Mila Sen and Ors. v. Delhi Development Authority and Ors.

16. The relevant paragraphs from the counter-affidavit of DDA are extracted below for ready reference:

17. Respondent no.2/SDMC filed a status report by way of an affidavit dated 01.07.2021 stating that in respect of Plot No.O-4, the owner/builder has obtained sanction of building plans for the purpose of carrying out construction of residential building, having basement, stilt, ground floor, first floor, second floor and third floor. Further, the layout plan does not show any land on the back of Plot No.O-2. The relevant extract from the said status report reads thus:

18. Respondent no.2/SDMC filed yet another status report by way of affidavit dated 14.08.2021 in deference to the order dated 16.07.2021 of this Court reiterating that the inspection as well as the sanctioned building plan, as also the DDA approved layout plan of the area, do not reveal any breach of sanctioned building plan or spilling over of construction in respect of Plot No.O-4 on to public land or any garden. It was further stated that the construction in respect of Plot No.O-4 is being carried out as per the sanctioned building plan so obtained by the owner/builder. The relevant paragraphs of the said status report read thus: “5. That on inspection and referring to the sanctioned building plan and also the DDA approved layout plan of the area, neither any breach of Sanctioned Building Plan nor the construction in respect of the said plot spilling over on to public land or any garden, have been noticed. The construction in respect of the plot No. 0-4, C.R. Park is being carried out as per the Sanctioned Building Plan so obtained by the owner / builder, presently. The photographs of the site in question along with the site plan are annexed herewith in terms of the directions of this Hon’ble High Court as Annexure -B (Colly).”

19. Respondent no.3, auction purchaser of Plot No.O-4, filed its counteraffidavit. Likewise, respondent no.4, to whom respondent no.3 had sold 45% of his undivided, indivisible and impartible ownership rights in Plot No.O-4, also filed separate counter-affidavit. Submissions

20. Mr. Fahim Khan, learned counsel appearing on behalf of petitioners invites attention of the Court to page 66 (Annexure P-6) which is a site plan forming part of the original Lease Deed dated 01.06.1993 executed by respondent no.1/DDA in favour of the original allottee, namely, Ranjita Sinha, to contend that the said site plan clearly shows that on the rear side of plot no. O-2, there is a lane, whereas respondent no.3 is raising construction encroaching upon the said lane.

21. He submits that DDA has filed counter-affidavit in the present petition taking a stand that lay out plan of Pocket-O, C.R. Park, New Delhi was modified on 03.12.1990 and both, Plot No. O-2 as well as Plot No. O-4, were carved out by way of said modified lay out plan dated 03.12.1990. He further submits that such a stand taken by respondent no.1/DDA has caused grave prejudice to petitioners, inasmuch as the lane which was shown in the site plan attached to the original Lease Deed has now been merged with Plot No. O-4, which has been auctioned in favour of respondent no.3.

22. He submits that in view of the stand taken by the DDA, the petitioners were constrained to amend the writ petition and substitute its prayer, whereby petitioners have also challenged the modified lay out plan of Pocket-O, C.R. Park dated 03.12.1990 besides assailing e-auction dated 25.06.2019 of plot no. O-4 in favour of respondent no.3.

23. He submits that respondent no.1/DDA vide its letter dated 18.06.2019 issued for e-auction had increased the plot area of plot no.O-4 from 152.[4] Sq. Mtr. to 158.[1] Sq. Mtr. which shows that the lane has been subsequently included in the plot area of O-4.

24. He submits that respondent no.1/DDA had no right to auction the back lane abutting the property of petitioners as the same is a public land meant for public use, and for having access and use of air ventilation and sunlight.

25. He contends that neither the original allottee nor the subsequent buyers were ever intimated about the carving of plot no. O-4.

26. Further, the rights of petitioners have been severely affected by creation of plot no. O-4 and the same could not have been done unilaterally by respondent no.1/DDA, thereby depriving petitioners of their easementary rights to the extent of the rear lane.

27. He submits that the modification of land use by respondent no.1/DDA without any information, intimation or consultation with petitioners is against the principles of natural justice, hence illegal.

