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PETITIONER: DR. G.N. KHAJURIA & ORS.

       Vs.

RESPONDENT: DELHI DEVELOPMENT AUTHORITY & ORS.

DATE OF JUDGMENT31/08/1995

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) RAMASWAMY, K.

CITATION:  1996 AIR  253            1995 SCC  (5) 762  1995 SCALE  (5)172

ACT:

HEADNOTE:

JUDGMENT:                           JUDGMENT HANSARIA,J.      The appellants  are some  of the  residents  of  Sarita Vihar.  According   to  them,   respondent  No.   1,   Delhi Development Authority  (DDA), permitted  a nursery school to be opened  in Park  No.6 of  Pocket ‘A’  of Sarita  Vihar by respondent No.2  in complete  violation of the provisions of Delhi Development Act, 1957 (for short ‘the Act’). When they approached with  this grievance,  the High  Court  of  Delhi found no merit and dismissed the writ petition. 2.   The short  and important  point which is required to be determined  is   whether  the   school  in  question  is  in possession of  the land  in question  in  violation  of  the statutory provisions contained in the Act. According to Shri P.P. Rao,  learned Sr. Counsel appearing for the appellants, there is  no escape  from the conclusion that the school was allowed to  be opened  in the  park in violation of what has been contained  in Sections 7 and 8 of the Act. The stand of DDA on  the other  hand, as  put forward by Shri Jaitley, is that the  appellants have  either mis-conceived the stautory provisions or  are interested,  for one reason or the other, in seeing  that the  nursery school does not function at the place allotted  to it by the DDA. The counsel for respondent No.2 butresses  this submission  by contending that a school having been  allowed to be opened and this respondent having spent substantial  amount of  money in  raising a  permanent structure at  the site,  we may  not do  anything,  at  this stage, to  uproot the  school which  would  cause  not  only financial loss  to  the  respondent  but  would  hamper  the educational progress of the students as well. 3.   A perusal  of Sections  7 and  8 of the Act, which find place in  Chapter III  under the  heading "Master  Plan  and Zonal  Development   Plans",  shows   that  the  Development Authority is  under an  obligation to  prepare a master plan which shall define the various zones into which Delhi may be

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divided for  the purposes  of development. Section 8 enjoins that a  zonal development  plan may  contain a site-plan and use-land for  the development  of  the  zone  and  show  the approximate locations  and extents  of land-uses proposed in the zone, inter alia, for such public works and utilities as schools, public and private spaces. This is what finds place in sub-section  (2) of  Section 8. Clause (d) of sub-section (2) provides  that the zonal development plan to be prepared by the  Authority would  in particular  contain  provisions, inter alia,  for the  allotment or  reservation of  land for open spaces,  gardens, recreation  grounds and  schools,  as mentioned in  sub-clause  (ii).  Our  attention  is  further invited by  Shri Rao  to Rule  4 of  the  Delhi  Development (Master Plan  and Zonal Development Plan) Rules, 1959, whose sub-rule (3) (g) states that a draft master plan may include "education,  recreation   and  community   facilities  plan" indicating proposals  for parks,  open spaces, recreational, educational and cultural centres. 4.   Relying on  the aforesaid  provisions,  the  submission advanced  for   the  appellants   is  that  the  Development Authority was  under an  obligation to  specify in the zonal development plan,  locations and extents of land-uses, inter alia, for parks and schools. According to Shri Rao, the land which ultimately  was  allotted  to  respondent  No.  2  for opening a  nursery school  had originally been kept reserved for park  because of  which the  land could  not  have  been allowed to  be used  for opening the school by any executive or administrative decision of the DDA. 5.   Shri Jaitley  contends that the zonal development plans are really  required to  show in broad cutlines "Approximate locations of  High Schools  and Primary Schools" as has been mentioned  in  what  has  been  described  as  "Sub-Division Regulations" a  copy of  which is  placed at page 196 of the paper book.  It is  submitted by  Shri Jaitley  that nursery schools are  not required  to be  indicated  either  in  the master plan  or the  zonal development plan, as they are not taken  to   be  schools  stricto  sensu,  but  are  akin  to recreational places,  some space for which is required to be reserved in  residential colonies  in the  lay-out meant for them. The  further limb  of this  submission is  that in the lay-out for  Pocket ‘A’  of Sarita Vihar, some space was, in fact, reserved  for nursery  schools. Not  only  this,  Shri Jaitley would  contend that  there was no park at all at the place where the school was allowed to be established. 6.   We would  agree with  Shri Jaitley  that in  the  zonal development plan  visualised by  Section 8  of the Act, land used  for   nursery  school  may  not  be  indicated,  as  a distinction is  permissible to be made between a high school and a  primary school  on one hand and nursery school on the other. Even so, we are of the firm view that any lay-out for residential colony,  like  that  of  Sarita  Vihar,  has  to indicate space  reserved, not  only for  nursery school, but for park. This follows from what has been stated in Sections 8(2) (a)  and 8(d)  (ii) of the Act and Rule 4(3) (g) of the aforesaid Rules.  We have  thought it  fit to  mention about this aspect  because in the lay-out plan of Sarita Vihar, as put on record, we find no mention about reservation of space for park. This is simply inconceivable to us. 7.   We also  do not entertain any doubt that at the site at which the school was allowed to be opened, there was a park. This is  apparent from  the  report  submitted  by  Director (Monitoring)  to   the  Vice-Chairman   of  the  Development Authority pursuant  to his  order dated  26.10.1992 which he came to  pass on  a reference being made to him by the Chief Secretary on  23.10.1992. The Chief Secretary had passed the

