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HIGH COURT OF DELHI
JUDGMENT
REGISTRAR, UNIVERSITY OF DELHI ..... Petitioner
Represented by: Mr. V.P. Singh, Sr. Adv. with Mr. Ankur Chibber and Mr. Prashant Sivarajan, Advs.
Mr. Arun Birbal and Mr. Sanjay Singh, Advs. for DDA.
Mr.Sushil Kr. Tripathi, Adv. / Proxy Counsel for Ms. Anita Pandey, Adv. for R7 to R9.
Mr. Tarun Joshi, Adv. for DMRC with Mr. A.S. Rao, Law Officer from DMRC.
1. Vide the present petition, the petitioner University prayed, inter alia, as under:a. Issue a writ of certiorari in favour of the petitioner and against the respondents thereby quashing / setting 2015:DHC:3774 aside the impugned decision taken by the respondent no. 3, i.e., DDA in its meeting held on 12th May, 2011, wherein the respondent no. 3 while acting contrary to the mandate of the Master Plan Delhi – 2021 and the development control norms for metro stations as stipulated under chapter 12 of the Master Plan Delhi – 2021 has so allowed the respondent NO. 12, i.e., M/s. Young Builders (P) Limited to construct a high rise multi-storey group housing society in the control zone of Zone-C and has further by virtue of the impugned decision has been pleased to allow development control norms as available to any group housing under MPD-2021, including a FAR of 200 and maximum ground coverage of 33.3%, without any height restrictions and has further allowed the plot leased out of the Respondent no. 12 by the Delhi Metro Rail Corporation, i.e., Respondent 10, i.e., plot admeasuring 2 Hectares as a separate entity segregating it from the total land acquired for metro station i.e., 3 Hectares and has further been pleased to allow development controls as applicable under the clause “Group Housing” as per the provisions of MPD-2021 to the segregated 2 Hectares plot, which act of Respondent no. 3 is against the mandate of law and more so is in totally ignorance of the MPD-2021, Zonal Plan of Zone „C‟ & the provisions of the Delhi building By-Laws. b. Issue a writ of mandamus in favour of the petitioner and against the respondents thereby directing the respondents to follow the mandate of the Master Plan of Delhi – 2021 and in more particularly the development control norms as contained in the Gazette Notification dated 20th January, 2005 (incorporated under Chapter-12 of the Master Plan of Delhi – 2021) relating to Zone-C;
2. Facts of the case, in brief, are that in March, 2000 Delhi Metro Rail Corporation Ltd.( hereinafter referred to as DMRC) wanted to acquire land for its Metro Station, i.e., Vishwavidyalaya Metro Station falling under Zone-C of MPD 2021 and for the said purpose identified various bungalows for acquisition. On 02.05.2000 Ministry of Urban Development granted it‟s no objection for the acquisition of the bungalows. The land use of the proposed land to be acquired was changed from „residential‟ to „public purpose‟. Accordingly, notification under section 4(1) of the Land Acquisition Act, 1984 was issued on 15.12.2000. A declaration was made under section 6 of the Land Acquisition Act, 1984 on 14.02.2001. Consequently, the Land Acquisition Collector passed an award on 11.09.2001 and land measuring 3.05 Hectares situated in Zone-C (Civil Lines Zone) at Mall Road was duly handed over and mutated in the revenue records in favour of the respondent No.10 DMRC.
3. Thereafter, on 21/23.07.2003 Ministry of Urban Development and Poverty Alleviation granted approval to permit the respondent No.10 / DMRC to generate resources through property development within the period of 6 to 20 years. Respondent No.3, Delhi Development Authority (hereinafter referred to as DDA) issued a notification No.500(E) on 16.04.2004 in accordance with the provisions of section 44 of the Delhi Development Act, 1946 (hereinafter referred to as DD Act) inviting objections/suggestions on the modification proposed by the Central Government with a view to modify MPD 2021. On 20.01.2005 land use provisions of Master Plan Zonal Development Metro Stations along with Property Development with Control Norms was notified by virtue of a Gazette notification. On 23.09.2005, Government of India notified change in land use from „public and semi-public‟ to „residential‟.
4. Accordingly, on 12.02.2007 DDA informed DMRC that in view of the change of land use, the MPD and the Zonal Development Plan Zone-C providing detailed guidelines for development might be followed. On 07.02.2007 MPD 2021, inter alia, stipulating Development Controls for Metro Stations was notified. On 29.03.2007 and 14.09.2007 DDA confirmed to DMRC that all statutory provisions relating to group housing as per MPD 2021 were to be followed. In June, 2008 DMRC issued „Request for Proposal‟ for residential development at Vishwavidyalaya Metro Station indicating that norms of residential plot group housing as per MPD 2021 were to be followed., i.e., FAR of 200, ground coverage of 33.3% and its intention to transfer leasehold rights to the developer for a period of 90 years.