28. In support of his contentions, Mr. Khan has placed reliance on the following decisions:- (i) Dr. G.N. Khajuria v. Delhi Development Authority, (1995) 5 SCC 762; (ii) Sri Devi Nagar Residences Welfare Association v. Subbathal, 2007-3 L.W.259 of Madras High Court and (iii) Grand Vasant Residents Welfare v. DDA, 2014 SCC Online Del 996.

29. Pertinently, during the pendency of present writ petition, petitioner no.1 had sold her portion i.e. ground floor of property bearing no. O-2, C.R. Park, New Delhi to Mr. Kumar Gautam vide sale deed dated 17.02.2025, therefore, an application being CM APPL 18684/2025 was filed by Mr. Kumar Gautam seeking impleadment as petitioner no.3. The said application was allowed vide order dated 10.03.2026 and Mr. Kumar Gautam was impleaded as petitioner no.3 in the present petition.

30. Incidentally, Mr. Khan also appears for petitioner no.3 and he adopted the arguments advanced by him on behalf of petitioner nos.[1] and 2 for petitioner no.3 as well. The statement of Mr. Khan to that effect was recorded in the order dated 10.03.2026.

31. Per contra, Mr. Giriraj Subramanium, learned counsel appearing on behalf of respondent no.3 submits that the respondent no.3 had participated in the e-auction of Plot No. O-4, C.R. Park, New Delhi held on 07.10.2019 and he was the successful bidder. Accordingly, respondent no.3 paid the entire consideration amount to respondent no.1 DDA to the extent of Rs.6.64 Crore.

32. Subsequently, respondent no.3 entered into an agreement to sell with respondent no.4 on 20.07.2020, whereunder respondent no.3 agreed to sell 45% interest in the property which was proposed to be constructed on the said plot. Subsequent thereto, respondent no.4 started construction over the plot in question on 26.12.2020.

33. He submits that after the Respondent no. 3 had raised construction to the extent of ground floor and first floor, the present writ petition came to be filed at the instance of petitioners on or about 22.06.2021.

34. He submits that petitioners obtained ex parte status quo order from this Court on 23.08.2021 and since then, the interim order has been continuing. He contends that on account of said interim order, respondent nos.[3] and 4 have not been able to complete the construction and put the property to use. He submits that further on account of the restraint order passed by this Court, entire money of respondent no.3 as well as respondent no.4 is stuck.

35. Mr. Subramanium invites attention of the Court to page 121 which is a modified lay out plan annexed by respondent no.1/DDA along with its counter-affidavit. Referring to the said modified plan, he contends that by virtue of said modified plan, not only the plot no. O-4 which was purchased by respondent no.3 in e-auction was carved out, but petitioners’ plot no. O-2 was also carved out by the same modified lay out plan. In case modified lay out plan is quashed, then as a consequence, the allotment/lease/conveyance qua Plot No.O-2 will also stand quashed.

36. He submits that insofar as the Lease Deed with regard to petitioners’ plot i.e. Plot No.O-2 is concerned, the same is dated 01.06.1993, which was executed subsequent to the publication of modified lay out plan dated 03.12.1990. He submits that there cannot be any estoppel against the modified lay out plan which is a form of delegated legislation.

37. He further submits that challenge to the modified lay out plan is also barred by delay and laches inasmuch as modified lay out plan was approved as early as on 03.12.1990 and the amendment of the writ petition, whereby prayer with regard to challenge to the said modified lay out plan was inserted, came to be filed only on 15.12.2023.

38. Mr. Subramanium has also invited attention of the Court to the status report filed by erstwhile SDMC dated 16.08.2021 to contend that SDMC has also verified the lay out plan of 03.12.1990 as well as the building sanction plan pertaining to plot no. O-4 and has concluded in the status report that there is no encroachment over the public land.

39. Mr. Gaurav Gupta, learned counsel appearing on behalf of respondent no.4 submits that petitioners have not come to this Court with clean hands inasmuch as the modified lay out plan with regard to plot nos. O-4 as well as O-2 was displayed by way of metal display board right outside Plot No.O-1 immediately next to Plot No.O-2, therefore, petitioners cannot feign ignorance with regard to the knowledge of the said lay out plan.

40. He submits that construction over the plot O-4 started on 26.12.2020, however, petitioners had waited for six months and by that time, respondent no.4 had already constructed ground floor as well as first floor on the property. He submits that, in fact, the balcony of petitioners extends to the property of respondent nos. 3 and 4, and it is the petitioners who have encroached upon some area of their plot i.e. Plot No.O-4.

