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MPISG PIL

by admin — last modified 2004-11-06 07:58

Excerpts from WP 8523/2003 (Shiv Narayan v/s DDA & Ors), December 2003

SYNOPSIS

This writ petition under Article 226 of the Constitution of India is being filed as Public Interest Litigation seeking directions for a-priori scheme(s) for implementation of Master Plan entitlements of old settlements in Mehrauli-Mahipalpur area (New Delhi) and for stoppage of new schemes unmindful of the provisions of the Delhi Master Plan and Central Ground Water Authority notification and, hence, violative of Delhi Development Act, 1957.

Delhi Development Act was enacted for the sole purpose of planned development, overall objective of which is set out in the Delhi Master Plan since 1962 as ‘balanced and integrated development to take care of present and future growth’, leading to explicit provisions for integrating old settlements in new developments.

In Mehrauli-Mahipalpur area land acquired from villages for development according to Plan has been and continues to be used for new schemes with no basis in the Master Plan. These have failed to implement old settlements’ Plan entitlements by way of housing expansion / provision, facilities like schools and work places, services like transport, water, etc. Instead, they have caused problems for old settlements and damage to the area’s environmental and heritage resources.

Repeated representations, including by due process of Public Notice, etc, for implementation of Plan entitlements and against new schemes in violation of the Plan have been ignored and are poised to become infructuous with unplanned schemes using up land needed for Plan entitlements.

