JUDGMENT
Devinder Gupta, J.
1. In this writ petition, instituted on 19.5.1994, the petitioner, which is a Society registered under Society Registration Act, 1860, has sought the following directions:-
a) pass an appropriate writ order or direction, directing the respondents to allot the balance portion i.e. 700 sq.mt. of the plot No.NS 22, Block No.M., Vikas Puri, New Delhi to the petitioner and in any case the area of 300 sq.mt.
b) prohibit the respondents from putting to use the plot No.NS-22, Block No.M, Vikaspuri, New Delhi, to any use other than for setting up a Nursery School.
c) directing the respondent No. 2 to formulate the policy, if not already in existence, in consonance with the specifications prescribed by the NCERT copy whereof is Annexure P-12 and to provide play grounds to all schools in the city of Delhi.
2. It is alleged that the petitioner applied to the Directorate of Education for its recommendation to Delhi Development Authority (DDA) for allotment of land for constructing Nursery School including playground etc. On 22.12.1989, Directorate of Education recommended the petitioner’s case for allotment of land and ultimately DDA allotted a piece of land measuring 800 sq. ml. to the petitioner for running Nursery School in M Block, Vikaspuri, New Delhi, out of a plot of land measuring 0.13 hectares. On 4.5.1989, the petitioner deposited the requisite amount towards cost of the plot. The possession was handed over on 28.8.1989 and on 5.10.1989, the petitioner obtained ‘No Objection Certificate for constructing the Nursery School.
3. It is alleged that in the lay-out plan of Vikaspuri, DDA has shown a piece of land in M-Block as Nursery School. When the petitioner learnt that DDA was intending to allot the remaining portion of the plot measuring 700 sq. mt. to some religious Society for the purpose of constructing a temple, representations were submitted to DDA for not allowing the construction of a temple near the school. It was also pointed out that the entire plot had been shown in the lay-out plan as Nursery School. The plot was meant only for Nursery School as well as for its playground. Residents of the locality of M-Block had also raised an objection to its allotment for a temple. The plot in question had been declared notified under the Master Zonal Plan, earmarked for Nursery School. When no action was taken by the respondent, a suit for permanent injunction was filed by the petitioner. Interim order of injunction was passed, which subsequently was vacated. In the appeal preferred by the petitioner, order of status-quo is in force. The suit has been held to be suffering from, technical defects. Therefore, after moving application for withdrawal of suit, the petitioner thought of invoking jurisdiction of this Court. It is the petitioner’s case that originally it had been allotted the entire plot, but the respondent arbitrarily reduced the size of allotted plot. The petitioner thus has a genuine, reasonable and legal claim over rest of the area of 700 sq. ml. In the larger public interest, use of the plot deserves to be maintained as Nursery School. Plans had been notified and lay-out prescribed the use as Nursery School. Thus the respondent can not be allowed to make use of the plot of land to any other purpose other than the Nursery School. In this background, the aforementioned directions were sought.
4. In reply filed on 18.2.1995 by the respondent-DDA, it was stated that DDA was not allotting the play ground area to any Nursery School as there was no provision for allotting any area for play ground in the Master Plan. However, in 1986 in a few cases, inadvertently play field area was allotted to some Societies for Nursery School, but later on when the mistake was detected, it was rectified and thus no play field area was being allotted to any Educational Society for running a Nursery School. In cases where allotment had been made for play field area, such cases were being reviewed.
5. It is further stated in reply that a piece of land measuring 800 sq. mt. was allotted to the petitioner for running a Nursery School at provisional rate of Rs. 23.75 lakhs per acre. Provisional demand of Rs. 81,217/- was raised with the condition that the demand is provisional and the petitioner Society will give an undertaking to pay the difference of cost of land at the rate, as may be decided by Government of India. Till filing of the reply, the petitioner had not given the said undertaking. Despite this, the petitioner was delivered possession on 28.8.1989. Respondent-DDA states that there was no provision in the Master Plan for play field for Nursery School. The petitioner had already been allotted a Nursery School site as per the norms of Master Plan. The area recommended for Nursery School as per Prospective Development Programme 2001 Norms vary between 500 sq. mt. to 800 sq. mt. As per the old norms, there was a Nursery School plot of 1300 sq. mt. lying vacant in M-Block of Vikaspuri. This plot was proposed to be divided in two plots; one of 800 sq. mt. and the other of 500 sq. mts., abutting 9 metres wide road. After the petitioner was allotted 800 sq. mt. of land, balance of 500 sq. mt. was proposed for future use, i.e. other community facilities. As the petitioner had already been allotted plot of land, as per norms, it had no right to claim any additional allotment for any other purpose or to object for utilisation by DDA in accordance with law.