41. He submits that all these questions are disputed questions of fact which cannot be gone into under Article 226 of the Constitution of India and appropriate remedy for the same is either to file civil suit or to prefer an appeal before the MCD Tribunal.

42. He further submits that in the writ petition, petitioners are claiming easement rights. However, in terms of Section 15 of the Easement Act, 1882 petitioners ought to have been in possession for 30 continuous years to claim such easement rights against the DDA. He further submits that the remedy available to petitioners, in the event their easementary rights are obstructed, is to file a civil suit.

43. Mr. Gupta further contends that the building sanction plan pertaining to Plot No.O-4 is expiring on 24.12.2025, and in case the period of operation of the stay order if not excluded, respondent no.4 will not be able to complete construction before the expiry of the said period. He further contends that in case an application is made by respondent no.4 for extension of the building plan, he may not be able to get fresh approval. He places reliance on the decision of the Coordinate Bench of the Court in Anil Dhingra v. Commissioner, MCD and Ors., W.P.(C) 8720/2010.

44. I have heard learned counsels for the parties and have considered the material placed on record.

45. The fundamental challenge in the present writ petition is to the modified layout plan of Pocket-O, C.R. Park, dated 03.12.1990 whereby Plot No.O-4 was carved out, as well as, to the construction raised thereon. The said challenge is essentially predicated on two grounds, viz. – (i) the back alley on the rear/South side of Plot No.O-2 could not have been altered without prior notice or information to the petitioners; as the said procedure was not followed, the carving out of Plot No.O-4 by inclusion of back alley is arbitrary and unsustainable and (ii) the easementary rights of the petitioners have been violated as the construction of building over Plot No.O-4 which now includes the back alley of Plot No.O-2 by virtue of modified lay out plan, blocks the air ventilation and sunlight exposure; and

46. Undisputedly, Plot No.O-2, as well as, Plot No.O-4, were carved out by virtue same modified layout plan of C.R. Park, which was approved in 65th Screening Committee Meeting held on 03.12.1990.

47. Plot No.O-2 was subsequently allotted to the original allottee namely, Smt. Ranjeeta Sinha vide allotment letter dated 30.09.1991 and the lease deed in respect thereof came to be executed on 01.06.1993.

48. It is not the case of the petitioners that the modification in the layout plan which took place on 03.12.1990 entails amendment or change in Master Plan for Delhi, 2001 [in short, ‘MPD’] or Zonal Development Plan [ZDP].

49. Section 11A[1] of the Delhi Development Act, 1957 (hereinafter 11A. Modifications to plan.—(1) The Authority may make any modifications to the master plan or the zonal development plan as it thinks fit, being modifications which, in its opinion, do not effect important alterations in the character of the plan and which do not relate to the extent of land-uses or the standards of population density. (2) The Central Government may make any modifications to the master plan or the zonal development plan whether such modifications are of the nature specified in sub-section (1) or otherwise. (3) Before making any modifications to the plan, the Authority or, as the case may be, the Central Government shall 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 to the proposed modifications before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the Central Government. (4) Every modification made under the provisions of this section shall be published in such manner as the Authority or the Central Government, as the case may be, may specify and the modifications shall come into operation either on the date of the publication or on such other date as the Authority or the Central Government may fix. (5) When the Authority makes any modifications to the plan under sub-section (1), it shall report to the Central Government the full particulars of such modifications within thirty days of the date on which such modifications come into operation. (6) If any question arises whether the modifications proposed to be made by the Authority are referred to as the “DD Act”) prescribes the procedure to be followed where any modification is proposed to be undertaken in the Master Plan (MPD) or the Zonal Development Plan (ZDP), either by the Delhi Development Authority (DDA) or by the Central Government. However, the DD Act does not prescribe any specific procedure governing the modification or amendment of a layout plan. Consequently, a layout plan may be modified or amended without invoking the procedure contemplated under Section 11A of the DD Act, provided that the revised layout plan remains consistent with and in conformity with the applicable MPD and ZDP.