FACTS

  1. This writ petition under Article 226 of the Constitution of India is being filed as a Public Interest Litigation for a-priori scheme(s) for implementation of Master Plan entitlements of old settlements in Mehrauli-Mahipalpur area and stoppage of new schemes unmindful of the provisions of Delhi Master Plan and Central Ground Water Authority’s notification, hence, violative of the Delhi Development Act, 1957.
  2. The Petitioner is filing this petition bonafide in public interest to enforce the fundamental rights of citizens in old settlements. The Petitioner, a citizen of India, is actively involved in development activities in Mahipalpur as President of Gram Sewa Samiti and in Mehrauli-Mahipalpur area as a convenor of Master Plan Implementation Support Group (‘MPISG’), a synergy platform of citizens’ groups supporting development according to Delhi Master Plan, which has brought and supported others in bringing to this Hon’ble Court’s attention cases of Plan violations, as in WP 4978/2002, WP 5007&5009/2002 and WP 6980/2002, in last of which the Petitioner is also petitioner.
  3. FACTS OF THE CASE: Respondent No.1 (Delhi Development Authority) was constituted under the Delhi Development Act of 1957 (‘Act’). Respondent No.2 (Union Ministry of Urban Development) is the nodal ministry of Respondent No.1. Respondent No.3 (Government of Delhi) and Respondent No.4 (Municipal Corporation of Delhi) have responsibilities vis-à-vis Delhi Master Plan by virtue of representation on Authority under s.3 of the Act and on high-level policy committee for guidelines for sanctioning schemes, etc, under Clause 3 of Master Plan Development Code. Respondent No.5 (Ministry of Civil Aviation) is on Technical Committee to assist the said high-level policy committee and concerned with the area due to proximity to International Airport. Respondent No.6 (Delhi Metro Rail Corporation) plans a Metro corridor in the area. Respondent No.7 (Central Ground Water Authority) has notified the area for its critical ground water regime.
  4. In 1957 Delhi Development Act came into force and DDA was created solely “to promote and secure the development of Delhi according to plan” (s.6). The Act contemplates, by way of ‘plan’, only Master Plan (s.7) and Zonal Plans (s.8), for which due process is set out for preparation and approval (s.10) and modification (s.11A). It is only for development according to Master Plan / Zonal Plans that DDA is empowered to “acquire, hold, manage and dispose off land and property” (s.6) under policy of compulsory acquisition (s.15), purpose of which is explicated in Master Plan for Delhi (MPD-1962), which says, “All this land will remain under public ownership and developed plots or undeveloped land will be leased out …on an equitable basis, so that the benefit of planned growth accrues to the common man” (p.7). This is consonant with the overall aim of planned development set out in MPD-1962 as ‘balanced and integrated development to take care of present and future growth’ (p.5). Use of public land for ‘schemes’, etc, not embedded in Master Plan / Zonal Plans and / or jeopardizing balanced and integrated development or benefit to the common man is beyond jurisdiction under s.6.
  5. Apropos integration of existing settlements into new development MPD-1962 says: “Any village or abadi overtaken by urban development should not be left as such, as otherwise, the city will be pockmarked with the type of slums such as Kotla Mubarakpur but should be redeveloped and integrated” (p.27). MPD-2001 reiterates, “Development of village should be an integral part of the development scheme of the area” and “around these settlements educational, health and recreational facilities and work areas should be developed for the benefit of the village population”, and also that “Village settlements of historic significance should be conserved” (p.7). The Master Plan also has explicit provisions for “non-conforming” uses, ie, uses existing prior to the Plan and not in conformity with Plan proposals. These effectively provide for priority interventions to integrate them into planned development.
  6. It is submitted that s.3, s.9 to 11A, etc, and Monitoring Framework and the following provisions of MPD-2001 allow for coordinated Plan implementation by all agencies:
    • a. Clause 3 of Development Code (p.51) requires a “special high level policy making committee” with representatives of MoUD, DDA, Delhi Administration, NDMC, MCD and DUAC to “formulate policy guidelines for sanction of all layout plans, comprehensive schemes, redevelopment schemes, urban renewal schemes and multi-storeyed buildings in all land use categories”, duly “assisted by a Technical Committee” with DDA, local bodies, Civil Aviation, Water Supply and Sewage Undertaking, etc.
    • b. The chapter on infrastructure states, “long range plans to a reasonable level of details for implementation during the period up to 2001 should be prepared by the concerned department, i.e for water and sewage by the Water and Sewage Disposal Undertaking, for electricity by Delhi Electricity Supply Undertaking, for storm water drains and floods by the Flood Control and Irrigation Department of Delhi Administration in consultation with the Delhi Development Authority”. (p.32)
