be entitled to resume the constructions.
Keeping in view the fact that if any subsequent event occurs, the petitioners or any other public spirited persons may approach this court again we would not intend to keep this proceeding pending. It is disposed of.
A K Sikri,J
September 16, 2002
MoUD fax signed Sd/- Under Secretary, Ministry of Urban Development 14.9.2002