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Rejoinder (to DDA Additional counter-affidavit of August 2005)

by Gita Dewan Verma — last modified 2006-07-08 15:44

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 TO ADDITIONAL COUNTER-AFFIDAVIT BY RESPONDENT No.1 DDA

I, Gita Dewan Verma, aged 44 years, resident of 1356 DI Vasant Kunj New 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. For reasons stated in para-3 of the additional affidavit dated 15.12.2003 of the petitioner, 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 affidavit.
  2. At the outset I hereby deny all the averments and submissions made by Respondent No.1 (DDA) in its counter affidavit under reply. I further reiterate all the averments and submissions made by the Petitioner in the Writ Petition.

PARAWISE REPLY

  • 1-3. In Rejoinder to Reply to paras 1-3 it is submitted that the Respondent, while admitting that the contents of paras under reply (necessitated pursuant to the Respondent's allegations about the bonafide of the Petitioner, also reiterated in para-5 of its counter-affidavit of 21.02.05) has not placed on record its reasons either for inordinate delay in filing Reply or for failure to comply with the judgment passed by this Hon'ble Court on 16.09.02 in WP(C) 4978/2002 and duly consider objections / suggestions filed in Response to s.11A Public Notice dated 15.09.02 precipitated by the intervention of this Hon'ble Court in that matter.
  • 4. In Rejoinder to reply to para 4 it is submitted there is nothing in the said para beyond the extent (of the provisions of the Master Plan) admitted by the Respondent.
  • 5. In Rejoinder to Reply to Para-5 it is submitted that the Respondent has not denied either the project-specific violations set out in the sub-paras or the preliminary contention that all J-Zone projects are unlawful in terms of earmarking of sites / use premises without a duly notified J-Zone Plan. These illegalities, thereby, stand admitted. In sub-para-wise reply, however, instead of indicating steps to stop the illegal constructions, the Respondent refers to purported approvals secured in pendency of this Petition. In this common context, in Rejoinder to project-wise reply to sub-paras it is submitted as follows:
    • a) Apropos Sultangarhi Mega-Housing in Green Belt, the Respondent has neither filed land use change notification purportedly issued on 29.01.04 by Govt. of India (Respondent No.2, which has not filed reply) nor answered representations (Annexure-P/15(colly)) including one dated 22.11.04 forwarded to it by GNCTD (Respondent No.3, which has not filed reply). The worth of the notification issued in pendency of this petition as "approval" is denied. It is pertinent that as per the report of the CAG - relevant excerpt from which is reproduced herewith as ANNEXURE-P/24 - MoUD appears to have excused the Chairman of the Respondent Authority from compliance of judgment of 16.09.02. Further, one of the two firms mentioned in the said report built its project (with unauthorised ground water use) in the period between notice of 22.09.04 and filing of first counter-affidavit on 21.02.05 in the instant petition.
    • b) Apropos DDA Sports Complex and GNCTD Institute for Liver & Billiary Sciences in Green Belt, validity of "part layout plan" (ANNEXURE-R-A1) and approval that the Authority purportedly accorded on 19.07.05 is denied. As can be seen from Annexure-P/12 (p.43 in the Petition), at time of filing, work on DDA Sports complex was at advanced stage and foundation stone for GNCTD Liver Institute had been laid (at a function graced by CM) and, from Annexure-P/15 in Rejoinder dated 21.04.05, substantive work on Liver Institute started after notice was issued on 22.09.04. The so-called "part layout plan" is a sketch of these illegalities in contempt of court. Neither post-facto approval nor approval of "change of land use" per se is open to the Authority and mandatory s.11A Public Notice inviting objections / suggestions has not been issued / filed by the Respondent. Meanwhile, not only is work (inclusive of ground water use) continuing, GNCTD has reportedly approved purchase of additional 2.63 Ha (not indicated in the "part layout plan" filed) for the Liver Institute. News item dated 16.10.05 about said approval is annexed herewith as ANNEXURE-P/25.
    • c) Apropos GNCTD (APMC) Mandi in (Ridge) Regional Park, the Respondent has reversed its stand (in para-8b of its affidavit of 21.02.05) to reveal that vide letters dated 18.06.03, 09.07.03 and 14.08.03 prior to and of 08.04.04 and 20.07.04 in the pendency of the present Petition it informed GNCTD of its disapproval. It has not taken the Hon'ble Court into confidence about what prevents it from initiating action according to law against the illegal Mandi, though in its earlier affidavit it has revealed that "this land has been directly allotted by the Lt. Governor" and, as mentioned in para-9 of Rejoinder thereto, the Mandi was inaugurated on 22.02.05 personally by CM (who had also laid foundation stone for the same in 2004) and an unauthorised colony is being carved out next to it.
    • d) Apropos D-6 Vasant Kunj, the Reply inclusive of ANNEXURE-R-A2 is denied. Instead of answering violations mentioned in the sub-para the Respondent has admitted to continuing the scheme despite CGWA disapproval vide letters of 2002 and even as the water supply scheme it was relying upon (as noted on p.3 of judgment of 16.09.02) has not materialised.
  • 6. Reply to para-6 is denied. It is submitted that:
    • (a) The Respondent is obfuscating the issue with figures of 92 Ha and 223 Ha that have no basis in the land use provisions for the 315 Ha sub-zone as stipulated in the Master Plan and F-Zone Plan. These pertain to a 223 Ha scheme (International Hotels Complex), for design competition of which the remaining 92 Ha was termed "constraint area" (a term that is otherwise meaningless). The 223 Ha scheme was quashed by Hon'ble Supreme Court in 1996 and subsequently notified F-Zone Plan does not refer to the 223 Ha and 92 Ha figures.