6. In the additional affidavit, DDA took up a stand that the remaining area was proposed to be used for other community facilities, which was approved upto the level of Commissioner. Through oversight, the matter could not be put up to the Vice-Chairman. However, the Vice-Chairman approved the allotment of 800 sq. mt. to the petitioner and of 418 sq. mt. to the Digambar Jain Sabha. Thus, there was implicit approval by the Vice-Chairman for use of the 700 and odd sq. mt. of land for other community facilities. However, by way of abundant caution, DDA has put up the case before the Vice-Chairman, who is the Competent Authority for effecting changes in the lay-out plan. The respondent clarified that M/s Digambar Jain Sabha had applied for allotment of land for temple. Originally the site earmarked for religious use was allotted to them, which was later on found to be encroached upon. Digambar Jain Sabha’s request for alternative allotment was pending since long. There being no other site in the vicinity available specifically earmarked for religious purposes, and since the plot for other community facilities could be used for other religious purposes, it was decided to allot 418 sq. mis. of the remaining plot of 700 and odd sq. mts. for the temple of Jain Sabha. The allotment was made as far as back as 1990. The petitioner was aware of the allotment to the Jain Sabha even in the year 1990. The petitioner had also made a representation to the DDA against allotment of land to Jain Sabha, which could not be acceded to. The petitioner said quiet for 4 years. The dispute raked up now by the petitioner is belated. It is stated that having known about the allotment of plot of land for the temple in 1990 itself, the petitioner cannot be allowed to sleep over the matter and raise it after so many years, when construction of the temple has already been made substantially.
7. We have heard counsel for the parties and been taken through the record. The contention of learned counsel for the petitioner has been that the action of DDA to change the lay-out plan, contrary to Section 11-A of Delhi Development Act is totally without jurisdiction. The petitioner is running a Nursery School and the plot was meant for Nursery School. Denial of the petitioner’s claim is nothing, but discrimination. Learned counsel for the petitioner referred to Sections 7 and 8 of Delhi Development Act relating to the Master and Zonal Plans, which are approved as per provisions of Section 9 and its power under Section 11-A for change in the Master and Zonal Plans. There has been practice in DDA to allot playground on nominal rent for which reference has been made to documents (Annexures P-7 and P-9) and it is stated that the representation, Annexure P-8 was made in 1990 for the step-motherly treatment to Nursery Schools by not providing land for playgrounds. Play field is absolutely necessary for a Nursery School.
8. Having considered the submissions made at the Bar, we are of the view that the
writ petition deserves dismissal.
9. DDA in the additional affidavit clarified its position with respect to allotment area for playground for Nursery Schools in 9 cases stating:-
In the past in all cases except seven, no area for playground has been allotted for nursery school. In 9 cases, by mistake, area for playground has been allotted. These 9 cases are listed herein below: –
1. Adarsh Sangeet Vidhalaya
2. Manav Bharti Instt.
3. South Delhi Educational Society
4. Lawrence Educational Society
5. Indira Adarsh Educational Society
6. Kamal Educational Society
7. Samarth Shiksha Samiti
8. Adarsh Children Edu. & Welfare Society
9. Study School Educational Society
It is submitted that in all the nine cases the mistake has been rectified or being rectified. In the case of Study School and Kamal Public School, the schools have been demanded and have made payment of additional premium for the area allotted for playground. It may be mentioned that normally when a playground is allottable it is allotted on nominal ground rent of Rs. 1 per acre per annum.”
10. It is worthwhile to notice that allotment in favour of Jain Sabha was made in 1990 of which the petitioner was fully aware. Jain Sabha has not been impleadcd as a party to this petition. The petitioner filed a suit for injunction on 18.4.1990 in the Court of Senior Sub Judge, whereafter the petitioner became aware of allotment having been made in favour of Digambar Jain Sabha. The writ petition was filed subsequently, after the petitioner filed an application for withdrawal of the suit. Therefore, the petitioner’s prayer to the extent for which allotment has been made
in favour of Digambar Jain Sabha cannot be acceded to since land has already stands utilised by Digambar Jain Sabha on the basis of an order of allotment. The allotment cannot be quashed or set aside, in the absence of allottee being before the Court.
11. Chapter 3-A of the Delhi Development Act deals with the modification of the Master Plan. Circumstances under which modification can be made are enumerated in Section 11-A of the Act. There is no other provision in the Act, which deals with the modification of the lay-out plans. Lay-out plan can be modified by the Vice-Chairman. In case as per the norms which were in force on the date when allotment was made in petitioner’s favour, of an area for Nursery School, there is no reason why the remaining area could not be utilised by the respondent for any other purpose and it cannot be disputed that it would be permissible for DDA to seek modification in the lay-out plan for which permission could be granted subsequently also by the Competent Authority. It is the case of the respondent that proper papers were moved for change in the lay-out plan. As the petitioner has no right to claim allotment of any additional area, it is not understandable that how the petitioner would be in a position to lay claim for allotment of an additional, area out of the area which is now lying vacant. It would be utilised by the respondent, in accordance with the layout plan, as approved by the Competent Authority. No right has been shown to be vested in the petitioner or that under what provision the petitioner has been claiming benefit of fresh allotment. There being no force in the petition, it is dismissed. Interim order stands vacated.