5. Accordingly, a bid of respondent no.12 Young Builders was approved by the competent authority, thereafter letter of acceptance was issued. A lease deed was executed and possession was handed over. Thereafter, respondent No.12 submitted its application to the Municipal Corporation of Delhi (hereinafter referred to as MCD) along with the proposed layout plan for the approval of the Group Housing Scheme. Accordingly, on 08.06.2009 MCD sought clarification from DDA about the control norms.
6. Thereafter, the petitioner submitted a detailed representation to the Delhi Urban Arts Commission (hereinafter referred to as DUAC) raising concerns about the project. On 05.08.2009 the Chairman DUAC wrote to the DDA to reconsider the project, as requested by the petitioner. Accordingly, on 19.08.2009 DDA withdrew its earlier letters dated 29.03.2007 & 14.09.2007 recording that the development control norms of the property development for the Metro Station dated 20.01.2005 would be applicable. Accordingly, on 06.05.2010 the petitioner approached this Court by WP(C) 3135/2010 challenging the notification dated 20.01.2005 seeking quashing of the letter dated 19.08.2009 issued by DDA. The said petition was disposed of without adjudication on merit on the basis of the meeting held on 12.05.2011.
7. Mr. V.P Singh, Learned Senior Counsel appearing on behalf of the petitioner submitted that the act of the DDA would be in direct conflict with the purpose of acquisition and would severely affect the norms and aesthetic beauty of North Campus of Delhi University which houses historical buildings, colleges, viceroy lodge etc. The plot was acquired for the purpose of Mass Rapid Transit System (MRTS) after converting the original land use of the land from „residential‟ to „public and semi-public facilities‟. As per the Regulation 8(3) of MPD 2021 specifying the Regulations of Building Controls within Use Premises, it is specified as under:- “ The objective of these regulations is to provide controls for building (s) within use premises excluding the internal arrangement, which are covered in Building Bye-laws.
1. Where development controls are not stipulated for any use premise, the same can be formulated by the Authority.
2. The mezzanine floor and service floor wherever provided shall be considered as a part of the total FAR.
3. If the building is constructed with................
4. Wherever the building regulations are given for different categories of plots, the area covered and the floor area shall in no case be less than the permissible covered area ad floor area respectively for the largest size of plot in the lower category.”
8. In view of the above, the respondent could have altered the conditions in respect of use of the premise only when no development controls were stipulated for the same. However, the same is not applicable in the instant case as the control norms have been formulated in respect of Metro Stations. Moreover, as per clause 2 (7) of the Development Code contained in MPD 2021, the definition of „use premises‟ is given as “Use premises means one of the many subdivisions of a Use Zone, designated in an approved layout plan, for a specific use. Land use of a premise has to be determined on the basis of an approved layout plan.”
9. Learned Senior Counsel further submitted that the MPD 2021 itself stipulates certain development controls for Metro Stations, and the same is given as under: “Development Controls for Metro Stations:
1. Metro stations along with property development (composite development) up to a maximum area of 3.0 ha shall be permitted in all Use Zones, except in Recreational and Regional Park / Ridge Use Zone. Lutyens’ Bungalow Zone and Heritage Zones.
2. This enabling provision of property development would have the following broad development controls: i. 25% ground coverage and 100 FAR, including area under Metro Station with no height restrictions and subject to approval of the statutory bodies such as ASI, Airport Authority, DUAC etc. ii. In addition to the requirement of parking for Metro stations, parking for the commercial component will be @ 2 ECS per 100 Sq.m. iii. The development shall be undertaken in a composite manner and DMRC shall obtain approval of all the concerned local bodies / agencies.
3. The following structures shall be treated as operational structures: i. All Metro Stations and tracks supporting at grade, elevated and underground including entry structures, ancillary buildings to house DG sets, chilling plants and electric substation, supply exhaust and tunnel ventilation shafts etc. ii. Depots and maintenance workshops. iii. Traction substations. iv. Operational control centres. v. Police Station. vi. Recruitment and training centres for operational and maintenance staff. vii. Housing for operational staff and Metro security personnel only. viii. Rehabilitation work to be undertaken for the construction of Metro project. ix. Shops in Metro stations to cater to the public amenities. x. Structure above platform over the footprint for the Metro Stations.”