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order on  a representation  made by some residents of Sarita Vihar,   Pocket    ‘A’,   complaining   about   unauthorised construction in Park No.6. The Director (Monitoring) visited the site  on 2.11.1992  and found  that a  part of  the park located in  Pocket ‘A’  had actually  been enclosed  with  a boundary  wall   by   an   institution   named   Rattanatrya Educational Research Institute, which body is none else than respondent No.2.  The report further says that the Institute was running  a nursery  school in  a few  temporary barracks constructed  along  with  one  of  the  boundary  walls.  On discussion with  some office bearers of the Institute it was informed that  the land in question measuring 800 sq. metres had been  allotted to  the Institute by the DDA in July 1988 for the  purpose of  running a  nursery school. The Director (Monitoring) reported  that  the  residents  of  surrounding areas started  making objections when this Institute took up the construction  of a regular school building after getting the plan duly sanctioned from the Building Department of the DDA. The  report has  categorically mentioned  that  in  the original lay-out  (which we  understood to be of 1984) there was no  provision for  a  nursery  school  in  the  park  in question. Subsequently,  however, some  portion of  the park was carved  out for  the nursery  school. That  such a  park exists was  sought to  be proved  by Shri  Rao by  producing certain photographs  as well,  one of  which contains a sign board mentioning about "D.D.A. Park". 8.   We, therefore, hold that the land which was allotted to respondent No.2  was part of a park. We further hold that it was not  open to  the DDA  to carve  out any space meant for park for  a nursery  school. We  are of  the considered view that the  allotment in  favour of respondent No.2 was misuse of power,  for reasons  which need  not be  adverted. It is, therefore, a  fit case, according to us, where the allotment in favour  of respondent  No.2 should  be cancelled  and  we order accordingly. The fact that respondent No.2. has put up up some  structure stated  to be permanent by his counsel is not relevant,  as the  same has  been one  on a plot of land allotted to it in contravention of law. As to the submission that  dislocation   from  the   present  site   would  cause difficulty to  the tiny tots, we would observe that the same has been  advanced only  to  get  sympathy  from  the  Court inasmuch as  children, for whom the nursery school is meant, would travel  to any  other nearby place where such a school would be  set up  aither by  respondent No.2 or by any other body. 9.   The appeal  is,  therefore,  allowed  by  ordering  the cancellation of allotment made in favour of respondent No.2. It would  be open  to this respondent to continue to run the school at  this site for a period of six months to enable it to make  such alternative  arrangments as  it thinks  fit to shift the  school, so  that the  children are not put to any disadvantageous position suddenly. 10.  Before parting,  we have  an observation  to make.  The same is  that a  feeling  is  gathering  ground  that  where unauthorised constructions  are demolished  on the  force of the order  of courts,  the illegality  is not  taken care of fully inasmuch as the officers of the statutory body who had allowed the  unauthorised construction  to be  made or  make illegal allotments  go scot  free. This should not, however, have happen  for two  reasons.  First,  it  is  the  illegal action/order of  the officer  which lies  At the root of the unlawful act  of the concerned citizen, because of which the officer is  more to  be blamed  than the  recepient  of  the illegal benefit.  It is  thus imperative,  according to  us, that while  undoing the  mischief which  would  require  the

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demolition of  the unauthorised construction, the delinquent officer has  also to  be punished  in accordance  with  law. This, however, seldom happens. Secondly, to take care of the injustice completely,  the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the  officer, who  made the  hay when  the sun  shined, retains the  hay, which  tempts other  to do  the same. This really gives  fillip to  the  commission  of  tainted  acts, whereas the aim should be opposite. 11.  We, therefore,  call upon  respondent No.1  to make  an enquiry and  inform the  Court within three months as to who are the officers who had made the unauthorised allotment and permitted unauthorised  construction. On knowing about this, such further  orders would  be  passed  as  deemed  fit  and proper. 12.  Put up after three months.