Personal tools

Petition

by Gita Dewan Verma — last modified 2005-05-02 23:30

IN THE HIGH COURT OF DELHI AT NEW DELHI

(Extraordinary Civil Writ Jurisdiction)

Writ Petition (Civil) No. 6500 of 2005

In the matter of:

Gita Dewan Verma ... Petitioner

Versus

  1. Delhi Metro Rail Corporation through its Managing Director, having its office at 3rd Floor, NBCC Plaza, Bhishm Pitamah Marg, New Delhi – 110003
  2. Government of National Capital Territory of Delhi through its Chief Secretary, having its office at GNCTD Secretariat, IP Estate, New Delhi – 110002
  3. Ministry of Urban Development, Govt of India through its Secretary, having its office at Nirman Bhawan, New Delhi – 110011
  4. Delhi Development Authority through its Chairman, having its office at Vikas Sadan, INA, New Delhi – 110023 ...Respondents

PETITION UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA

To,

The Hon’ble Chief Justice and his Lordship’s Companion Judges of the Hon’ble High Court of Delhi at New Delhi.

The humble petition of the Petitioner abovenamed MOST RESPECTFULLY SHOWETH:

  1. That the Petitioner is a qualified planner and is filing the present petition under Article 226 and 227 of the Constitution of India against the failure of Respondents to consider her responses dated 08/01/2003, 13/05/2004 and 15/10/2004 to Public Notices dated 16/12/2002, 16/04/2004 and 18/09/2004, respectively, issued by Respondent No.4 under s.11A of the Delhi Development Act 1957 (“the Act”) regarding “property development” by Respondent No.1, inter alia, on lands situated at Shastri Park on the Yamuna riverbed (“the Site”). The “property development” exercise of Respondent No.1 also includes the construction of an Information Technology Park (“IT Park”) at the Site. In the Petitioner’s submission, any activity of the Respondents towards the construction of IT Park, without complying with section 11A of the Act is illegal and impermissible in law.
  2. That Respondent No. 1 has been formed with equal equity participation of Respondent No.2 and the Respondent No. 3 herein and is a company incorporated under the provisions of the Companies Act, 1956, for the purpose of Delhi Mass Rapid Transit System. Respondent No. 1 has also been undertaking “Property Development”, including by the development of commercial IT Park at the Site. The description of IT Park project from the website of Respondent No.1, photographs of its showcasing at the pavilion of Respondent No.2 in the India International Trade Fair in November 2004 and photographs of the site are annexed herewith as Annexure – P1 (Colly).
  3. That Respondent No.2 is the Government of National Capital Territory of Delhi and holds equal equity in Respondent No. 1 together with Respondent No.3. Respondent No. 2 has been actively pursuing the Delhi Metro project including the construction of commercial IT Park at the Site.
  4. That Respondent No.3 is the Ministry of Urban Development in the Government of India/central government, holding equal equity in Respondent No.1, and has proposed the modifications to Delhi Master Plan / Zonal Plan that form the subject matter of the Public Notices dated 16/12/2002, 16/04/2004 and 18/09/2004 issued under s.11A of the Act. Respondent No.3 exercises control over Respondent No.4 in terms of s.41 of the Act.
  5. That Respondent No.4 is an authority created under the Act to promote and secure the development of Delhi according to the Delhi Master Plan and Zonal Development Plans. It has issued the Public Notices dated 16/12/2002, 16/04/2004 and 18/09/2004 under s.11A of the Act. The said Public Notices relate to “property development” by Respondent No.1 at the Site.
  6. That the events leading up to the filing of the present petition are briefly as follows:
    • 6.1. In 2002 Respondent No.1 started “property development” projects, etc, along the metro corridor, including on sites earmarked for recreational (green) land use in Delhi Master Plan and on the riverbed, also duly notified by Central Ground Water Authority (“CGWA”). These projects were started by Respondent No.1 despite the failure of Respondent No.4 to follow the mandatory process laid down in section 11A of the Act. It is pertinent that in another case involving similar illegal development started by Respondent No.4 in a CGWA notified green belt / ridge area without s.11A process for Plan modification prescribed under section 11A of the Act, vide order dated 16/09/2002 in CWP No. 4978/2002, a division bench of this Honble Court not only restrained the Respondent No.4 herein from carrying out any further construction activity in the said project pending complete compliance with section 11A of the Act but also directed that an inquiry be conducted by its Chairman so that authorities do not perpetuate identical illegalities. A copy of the Order dated 16/09/2002 passed in WP (C) 4978/2002 is annexed herewith and marked as Annexure – P2.