  7. Apropos old settlements in Mehrauli Mahipalpur area, it is submitted that Mahipalpur is 400-years-old and Masudpur and Kishangarh villages over 100-years old and settlements in Rangpuri Pahari, Andheria Morh and Kusumpur Pahari were established in, respectively, ‘50s, ‘60s and ‘70s on gaon sabha land of Rangpuri, Chattarpur and Mahipalpur.
  8. In MPD-1962 Mehrauli-Mahipalpur (M-M) area was designated beyond urbanisable limits. In revised MPD-2001 approved in 1990 Mahipalpur, Kishangarh, Masudpur and Kusumpur Pahari fell in F-Zone, for which Zonal Plan was approved in 1998, and Rangpuri Pahari and Andheri Morh fell in J-Zone, Zonal Plan for which has yet to be made. Excerpts from MPD-1962 and MPD-2001 land use plans indicating location of old settlements as well as new schemes in M-M area are annexed as ANNEXURE/P-1.
  9. When Vasant Kunj scheme was developed in the ‘80s all old settlements came within the purview of MPD-1962 provision requiring “village or abadi overtaken by urban development … be redeveloped and integrated”. It is noteworthy that MPD-1962 limited southward expansion into M-M area due to constrained water sources and use of land for Plan entitlements of existing settlements rather than for stressful new development is also consonant with environmental and heritage imperatives for the area and, indeed, the city.
  10. It is contended that all new development in the area (locations indicated in ANNEXURE-P/1) was devoid of basis in Master Plan / Zonal Plan:
    • a. Vasant Kunj was built in the ‘80s (ie, before MPD-2001 and F-Zone Plan came into force) in an area MPD-1962 designated non-urbanisable, partly inviolable Green Belt.
    • b. Further ‘projects’ in violation of the Plan include:
      • (i) DDA sports complex and GoNCTD Institute of Liver Sciences south of D-2 Vasant Kunj (in Green Belt), a news report about which is at ANNEXURE-P/2.
      • (ii) GoNCTD A/C Mandi at Andheria Morh (in J-Zone Regional Park – Mehrauli ridge), news report of 08.10.03 about which is at ANNEXURE-P/3.
      • (iii) CISF flats in Mahipalpur Hauz, possibly contrary also to ASI notices to authorities, reported in news report of 13.06.02, annexed as ANNEXURE-P/4.
    • c. Two large ‘schemes’ starting are also ‘unplanned’:
      • (i) Vasant Kunj Phase-2 on 315 hectares, contemplated in MPD-2001 as residential scheme (174 Ha green, 112 Ha residential, 25 Ha institutional and 4 Ha commercial), was repeatedly modified till F-zone Plan of 1998 changed it to mainly International Hotels’ Complex, with shopping mall, etc. The Hon’ble Supreme Court stopped the hotels’ project. Tender of 16.11.03 for Mall of 47 acres (19 Ha) adjoining a park of 650 acres (260 Ha) suggests the scheme has been modified again though, to the best of the Petitioners’ knowledge, Public Notice for Zonal Plan modification u/s.11A was not issued. Moreover, mandatory Monitoring would have found excess rather than deficit of up-market commerce in the area and such development unsustainable also in terms of CGWA ban. Tender advertisement, table showing land use proposals since MPD-2001 and news report of 27.11.03 quoting CGWA Member Secretary about the Mall are annexed as ANNEXURE-P/5 (COLLY).
      • (ii) Sultangarhi scheme (in J-Zone Green Belt) started in 2002 was stopped by this Hon’ble Court and deemed fit for inquiry in judgement of 16.09.02 in WP 4978/2002. As per news report of 23.06.03 DDA ‘cleared’ the scheme – without making public the outcome of court-ordered inquiry or Public Notice of 15.09.02 (in which 1700 families filed objections) and despite on-going vigilance enquiry that later found tendering irregularities as per report of 21.10.03. A news report of 27.11.03 again refers to approval of Sultangarhi scheme. Said reports are annexed as ANNEXURE-P/6 (COLLY).
    • d. As per report of 27.11.03 in ANNEXURE-P/6 (COLLY), besides Sultangarhi mega-housing, change of land use of Mehrauli villages to commercial is also proposed, basis of which, as for Mall, is unclear in view of undeveloped planned commercial sites in the area.
  11. Not only are unplanned schemes / projects using up land and water resources needed according to Plan for development / redevelopment and integration of old settlements, they are also unmindful of Plan entitlements to facilities, work places, etc, in the vicinity. In particular:
    • a. While the Plan contemplates only neighbourhood schools for all local students, planned school sites in Vasant Kunj are mostly being used profitably in violation of the Plan, leaving students in old settlements cramped in old schools on unplanned sites. Citizens’ groups in MPISG are approaching this Hon’ble Court in this matter.
    • b. While the Plan requires workplaces to be developed in the vicinity for village residents and in residential area this is possible only in commercial facilities, no effort is made to implement these provisions through, say, priority in allotment to village residents. This issue is pending before this Hon’ble court in WP 6980/2002.
    • c. Recent surveys for Mehrauli-Sultangarhi Metro corridor appear not to have included studies for “restructuring of land uses” required by Zonal Plan (para-10.1, p.18). The corridor does not go to Mahipalpur (which has half the area’s population), even as a 4 km corridor for only 1-lakh residents of Vasant Kunj is unlikely to be economically viable.
    • d. Implementation of Plan provisions for integration, such as through priority allotments or land use restructuring, is facilitated by leasehold disposal policy. Even as challenge to freehold disposal of commercial space is pending before this Hon’ble Court in WP 6980/2002, a ‘scheme’ for conversion to freehold has been launched – with press notice of 09.08.03, annexed as ANNEXURE-P/7, rather than due process of s.11A, required since leasehold tenure is part of the Plan.
  12. Apart from non-implementation of Plan entitlements to land and facilities, new development in violation of the Plan has led to serious problems for old settlements, as follows:
    • a. Failure to develop ‘down-market’ uses according to Plan in new schemes has reduced old settlements to veritable dumps for these. The issue of proliferation of shops in villages due to planned shops not being appropriately developed / disposed is raised in WP 6980/2002, pending before this Hon’ble Court. In WP 5007 & 5009/2002, DDA has ‘justified’ failure to develop service providers’ housing as per statutory provisions on the plea that “Vasant Kunj lies in close proximity to areas like Massodpur, Kishan Garh and Mahipal Pur” (para-5].
    • b. Sewerage from Vasant Kunj is discharged into Mahipalpur Hauz and in the Petitioner’s Hearing on 27.01.03 of Public Notice for Sultangarhi scheme, DDA claimed ‘permission’ for this and said the problem would be solved with Vasant Kunj Phase 2, but now tender for Mall in that has been issued while the problem has yet to be solved.
    • c. Unplanned schemes have stressed ground water. Against a designed demand of nearly 4 MGD for Vasant Kunj alone, DJB is able to supply just 1.3 MGD river water to the area, resulting in massive ground water withdrawal. Old wells have dried up. In 1999 CGWA notified the area. Though proviso to s.6 expressly prohibits “disregard by the Authority of any law for the time being in force”, unplanned schemes continue unmindful of CGWA notification and reservations, such as expressed in letters that are part of pleadings in WP 4978/2002 about Sultangarhi or report of 27.11.03 in ANNEXURE-P/5 (COLLY) about Vasant Kunj Phase 2 Mall.
    • d. Besides due to withdrawal, unplanned development has stressed the critical ground water regime by destroying natural recharge area – directly and by burdening old settlements with ‘down-market’ uses, causing them to ‘implode’ and their water bodies to get encroached. Since the area has historic water structures, such as 14th century Bundh and Hauz in Mahipalpur, this has also meant loss of heritage, as witnessed in the breach of Mahipalpur Bundh in July 2003, news report of 15.07.03 about which is annexed as ANNEXURE-P/8.
  13. Mahipalpur’ historic water structures, for which intervention has been sought since 1997, also illustrate all-round indifference towards Master Plan responsibilities:
    • a. The news report at ANNEXURE-4 had Vice Chairman of DDA, duty-bound to implement the Plan, inclusive of monitoring, saying, “if there is a water harvesting system …we would certainly like to look into the case”.
    • b. A report of 21.07.02, annexed as ANNEXURE-P/9, had Commissioner of MCD, duty-bound to provide village improvements, speaking of studies in Mahipalpur, unmindful of GoNCTD surveys in 1997 and 2001.
    • c. News report of 15.07.03 about Mahipalpur bundh breach at ANNEXURE-8, had Chief Engineer Flood Control, required to have made drainage plans, saying, “We don’t want to involve ourselves”.
    • d. The same report had DC, required to act against violation of CGWA ban in population-adding unplanned schemes, saying, "Much as I would like to preserve the heritage, it isn’t possible because of the growth in population”.
    • e. Contrary to purpose of presence on Technical Committee, DJB (supplying 1.3 MGD river water against the area’s demand of about 10 MGD) approved Sutangarhi scheme as per DDA letter annexed as ANNEXURE-P/10. A query about DJB/GoNCTD view on unplanned schemes and basis for CM disparaging the Plan was merely forwarded to DDA, vide CMO letter, annexed as ANNEXURE-P/11.
    • f. In July, when bundh breach led to flooding near IGI Airport, Civil Aviation ministry, represented on Technical Committee, was considering commercial use of Safdarjung Airport site by way of shopping malls. A letter of 22.07.03 suggested shifting Sultangarhi scheme there to help drainage interventions for safety of IGI Airport. MoCA replied vide letter of 28.07.03 to say the matter would be looked into, but has not responded to subsequent letters, including one of 20.10.03 with reference to news reports about Vasant Kunj Mall.
    • g. Meanwhile, GoNCTD did not respond even to requests for inclusion in its ‘bhagidari’ schemes for water bodies or for villages and MCD and DDA did not respond to queries about status of water bodies in the area on an NGO list of 508 reportedly placed in Court.
  14. Citizens’ groups and Planner to MPISG have raised all the above issues with the authorities, including in large numbers through due process of Public Notice. A list of representations to authorities is at ANNEXURE-P/12. Requests for long overdue implementation of Plan entitlements of old settlements and challenges to unplanned new development continue to be disregarded, leaving the Petitioner no remedy but to approach this Hon’ble Court.

GROUNDS

  • A. Delhi Master Plan is a statutory document drawn up in accordance with s.7 of the Delhi Development Act (‘Act’). s.14 of the Act clearly stipulates that the provisions of the Master Plan are mandatory and use of land and buildings in contravention thereof is prohibited. This legal position has been reiterated by the Hon’ble Supreme Court as well as this Hon’ble Court.
  • B. The Petitioners submit that in Mehrauli-Mahipalpur area new development since Vasant Kunj is by way of schemes and projects that are not embedded in the Master Plan / Zonal Plan and, hence, cannot be construed as planned development under the Act. Nor can it be construed as lawful Plan modification in terms of the due process of s.11A read with the Plan Monitoring and Review provisions of the Master Plan (MPD-2001).
  • C. The Petitioners submit that Delhi Jal Board is able to provide river water supply to the area only for part of the demand of just Vasant Kunj and the rest of the demand for water is met from the critical ground water regime. Central Ground Water Authority has banned tube-wells in the area vide notification of 24.05.1999 in exercise of powers under s.5 of the Environment (Protection) Act, 1986. New development involving violation of this ban is prohibited by proviso to s.6 of Delhi Development Act.
  • D. 1700 objections filed in response to Public Notice of 15.09.02 for Sultangarhi scheme, which largely apply to Shopping Mall as well, have yet to be disposed of. This Hon’ble Court, in judgement of 16.09.02 in WP 4978/2002, had stopped and sought inquiry into the Sultangarhi scheme on grounds of due process of s.11A not having been followed and of violation of CGWA notification. These grounds also apply to Vasant Kunj Phase-2 / Shopping Mall and other unplanned projects.
  • E. The Petitioners submit that development in violation of the Master Plan attracts penal clauses contained in s.29 and s.30 of the Act and such development by authorities represented on Delhi Development Authority under the Act is violative of Article 14 of the Constitution of India.
  • F. The Petitioners submit that s.21(2) of the Act envisages priority in disposal of sites for ‘persons who are living and carrying on business or other activities on the land’ and the Master Plan clearly stipulates integration of old settlements into new development in pursuit of overall aim of planned development explicated in MPD-1962 as ‘balanced and integrated development to take care of present and future growth’. New development altogether failing to integrate old settlements violates s.20(2) and, in effect, subverts the aim of planned development and, by extension, of the Act.
  • G. The Petitioners submit that, since s.6 of the Act stipulates that powers to acquire land are only for the purpose of development according to Plan, wilful up-market new development without basis in the Master Plan represents abuse of powers of compulsory land acquisition under s.15 of the Act and neglect of Plan responsibilities for benefit of villages from whom this land has been acquired represents nothing short of abandonment of statutory mandate.
  • H. The Petitioners submit that powers under s.15 of the Act are part of land policy for which MPD-1962 says, “All this land will remain under public ownership and developed plots or undeveloped land will be leased out …on an equitable basis”. Leasehold tenure is part of the Master Plan and a key instrument for enforcing its provisions, including those for integrating old settlements in new development. Freehold scheme is contrary to land policy to facilitate balanced equitable planned development and its announcement without due process of s.11A is violative of the Act.
  • I. The Petitioner submits that the provisions of the Act and the Master Plan translate the recognition of the fundamental right to a planned and healthy environment and permit equal as well as equitable access to all sections of society, while safeguarding heritage and environmental resources for posterity. New development, which reflects non-application of mind on the part of authorities to the relevant statutory provisions and the binding provisions of the Master Plan, violates the fundamental right of citizens guaranteed by a collective reading of Articles 14, 19 and 21 of the Constitution of India.

PRAYER

  • a. issue a Writ, Order or Direction in the nature of Mandamus to the Respondent authorities to furnish details of action taken / proposed (along with time-schedule) for integration in their activities in Mehrauli-Mahipalpur area of old settlements in terms of development / redevelopment, provision of facilities, work places, etc, in the vicinity and conservation of heritage and environmental resources (especially historic water structures), as per Master Plan provisions and Monitoring framework.
  • b. issue a Writ, Order or Direction calling for all projects / schemes in Mehrauli-Mahipalpur area since approval of MPD-2001 in 1990 (especially as indicated in paras-10 and 11) proof of legality in terms of CGWA clearance and of Delhi Development Act (ie, of conformity with Master Plan / Zonal Plan or of due process for Plan modification) as well as basis for priority over integration of old settlements (in terms of Plan Monitoring and/or recommendations of authorities on high-level policy committee / Technical committee).
  • c. issue a Writ, Order or Direction stopping further work on these new projects/schemes, and quash shopping mall auction of 15.12.2003, pending prayers a & b above.
  • d. pass such other order(s) as deemed fit by this Hon’ble Court in the facts and circumstances of the case.