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Rejoinder affidavit, 18.02.2003

by admin — last modified 2004-10-23 19:27

in WP 6980/2002 (MPISG & Ors v/s DDA & Ar)

I, Gita Dewan Verma...

  1. I say that I am the Planner of the Petitioner No. 1 in the above matter and am well conversant with the facts, records and circumstances of the case. I am competent to make this affidavit on behalf of the petitioners.
  2. I have read and understood the contents of the counter affidavit dated 16.1.2003 filed on behalf of the respondent no.1 Delhi Development Authority (DDA) and make this affidavit in rejoinder thereto.
  3. At the outset I specifically deny each and every allegation in the counter affidavit which is contrary to the records of the case and what is being stated in the writ petition or in this reply.
    • PARAWISE REPLY:
  4. With reference to the reply of DDA to para 1 of the writ petition, the petitioners reiterate what has been stated in para 1 of the writ petition. It is submitted that under the Delhi Development Act 1957 (‘Act’), the DDA is a statutory authority which is entrusted with the responsibility of ensuring the planned development of Delhi. The performance of the DDA under the Act has to be evaluated not in the context of DDA’s contribution to the revolving fund but in terms of its implementation of the statutory mandate in general and the Master Plan in particular. In order words DDA is not expected to and in fact cannot profiteer on public land which has been vested with it to ensure development according to Plan in public interest. Section 6 of the Delhi Development Act reflects this position. Apart from the bland denial by the DDA that the impugned tender notice dated 12.10.2002 is not contrary to the Act or the provisions of the Master Plan, there is no specific denial by the DDA of the following features of the impugned tender notice which belie such a bland denial:
    • offers were invited for sale of 900 fully built shops
    • the shops were in shopping centres in prime and up-coming residential areas
    • the shops were offered on freehold basis
    • there was ‘no restriction on the use of shops/offices’
    • the shops ranged in size from 25 sqm to 6300 sqm
    • a person could submit offers for any number of shops
    • amalgamation of contiguous shops/ offices was allowed
    • It is reiterated that the impugned tender notice is wholly contrary to the Master Plan provisions as well as the Act and ought to be declared illegal by this Hon’ble Court on that ground.
  5. With reference to para 2 of the counter affidavit which is in reply to para 1.2 of the writ petition, it is surprising that the respondent no.1 denies want of knowledge of the petitioners when in other paragraphs of the counter affidavit (paras 12 and 15) the DDA admits to having received correspondence from some of the petitioners.
  6. With reference to paras 3 and 4 of the counter affidavit, it is submitted that there is nothing in paras 2 to 10 of the writ petition which can even be suggested to be contrary to the provisions of the Act and the Plan.
  7. The contents of para 5 of the counter affidavit are a bland denial of the assertion in para 11 of the writ petition, which the petitioners reiterate, that the impugned tender notice is in violation of the Master Plan provisions and will lead to further unplanned development of Delhi; give rise to other consequential illegalities at the cost of the rights in entitlements of legitimate stake holders. It is submitted that the writ petition has demonstrated the above position which has not been countered by the DDA in its counter affidavit.
  8. With reference to para 6 of the counter affidavit, the petitioners deny that the number of informal shops as stated in the writ petition is an inflated figure as alleged or at all. This stems from a deliberate misreading of para 12 of the writ petition in which the petitioners have referred to “nearly 900 low turnover/ informal shops” and the table set out in page 11 of the writ petition also clearly indicates that the number of informal shops planned was 524 and the low turnover shops was 363. It is pertinent to mention here that in para 8 of the writ petition, the petitioners have pointed out that the upward revision of shopping norms from the 1962 Plan was primarily for low turnover/ informal shops, a contention that DDA has not countered. The petitioners further contend that DDA’s repeated used of the phrase "shops / offices" in the summary statements at the end of para 6 of the counter affidavit is problematic. In this connection, the petitioners wish to draw attention of the Hon’ble Court to the specific provisions of the Master Plan. In case of convenient shopping centres, in particular, the Master Plan says (on p.62 under ‘Uses/ use activities permitted in use premises)" - "CONVENIENCE SHOPPING (016) Retail, repair and Personnel Service Shop, Restaurant, Clinic". - Thus offices are not envisaged at CSC level. Even otherwise, the Plan provisions referred to in the Table in DDA’s para 6 are specifically for shops, not for offices. Thus DDA’s use of the phrase "shops / offices" to summarise them is untenable and this indeed is one of the problems with DDA’s approach to development of commercial space in residential areas, as expressed in the impugned tender notice.