10. Learned Senior Counsel submitted that it was incumbent upon the DDA to follow the development control norms as stipulated above and by taking the impugned decision; the same could not have been negated / circumvented. The site for proposed construction being in a Metro Station premises, the Respondents were bound to follow the norms specified in clause 2 (i) above i.e., 25% ground coverage and 100 FAR. Moreover, clause 11.[3] of MPD 2021 imposes a restriction on the height of tall buildings as under:- “The height of buildings (above and below ground) needs to be seen in the light of modern technology with due consideration for natural disasters like earthquakes, floods etc. Restrictions on tall buildings would be necessary in important areas like Lutyen’s Bungalow Zone, Civil Lines and North Delhi Campus. In case of urban extension, areas for specific Urban Design projects and tall buildings should be identified.”
11. Mr. V.P. Singh further submitted that Para 1.4.[4] of the Zonal Development Plan for Zone-C (Civil Lines) under MPD 2021 provides as under: “The Delhi University was established in 1924 and it has a number of old historical buildings, colleges, Viceroy’s lodge etc. of the Colonial period and therefore efforts shall be done to preserve this character. Also, efforts shall be done to make it an Integrated Campus (without thoroughfare) and self sufficient in terms of modern infrastructure and residential requirements like hostels, staff quarters, security arrangements etc. by optimum utilization of the land. Attempt shall be made to accommodate all institutional requirements within the Campus. Therefore an Urban Design study shall be taken up for this Sub-Zone. MPD-2021 has restricted this area for tall buildings. Delhi University has a large chunk of land allotted in Sub-Zone C-15, (opposite Dushehra Ground) and it is being utilized as Hostel and staff quarters. Optimum utilization of this land shall be done to meet the requirements in future. Listed Heritage buildings, some residences and Colleges of historical importance prepared by DDA, INTACH, ASI and GNCTD are given.”
12. It was submitted that the respondents ought to have kept even this aspect in mind before issuing the impugned decision, especially considering the height restrictions imposed but the same has been ignored in the instant case. As essayed above, the MPD 2021 itself imposes a restriction for construction of tall buildings in the controlled zone of Delhi University. The impugned decision is in direct conflict with the MPD 2021 which is statutory in nature. Gazette notification dated 20.01.2005 is statutory in nature and provides for development control norms in respect of Metro station along with property development upto a maximum of 3 Hectares clearly stipulates 25% ground coverage and 100 FAR.
13. Further submitted that as per the RPF issued by DDA, the plot cannot be segregated and the area under the Metro Station cannot be excluded from the FAR available for the whole plot admeasuring 3 Hectare, as has been done in the instant case by the respondents. The actions of DMRC are in direct contravention with the permission sanctioned by the Ministry of Urban Development and Poverty Alleviation vide letters dated 22.07.2003 and 23.07.2003. By virtue of the impugned decision, the DDA has sought to virtually amend the provisions of MPD 2021.
14. Learned Senior Counsel submitted that the impugned decision is a non-speaking order. Moreover, the decision taken was confined to the plot in question and that too with specific reference to Respondent No. 12 M/s. Young Builders. The relevant portion states: “…...... the 2 hectares of the plot leased out to M/s. Young Builders Pvt. Ltd. may be considered as a separate entity and the Development Controls as applicable under the clause Group Housing as per the provision of MPD 2021 be allowed…….” The decision is applicable to this particular site only.” It is further submitted that it is perplexing as to why DDA has found it fit to relax the norms applicable specifically to Respondent No. 12 and with reference to a particular site. Therefore, even if DDA wanted to relax the applicability of MPD 2021, it would amount to land use pertaining to a Zonal Development Plan and not lay out plan and the same could only be done after following the procedure prescribed in Section 11A of the Delhi Development Act, 1957.
15. To strengthen the above arguments, learned Senior Counsel has relied upon the case of Subramaniam Swamy & Ors. vs. Raju through Member, Juvenile Justice Board & Anr. 2014 (8) SCC 390 in which the Apex Court in Para 61 has held as under:-
17. Learned Senior Counsel submitted that because the respondents have miserably failed to appreciate, as has been held in a catena of decisions, that the land use cannot be changed, except in accordance with law. Assuming that the same could indeed be done, it would amount to land use pertaining to a Zonal Development Plan and not lay-out plan and the same could only be done after following the procedure prescribed in Section 11A of the Delhi Development Act,
1957. The illegal action of the respondents has led to the deforestation of the controlled and preserved zone of Delhi University.
18. Learned Senior Counsel submitted that if the proposed construction of a multistoried group housing society is allowed, it would lead to infringement of privacy of Meghadoot Girls‟ Hostel and Miranda House Girls‟ Hostel which are located mere 250 meters from the proposed site of construction. The proposed structure sought to be constructed right at the entrance of the University, which would impede the access of thousands of students, teachers and employees who would use that road and only choke the entrance of the University.