50. The law is well settled that the layout plan is a sort of working drawings prepared by the DDA, and the same could be administratively modified by the DDA[2]. No provision in the DDA has been brought to the notice of the Court, and in my opinion there exists none, which deals with the modification of layout plan. It implies thereby that the layout plan can be modified by an administrative decision[3] without resorting to the procedure envisaged under Section 11A of the DD Act to modify the MPD and ZDP, which essentially means that there is no need to publish a notice to invite objections or suggestions from any person with respect to proposed modification in the layout plan. Reference in this regard may also be had to the decision of the Division Bench of this Court in Rohit Dhupar & Ors. v. modifications which effect important alterations in the character of the plan or whether they relate to the extent of land-uses or the standards of population density, it shall be referred to the Central Government whose decision thereon shall be final. (7) Any reference in any other Chapter, except Chapter III, to the master plan or the zonal development plan shall be construed as a reference to the master plan or the zonal development plan as modified under the provisions of this section.] Shanti Devi Gupta & Ors. v. DDA & Ors., AIR 1994 Delhi 299 (para 16) Smt. Maya Devi v. UOI, 65 (1997) DLT 405 LT. Governor & Ors., 2009 (109) DRJ 586 (DB), wherein the Court in the context of modification of layout plan made the following pertinent observations:

51. Earlier, the Division Bench of this Court in B.U. Block Residents Welfare Association v. DDA, 87 (2000) DLT 603, had occasion to consider the issue concerning the requirement of approval from the Central Government in the context of modification of a layout plan. The Court, while examining the scheme of the Delhi Development Act and the planning framework under the Master Plan and Zonal Development Plan, observed as under:

52. Similar view has been taken in the case of B-1, Vasant Kunj Resident Welfare Association (Regd.) v. Lt. Governor of Delhi & Ors., 2003 (1) AD (Delhi) 727, wherein it was laid down that layout plans can be amended and changed without following the procedure laid down in Section 11A of the DD Act. The relevant portion of the judgment reads thus:

63. The other relevant provisions of the Easements Act which relate to – the extent of easements; right to enjoyment without disturbance; suit for disturbance of easement; and injunction to restrain disturbance, are contained in Sections 28, 32, 33 and 35 of the said Act, respectively. The relevant text of the said provisions is reproduced hereinbelow for ready reference:

64. A reading of Section 15 of Easements Act makes it clear that to prove the right of easement acquired by prescription in respect of use of light and air for any building, it should be shown that the person claiming the right was in peaceful, open and uninterrupted enjoyment of the right for a period of 20 years [30 years where the property over which right is claimed belongs to the government] lasting within two years of the suit. Indubitably, all these aspects are questions of fact.

65. Further, a conjoint reading of the provisions of Sections 15, 28, 33 and 35 makes it clear that in the matter of prescriptive right with regard to flow of light and air, mere diminution of air and light would not give a cause of action, but it should materially diminishes the value of the dominant heritage and should be a substantial interference with the normal enjoyment of light and air so as to disturb the usual mode of light or air of the inhabitants of the building or render the occupation of the building uncomfortable, which again are purely questions of fact that needs to be specifically pleaded and proved, all the more when easement by its very definition is a restriction on the rights of another person i.e. the servient owner.

66. In the present case, the petitioners have set up a plea of easement to air and light, the burden is, therefore, on the petitioners to adduce clear and cogent evidence that they had acquired easementary right in enjoyment of air and light, and that the obstruction to the same by way of construction raised by respondent nos.[3] and 4 has materially diminished the value of the dominant heritage and rendered the occupation of their property/premises uncomfortable. However, all these questions of fact cannot be gone into in a summary proceedings under Article 226 of the Constitution of India, as the same would require leading of evidence.

67. Further, upon reading of provisions of Sections 15, 33 and 35, it is plain that easement can be established and protected only in a suit, and a title of easement is not complete merely upon completion of statutory period of 20 years or 30 years, as the case may be. Reference in this regard may be had to the decision of Hon’ble Supreme Court in Ramkanya Bai & Anr. v. Jagdish & Ors., (2011) 7 SCC 452, wherein the Court was confronted with the question as to whether the customary easementary right could be decided by the Tehsildar under the Madhya Pradesh Land Revenue Code, 1959 in a summary proceedings or right relating to easement can be established in a civil suit. The Court observed as under: “20. When a person (dominant owner) has an easementary right, and the servient owner disturbs, obstructs or interferes with his easementary right, or denies his easementary right, the remedy of the dominant owner is to approach the civil court for the relief of declaration and/or injunction. Similarly, when a person who does not have an easementary right, tries to assert or exercise any easementary right over another's land, the owner of such land can resist such assertion or obstruct the exercise of the easementary right and also approach the civil court to declare that the defendant has no easementary right of the nature claimed, over his land and/or that the defendant should be prevented from asserting such right or interfering with his possession and enjoyment.

