Research › Search › Judgment

Delhi High Court · body

2008 DIGILAW 520 (DEL)

Dhiraj Narang v. M. C. D.

2008-05-19

KAILASH GAMBHIR

body2008
JUDGMENT Kailash Gambhir, J. .1. These ten petitioners who are the residents of æDÆ Block, New Friends Colony .have filed the present writ petition in the nature of mandamus seeking removal of office of Delhi Jal Board i.e., respondent No. 2 from the Green Area as specifically shown in yellow colour in the site plan as annexure P-I. 2. Before addressing the arguments, counsel for the petitioner gave a suggestion that the said unauthorized complaint centre of the Delhi Jal Board can be easily shifted to the office of the DJB already operating nearby Opposite C-Block, New Friends Colony, Shopping Centre. To examine this submission of counsel for the petitioner, Mr. Vijay Zaveri, Adv. was appointed Local Commissioner to visit the said site of Delhi Jal Board and to report whether said site is suitable for accommodating the Complaint Centre of the Delhi Jal Board. 3. After visiting the said site the said Local Commissioner apprised the Court that the said site of the Delhi Jal Board is roughly at a distance of 1.5 Km from the site in question and the structure of the office of the Delhi Jal Board is made on a plot of land measuring 600 sq. yards with a vast compound and open areas from all the sides. It is thus apparent that the Delhi Jal Board can easily shift their Complaint Centre to this plot near C-Block, New Friends Colony, be that as it may, it is upon the DJB to take such a decision. .4. The main contention of the petitioners in the present petition is that they are residents of æDÆ block, New Friends Colony and their residences are located opposite to the park and in one portion of the park, facing their residences a portion of the land has been encroached upon by slum dwellers at one end and by the office of Delhi Jal Board on the other end. It has also been alleged that the residents of the area had represented to the concerned authorities for the removal of the said encroachments but no action was taken by these authorities. It has been further submitted that portion of the park which Was beings a pump station to ensure adequate water supply in the colony was converted into a full-fledged office of DJB and a water filling station. It has been further submitted that portion of the park which Was beings a pump station to ensure adequate water supply in the colony was converted into a full-fledged office of DJB and a water filling station. Counsel states that deep bore wells were digged in the park and water tankers were engaged to supply water on daily basis, which activity of the DJB became a source of perennial nuisance for the residents of the said colony. It has also been alleged that even MCD vide letter dated 22.7.2002 had taken up the matter with the Chief Executive Officer of the DJB apprising that the said office of the DJB was in violation of the zonal development plan and various orders of HoniEble the Supreme Court but still no action was taken by the officers of the DJB to remove their office from the said site. It has also been stated that in the lay out plan, the said area has been shown as Green and therefore, the existing complaint centre of the DJB is in the complete violation of the lay out plan. It has been further stated that on 3.8.2002, the staff of the DJB had digged a portion of the said park so as to install another borewell in the said park and after protest made by the residents of the said colony and on the directions given by the SHO of the area, the DJB was dissuaded to dig the borewell in the park. Counsel for the petitioner contends that contrary to the law and surpassing all limits, the respondents have completely flouted the lay out plan and raised unauthorized structure in the park. Counsel for the petitioner further submitted that as per the lay out plan which has been annexed with the petition as Annexure-P-1, the said area has been shown as park and once in the lay out plan the area has been designated as a Green area, no person or authority can be allowed to use the same in contravention of the designated purpose. Counsel for the petitioner further submitted that running the complaint centre of DJB from the park, digging of borewells and continuing activity of water tankers have become a source of harassment and annoyance for the residents. Counsel for the petitioner further submitted that running the complaint centre of DJB from the park, digging of borewells and continuing activity of water tankers have become a source of harassment and annoyance for the residents. Counsel further submited that the residents of the said colony have fundamental right to use the said area as a park in conformity with the lay out plan. 5. Mr. Ajay Arora, counsel for the respondent/MCD submits that the MCD has already given directions to the office of the DJB to shift their existing office of J.E. (Water) and J.E.