  9. With reference to para 7 of the counter affidavit, the petitioners wish to point out that the DDA accepts the contention of the petitioners on the extent to which land commercial space has been developed. The only denial by the DDA is to the petitioners’ assertion on the extent of utilisation of developed commercial space. In the report sent to the DDA in May 2001, excerpts of which are in Annexure-P/5 at page 60 of the writ petition, the petitioners had demonstrated, on the basis of detailed inventory that many of the shops in the various markets lay closed. Further, the petitioners deny that the utilisation of the built up shops is in conformity with the provisions of the Master Plan. As mentioned in para 13 of the writ petition, the shops are being used as offices, which is contrary to the Master Plan. There is no specific denial by the DDA in this regard. Also, DDA does not deny that much of the developed space in commercial centres is for activities that are not "local" as envisaged for housing areas in the Plan. The petitioners deny DDA’s contention that Auto Repair shops having been provided in LSC and CSC as per Master Plan provisions. To the best of the petitioners’ knowledge, there are no such provisions in the Plan document. While the Master Plan definition of a ‘Repair Shop’ does include automobile repair (p.94, no.013), this is a general definition that must be read in the context of hierarchy provisions of the Plan. As mentioned in Annexure-P/1 to the writ petition at page 25, the Plan permits in residential areas commercial uses only of ‘neighbourhood character’. Further, even the Mixed Land Use regulations in clause 10 of the Development Code restrict the nature of commercial use in residential areas (as mentioned in Annexure-P/1 at page 26). Among uses prohibited are automobile repair shops, tyre retreading, battery charging, etc (p.85 of the Master Plan). Further the Master Plan envisages ‘Service Centres’, defined as "A premise essentially having repair shops for automobiles, electrical appliances, building materials, etc. to provide essential services to neighbouring residential areas." (Master Plan p.95, no.035). Service Centres are not permitted in residential areas (Master Plan p.57 no.033, reproduced in Annexure-P/1 at page 31). All these provisions are aimed at safeguarding residential amenity by limiting non-residential activities in residential areas to those that are locally needed. As such, we are unable to find any basis in the Plan for Auto Repair shops to be provided in especially CSCs. In the case of Vasant Kunj, furthermore, there is already a large concentration of such shops come about unauthorisedly around Kishangarh village, including in the LSC centre in sector-A. The petitioners request this Hon’ble Court to direct DDA to produce approved layout plans of LSCs and CSCs that earmark auto repair shops. This is for two reasons. One, the boards indicating layouts that exist outside some shopping centres do not specifically earmark them even as they specify types of shops. Two, in at least one case (D-I CSC) the Auto Repair Shop poses extreme nuisance, even traffic hazard (as mentioned in the letter at Annexure-P/14, pages 79-80 of the writ petition) and arguably cannot have been ‘planned’.
