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2000 DIGILAW 344 (DEL)

DIPAK BATRA v. DELHI DEVELOPMENT AUTHORITY

2000-03-31

ARUN KUMAR, D.K.JAIN

body2000
D. K. JAIN, J, ( 1 ) THE petitioner, who claims to have deep knowledge of pyramid energy to beapplied on building structure, challenges in this writ petition a letter dated 5/07/1991, issued by the respondent Delhi Development Authority ("dda" for short),whereby he was asked to surrender the vacant possession of the pyramid kioskallotted to him in the year 1981, within twenty days of the days of the date of the letterand exercise his option out of the two alternative shops offered to him in terms of theorders passed by the Supreme Court on 27/10/1989 and 8/11/1990, and in default he was threatened with cancellation of his allotment/lease of thesaid kiosk and eviction therefrom. ( 2 ) ACCORDING to the petitioner, on his application dated 27/03/1980 forallotment of an unused kiosk situated at Malaviya Nagar Extension, New Delhi, infront of 104, DDA Flats, Kiosk- a was initially allotted to him vide letter dated 1 9/03/1981, on a monthly licence fee, subject to certain terms and conditions, to becommunicated later. However, immediately after the handing over of the possessionof the said kiosk, the petitioner was informed that the land below the said kiosk wasrequired for construction of some additional houses and, therefore, the kiosk had tobe relocated. Ultimately, afterdiscussions, the present site, said to be located at theedge of the neighbourhood park in the south of Gyan Bharti School, being, used asoffice complex of the DDA, was allotted to the petitioner. Petitioner s request forpermission to construct a prototype structure (at his won cost) as per his own designand data was declined by the DDA and he was asked to supply necessary drawings,data and design of the Prototype pyramid structure. The drawings and designsubmitted by the petitioner were examined by the National Physical Laboratory andthe pyramid was constructed by the DDA as per the approved design. On petitioner sfurnishing the requisite undertaking in terms of DDA s letter dated 12/11/1981, the possession of the new pyramid structure at the said site was handed overto him. It is averred that the said structure was allotted to be used for the samecommercial purpose for which kiosk a had earlier been allotted as it was a mere re-location of the site for the convenience of the DDA. It is averred that the said structure was allotted to be used for the samecommercial purpose for which kiosk a had earlier been allotted as it was a mere re-location of the site for the convenience of the DDA. It is claimed that the DDA haditself issued a no objection certificate to the petitioner for obtaining a licence from thedelhi Administration for manufacture of Italian style ice creams and other Italianspecialities at the site in question, upon which, on 23/02/1982, the Municipalcorporation of Delhi had issued a licence to the petitioner for running a trade of foodprocessing at the same site. ( 3 ) PETITIONER s request for converting the allotment from licence basis to leaseholdbasis was acceded to vide DDA s letter dated 3/06/1983. The petitioner hadearlier been informed the cost of the structure and the land allotted to him would beapproximately Rs. 70,000. 00, which was worked out as under: ( 4 ) THE cost of the plot and the structure was deposited by the petitioner in terms ofdda s letter dated 24/06/1985. By his letter dated 24/09/1986, thepetitioner requested the DDA to grant him lease/licence of the adjoining greenpatches admeasuring 380. 20 Sq. M. for conducting botanical experiments, but, itseems, the request was acceded to. ( 5 ) IT is further averred that under the Master Plan of Delhi a land measuring 5. 25acres had been carved out as park known as neighbourhood park in Saket, Newdelhi, but, allegedly, the DDA, in violation of the Master Plan, started felling trees andcutting shrubs of the park for the purpose of raising constructions to accommodate itsoffice which was objected to by the local residents and the petitioner. Having failed tostop the DDA from doing so, the petitioner filed a petition in public interest (CWP No. 1088/99) in the Supreme Court challenging the acts of the DDA. The Supreme Courtentertained the petition and while disposing of the same, gave certain directions tothe DDA. The relevant portion of the order dated 27/10/1989 reads as follows: "in these circumstances, keeping the allegations in the affidavit of the DDA inview, we direct that all the constructions raised on the park land exceptingsuch constructions as may be found fit for use of the area as a park shall bevacated within one year from today as undertaken by learned counsel for thedda. Written undertaking to that effect shall be filed within four weeks fromtoday in this Court. It is alleged by the DDA that the Petitioner No. 1 had been allowedaccommodation within the park for the purpose of carrying on experiments byway of research on plants. Petitioners allege that they are