(Sewerage), after handing over the site to the New Friends Colony Residents Welfare Association and therefore, further action was to be taken at the end of the office of the DJB. In the counter affidavit filed by the respondent MCD, there is no denial of letter dated 22.7.2002, copy of which has been placed by the petitioner on record. It has also not been disputed that in the lay out plan the designated purpose of the said site is Green and the same has been shown as Park. 6. Mr. R.K.Tiwari counsel for the respondent/DJB submitted that the said portion of the park was handed over to the erstwhile office of the Delhi Water Supply Department by the then New Friends Colony Cooperative House Building Society Ltd. Counsel further stated that the complaint centre of Delhi Jal Board has been operating on the said site to the advantage of the residents of the colony. Counsel for the respondent has also placed reliance on copy of the letter dated 29.4.2006 written by New Friends Colony Residents Welfare Association to the Chief Executive Officer of DJB, which would clearly show that the said portion of the land was handed over to the predecessor of the DJB by the said Welfare Association. The said letter also confirms that the complaint centre is working to the advantage of the residents of the colony, the counsel contends. 7. Mr. R.K. Tiwari further submitted that in the said park the Delhi Jal Board is occupying a very small portion of the site and still there is huge area for park almost measuring 25,000 sq. yards. The said letter also confirms that the complaint centre is working to the advantage of the residents of the colony, the counsel contends. 7. Mr. R.K. Tiwari further submitted that in the said park the Delhi Jal Board is occupying a very small portion of the site and still there is huge area for park almost measuring 25,000 sq. yards. It has also been submitted by the counsel for DJB that the respondent No. 2/DJB is a Government Department and the same has been operating from the Government land for the benefit of the residents of the society and therefore, there is no illegality on the part of the respondent No. 2 in operating their office from the said site. Counsel further submitted that continuation of the said office is in the larger interest of public of the said area and the petitioners have some vested interest for seeking removal of their office from the said site. Counsel also submitted that other site of the DJB opposite C block as suggested by the petitioner, is not suitable for running the complaint centre as from the said site only potable water of DJB is being sold. 8. I have heard learned Counsel for the parties and have perused the record. 9. The present case depicts naked example of a Government department indulging into illegal acts, perpetuating such acts and then with brave face defending them also. The MCD whose prime duty is to see that nobody contravenes or violates the provisions of MCD Act, Bye Laws framed thereunder, the master plan, which has statutory force, zonal plans and lay out plans, turned a blind eye when one of the State Authority i.e. the Delhi Jal Board happens to be the culprit. How the audacious act of setting up of a full-fledged complaint centre and a water filling station in the green area of D Block, New Friends Colony by the Delhi Jal Board could be overlooked by the MCD. The photographs placed on record by the petitioner clearly shows that a fulfledged office of Delhi Jal Board with a permanent structure has been functioning for the last several years in the green area i.e., Park. Shamelessly the respondent Delhi Jal Board has taken a stand that a complaint centre was set up for the benefit and advantage of the residents of the area. Shamelessly the respondent Delhi Jal Board has taken a stand that a complaint centre was set up for the benefit and advantage of the residents of the area. Another justification given by the Delhi Jal Board in their counter affidavit is that the land where the complaint centre and deep well were bored are on the Government land and therefore, there is no illegality. The MCD in the counter affidavit has taken a stand that vide letter dated 22nd July, 2002 request was made to the Chief Executive Officer of Delhi Jal Board to shift the store and complaint centre of sewerage department existing in the park of New Friends Colony to some other place to facilitate development of the said portion of the park as green, but the office of the Delhi Jal Board did not pay any heed. Counsel appearing for the MCD made a candid admission that the action of demolition, perhaps, was not taken because of the involvement of Government Departments. Even vide letter dated 23rd March, 2006 the Deputy Commissioner, Central Zone MCD took up the matter with the Chief Executive Officer, Delhi Jal Board reiterating their request for shifting of the complaint centre existing in the park to some other place without any delay. The reference in this letter was also made to the directions given by the Supreme Court for not using the green areas/parks for any other purpose. It would be worthwhile to reproduce the following paragraph from the said letter. As you may be aware, the Honble Supreme Court, in an order in the recent past, has directed that the green area/parks be not used for any other purposes. Even the booking of parks for marriages and such other functions have been restricted to only 10 days in a month and it has been ordered that such bookings be further reduced to only 25% of the total parks. In a portion of the park opposite D-834, New Friends Colony, a complaint centre of the Sewerage Department û now under Delhi Jal Board has been functioning for quite some time. The local residents have been expressing their resentment about these offices and more particularly, after the aforesaid order of the Supreme Court. Therefore, it is required to be shifted to some other place so, that the entire stretch could be annexed with the main park and be developed as green. The local