    • 6.2. On 16/12/2002 the Respondent No.4 issued Public Notice under s.11A of the Act for post-facto Plan modification for “property development” projects already started by Respondent No.1, inter alia, at the Site. The inadequately publicized Public Notice of 16/12/2002 informed the public at large that modifications were being proposed by Respondent No.3 in the Delhi Master Plan/Zonal Development plans for change of land use of various pockets for “property development” at MRTS stations and depots in the Shahdara to Tis Hazari MRTS Corridor. The Public Notice invited objections / suggestions in writing from any person with respect to the proposed modifications within a period of thirty days from the date of issuance of the notice. The Petitioner submitted her objections / suggestions dated 18/01/2003 to the said Public Notice. The typed version of the Public Notice dated 16/12/2002 and the Petitioner’s objections/suggestions dated 08/01/2003 to the said Public Notice are annexed herewith and marked as Annexure – P3 (Colly).
    • 6.3. The sites mentioned in Public Notice of 16/12/2002 included 51.9 ha at Shastri Park. Though the Public Notice proposed to change the existing Master Plan land use at the Site from “Riverbed/green” to “Transportation”, Respondent No.1 instead appointed a design consultant for commercial IT Park at the Site. In 2003 Delhi Urban Arts Commission (an authority under Respondent No.3) cleared the design proposal for the IT Park, Respondent No.2 processed a proposal for according a Special Economic Zone status for it and Respondent No.1 started construction on it. The Chief Minister of the State of Delhi, i.e. Respondent No.3, subsequently personally inspected the site. Typed version of news reports dated 02/12/2002, 23/09/2003, 25/09/2003 and 06/02/2004 in this regard are annexed herewith and marked as ANNEXURE-P4 (Colly).
    • 6.4. Meanwhile, vide order of 03/03/2003 passed in WP (C) 2112/2002, a Division Bench of this Hon’ble Court directed the removal of all unauthorised structures on the Yamuna riverbed. However, despite the direction of this Hon’ble Court, Respondent No.1 persisted with the construction of the IT Park at the Site.
    • 6.5. On 16/04/2004 Respondent No.4 issued another Public Notice under s.11A of the Act inviting objections and suggestions on a proposal to modify Delhi Master Plan to, inter-alia, permit “property development” on sites up to a maximum area of 3 ha at all Metro stations, except in Recreational Use Zone. The Petitioner submitted her objections/suggestions dated 13/05/2004 to the said Public Notice. Typed version of the Public Notice dated 16/04/2004 and the Petitioner’s objections/suggestions dated 13/05/2004 thereto are annexed herewith and marked as Annexure – P5 (Colly).
    • 6.6. The “proposals” for modification of Delhi Master Plan, as contained in the Public Notices of 16/12/2002 and 16/04/2004, were mutually inconsistent inasmuch as that sites mentioned in the former were mostly larger than 3 Ha and involved land use change from Recreational / riverbed. The 6 Ha IT Park on the riverbed was not permissible under either proposal, but its construction continued and on 18/09/2004 Respondent No.4 issued another Public Notice under s.11A of the Act for a proposal for changing land use of six hectares of land at Shastri Park from “agriculture and water body” to “commercial (IT Park)”. The Patitioner submitted her objections/suggestions dated 15/10/2004 thereto. Typed version of the Public Notice dated 18/09/2004 and the Petitioner’s objections/suggestions dated 15/10/2004 thereto are annexed herewith and marked as Annexure – P6 (Colly).
    • 6.7. Even after issuance of Public Notice of 18/09/2004 that, in effect, admitted the illegality of the IT Park under construction since 2003, construction continued as before. The Petitioner made several representations to Respondent No.4 for disposal of her objections/suggestions to the Public Notice in issue and for action against continuing construction on IT Park; to Respondent No. 3 for examining the legality and propriety of the actions of Respondent No.4 from the perspective of s.41(3) of the Act; to request intervention of Ministry of Environment (in view of amendment of 07/07/2004 to bring construction projects within the purview of the Environmental Impact Assessment Notification), National Capital Region Planning Board (in view of recommendations of draft National Capital Region Plan 2021 approved on 28/10/2004 for protection of the riverbed for ground water recharge), to the Standing Parliamentary Committee for Urban Development (in continuation of memoranda submitted in response to its public notice inviting views on function of DDA pursuant to CBI exposing the DDA scam); to the President of India; and to the Chief Justice of India. The Petitioner seeks the leave of this Hon’ble Court to place on record the aforesaid representations made by the Petitioner if necessary or if so directed by this Hon’ble Court.