in possession of akiosk only and every park maintained by the DDA has such facility. In case the petitioners are in possession of a kiosk only then such possessionneed not be disturbed: but if what they have taken on lease from the Delhidevelopment Authority is a regular building and the same would not go wellwith the park. DDA may evict the petitioners on providing an appropriatealternate site within the same area. If the petitioners are to be evicted fromthe park that may be done at the end of one year from now- that being thetime when DDA is remove its own structures. In case the petitioners have anyinterest which can be legally protected, it is open to them to avail of suchremedy but we express no opinion on merit". (emphasis supplied by us ) ( 6 ) THE petitioner alleges that after the said order by the Supreme Court, theofficers of the DDA became inimical towards him and started harassing him. Thedda informed the petitioner that under the said orders of the Supreme Court thekiosk allotted to him had to be demolished and he was asked to accept the alternativesite. The petitioner complains that when time to vacate the neighbourhood park interms of the said Order of the Supreme Court was nearing, the officers of the DDAcut off the petitioner s supply of electricity forcing the petitioner to move an applicationbefore the Supreme Court for certain directions to the DDA. in the meanwhile thepetitioner received a letter from the DDA, dated 30/10/1990, offering twoalternative shops in lieu of the said site. Areas and cost of the two shops werementioned in the said letter. On petitioner s application, on 8/11/1990, thesupreme Court passed the following order: "so far as the petitioner s claim is concerned, we are of the view that thepetitioner should be made to pay a reasonable price for the alternate site (shop) offered. Areas and cost of the two shops werementioned in the said letter. On petitioner s application, on 8/11/1990, thesupreme Court passed the following order: "so far as the petitioner s claim is concerned, we are of the view that thepetitioner should be made to pay a reasonable price for the alternate site (shop) offered. Two sites (shops) are being offered and in case the petitionerchooses to have one of them, he will have to pay the proportionate pricewhich can be worked out on the basis of investment made for the constructionof the site. Otherwise, it is open to the petitioner to work out his right in anappropriate forum. The 1. As. are disposed of accordingly. ( 7 ) SINCE the stand of the petitioner was that the pyramid shop and the landappurtenant thereto was neither a part of the neighbourhood park nor was it a"construction" within the meaning of the afore-extracted order of the Supreme Court,unfit for use of the area as a park, he-was not liable to be evicted in terms of thesupreme Court order dated 27/10/1989 and further the two alternative sitesoffered were not acceptable to him, the petitioner filed the present petition, inter aliaseeking the following reliefs; (a) a writ of certiorari or an appropriate writ quashing theimpugned letter dated 5/07/1991; (b) an appropriate writ commanding the DDAnot to cancel the tease with respect to the pyramid kiosk and the land appurtenantthereto; (c) a writ of prohibition directing the DDA from in any manner dispossessing/evicting the petitioner in pursuance of the said letter and (d) a writ of mandamus or anappropriate writ commanding the DDA to offer an appropriate alternative site to thepetitioner. ( 8 ) THE writ petition is resisted by the DDA, inter afia, on the ground that the kiosk inquestion in the shape of a pyramid was constructed with a specific purpose toconduct research on plants, but the petitioner has converted the same into a ready-made garments shop thereby frustrating the purpose for which it was allotted to him:the possession of the plinth area, that is to say the carpet area and not gross area, asclaimed by the petitioner was handed over to him; the pyramid in question is a buildingin the neighbourhood park, not being used in conformity with the prescribed land useand, therefore, the petitioner the prescribed land use and, therefore, the petitioner isliable to be evicted in terms of the orders of the Supreme Court dated 27/10/1989. It is maintained that since the pyramid structure does not go well with the park,it is to be demolished and to enable convenient relocation, two alternative shopshave been offered to the petitioner on reserve price. It is asserted that the petitionercannot be allowed to carry on a commercial activity in the nature of ready-madegarments shop in the park area meant for use as a park only. ( 9 ) WE have beared petitioner s wife and Ms. Geeta Mittal, learned counsel for thedda. ( 10 ) IN the light of the directions contained in the order of the Supreme Court, dated 27/10/1989, extracted above, the question whether the kiosk was allotted tothe petitioner for commercial use, as claimed by the petitioner, or for only conductingexperiments on plants, as asserted by the DDA, is immaterial