19. On the other hand, Mr. Tarun Johri, learned counsel for respondent No.10 submitted that the Metro project was sanctioned with a provision of generating revenue partly through property development. In the present case, DMRC had constructed Vishwavidyalaya Metro Station, where 2 Hectares of land remained surplus and was used for development in order to generate revenue. Accordingly, the respondent No.10 applied to DDA for change of land use from 'Public and Semi Public' to 'Residential', which was approved by the Ministry of Urban Development as per its notification no. 1383 (E) dated 23.09.2005. The auction of the land in favour of the Respondent No.12 was done only after receipt of letters dated 29.03.2007 & 14.09.2007 issued by the DDA, wherein it was specifically informed that the FAR for the Plot in question would be as per the norms of the MPD -2021 for Group Housing and FAR of 200 would be permissible. Accordingly, the auction of the plot confirming FAR 200 and 33% Grounds Coverage in favour of Respondent No. 12 was completely bonafide.
20. Mr. Johri further submitted that the Ministry of Urban Development in its letter dated 30.03.2009 once again confirmed that the property development by Metro projects is in line with the global examples as Metros are highly capital intensive projects and the only way they can remain financially healthy, without government subsidies, is to increase the non-operational revenues i.e. revenues from advertisements, retailing, real estate at metro stations and parking lots revenue to the extent of 40%-50% of the total revenues as in the case of Hongkong Metro. It was further envisaged in condition No.
(v) that, 'Property development on acquired land shall also be considered as part of the 'Project'.
21. Learned counsel further submitted that the aforesaid Ministry vide its Notification dated 18.04.2011 had amended Clause 3.3.1.[1] (vii) of the MPD 2021, wherein the words, 'Property Development by DMRC‟ was deleted. Thus, the restriction on enhancement of FAR for property development by DMRC as provided under the MPD-2021 stood modified to the effect that the FAR for projects of property development by the DMRC can be enhanced in accordance with the provisions of the MPD-2021. Moreover, in the Minutes of Meeting dated 21.05.2011, in respect of the Plot in question, DDA allowed the development control norms as available to any Group Housing Society under MPD -2021, including 200 FAR without restriction of height. Thus, this was done only after the amendment of the MPD -2021, when the restriction on enhancement of FAR as given in MPD-2021 was already deleted through amendment dated 18.04.2011. The said Minutes of Meeting was duly accepted by this Court in its order dated 18.05.2011 passed in WP(C) 3135/2010. Therefore, the permission given by the DDA in the minutes of meeting dated 21.05.2011 was completely in line with the amended provisions of the MPD-2021 and the same cannot be faulted within the eyes of law.
22. Learned counsel further submitted that the approval by the competent authority of the DDA with FAR 200 and ground coverage as 33% as applicable norms for residential development (Group Housing) is not the first such plot of land acquired for the construction and development of the Metro Projects in the National Capital Territory of Delhi. The respondent No.10 has also leased out (5) five parcels of land for residential development and all such five Projects have been approved by the competent authority with FAR-200 and ground coverage as 33% as applicable vide applicable norms for residential development (Group Housing). The details of the land is given herein below:-
┌──────────────────────────────────────────────────────────────────┐ │ Sl. Location Plot Ground FAR │ │ no. │ ├──────────────────────────────────────────────────────────────────┤ │ 1. Kyber Pass 68158.4 sqm 33.30 200 │ │ 2. Rithala 12026 sqm 33.30 200 │ │ 3. Subash 6445 sqm 33.30 200 │ │ Nagar │ │ 4. Dwarka Mod 21955 sqm 33.30 200 │ │ 5. Vishva 20000 33.30 200 │ │ Vidhyala │ └──────────────────────────────────────────────────────────────────┘
24. Mr. Sethi further submitted that respondent No.12 submitted a lay out plan to MCD on 30 March 2009 on the basis of norms applicable to Residential Plot-Group Housing. In response thereto, MCD vide letter dated 8.06.2009 sought clarification from DDA whether the 2.0 Hectare plot leased by DMRC to respondent No.12 can be considered as a separate entity for the purpose of approval of Group Housing with 200 FAR. On 25.06. 2009, DMRC informed DDA that they have entered into Lease Agreement with respondent No.12 on 15.12.2008 for Residential Plot-Group Housing development on 2.0 Hectare and requested DDA to confirm 200 FAR to MCD. However, DDA in complete u-turn and in contravention to MPD-2021 norms, replied to MCD vide letter dated 19.08.2009 that Development Control Norms shall be as per Notification dated 20.01.2005, prescribing Development Control Norms for Metro Stations viz 25% ground coverage and 100 FAR with no height restrictions. Further, DDA in a complete volte face and in derogation purported to withdraw its earlier decision. The said action of DDA was on the erroneous and illegal plea that Notification dated 20.01.2005 will prevail as it was notified much before the Notification dated 23.09.2005 for change of land use of 3.05 Hectare. MCD issued letter dated 22.09.2009 informing DMRC and respondent No.12 about DDA's decision dated 19.08.2009. Thereafter, DMRC and respondent No.12 made various representations to DDA. The matter was considered in DDA‟s meeting held on 17.02.2010 in which the following decision was taken:-
30. Mr. Sethi further submitted that it is pertinent to mention here that a separate Writ Petition (C) No.8675 of 2011 was filed by one "Association of Metro Commuters" inter alia challenging the allocation of the said land for residential development, which came to be dismissed by the Division Bench of this Court vide order dated
14.12. 2011 wherein the Court after detailed perusal of the records held that there is no illegality in the actions of DMRC / DDA and dismissed the petition.