  10. With reference to para 8 of the counter affidavit, the petitioners reiterate what has been stated in para 14 of the writ petition notwithstanding DDA’s bland denial of the same without any supporting documents. On the contrary the photographs produced in Annexure-P/6 of the writ petition at pages 62-63 belie these bland denials of the DDA. In regard to DDA’s claims regarding fruit & vegetable shops, the petitioners wish to point out that the markets named have Mother Dairy/ Safal booths (as also mentioned in Annexure-P/5 at page 60), except that sector D-3 and 4 have one market and the fifth booth is out side sector B-5/6 on the road. The Plan provides for 142 formal fruit & vegetable shops in Vasant Kunj whereas in para 6 of the counter affidavit of DDA 40 such shops are supposed to be in the Community Centre, 42 in the 7 LSCs and 60 in the 20 CSCs. Thus in the 14 CSCs and 3 LSCs already developed there should be total of 60 formal fruit & vegetable shops. In the face of these facts, DDA can hardly claim conformity with Plan norms with 5 Safal booths, including one on the main road. Apropos DDA’s claims regarding space for informal sector having been provided, petitioners wish to point out that this is inconsistent with para 10 of its counter affidavit, where it concedes that it has not implemented informal sector provisions. The excerpts from the report submitted by the petitioners to the DDA (Annexure-P/5 at page 60) mention details of misuse of space meant for fruit & vegetable/ low turnover/ informal shops in sector C-9 CSC; graphic of board outside it, etc., is in Annexure-P/6 at page 62 bottom; sector C-9 LSC graphic of board, etc is in Annexure-P/6 at page 63 middle. The DDA has not explained these instances, nor taken action in respect of them though these and similar details (including in markets in Sectors B-8, C-8, etc) form part of the report sent to it in May 2001. DDA has not responded to this important issue, even though this constitutes a key objection to the impugned tender notice.
    • 11.1 With reference to para 9 of the counter affidavit, the contents thereof are denied as being vague and contrary to the ground reality. It is submitted that DDA has not taken the trouble to examine the detailed facts set out in the Annexures to the writ petition and in particular Annexures-P/7 to P/11 which fortify the petitioners contention in this behalf. As per the Master Plan there should be 1754 shops in Vasant Kunj (475 in Community Centres, 539 in 7 LSCs, 740 in 20 CSCs). DDA however concedes it has developed only 14 CSCs and only 3 LSCs. It also concedes in para-10 of the counter affidavit that it has not developed informal shops. Even if it is assumed that each of the CSCs has 24 formal shops and LSCs 54 formal shops as per Plan (DDA’s para-6 Table), this comes to 498 shops. DDA has thus conceded that it has developed less than a third of the planned shopping.
    • 11.2 As mentioned in reply to para 7 of the counter affidavit of DDA, the inventories conducted by the petitioners found a large number of the shops closed, which is why they have stated in the writ petition only a sixth of the planned shopping is functional. DDA has not countered this on the basis of any monitoring data. Likewise, DDA’s contention that "housing component is commensurate with almost the planned development of commercial space" is not substantiated with supporting data. The petitioners maintain that about three fourths of the housing component has been developed. In other words, while Vasant Kunj is designed to have about 20,000 residential units and about 15,000 flats have been built. Further, DDA’s commercial facilities are clearly lagging and informal sector provision is non-existent and, as a result, unplanned commercial use is rampant.
    • 11.3 DDA’s claims the tender notice was issued "keeping in view the local needs of the Population" is inconsistent with its contention in para-14 of the counter affidavit that the letters (at Annexures-P/16, P/17, P/18 and P/19), again by different citizens’ groups, objecting specifically to the impugned tender notice were a matter of record. All these letters point to the fact that citizens’ perceptions of their local needs are at considerable variance from DDA’s perception of the same. Nor has DDA filed any monitoring data, mandatory under the Master Plan, on basis of which it has identified ‘local needs’. As such, it is submitted that DDA’s contention is untenable.