    • 6.8. Notwithstanding the pending objections of the Petitioner to the Public Notices dated 16/12/2002, 16/04/2004 and 18/09/2004 and representations made by the Petitioner from time to time, construction on the IT Park continues unabated till date. The IT Park continues to be marketed by the Respondents. Respondent No. 2 showcased the IT Park at the India International Trade Fair in November 2004; Chief Minister of the State of Delhi personally reviewed its progress on 01/12/2004; Respondent No.1 even moved this Hon’ble Court for directions to other authorities for clearance of “encroachments” around the IT Park at the Site; and on 15/02/2005 newspapers reported that Minister in charge of Respondent No.3 had said, “steps had been taken to permit property development along the Delhi Metro Rail corridors as well as the metro stations” and its Secretary had issued “oral orders” in this regard. Typed version of news reports of 01/11/2004, 02/12/2004, 23/12/2004 and 15/02/2004 in this regard are collectively annexed herewith and marked as Annexure – P7 (Colly).
    • 6.9. At a meeting of Respondent No.4 that was reportedly held on 28/02/2005, the Lt. Governor of Delhi (ie, the ex-officio chairman of Respondent No.4 and several other members of the Authority reportedly expressed their serious displeasure at the post-facto land use change practice being adopted by Respondent No.4, inter alia, with reference to the IT Park at the Site amongst other areas. Certain members of the Authority also reportedly expressed their view that almost 150 objections had been filed against the allowing of construction on the Yamuna Flood Plains and the said objections have been rendered meaningless as the activity objected to has already been commenced. Further, in its annual budget for 2005-2006, approved on 29/03/2005, Respondent No.4 has made provision of Rs 240 crores for Respondent No.1, ie, 10% of its total outlay of Rs. 2400 crores for this year, purportedly for “co-finance” even as s.23 of the Act prohibits use of the Fund of Respondent No.4 for any purpose other than administration of the Act, whose sole object is to promote and secure the development of Delhi according to Plan. The annual budget of Respondent No.4 was approved on 29/03/2005. It is submitted that the various activities of Respondent No.1, especially its “property development”, are in violation of the Plan and hence are liable to be penalized rather than meriting contribution of “co-finance” by Respondent No.4. Typed version of the news reports about disapproval expressed at Authority meeting of 28/02/2005 about post-facto land use change for IT Park, etc, and about DDA’s annual budget approved on 29/03/2005 are annexed herewith and marked as ANNEXURE-P/8 (Colly).
    • 6.10. Simultaneously, IT Park also found mention in the annual budget of Respondent No.2, with Finance Minister’s budget speech on 23/03/2005 saying in para-88 (curiously under the heading of “Industry”): “Mr Speaker Sir, industrial development is a pre-condition for economic development. An Information Technology Park is being set up by DMRC at Shastri Park at a cost of about Rs. 174 crore. Our Government has provided an interest free loan of Rs, 20 crore to DMRC for this project. Two blocks of 30,000 sq.mt. each have been constructed during the current year and will be operationalised soon”. And on 02/04/2005 the illegal IT Park on the riverbed was “inaugurated” by Chief Minister. Typed version of the news report in this regard is annexed herewith and marked as ANNEXURE-P/9.
    • 6.11. In the face of non-conformity with Delhi Master Plan and non-compliance with the mandatory provisions of the Act, particularly s.11A, the ongoing construction activity on commercial IT Park on the Yamuna Riverbed is unauthorised and illegal. The continued wilful failure of the Respondents to act in accordance with the provisions of the Act despite the Petitioner’s objections/suggestions to this effect discloses a non-bonafide intention on the part of the Respondents. The intention of the Respondents appears to be to completely ignore and circumvent the safeguard provisions of the Act, particularly s.11A, while persisting with the illegal constructions and commercial investments in a manner that subsequently it would not be feasible to reverse the aforesaid activities even by due process of law.
  7. That under the aforegoing facts and circumstances, the Petitioner has been constrained to approach this Hon’ble Court through the present petition. Further, the Petitioner does not have any other alternate efficacious remedy in law.
  8. That the Petitioner relies upon the following amongst other grounds viz.:

    G R O U N D S

    • A. Because the provisions of s11A of the Act are mandatory in nature and cannot be ignored. It has been consistently held by this Hon’ble Court that strict compliance with the requirements of s.11A is mandatory. The Petitioner submits that the permission, if any, granted by Respondent No.4 to Respondent Nos.1 and 2, in respect of the ongoing construction of IT Park on the Site is dehors the Act, due to non-compliance with provisions of section 11A of the Act.
    • B. Because the Respondent No.4 is under a statutory duty to dispose off the objections dated 08/01/2003, 13/05/2004 and 15/10/2004 submitted by the Petitioner in response to the Public Notices dated 16/12/2002, 16/04/2004 and 18/09/2004 issued by Respondent No.4 under section 11A of the Act. It is stated that the objections submitted by the Petitioner are pending consideration till date.
    • C. Because the duty to consider and dispose off, in a time-bound manner, the objections that may be submitted in response to a Public Notice under section 11A of the Act, prior to the implementation of the modifications proposed in the Public Notice; passing of a speaking and reasoned order thereon by the Authority under the Act; and communication of such an order to the concerned objector, is inherent to section 11A of the Act.
    • D. Because section 11A of the Act is central to the implementation of the Delhi Master Plan and the provisions of the Act. It is submitted that there cannot be an ex post facto approval of schemes and projects carried out in contravention of the Act as such an approach is clearly contrary to the scheme of the Act and particularly section 11A thereof.
    • E. Because the continuance of construction activity despite failure to comply with the requirements of section 11A has the effect of rendering the said provision and other consequential provisions of the Act superfluous. It is submitted that the provisions of the Act pertaining to the Public Notice issued under section 11A thereof clearly acknowledge and envisage participation of public at large, including qualified planners like the Petitioner, in the planning process for the city. Hence the said provisions of the Act including section 11A thereof not only constitute a safeguard against even inadvertent infringement of entitlements guaranteed under the mandatory Master Plan provisions but also the only lawful process by which independent qualified planners like the Petitioner can participate in planning process.
    • F. Because the Public Notices dated 16/04/2004 and 18/09/2004 are bad in law and not sustainable as the proposals stated therein are in conflict with the proposals stated in Public Notice dated 16/12/2002 and the later Public Notices could have been issued only after the responses to the Public Notice dated 16/12/2002 had been considered by Respondent No.4.
    • G. Because vide order dated 03/03/2003 passed in Civil Writ No.2112 of 2002 this Hon’ble Court had directed the removal of all unauthorised structures from the riverbed. It is submitted that in the absence of compliance with the requirements of s.11A of the Act, all the constructions made and in the process of being made at the Site unauthorised and contrary to the order dated 03/03/2003 passed by this Hon’ble Court.
    • H. Because the ongoing construction activity clearly amounts to a misguided exercise of the powers conferred by the Act whilst at the same time amounting to a display of scant regard for the provisions thereof. It is a well settled proposition of law that when a statute prescribes a particular manner or method for the performance of a function or an act or for the exercise of a power vested thereunder, then such function or act ought to be performed and such power ought to be exercised in that manner alone. In the instant case, the Respondents, who all fall within the definition of “State” as defined in Article 12 of the Constitution of India, have failed to act in accordance with the provisions of the Act and such other laws, rule and regulations, as may be applicable. Further, the conduct of the Respondents is patently unjust and arbitrary and as such in violation of Article 14 of the Constitution of India.
    • I. Because the compliance with section 11A of the Act including submission of objections by the Petitioner and consideration thereof by the Authority under the Act, are not mere procedural requirements. From the perspective of the Petitioner the aforesaid requirements have a substantive element as the objections of the Petitioner are essentially based on Master Plan violations. It is submitted that the proposed modifications of the Delhi Master Plan affect important alterations in the character of the plan and extent of land uses and are clearly prohibited under section 11A of the Act. Insofar as the proposed modifications relate to the riverbed, they also pre-empt the mandatory Zonal Plan for the riverbed (O-Zone) that has yet to be prepared and notified by due process inclusive of Public Notice under s.10 for 90 days.
    • J. Because the ongoing construction of IT Park on the Yamuna riverbed is prohibited under section 14 of the Act on account of being contrary to the existing Delhi Master Plan. Accordingly, a statutory obligation is cast upon Respondent No. 4 to invoke and exercise the powers vested in it under sections 29 to 31A of the Act in respect of the unauthorised construction activity being carried out by Respondent No. 1. It is submitted that till date, Respondent No.4 has failed to discharge the aforesaid statutory obligation.
    • K. Because the ongoing activity at the commercial IT Park on the Site runs contrary to the proviso to s.6 of the Act. The said ongoing activity is precluded on account of notifications of August 2000 issued by CGWA under Environmental Protection Act, 1986 and amendment of 07/07/2004 to EIA notification of 1994 and stipulations of draft National Capital Region Plan 2021. The Petitioner seeks the leave of this Hon’ble Court to refer to and rely upon the said notifications, etc, at the time of hearing.
  9. That the Petitioner is a citizen of India and has not filed any other writ petition in this Hon’ble Court or any other High Court in the Country or in the Supreme Court of India claiming the same reliefs as claimed in the present petition.
  10. That the Respondents are situated in Delhi. Hence, this Hon’ble Court has the territorial jurisdiction to entertain and decide the present petition.