31. Moreover, vide W.P. (C) 6624-6625/2012 titled as Sanjay Khanna (HUF) v. UOI and Ors., the acquisition was challenged by the erstwhile lessees of the plot in question. The Petitions were dismissed by this Court stating that there is no question of colourable exercise of power and the plot used by DMRC for commercial purpose is being done as per the settled principles of law. The said order was challenged by SLP which was also dismissed.
32. Mr. Sethi submitted that despite the fact that the said issue has been adjudicated upon thrice by this Court, the present Writ Petition again without any locus and proper authority raises the same issues in the present petition again by suppressing the adjudication of the said issues in the aforementioned three Writ Petitions. The present Writ Petition has been filed with oblique motives and with malafide intentions for causing losses to the respondents No.10 & 12.
33. Mr. Sethi, learned Senior Counsel further submitted that land use of the 3.05 Hectare land was changed to 'Residential' vide Notification dated 23.09.2005, Development Control Norms for Residential Plot- Group Housing only will apply and no other norms are applicable to this plot. This controversy whether the 'Development Control Norms for Residential Plot-Group Housing' or the 'Development Control Norms For Metro Stations' apply to the said plot in question, was the subject matter before this Court in WP(C) 3135/2010. The issue was finally set to rest after DDA in a meeting held under the directions of this Court and chaired by Lt. Governor decided on 21.01.2011 and 12.05.2011, that Group Housing Norms with no height restriction will apply in respect of subject 2.0 Hectare plot. Therefore, petitioner cannot be allowed to re-open and re-agitate an issue already adjudicated / settled by a Division Bench of this Court.
34. Moreover, DDA / MCD have allowed Group Housing norms, viz., 200 FAR, 33.3% Ground Coverage and no height restriction in respect of 5 properties including the plot in question auctioned by DMRC for property development as Group Housing. The aforesaid 5 properties have been mentioned in the submission of the DMRC by the counsel for the respondent No.10 which is reproduced as under:- “The relevant Development Control norms in MPD 2021 are as follows: (Pg25) Ch-4 Shelter Table 4.3: Uses / Use Activities Permitted in Use Premises Use Definition Use/Use Activities Permitted Residential Plot – Group Housing A premise of size not less than 3000 sqm (2000 sqm. For Slum/JJ rehabilitation) comprising of residential flats with basic amenities like parking, park, convenience shops, public utility etc. Residential flat, mixed use Plot activity as per the Master Group Plan provisions, retail shops of confectionery, grocery & general merchandise, books and stationery. Chemist, Barber, Laundry, Tailor, Vegetable Shop (On ground floor with an area up to 20 sqm. each). Community Room, Society Office, Creche / Day Care Centre, Religious, Senior Citizen recreation room. Swimming Pool. Pg 28 -4.4.[3] Control for Building/Buildings within Residential premises
Minimum size of plot: 3000 sq. m. Maximum Ground coverage: 33.3% Maximum FAR: 200 Height NR (Subject to clearance from AAI / Fire Department and other statutory bodies. Parking: 2.0 ECS/100 sqm built up area" Ch-12 Transportation Pg 82 -Development Controls for Metro Stations
1. Metro Stations along with property development (composite Development) up to a maximum area of 3.0 ha shall be permitted in all Use Zones, except in Recreational and Regional Park / Ridge Use Zone, Lutyens' Bungalow Zone and Heritage Zones, subject to approval of Technical Committee of DDA.
2. This enabling provisions of property development would have the following broad development controls: (i) 25% ground coverage and 100 FAR, including area under Metro Station with no height restrictions (emphasis supplied) and subject to approval of the statutory bodies such as ASI, Airport Authority, and DUAC etc.