  11. With reference to para 10 of the counter affidavit, the petitioner submit that:
    • 12.1 the Master Plan in 1990 (p.17, quoted in page 37 of the writ petition) acknowledges the system of Teh Bazari and its limitations which are taken into account by the statutory informal sector provisions. DDA has not filed details of any monitoring studies carried out to assess why there were no takers for the open platforms for informal sector that it claims to have provided in the past, nor stated how this justifies abandonment of statutory provisions for informal sector by it. DDA says further that it has "now finalised a pilot project, according to which DDA would earmark the site for informal units in the various future commercial centres of the DDA and the said land can be handed over to the M.C.D. for further management". It has not clarified why it has not done so thus far, considering it is mandatory since 1990 under the Plan from which it derives its mandate and was also suggested by the Supreme Court in 1989 in MCD vs Gurnam Kaur ((1989) 1 SCC 101, p.113, para-14), reiterated in Sodhan Singh vs NDMC ((1989) 4 SCC 155, p.178, para-34).
    • 12.2 The petitioners reiterate that the informal sector provisions in Vasant Kunj have NOT been implemented. The petitioners reiterate the contents of para 18 of the writ petition that the response to a Question about Vasant Kunj’s community centre skirted the Master Plan provisions and spoke instead of 62 stalls, presumably referring to the stand-alone disused "Janta Market" in LSC in sector D. In response to an earlier Parliament Question (Rajya Sabha unstarred question no.550 of 01.06.1998) on Janta Markets also Vasant Kunj’s market was mentioned. In the report of May 2001 it was pointed out that this "Janta Market" amounts to misuse of public land and money because, apart from the fact that it is lying disused, is contrary to the Plan that stipulates 22 informal shops integrated into the LSC. Apart from this no informal sector provision has been implemented in Vasant Kunj, although 524 units should have been accommodated as per Plan.
    • 12.3 The petitioners further wish to point out that Master Plan provisions for hawkers in places other than markets have also not been implemented. DDA has conceded that there are statutory Master Plan provisions in line with the natural propensity of units to locate in certain types of locations. Its indifference to these is graphically captured by the hawker stalls that have come up outside its own Master Plan office in Vasant Kunj operating illegally out of 6 residential flats in the lately disposed DDA HIG scheme. While the Master Plan makes it obligatory for DDA to have provided for hawker space near ‘large housing clusters’ it has failed to do so in its own residential development.
    • 12.4 The petitioners further state that citywide the Master Plan provisions provide for planned integration of 3 – 4 lakh hawkers, which is the number of hawkers estimated in the city. If DDA had implemented the Master Plan provisions, as it is duty-bound to have done, the hawker problem in the city would have been solved. Instead it has let the problem grow and, since 2000, also let the policy dialogue drift towards problem-sustaining inferior options. Time and again through this policy dialogue DDA officials have feigned ignorance of Plan provisions. PMO policy announced for hawkers in 2000 was implemented in the form of haats in violation of the Master Plan through the office of DDA chairman. In Parliament MoUD skirted the question about haats not being in accordance with the Plan by saying that they could be considered under the provisions for weekly markets even as the policy was for regular hawkers. In the unnecessary but continuing policy dialogue, a senior DDA Planner associated with the Master Plan revision is on the steering committee for a study on hawkers commissioned by MoUD the ToR of which were premised on the assumption that there are no Master Plan provisions for informal sector. Other authorities of MoUD are also involved both in this misguided research and the unnecessary policy making at public cost. All this amounts to an abdication of statutory responsibility – by unjustified denial of it – in respect of entitlements of not only hawkers but also other citizens affected by problems on account of unplanned hawking.
  12. The contents of para 11 of the counter affidavit do not require a reply. With reference to para 12 of the counter affidavit, the petitioners reiterate that DDA remained wholly indifferent to the repeated efforts of the petitioners to have the Master Plan provisions implemented. The mere assurance of DDA in October 2002 of a ‘pilot project’ is, apart from not having been fulfilled by the DDA, a wholly inadequate response to the petitioners’ demand. These assurances of DDA ought to be followed up by concrete steps, which it has not cared to initiate till date.
  13. With reference to para 13 of the counter affidavit, the statement of DDA that the matter of unauthorised encroachments “is being examined” and that “appropriate action will be initiated”, is a typically vague response which in effect means little. The petitioners have pointed out specific instances of several such violations in the writ petition as well as in the numerous letters to the DDA as well as in the report submitted to the DDA in May 2001. DDA does not appear to be willing to act against unplanned and unauthorised construction.