68. The law is also well settled that pure question of fact could be adjudicated only by the Civil Court and writ petition filed under Article 226 of the Constitution is not an appropriate remedy. The remedy under Article 226 of the Constitution is available where violation of some statutory duty on the part of statutory authorities is alleged, which is not the position in the present case. Reference in this regard may be had to the following observations of the Hon’ble Supreme Court in Roshina T. V. Abdul Azeez K.T. & Ors., (2019) 2 SCC 329: “12. The question as to who is the owner of the flat in question, whether Respondent 1 was/is in possession of the flat and, if so, from which date, how and in what circumstances, he claimed to be in its possession, whether his possession could be regarded as legal or not qua its real owner, etc. were some of the material questions which arose for consideration in the writ petition.

13. These questions, in our view, were pure questions of fact and could be answered one way or the other only by the civil court in a properly constituted civil suit and on the basis of the evidence adduced by the parties but not in a writ petition filed under Article 226 of the Constitution by the High Court.

14. It has been consistently held by this Court that a regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned. It is held that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. This Court has held that it is not intended to replace the ordinary remedies by way of a civil suit or application available to an aggrieved person. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant. (See Mohan Pandey v. Usha Rani Rajgaria [Mohan Pandey v. Usha Rani Rajgaria, (1992) 4 SCC 61] and Dwarka Prasad Agarwal v. B.D. Agarwal [Dwarka Prasad Agarwal v. B.D. Agarwal, (2003) 6 SCC 230].)

15. In our view, the writ petition to claim such relief was not, therefore, legally permissible. It, therefore, deserved dismissal in limine on the ground of availability of an alternative remedy of filing a civil suit by Respondent 1 (writ petitioner) in the civil court.”

69. The upshot of above discussion is that the petitioners’ remedy for enforcing easementary right is not by way of present petition, but by way of Civil Suit. The petition is, therefore, dismissed. Consequently, the interim relief granted vide order dated 23.08.2021 is vacated. Liberty is, however, granted to the petitioners to file civil proceedings in the civil court for claiming appropriate reliefs. All the contentions available to the parties with regard to the claim of petitioners in respect of acquisition of easementary rights of air and light, are left open.

70. Before parting, the prayer of respondent no.4 with regard to the extension of validity of building sanction plan also needs to be addressed.

71. The building plan for construction on Plot No.O-4 was sanctioned by respondent no.2/SDMC on 25.12.2020 and respondent nos.[3] and 4 had undertaken construction pursuant thereto. However, vide order dated 23.08.2021, the construction was stayed by this Court and the stay order has continued since then.

72. The building sanction plan has expired on 24.12.2025 during the pendency of the present petition. It is not in dispute that respondent no.4 has paid all relevant charges for getting the plan sanctioned. Respondent no.2/SDMC (now ‘MCD’) vide its status report has also affirmed that the construction carried out on Plot No.O-4 is legal and in accordance with the sanctioned plan.

73. The act of the Court shall prejudice no one, is a principle firmly embedded in jurisprudence. Where a party has been disadvantaged by reason of an act of the Court, it is incumbent upon Court to undo such prejudice and restore party to the position he would have occupied but for such act.

74. In that view of the matter, this Court is of the view that the period for which the stay order was in operation needs to be excluded from the validity period of the building sanction plan. Accordingly, the MCD (erstwhile SDMC) is directed to issue appropriate administrative order in that behalf thereby extending the validity of building sanction plan so as to enable respondent nos.[3] and 4 to undertake further construction on their plot i.e. Plot No.O-4.

75. Respondent no.2/MCD is also directed to ensure that the construction is carried out by respondent nos.[3] and 4 strictly in accordance with the building sanction plan and no damage is caused to the petitioners’ property.

76. The writ petition along with pending applications stands disposed of.

VIKAS MAHAJAN, J MARCH 16, 2026