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2003 DIGILAW 608 (DEL)

K. S. NALWAYA v. DELHI DEVELOPMENT AUTHORITY

2003-07-15

A.K.SIKRI, B.C.PATEL

body2003
( 1 ) THIS appeal is preferred against the order made by the learned Single Judge in CMs No. 1321-22/2002 and in CW 2943/88 on 20th august, 2002. It is required to be noted that the writ petition was dismissed for non- prosecution on 9th August, 1999 as the Court found that nobody was appearing since 15th september, 1998. The writ petition was listed on four occasions on 15th September, 1998, 17th September, 1998, 11th November, 1998 and 18th January, 1999. On all these dates neither the appellant nor his counsel bothered to appear before the Court. Despite this it appears that the civil applications were filed for recalling the order and condonation of delay in filing the applications, as the applications were beyond time. The same were filed after a period of about 2 years and 3 months. ( 2 ) IT was submitted that 32 flats had been constructed and that the same would burden the civil services even further. Learned Single judge considering the submissions held that delay is not required to be condoned. Huge amount had been spent for construction of building for the benefit of citizens. ( 3 ) WE have heard learned counsel on merits. His contention is that the area where flats are constructed by the respondent-DDA is in clear defiance of provisions contained in the delhi Development Act, as the land in question is shown for green park. He has relied upon the brochure issued by the DDA to show that it is a green park and therefore, construction cannot be made there. Reliance is placed on the brochure as well as the affidavit filed by the DDA. On behalf of the dda it is averred in the affidavit sworn by Ms. Janak Juneja, Secretary, Delhi Development authority, on 22nd May, 1989 in paras 7 and 8 as under:- "7. That the contents of para 7 of the petition are admitted to the extent that as per the brochure for allotment of flats to be constructed under the self Financing Scheme, the Respondent authority had published a detailed layout plan at Vasant Kunj, Pocket c , New delhi. 8. That the contents of para 8 of the petition are matter of record and need no comments. It is absolutely false and denied that the Respondent Authority has any intention to contravene the master Plan/layout plan of the locality. 8. That the contents of para 8 of the petition are matter of record and need no comments. It is absolutely false and denied that the Respondent Authority has any intention to contravene the master Plan/layout plan of the locality. " ( 4 ) RELYING on the words master Plan/layout of the locality , it is submitted by the learned counsel that the copy of the layout plan which he has placed on record, clearly reveals that it is the green area and therefore, erection of building is not permitted. Respondent has pointed out that there is no intention on the part of the Authority to contravene the Master plan/layout of the locality: - ( 5 ) AT the time of framing a scheme brochure normally are given to the people who are interested in buying the property. In the brochure, copy of which is placed at page 38, layout plan at Kishan Garh Pocket c is indicated. There what is written is as under:- "park area under rock" ( 6 ) IN some part of this area construction is being carried out and therefore, appellants are aggrieved. It may be noted that DDA has not given absolute right to the appellants to enjoy entire land, namely, the open space. They are only given right to enjoy the flats purchased by them. At page 36 DDA has reserved the right to increase or decrease the number of flats, servant quarters, car and scooter garages etc. depending upon the actual feasibility. When the construction is carried out what is required to be seen is that there is no breach of the building bye- laws, that is to say construction is in consonance with the permissible FAR and if there is a breach of FAR, one is entitled to contend that the construction is carried out illegally. We have perused the Zonal Plan as well as the layout plan. Layout plan is submitted by the DDA for perusal and words written are "area under rock". The word park is not used there and as per Zonal plan, the entire area is shown as "residential" and therefore, we find no substance in the contention raised by the appellants and even on merits the appellants have no case. We dismiss this appeal with cost, which we quantify at Rs. 10,000. 00.