residents have been expressing their resentment about these offices and more particularly, after the aforesaid order of the Supreme Court. Therefore, it is required to be shifted to some other place so, that the entire stretch could be annexed with the main park and be developed as green. It is requested that necessary directions may kindly be issued to the concerned officer to shift the complaint centre of the Sewerage Department existing in the aforesaid park in New Friends Colony to some other place without any delay to facilitate development of the said portion of the park. 10. Ignoring the said request made by the MCD, the Delhi Jal Board in a most high handed and dictatorial manner kept on continuing with their complaint centre and water filling station. It cannot be ruled out that due to the frequent movement of the tankers and also due to the continuation of the complaint centre, the resident of D Block New Friends Colony must have been subjected to great harassment and annoyance. Besides this the residents of the locality have been deprived from the benefit and enjoyments of the park due to the existence of the illegal structure of Delhi Jal Board and bore well centre. Counsel appearing for the Delhi Jal Board made a bold Submission by stating that almost 74 employees of the Delhi Jal Board are operating from the said office and there is no other suitable alternative site available for shifting the said complaint centre and bore well centre. This is a classic example of the "Fence eating the grass". The conduct of the MCD as well as of the Delhi Jal Board is highly deplorable and condemnable. The illegal act of the office of the Delhi Jal Board cannot receive any legitimacy simply on account of the fact that in the year 2006 the then President of the Association had made a request for setting up of the civil amenities under one roof for better coordination and effective management with the Resident Welfare Association. It would amount to saying that Government body can commit any illegal act provided the same is desired by some office bearer of the local welfare association. 11. It would amount to saying that Government body can commit any illegal act provided the same is desired by some office bearer of the local welfare association. 11. It is curious to note that in another case bearing Writ Petition No. 7386/2007, where the petitioners are seeking the demolition of the unauthorized structure of the office of Chief Electoral Commissioner in a green area and stand taken by the DJB through an affidavit filed by its CEO is that the raising of structure by the office Chief Electoral Commissioner in the green area is clearly unauthorized and hence invalid. It would be worthwhile to reproduce the following para from the affidavit by the CEO of the DJB: 6. That, this Honble Court vide order dated 22-4-2008 was pleased to express its anguish with regard to the construction of permanent structure in the site in question. The deponent submits that Delhi Jal Board had never authorized Election Commission or its Representative to raise any structure much less permanent structure in the site in question. The raising of the said structure by them is clearly unauthorized and hence, invalid. Likewise, Delhi, Delhi Jal Board did not hand over any portion of the green area to the Election Commission or its Representative. As submitted in the foregoing, only two rooms out of the Tube well premises were handed over with the specific stipulation that no disturbance shall be caused to the existing structure. It is specifically submitted that no green area was handed over by Delhi Jal Board to the Election Commission after the order dated 10th October 2007 passed by this Honble Court. 12. With the diametrically opposite stands taken by the officers of the Delhi Jal Board, it would be manifest that Delhi Jal Board has been trying to mislead this Honble Court. This is indeed a reflection on the working of the officers of the Delhi Jal Board, who could take different stands in two separate petitions although involving the same issue. In one case the culprit is Delhi Jal Board itself and while in other case it is a Chief Electoral Officer. 13. This is indeed a reflection on the working of the officers of the Delhi Jal Board, who could take different stands in two separate petitions although involving the same issue. In one case the culprit is Delhi Jal Board itself and while in other case it is a Chief Electoral Officer. 13. In the light of the above discussion, seven days time is given to the office of the Delhi Jal Board to shift its complaint centre to some other place and demolish the entire illegal structure as was raised by them in the green area of D Block New Friends Colony. The Delhi Jal Board shall also fill up the sites of bore well if the same are not to the advantage of the resident of the colony. In the event of Delhi Jal Board not carrying out the demolition act themselves, then, the MCD shall demolish the said structure within next three days. The cost of Rs. 50,000/- is imposed upon Delhi Jal Board for raising unauthorized structure in the green area for operating a complaint centre therefrom for the last several years. The cost of Rs. 50,000/- shall be paid to the Residents Welfare Association of D Block, New Friends Colony, who shall spend the amount for the development of the said green area for the residents of the locality and for better environment. With these directions, the petition is disposed of.