    • (b) The Respondent's references to orders of the Hon'ble Supreme Court are exceptionable since the Petitioner's questions about violations of F-Zone Plan of 1998, CGWA notification of 1999 and this Hon'ble Court's judgment dated 16.02.05, have not been considered by the Apex Court. It is specifically denied:
      • (i) that the order of 19.08.97 "allowed" anything in the 92 Ha, since the said order merely clarified that 92 Ha not falling within the 223 Ha scheme quashed by order of 13.09.96 also did not fall in the purview of that order.
      • (ii) that the order of 08.03.04 "disposed off" anything about 92 Ha, in which regard contents of para-8 of Rejoinder dated 21.04.05 are reiterated.
    • (c) The so-called "layout plan" that the Respondent has annexed as ANNEXURE RA-3 is irrelevant to the petition. The said plan is titled "Layout Plan for Institutional Plots within the Constraint Area" and bears date of 19.12.1997 and note saying "approved by V.C. DDA on dated 7.1.98". This is by no means the duly approved sub-zonal / layout plan required (in terms of provisions set out in para 4, which the Respondent has admitted in its Reply) to detail out, before further development / disposal, the land use break-up for the 315 Ha sub-zone stipulated in the F-Zone Plan notified on 05.06.98. Further, it neither details out the site for Shopping Mall in terms of plots that were tendered for auction nor does it even indicate the so-called Aravalli Biodiversity Park that is under development. The Respondent has failed to produce an approved layout plan in which the Malls and Park project can claim legal basis.
    • (d) The Respondent has not filed "letter No.K 17011/8/95 DDIB dated 17-4-02" vide which MoUD has purportedly conveyed to it approval for "allotment / development in 92 Hectares of area as per land use". It is submitted that it is not necessary for MoUD to approve allotment / development according to Plan and not open to it do so in contravention of it. Any approval conveyed on 17.04.02 exclusively for 92 Ha cannot be in line with F-Zone Plan that does not recognise that figure.
    • (e) The Respondent's contention that "Shopping mall is a nomenclature for a particular type of commercial activity ... permitted in Commercial Use Zone" is denied as irrelevant. The site in question is not designated as Commercial Use Zone in either the Master Plan or the F-Zone Plan. The contents of sub-paras (i) to (iii) at end of para-6 under reply are reiterated.
    • (f) The Respondent's contention that "as per the orders of EPCA in October, 1993, 223 Hectares area was proposed to be kept as 'GREEN'" is denied as extraneous. It is not open to the Respondent to follow orders contrary to its mandate. The EPCA order / proposal is not reflected in subsequently notified F-Zone Plan. The Respondent has also not produced any order / proposal of anyone for so-called "Aravalli Biodiversity Park" on this site outside the Aravalli Ridge as delineated in the Master Plan, while within both portions of the delineated Ridge that fall in the area illegal projects (Mandi and Sultangarhi scheme) are underway. It is pertinent that the Respondent, while referring to EPCA order / proposal of 1993, has not placed on record mandatory clearances in terms of CGWA notification of 1999 and amended EIA notification of 07.07.04.
  • 7. Reply to para-7 is denied as being irrelevant to the para under reply, which mentions only fact of unanswered representations with reference to Annexure-P/12. This fact has not been denied and is a continuing fact, as can be noticed from annexure-P/15(colly). The Respondent's submission / reiteration of no Master Plan violation with reference to its reply to paras 4 & 5 is denied with reference to Rejoinder thereto.
  • 8. Reply to para-8 is vehemently denied. It is submitted that the reply is tantamount to missing the wood for the trees and the point that the grievance of the Petitioner does not arise from individual violations but from their cumulative impact. The Respondent's bland denial of any Plan violation is denied because it is belied by the rest of its Reply. Its insistence about adherence to due process of s.11A is denied because it is additionally belied by:
    • (a) Failure to produce proof of said adherence in case of Public Notice of 15.09.02, in which regard it is reiterated that this Petition arises, in effect, from inadequate consideration of those objections/suggestions including regarding non-compliance of judgment of 16.09.02.
    • (b) Admittance of consideration of recourse to s.11A for post-facto approval in case of DDA Sports Complex and GNCTD Liver Institute in the pendency of this matter.
    • (c) Failure to initiate action against GNCTD Mandi even after decision to not consider s.11A modification for it.
    • (d) Continuing justification of Malls and Park on sites indicated for other uses in Master Plan without s.11A process, in which regard it is pertinent that the Respondent is fully aware that in absence of a duly approved sub-zonal plans to detail out broad provisions of F-Zone Plan such schemes require Master Plan modifications through s.11A, as evidenced by the Public Notice issued by it on 07.11.04 and filed as Annexure-P/13 referred to in para-4(d) of Rejoinder dated 21.04.05. The contents of para-8 are reiterated.
  • 9. That in the light of the above stated facts the petitioner most respectfully prays that this Hon'ble Court may kindly be pleased to allow the Writ Petition in terms of the prayers made therein.

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DEPONENT

VERIFICATION:

Verified by me at New Delhi on this 14th day of November,2005, that the contents of the above affidavit are true and correct to the best of my knowledge and belief as based on the records of the case. No part of it is false and nothing material has been concealed there from.

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DEPONENT