(ii) In addition to the requirement of parking for Metro
(iii) The development shall be undertaken in a composite manner and DMRC shall obtain approval of all the concerned local bodies / agencies." Chapter 17 Development Code "Pg 123 -Clause 2.0 Definitions In this code unless the context otherwise require: 2(7) Use Premises means one of the many sub divisions of a Use Zone, designated in an approved layout plan, for a specific Use. Land use of a premise has to be determined on the basis of an approved layout plan. 3(3) Each use premises shall be permitted to have specific uses/use activities out of the prescribed uses/use activities with or without conditions.
5.0 The use premises and use/use activities with similar nomenclature are given with the controls of specific premises in the respective chapters."
35. Moreover, DDA had examined the applicable Development Control Norms for this plot as a Residential Plot-Group Housing vis-avis the Development Control norms for Metro stations notified on 20.01.2005. After detailed examination, DDA came to a conclusion that since the land use has been notified as residential on 23.09.2005, Residential Plot-Group Housing norms (200 FAR, 33.3% Ground Coverage and no height restriction) are applicable to 3.05 Hectare Land.
36. Mr. Sethi further submitted that two independent committees have submitted the report that the development is within the control norms applicable to this area and that it will not affect the aesthetic beauty of the North Campus of Delhi University. He further submitted that as contended by the petitioner, the Group Housing Norms were made applicable without amending MPD 2021. Learned counsel further submitted that in the present case the relevant amendment in the Master Plan was required to be made in respect of change of land use from PSP to residential. This was done by DDA following due process of law as contemplated in Section 11-A of Delhi Development Act,
1957. Accordingly, the DDA had issued a Public Notice dated 19.12.2004 inviting objections before changing the land use of the plot from PSP to residential. No objections were received and a Notification dated 23.09.2005 was issued changing the land use of the plot. There was, thus, complete compliance of the requirements of Section 11A of the Delhi Development Act.
37. Mr. Sethi submitted that DDA is the sole decision maker in respect of provisions of Master Plan and has full powers to grant site specific approvals. To strengthen his arguments, learned Counsel relied upon the judgment of this Court in the case of Kenneth Builders and Developer Ltd. v. Union of India and Ors., W.P.(C) No. 10647 of 2010 in which the Court observed as under:- “28: In deciding this writ petition, an important question which arises for consideration is -who decides the land use of a particular piece of land in Delhi? If the land use is to be determined by the DDA through the publication of the Master Plan, then the question arises as to whether the DPCC or the Department of Forest can object to a particular land use?...........................................................................
30. From these provisions, it is clear that the making of the master plan and the zonal plans goes through an elaborate procedure. Even the modification carried out to any of these plans has to go through a series of steps which include the inviting of objections and the consideration thereof. From these provisions it is clear that the stand taken by the DDA that once the master plan shows the land in question as earmarked for a particular use then no other authority can challenge the same. The master plan and the zonal plans are prepared by the DDA and they have a statutory flavour. Once the DDA has gone through the formalities required under law in preparing the master plan and/or the zonal plans and/or in carrying out any modifications therein, the land use of a particular area would stand determined as per the said plans.
31. When the land owning agency as also the authority which prepares he Master Plan clearly and categorically states that the land in question does not fall within the ridge area and the land uses is residential, we fail to see as to how the DPCC or the Department of Forests, NCT of Delhi can raise any objection on this account"
32. Therefore, we are of the view that the stand taken by the DBA that the land use of the project site is residential stands established...."
38. Moreover, the stand of DDA in the present case is that the land use of the plot in question was changed from PSP to Residential and, therefore, Development Control Norms for Residential Plot-Group Housing apply to this plot. Further, MCD's Standing Committee has approved the layout plan for development of Group Housing on 2.0 Hectare plot as a separate entity u/s 313 of the DMC Act in its meeting held on 22.03.2013 vide resolution No. 315. Regarding petitioner‟s contention that the land acquired for MRTS Project was acquired after converting the land use from „Residential‟ to „Public and semi public‟ and now DDA cannot re-convert it to „Residential‟ defeating the purpose of acquisition. Whereas the land use of 3.05 Hectare land has been changed only once from PSP to „Residential‟ vide Notification dated 23.09.2005. The same is evident from the information obtained by respondent No.12 under RTI. Once the land is acquired in a lawful manner and is vested in the acquiring authority, and if a portion of the acquired land is left unused after achieving the public purpose, the unused portion can be used for a purpose other than it was acquired for. To strengthen his arguments, learned Senior Counsel for the respondent No.12 relied on the judgment of this Court in the case of Adil Singh v. UOI and Ors, W.P. (C) No. 2948 of 2007 in which the Court observed as under:-
clear that once the land has vested in the State either by virtue of section16 of the said Actor by virtue of Section 17(1), in urgent cases, there is no question of the land being re-vested in the erstwhile owners. The Government can withdraw from the acquisition only up to the point it does not take possession of the land sought to be acquired. Once possession has been taken, the acquisition cannot be given up. It is also clear that trough part of the land acquired for one public purpose could not be used for another public purpose, without invalidating the acquisition itself, land acquired for a public purpose cannot be used for a private objective. But, even if part of the land is sought to be used for a commercial purpose, the same would not revert to the original owner though the appropriate Government would be subject to an action in case the allotment for commercial use is arbitrary or unreasonable. Where a portion of the land acquired for a public purpose is left unused, it would be open to the state government to utilize the same for a commercial purpose provided it is done in a transparent manner either through an open tender or through an auction.”