  14. With reference to para 14 of the counter affidavit, it is submitted that without referring to what its record is DDA cannot be permitted to deny paras 20 to 23 of the writ petition which is purportedly contrary to the said record. As such the petitioners put DDA to strict proof of such denial and request for a direction to the DDA to produce any such record.
  15. With reference to para 15 of the counter affidavit, it is submitted that:
    • 16.1 the reply of the DDA that “the hawkers will be accommodated as per the pilot project and in conformity with the Master Plan provisions” does not provide any confidence that the DDA will abide by the Master Plan provisions and ensure their implementation. This is because, as pointed out in the writ petition, the response of DDA to the legitimate demands of the petitioners for planned development has not met with any positive action. Much before the assurance of a pilot project given in October 2002, in June 2001 DDA Vice Chairman and DDA Commissioner (Planning) had assured action as per the proposals made in VKRPVEM’s report. In a letter from DDA Commissioner (Planning) dated 19th October 2001 (no. Commr.(Plg)/2001/89) also it was stated:
      • “As per the Master Plan there is a provision for informal sector in all our commercial sectors such as local shopping centre, community shopping centre and district shopping centre. In many of the places DDA has allotted the land for such informal sectors in our various schemes. As far as the Vasant Kunj is concerned I have requested the Chief Architect, DDA who is incharge of designing the shopping centre to identify the land for such informal sector and forward the same to Lands Disposal Department for further necessary action."
    • 16.2 No action was taken by the DDA to implement provisions for informal sector in Vasant Kunj as per its assurances of 2001, just as no action was taken by it on its assurance of October 2002. On the other hand, not only has DDA has been continuously harassing the hawkers who are members of the VKRPVEM a constituent of petitioner no.1, it has been disposing of commercial space in Vasant Kunj without ensuring space for them as per the Master Plan.
    • 16.3 Even with this matter before the Hon’ble Court, on 24 November 2002 and on 15 December 2002, DDA brought out advertisements announcing ‘auction of commercial plots in prime locations of Delhi’, each of which included plots in community centres in Vasant Kunj. (Copies of the DDA’s advertisements in Hindustan Times dated 24.11.2002 and 15.12.2002 announcing auction of commercial plots in Vasant Kunj Community Centres are annexed herewith as ANNEXURE-P/21). This is even as it has admittedly yet to implement its ‘pilot project’ for hawkers in Vasant Kunj, a large number of whom are to be accommodated in Community Centres as per the provisions of the Master Plan.
    • 16.4 Furthermore, even after stating in its counter-affidavit that it will be implementing a ‘pilot project’ in Vasant Kunj, which, in the usual connotation of the term ‘pilot project’ suggests that it proposes to test an approach which it will then refine and replicate in other places, on 20th January 2003 DDA brought out another tender notice identical in nature to the impugned tender notice, which it did not even mention at the hearing on the same date. (A copy of the Tender Notice appearing in the Hindustan Times on 20.01.2003 is annexed herewith as ANNEXURE-P/22).
    • 16.5 In view of the foregoing, the petitioners request a direction to the DDA to produce the ‘pilot project’ and to tie down the DDA with a fixed time schedule within which it will implement the said ‘pilot project’.
  16. With reference to para 16 of the counter affidavit, petitioners reiterate that the impugned notice is violative of the Master Plan provisions as well as the Act. It is denied that the petitioners lack the locus standi to bring forward the writ petition.
  17. With reference to para 17 the petitioners reiterate that the contents of the para 26 of the writ petition.
  18. With reference to para 18 of the counter affidavit, it is denied that the writ petition is either unsustainable or without merit as contended or at all. It is reiterated that the impugned tender notice dated 12.10.2002 is contrary to law and it is accordingly prayed that the writ petition be allowed with costs.

sd/- (Gita Dewan Verma)

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