inasmuch asirrespective of the user, if the kiosk does not go will with the park, the same has to beremoved in compliance with the said directions. Prima facie, material available onrecord, briefly referred to above, does show that the DDA had never objected to thepetitioner carrying on a commercial activity at the site in question till the year 1989,when the aforenoted directions came to be made by the Supreme Court. Thequestions which emerge for our determination are: (1) whether the kiosk allotted is tobe demolished and the petitioner is liable to be evicted in terms of the Supremecourt s orders and (ii) if so, what should be the size and price of the alternative site tobe allotted to the petitioner in terms of the two afore-extracted orders of the Supremecourt. Thequestions which emerge for our determination are: (1) whether the kiosk allotted is tobe demolished and the petitioner is liable to be evicted in terms of the Supremecourt s orders and (ii) if so, what should be the size and price of the alternative site tobe allotted to the petitioner in terms of the two afore-extracted orders of the Supremecourt. ( 11 ) DEALING with the case of the petitioner, in the first order, their lordships of thesupreme Court have observed that if what has been given to the petitioner on leaseis a regular building and that does not go well with the park, only then the petitionerhas to be evicted but if he is in possession of a kiosk only, his possession is not to bedisturbed. It is evident from the said observations that the ambience of theneighborhood park has to be maintained and all kinds of commercial activitiescannot be permitted in the kiosk. ( 12 ) FROM the documents on record it appears that though the structure built at thesite by the DDA is in the shape of a pyramid, as per the design supplied by thepetitioner, nonetheless, the DDA continues to show and treat the same in its recordsas a kiosk. Even now the stand of the DDA in its affidavit in opposition, dated 1 6/12/1991, is that the "kiosk in the shape of pyramid was constructed toenable the petitioner for doing research on plants", but "after the allotment of the kioskto the petitioner it was converted into a ready-made garments shop". It is, thus, clearthat the DDA wants to evict the petitioner from the kiosk under the orders of thesupreme Court not on the ground that it is not a kiosk but primarily on the plea thatthe petitioner has changed its user to a garments shop, which is not in conformity withthe prescribed land use. Though, in the affidavit, the DDA has said that the pyramidstructure does not go well with the neighbourhood park, ostensibly to bring the caseof the petitioner within the ambit of the afore-extracted order of the Apex Court buthaving itself constructed the kiosk sometime in year 1981 after due deliberations,now after a lapse of over eight years it cannot be permitted to have a somersault andtake the stand that "pyramid kiosk" is a building and is situated in a "neighbourhoodpark". It is not the stand of the DDA that it took eight long years of the DDA to realisethat what it had constructed in the year 1981 was not in conformity with the Masterplan. As noted above their grievance is that the kiosk allotted to the petitioner is notbeing used in conformity with the prescribed land use. Moreover, there is no denial bythe DDA to a specific averment by the petitioner that the DDA has been constructingand allotting kiosks in the neighbourhood parks as part of its rehabilitation schemes. Our attention has also been drawn to the Master Plan for Delhi, notified on 1/08/1990 (See Part-11, Section 3, sub-section -ii of the Gazette of India (Extraordinary)), permitting running of stalls on a part of a park above 1. 0 hectare in area. ( 13 ) HAVING regard to these facts and bearing in mind the fact that the kiosk wasconstructed and possession thereof was delivered to the petitioner eighteen yearsago, we are of the view that the possession of the petitioner from the present siteneed not be disturbed and he be permitted to use the same either for conductingresearch on plants or for any other commercial use, which is permitted anotherkiosks constructed and allotted by the DDA in or on the periphery of the neighbourhoodparks. We feel that this would be in consonance with the spirit of the Supreme Court sorder dated 27/10/1989. It is, however, made clear that the petitioner will notbe entitled to use the same for any other commercial activity. ( 142 ) HOWEVER, in case the petitioner is not willing to rstrict his commercial activity, interms of the orders of the Supreme Court dated 8/11/1990, he will beentitled to an appropriate alternate site within the same area admeasuring 63. 35 Sq. Mts. , because we find from the costing details, noted above, that the cost of landrecovered from him has been worked out for the said area, subject to the conditionthat the total covered area on the new piece of land shall not exceed 15. 40 Sq. Mts. ( 15 ) THE writ petition stands disposed of in the above terms with no order as to costs.