39. Mr. Sethi further submitted that the auction has been conducted by DMRC in a transparent manner, i.e., through a public auction and there is no allegation that the auction was not done in accordance with law. Moreover, there was no malafide on part of DDA. Thus it is clear that DDA took a conscious decision in its meeting dated 21.01.2011 with respect to the applicability of FAR for Group Housing and further again took an informed decision at the highest level vide its resolution dated 12.05.2011 that no height restrictions can be imposed on the proposed project under the provisions of MPD 2021.
40. It is further submitted that as per the settled law the Court would not interfere in a policy decision taken by a Government body unless some illegality, impropriety, malafide or unreasonableness can be proved on part of such decision making body as held in the cases of Sethi Auto Service Station and Anr. Vs. Delhi Development Authority and Ors. (2009) 1 SCC 180; and Residents Welfare and Recreation Association (Regd.) & Ors. Vs. DDA & Ors. W.P. (C) 1815/2009.
41. Mr. Sethi further submitted that the principle of res judicata bars re-opening of the decision of this Court in WP(C) 3135/2010. DDA has the final authority to rule on questions of land use/norms as held in the case of Kenneth Builders (Supra). The fact that DDA has to decide all issues pertaining to MPD2021 has been provided within the powers of DDA as per clause 17 of the Introduction of the MPD 2021.
42. Mr. Sethi further submitted that the present petition has been filed by Mrs. Alka Sharma in her capacity as the Officiating Registrar of Delhi University. There is no authority given by the Executive Council of Delhi University authorizing her to file the present petition. In fact, there cannot be any such authority as Executive Council of Delhi University never passed a resolution to file the present writ petition.
43. However, vide Order dated 10.09.2013 this Court directed the petitioner to file an affidavit disclosing as to how the decision to file the present writ petition was taken. Accordingly, the petitioner has filed an affidavit referring to Resolution No. 56 passed by The Academic Council on 20.03.2012 and Resolution No. 173 passed by the Executive Council on 21.03.2012 and stated that pursuant to above resolutions, the present writ petition was filed. Thus, the Registrar has filed the present petition.
44. While concluding his arguments, Mr. Sethi submitted that respondent No.12 received all approvals from all statutory bodies, viz., AAI, AST, Fire (CFO), DDA, DUAC, Forest, MCD, NMA, SEAC, etc.. Therefore, all approvals have been obtained but construction has not yet started. Six years have been spent on same issues causing huge loss to respondents No.10 & 12 both in money and reputation.
45. Mr. Arun Birbal, Ld. Counsel appearing on behalf of DDA has fully supported the case of respondent No.10 and 12. Further added that for determining the land use, DDA is the proper and final authority. Vide decision dated 12.05.2011, DDA has resolved and allowed development control norms as applicable under the clause „Group Housing‟ viz., 200 FAR with 33% ground coverage without height restriction on the plot in question. The said plot is not part of North Campus of Delhi University, therefore, the petitioner has no locus to file the present petition. Moreover, land use has been changed by due process of law.