P R A Y E R

In view of the grounds mentioned hereinabove and the facts and circumstances of the case, the Petitioner respectfully prays that this Hon’ble Court may graciously be pleased to:

(a) Issue a writ of Mandamus or any other appropriate writs, orders or directions of like nature directing Respondent No.4 to consider and dispose off in a time-bound manner, the objections/suggestions dated 08/01/2003, 13/05/2004 and 15/10/2004 submitted by the Petitioner to the Public Notices dated 16/12/2002, 16/04/2004 and 18/09/2004, respectively, issued by Respondent No.4; and communicate to the Petitioner the grounds of such disposal.

(b) Issue a writ of Mandamus or any other appropriate writs, orders or directions of like nature directing Respondent No. 1 not to proceed with the construction activities of the IT Park on the Yamuna Riverbed pending said consideration and disposal of the objections / suggestions of the Petitioner by the Respondent No.4 in the manner prayed for in prayer clause (a) hereinabove;

(c) Issue a writ of Mandamus or any other appropriate writ, order or direction of like nature directing Respondent No.2 to furnish to the Petitioner the details of clearances / finances, inter-alia, including the grant of Special Economic Zone status to the IT Park at the Site and the environmental clearances granted by Respondent No.2 to Respondent No.1 in respect of the IT Park at the site;

(d) Issue a writ of Mandamus or any other appropriate writ, order or direction of like nature directing Respondent No.4 to exercise the powers vested in it under the provisions of the Act pertaining to unauthorised construction/development not conforming to the Delhi Master Plan and/or the Zonal Development Plan, including for levying penalties / misuse charges, in respect of the construction activities of the IT Park on the Yamuna riverbed by Respondent No.1;

(e) Issue a writ of Mandamus or any other appropriate writ, order or direction of like nature directing Respondent No.3 to examine, in the light of powers vested in it under the provisions of the Act, particularly s.41 and s.42 thereof and in its capacity as the nodal ministry of Respondent No.4, the legality and propriety of actions taken by Respondent No.4 purportedly under the provisions of the Act including the utilisation of funds vis-à-vis activities of Respondent No.1;

(f) Pass such other further order(s) as this Hon’ble Court may deem fit and proper in the interest of justice.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL FOREVER REMAIN GRATEFUL.

sd/-

Petitioner

Through

KG Gopalakrishnan / S. Muralidhar

Advocates for the Petitioner

283, Supreme Enclave, Mayur Vihar, Phase – I, Delhi – 110091.

Place: Delhi

Dated: 07/04/2005