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MPISG Rejoinder (April 2005)

by Gita Dewan Verma — last modified 2005-09-23 17:43

IN THE HIGH COURT OF DELHI AT NEW DELHI

EXTRAORDINARY CIVIL WRIT JURISDICTION

CIVIL WRIT PETITION NO. 8523 OF 2003

IN THE MATTER OF:

Shiv Narayan … Petitioner

versus

Delhi Development Authority & Ors … Respondents

REJOINDER AFFIDAVIT ON BEHALF OF THE PETITIONER

I, Gita Dewan Verma, aged 43 years, resident of 1356 DI Vasant Kunj N Delhi - 70, do hereby solemnly affirm and state on oath as under:-

  1. That I am a qualified planner and part of the Master Plan Implementation Support Group with which the petitioner above named is also associated. As mentioned in para-3 of the additional affidavit dated 15.12.2003 of the petitioner, I have prepared four detailed illustrated reports on Master Plan violations that were sent to the authorities in 2001-02. As such, I am fully conversant with the facts and circumstances of the present case. I have been authorised by the petitioner to file this rejoinder on his behalf since he is away from Delhi and will not return in time for filing this rejoinder within the stipulated date.
  2. That on 22/09/04 this Hon’ble Court was pleased to issue notice to all 7 respondents, returnable on 1.12.2004, to file replies within 4 weeks; on 22/02/05 Respondent No.1, DDA, filed a concise affidavit seeking leave to file detailed affidavit if required; and on 23/02/05 this Hon’ble Court ordered: “DDA to file a reply within two weeks dealing with the specific averments made by the petitioner in the additional affidavit. Rejoinder, if any, within a week thereafter. To come up on 27.4.2005.” DDA has not filed further affidavit, and its concise affidavit does not specifically refer to paras 1 to 9 and 14 and the grounds of the writ petition or to the additional affidavit of 15/12/03 therein, contents of which are reiterated.
  3. That at the outset it is submitted that this petition was necessitated by Respondents’ indifference to this Hon’ble Court’s judgement of 16/09/2002 (Annexure-P/A to the additional affidavit) against the Sultangarhi scheme and identical illegalities. In the fourteen months between filing of it and of counter-affidavit by Respondent No.1, work on the projects that have been questioned in this petition have continued and expanded and clearly the respondent no.1 hopes to present this Hon’ble Court with a fait-accompli . The petitioner craves leave to produce photographs in support of this fact. The counter affidavit of respondent no.1 defends these projects without answering the Petitioner’s contentions. The counter affidavit also skirts the core issue of the petition, viz, failure by respondent no.1 to enforce mandatory provisions for integrating old settlements in new development and conservation of built and natural heritage. The contention of respondent no.1 that villages whose lands were acquired for planned development can provide domestic help in that development (para-8(b)); that planning is a specialized process and it would not be correct for citizens to question authorities about it (para-8(c)) are nothing short of assertion of wilful abandonment of statutory mandate of development according to Plan.
  4. In para-8(a) of its counter affidavit (which is stated to be in reply to para 10 of the writ petition), respondent no.1 denies that all new development in the area was devoid of basis in the Plan and contradicts this bland denial in para-8(b), as follows:
    • (a) It makes contradictory claims that Vasant Kunj scheme was prepared under MPD 1962 and that land use change for it was processed as part of MPD 2001.
    • (b) About GNCTD Liver Institute being built in Green Belt south of D2 Vasant Kunj, it says land use change “is under process” and about Sports Complex on adjoining plot even ex-post-facto land use change is not claimed.
    • (c) It admits GNCTD Mandi in Mehrauli ridge is without its permission and claims that only temporary structures, permissible in Regional Park, are being put up – even as structures were already up (and inaugurated by Chief Minister) on date of affidavit and are not temporary but built in masonry and even temporary wholesale use is not permitted on the site by Development Code sub-clause 8(ii)b (Permission of use Premises in the Remaining use Zones), which states: “P1 Regional Park: Regional Park, Residential Flat (For watch & ward), Picnic Hut, Park, Shooting Range, Zoological Garden, Bird Sanctuary, Botanical Garden, Local Government Office (Maintenance); Open Air Theatre, Police Post, Fire Post, Orchard Plant Nursery and Forest. Any structure in this use zone shall be of temporary nature.”
    • (d) About development in Mahipalpur Hauz, the Respondent claims “no role in the planning of the area”, earmarked ‘Government Land (Use Undetermined)’, referring to portion of Development Code (ANNEXURE-R1) that lists this use zone among those for which it says: “(b)(i) The permission of use premises in the following use zones shall be governed by the specific function of the use zone”. The “no role” claim is untenable, as s.12(3) prohibits development without DDA permission in development-area and the area in question is such area since DDA, prohibited by s.12(2) from carrying out development in any other area, has issued for change of use of 6.95 Ha in it to ‘Commercial’ a s.11A Public Notice on 07/11/04, annexed herewith as ANNEXURE-P/13.
    • (e) About Vasant Kunj Ph.2 the Respondent states in para-8(b) that “in Zonal Plan for Zone F, land use break up of 315 Ha has been given, out of which the scheme has been cleared by Hon’ble Supreme Court as well as MoUD for 92 Ha. and the remaining land is being considered for the development of bio-diversity park based on recommendations of Environmental (pollution & control) Authority”. It is submitted that Order of 19/08/1997 in SLP by the Respondent cannot be construed as clearance of a 92 Ha scheme not indicated as such in F-Zone Plan of 1998, nor can EPCA / MoUD substitute s.11A process for modifying F-Zone Plan.
    • (f) About Sultangarhi Scheme it claims land use change “has been notified by the Govt. of India last year. The scheme, therefore, now has the validity of the relevant plans”. It is submitted that “relevant plan” is J-Zone Plan, not yet notified, and land use change purportedly effected – in course of this petition – calls for proof, besides of notification, of compliance of Order of 16/09/02 for inquiry and of due consideration of over 1700 objections filed in response to s.11A Public Notice of 15/09/02, since issues raised in them and reiterated in para-11 to 13 of this petition remain unanswered.
  5. That in para-8(c) of its counter-affidavit the Respondent has not answered averments in para-11 about new development being unmindful of mandatory provisions for villages. Apropos facilities, it fails to mention non-compliance of this Hon’ble Court’s Order of 27/10/04 in WP 8954/2003 for stopping violations on school sites in 12 weeks. About freehold disposal that curtails options for targeting, say, shops as work places for villagers, it claims, with no basis in the Act, that it is “only an implementing agency” and MoUD “the Authority to have formulated the scheme”. Likewise, about planning imperatives for metro corridor, it passes the buck to DMRC, in which regard it is pertinent to mention that ASI has also objected to elevated corridor along Qutb/Mehrauli that DMRC has proposed even as F-Zone Plan, which DDA is duty-bound to enforce, contemplates underground metro near heritage precincts.
  6. That in para-8(d) and 8(e), the Respondent has not answered averments in para-12 and 13 about problems created for old settlements by new development in violation of Plan. Apropos water, it merely reiterates vague claims about Sonia Vihar, which is unlikely to meet even existing shortfall of river water supply in this area where the ground water crisis is already full-blown. Apropos sewerage, it has not answered what permission allowed discharge of Vasant Kunj sewerage into historic Mahipalpur Hauz and has now claimed CGWA permission to discharge drainage in so-called Biodiversity Park. About breach of historic 14th century Mahipalpur Bundh, it only refers, in para-8(e), to vague claims about drainage in general.
  7. That the Respondent’s reference in para-8(e) to illegal scheme (in J-Zone) for alternative plots for Nangal Dewat – even as neither alternative plots (not mandatory u/s.29) nor Nangal Dewat (not in Mehrauli-Mahipalpur area) is subject of this petition – is diversionary and its view on mandatory provisions for integration, aired in para-8(b) in the vein of an imperialist coloniser (“work place are generated by developing the residential areas where these people can have job related with household assistance”), is most exceptionable. It is pertinent that the Respondent has not answered para-12(a), which refers to its “justification” of its failure to develop mandatory EWS housing in Vasant Kunj on grounds of proximity to villages in petitions filed in this Hon’ble Court by slum citizens seeking relocation to nearby EWS housing site. It requires to be mentioned here that this site continues to be occupied by Sahara Restaurant of DDA scam fame. It is unfortunate that DDA demolished the settlement of the petitioners in those cases before replying to their petitions, just as it demolished in the course of this petition old workers’ settlements for Park/Malls scheme substituting the Plan scheme for Vasant Kunj Ph.2 inclusive of 35 Ha residential land, enough for mandatory EWS housing for service providers who otherwise live in / stress nearby villages.
  8. That Paras-5 to 7 of the Respondent’s concise affidavit justify Vasant Kunj Mall in terms of an “earlier” petition that went up to Hon’ble Supreme Court as WP (C) 564/2003, even as:
    • (a) As per para-18A of WP 564/2003, the so-called “earlier” writ was filed in this Hon’ble Court after the instant petition and mentioned with its first hearing on 10/12/03.
    • (b) On 08/03/04, Hon’ble Supreme Court ruled in it: “We are satisfied that the proposed Mall is on the area measuring 92 hectares of land, which has already been excluded by the order of this Court on 19th August, 1997. In that view of the matter, we do not find any merit in this petition. It is, accordingly, dismissed. However, this order will not preclude the petitioner from availing any remedy which may be available to him under law.”
    • (c) Even as the Order rejects only “that view” (relying on Orders of 1996/97) and this prior petition relies on F-Zone Plan of 1998, CGWA notification of 1999 and this Hon’ble Court’s Order of 16/09/2002, the Respondent continues to claim (para-6) that “the question of the existence and validity of Vasant Kunj Shopping Mall having been decided by the Hon’ble Supreme Court, it is not open to the petitioner to challenge the same again“.
    • (d) This Hon’ble Court had asked for the pleadings in WP (C) 564/2003. On 04/08/04 the Respondent produced copy of Order of 08/03/04 and on 01/12/04 a copy of the petition, but not its “detailed counter-affidavit” therein, which, as described in its instant concise affidavit, dwelled on “clearance” by Order of 19/08/97, besides false claim that the site is for ‘Non Hierarchical Shopping Cum Commercial Complex’ (which it is not, as pointed out in additional affidavit, para-6(ii)) and the illegal defence that 223 Ha Biodiversity Park is more than 140 Ha proposed for recreational use in F-Zone Plan (which increase also requires Plan modification by s.11A).
    • (e) Without answering challenges in para-10(c) and Annexure-P/5 of the petition and para-6 of additional affidavit and despite the explicit submission in para-8 of additional affidavit that this petition is not targeted at any particular violation but at cumulative impact of rampant violations, the Respondent reiterates its odd insistence that “the present petition and the challenge of the same is only a ploy to hamper development of the shopping Mall”. It is respectfully submitted that this petition is not hampering development of the Mall, for which marketing and excavation (including removal of china clay, red sand, rock, etc) is progressing, as is the Respondent’s “support” through media reports of further “plans” for the site, such as recent one about an international crafts complex, reproduced herewith as ANNEXURE-P/14.
  9. That the Respondent’s lackadaisical attitude towards the Master Plan, reflected in its defence of violations that it is duty-bound to penalise, has emboldened violations by others:
    • (a) in the course of this petition GNCTD Budget speeches have referred to Mandi and Liver Institute
    • (b) on 20/02/04 cabinet ministers and LG laid foundation-stone for Malls / Park;
    • (c) on 22/02/05 CM inaugurated the Mandi; and
    • (d) unauthorised colonies are being carved out in the ridge next to Mandi and Sultangarhi
    • All this has happened despite numerous representations against illegalities, each of which representation has been ignored. A list of representations made in view of notice having been issued by this Hon’ble Court, and letter of Respondent No.3 forwarding to Respondents 1 and 4 those of 21/11/04 and of 22/11/04 are annexed herewith as ANNEXURE-P/15 (Colly).
  10. That the Respondent’s claim at the end of its concise affidavit that “planning of the area is being done in accordance with the Master / Zonal Plan” and any Plan modification has been duly processed is belied by its averments to the contrary; its contention that the “public projects have been conceived as a measure for the improvement of the city” holds no water since their legality has not been proved and illegal ground water withdrawal for their constructions is prescription for ecological catastrophe rather than city improvement; its submission that “allottees are entitled to proceed with their projects only after all statutory clearance has been received” calls for it to initiate action u/s.30 and 31 against ongoing constructions since they do not have statutory clearances; and its view that “grievances made by the petitioner are unfounded and the present petition merits dismissal” is devoid of basis even in its concise-affidavit that has entirely skirted the petitioner’s grievances. It is, therefore, prayed that the petition be allowed.

sd/-

DEPONENT

VERIFICATION:

I, the deponent above named do hereby verify that the contents of the above affidavit are true and correct to the best of my knowledge and belief. That no part of it is false and nothing material has been concealed therefrom.

Verified by me at New Delhi, this 21st day of April, 2005.

sd/-

DEPONENT

ANNEXURE-P/13: Public Notice dated 07/11/2004 issued by DDA (for land use change to commercial in Mahipalpur Hauz)

ANNEXURE-P/14: News report published in Express Newsline dated 15/04/2005 (DDA go-ahead for craft bazaar at Vasant Kunj)

ANNEXURE-P/15 (colly): List of representations made pursuant to notice issued on 22/09/2004 (and copies of letters of 21/11/04, with 17/02/04, and 22/11/04 and GNCTD letter of 11/01/05 forwarding the same to DDA VC and MCD Commissioner and GNCTD letter of 23/02/05 forwarding letter of 01/02/05 from the petitioner to DDA VC, MCD Commissioner and GNCTD Dy Secretary Bhagidari for appropriate action)

  • 23/09/04: With reference to notice issued by the Hon’ble Court on 22/09/04, listing continuing illegalities on the sites illustrated in Annexure-P/1, referring also to subsequent amendment to EIA notification, news reports of NGO/activists petition to CEC leading to “clearance” of Malls, CVC reference apropos mandatory provisions for integrating small trade on all planned commercial sites, etc – to DDA VC with copy to all respondents and DDA Chairman (wrt prior requests for inquiry as per Order of 16/09/02), Secretary MoEF (wrt prior letters about EIA notification amendment), Police Commissioner (wrt prior complaints / requests regarding illegalities), Chief Planner NCRPB and Commissioner Planning DDA (wrt prior communications about unplanned schemes) and President Secretariat, PMO, OSD to NAC, Standing Parliamentary Committee Secretariat and CVC (wrt to prior representations / interventions)
  • 24/10/04: In continuation of letter of 23/09/04, with pictures of excavation on GNCTD Liver Institute site and earth removal from Malls site, reiterating request for inquiry as per Order of 16/09/02 – to LG / DDA Chairman with copy to others as in letter of 23/09/04.
  • 08/11/04: Request for investigation u/s.34A of continuing illegalities mentioned in letters of 23/09/04 and 24/10/04 as well as start of excavation on Malls and basement / foundation work in Sultangarhi scheme – to DCP (SW)
  • 21/11/04: With reference to a news report about Hon’ble High Court issuing notice in a PIL against policy to allow misuse of farmhouses, to request response to challenges to legality of said policy set out in a letter of 17/02/04 following its announcement be included in replies to that PIL and the instant petition – to Secretary MoUD and other respondents.
  • 22/11/04: With pictures of work, including boring, at Sultangarhi and details of further illegalities on project sites and private development in their vicinity, etc – to DDA Chairman with copy to Delhi Science Forum (petitioner in WP 4978/2002)
  • 22/11/04: Request for details of clearances and outcomes of s.11A process, inquiry as per Order of 16/09/02 and subsequent vigilance inquiry into tendering in Sultangarhi scheme – to Secretary MoUD with copies to other respondents and NCRPB, DUAC and MoEF and, for information, to CVC (wrt vigilance inquiry), CBI and Parliamentary Committee (wrt DDA scam) and Delhi Science Forum.
  • 27/11/04: Delhi Science Forum request for information of clearances for Sultangarhi scheme in context of Order of 16/09/02 in WP 4978/2002 (Delhi Science Forum v/s DDA & Ar) – to Secretary MoUD
  • 06/12/04: Response to s.11A Public Notice of 07/11/04 for change of land use in Mahipalpur Hauz to commercial
  • 08/12/04: Representation for intervention for disposal of s.11A Public Notice of 18/09/04 for change of land use from riverbed to commercial (IT Park) before the one for (identical) proposal in Mahipalpur Hauz (forwarded by Hon’ble President to Secretary MoUD for appropriate action)
  • 23/12/04: With reference to GNCTD Public Notice inviting applications for “regularisation” of unauthorised colonies for clarification about basis – to Addl Secy (UD) GNCTD (signatory) with copy to DDA and MoUD and Council of Architecture
  • 27/12/04: With reference to Lal Dora related announcements, to seek clarification of basis in view of overlapping issues pending in statutory and judicial processes – to MCD Commissioner
  • 11/01/05: GNCTD forwading of representations of 21/11/04 and 22/11/04, inclusive of request for replies in the petition, to DDA and MCD for reply to representationist.
  • 15/01/05: Delhi Science Forum request for compliance of Order of 16/09/02 in WP 4978/2002 and immediate stoppage of work on Sultangarhi scheme – to LG / DDA Chairman.
  • 26/01/05: Representation from Masudpur village with reference to the instant petition and continuing illegalities – to President, forwarded for appropriate action to Chief Secretary GNCTD
  • 27/01/05: Representation about non-compliance of court orders, including notice of 22/09/04 in instant petition and inquiry as per Order of 16/09/02 – to LG / DDA Chairman
  • 01/02/05: Representation for directions for replies and for stopping work on the projects challenged in court / objected to under s.11A till disposal of those processes – to LG / DDA Chairman with copy to all respondents.
  • 05/02/05: Representation following press reports of street protest against malls by NGO/activists responsible for petitions on weak grounds in which Hon’ble Supreme Court and CEC purportedly “cleared” them – to LG / DDA Chairman with copies to President, PM, UDM and MoEF Secretary (to whom the “protesters” had reportedly sent memoranda)
  • 08/02/05: Request for investigation into continuing illegalities in Masudpur area and also of violations by so-called experts and RWAs “demanding” them – to DCP (SW)
  • 09/02/05: Request for investigation into continuing illegalities and of NGO/experts “demanding” or weakly protesting them and for report in time for hearing on 23/02/05 – to DCP (SW)
  • 09/02/05: Request for reply in time for hearing of 23/02/05 to communications seeking clarification about implications of amended EIA notification for the projects challenged in the instant PIL – to MoEF Secretary
  • 12/02/05: Request for replies as per Order of 22/09/04 and inquiry as per Order of 16/09/02 with reference to news report of 10/02/05 quoting officials in defence of projects challenged in the instant petition as well as about the judgment against Sultangarhi – to LG / DDA Chairman
  • 04/03/05: Delhi Science Forum letter in continuation of its letter of 15/01/05 – to LG / DDA Chairman
  • 09/03/05: Request for directions for replies, stopping of work and action on requests for investigation u/s.34A and for initiating action u/s.31 for demolition of constructions by GNCTD and at Sultangarhi and for copy of relevant portions of minutes of Authority meeting of 28/01/04 with reference to news report about disapproval expressed at it about post-facto land use change – to LG / DDA Chairman with copy to CGWA Member Secretary (with request for action against illegal boring and for view on implications of amended EIA notification) and Police Commissioner (with letter setting out prior requests, etc) and CVC for information
  • 13/03/05: Request for clarification about implications of amended EIA notification for ridge area projects with reference to news report of CM inaugurating an NGO centre inside Asola Sanctuary and GNCTD (DPCC) Public Notice of 13/03/05 about the amended EIA notification – to MoEF Secretary with copy to Secretary MoUD and others (wrt to prior communication of 20/06/04 about plans to allot space for the centre in Asola sanctuary, etc)
  • 27/03/05: With reference to news report about ASI objection to elevated metro corridor near Qutb/Mehrauli and to DDA reply to para-11(c) saying it needs to be specifically answered by DMRC, to request reply – to DMRC MD with copy to ASI DG (for copy / confirmation of objection) and LG / DDA Chairman (reiterating request for details of Authority meeting of 28/02/05)

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