46. I have heard learned counsels for the parties.
47. Respondent No.10 DMRC had constructed Vishwavidyalaya Metro Station, where 2 Hectares of land remained surplus and was to be used for development in order to generate revenue. Accordingly, the respondent No.10 applied to DDA for change of land use from 'Public and Semi Public' to 'Residential', which was approved by the Ministry of Urban Development as per its notification no. 1383 (E) dated 23.09.2005. The auction of the land in favour of the Respondent No.12 was granted only after receipt of letters dated 29.03.2007 & 14.09.2007 issued by the DDA, wherein it was specifically informed that the FAR for the Plot in question would be as per the norms of the MPD -2021 for Group Housing and FAR of 200 with 33% ground coverage would be permissible. Moreover, the Ministry of Urban Development vide its Notification dated 18.04.2011 had amended Clause 3.3.1.[1] (vii) of the MPD 2021, wherein the words, 'Property Development by DMRC‟ was deleted. Thus, the restriction on enhancement of FAR for property development by DMRC as provided under the MPD-2021 stood modified to the effect that the FAR for projects of property development by the DMRC can be enhanced in accordance with the provisions of the MPD-2021. Moreover, in the Minutes of Meeting dated 21.05.2011, in respect of the Plot in question, DDA allowed the development control norms as available to any Group Housing Society under MPD -2021, including 200 FAR without restriction of height, on the residential plot leased out to respondent no. 12 by DMRC near Vishwavidyalaya Metro Station. Therefore, the permission given by the DDA in the minutes of meeting dated 21.05.2011 was completely in line with the amended provisions of the MPD-2021.
48. It is pertinent to mention here that the respondent No.10 has also leased out (5) five parcels of land for residential development and all such five Projects have been approved by the competent authority with FAR-200 and ground coverage as 33%. In addition to the land in question, the other 4 (four) parcels of land are Kyber Pass, Rithala, Subash Nagar and Dwarka Mod.
49. It is also pertinent to mention here that the situation in question arose for the reason that earlier under Phase-I, the Vishwavidyalaya Metro Station used to be a terminal station. In 2006, when Phase-II was envisioned, the aforesaid Metro Station remained no longer a terminal station and the line from Central Secretariat to Vishwavidyalaya was extended to Jahangirpuri, resultantly, the requirement for parking space was reduced, and consequently there was a surplus land available with the DMRC. Accordingly, DMRC invited bids for residential development on 2.0 Hectare plot representing that the norms of Residential Plot-Group Housing as per MPD 2021 would be applicable which permit 200 FAR with 33% ground coverage. Accordingly, respondent No.12 participated and turned out to be the highest bidder at Rs.218.20 crores.
50. Thereafter, respondent No.12 submitted a lay out plan to MCD on 30.03.2009 on the basis of norms applicable to Residential Plot- Group Housing. In response thereto, MCD vide letter dated 8.06.2009 sought clarification from DDA whether the 2.0 Hectare plot leased by DMRC to respondent No.12 can be considered as a separate entity for the purpose of approval of Group Housing with 200 FAR. On 25.06. 2009, DMRC informed DDA that they have entered into Lease Agreement with respondent No.12 on 15.12.2008 for Residential Plot- Group Housing development on 2.0 Hectare and requested DDA to confirm 200 FAR to MCD. However, DDA replied to MCD vide letter dated 19.08.2009 that Development Control Norms shall be as per Notification dated 20.01.2005 prescribing Development Control Norms for Metro Stations viz 25% ground coverage and 100 FAR with no height restrictions.
51. Thereafter, the matter was considered in DDA‟s meeting held on 17.02.2010, whereby the Lt. Governor constituted a Committee under the Chairmanship of Engineer Member, DDA with Chief Town Planner, MCD and Chief Engineer, DMRC as members to survey the entire area and examine the implications on the proposed high-rise buildings on the privacy and integrity of the Delhi University environment. Accordingly, the Lt. Governor directed that the Committed would give its report within a week. Pursuant to the said direction, a joint inspection of the site was conducted by the committee members on 19.02.2010 whereby observed and concluded that the proposed high rise property development on 2.0 Hectare plot will not affect the privacy of the girls' hostel nearby, will not add to any parking problem and will also not affect the serenity / tranquillity of University area.
52. Thereafter, respondents No.10 and 12 made efforts to persuade DDA to correct its action and restore Group Housing norms with 200 FAR but failed to yield any result. Being aggrieved, respondent No.12 filed Writ Petition No.3135/2010 impugning the letter dated 19.08.2009 issued by DDA. During the pendency of the aforementioned writ petition, DDA informed the Court that the impugned decision was being reconsidered at the highest level in DDA. Accordingly, DDA reconsidered the issue and resolved that 2.0 Hectare plot leased out to respondent No.12 shall be considered as a 'separate entity' and the Development Control Norms for Group Housing with no height restriction shall apply. Moreover, DDA's counsel placed on record the Authority‟s decision applicable on Group Housing Norms with 200 FAR and 'No height restriction'.
53. It is pertinent to mention here that a separate Writ Petition (C) No.8675 of 2011 was filed by one "Association of Metro Commuters" inter alia challenging the allocation of the said land for residential development, which was dismissed by the Division Bench of this Court vide order dated 14.12.2011 and held as under: