JUDGMENT
Pradeep Nandrajog, J.
1. All captioned petitions centre on the same facts and raise common issue of law and hence are being decided by a common judgment and order.
2. U.P. Samaj Co-op. House Building Society, the petitioner in WP(C) No. 5259/03 and WP(C) No. 9545/03 prays :
WP(C) 5295/03 :
”a) Issue an appropriate writ, direction or order in the nature of certiorari quashing the order dated 20.2.2003/3.3.2003 passed by the respondent No. 2;
b) Issue an appropriate writ, direction or order in the nature of certiorari quashing the allotment order dated 24.5.2002 issued by respondent No. 3 as being contrary to the sponsorship letter dated 12.4.2001;
c) Issue an appropriate writ, direction or order in the nature of mandamus to the respondent No. 2 and 3 to act in accordance with letter dated 17.10.2002 written by respondent No. 3.;
d) Issue an appropriate writ, direction or order in the nature of mandamus directing the respondent to maintain the sites in question as ‘parks’ marked in ‘purple colour’ as ‘A’ to ‘D’ in the lay out plan;
e) Issue a writ, order of direction in the nature of mandamus thereby declaring the proposed action of the respondents in allotting the sites marked in ‘purple’ colour and marked as ‘A’ to ‘D’ in lay out plan as nursery schools which are on 9 mt. wide road and the same is in contravention of the laws laid down by the respondents.”
WP(C) 9545/03 :
”a) Issue appropriate writ, direction or order in the nature of certiorari quashing the allotment order dated 11.10.2002 issued by respondent No. 1 and 2 as being contrary to the sponsorship letter dated 9.4.2001 and the Master Plan of DDA.”
3. P.D. Memorial Educational and Medical Society, which is respondent No. 3 in WP(C) No. 5295/03 is the writ petitioner in WP(C) No. 4215/03. It prays that orders be passed :
”a) Directing respondent No. 1 that land use of the plot allotted to petitioner cannot be changed from Nursery School to Park in lieu of plot allotted to the petitioner measuring 800 sq.mtrs. situated at 9 meter vide road in U.P. Samaj C.H.B.S. (Known as Deepali) in Pitampura, Delhi;
b) To further restrain the respondent No. 2 and 3 from causing any obstruction and hindrance in making construction on the plot allotted to the petitioner measuring 800 sq.mtrs. situated at 9 meter vide road in U.P.Samaj C.H.B.S. (known as Deepali) in Pitampura, Delhi; and
c) To direct the respondent No. 4 to provide protection to petitioner and also to ensure that no obstruction is caused, in making construction on the site allotted to the petitioner measuring 800 sq.mtrs. situated at 9 meter wide road in U.P. Samaj C.H. B.S. (known as Deepali) in Pitampura, Delhi.”
4. Value Education Society which is respondent No. 3 in WP(C) No. 9545/03 is the writ petitioner in WP(C) No. 6416/03 prays that order be passed :
”a) Directing respondent to give possession of the plot allotted to petitioner for Nursery School measuring 800 sq.mtrs. situated at U.P. Samaj C.H.B.S. (known as Deepali) in Pitampura, Delhi in terms of letter dated F.19(52)2001/12/4156 dated 8.1.2003;
b) To further direct the respondent to pay interest @ 18% p.a. to the petitioner from the date (i.e. 9.12.2002) of payment of premium paid by the petitioner to the respondent till the possession of plot 800 sq.mtrs. situated at U.P. Samaj C.H.B.S. (known as Deepali) in Pitampura, Delhi is handed over to the petitioner.”
5. U.P. Samaj Co-op. House Building Society was licensed land for purposes of development by DDA. Except for land on which residential plots were carved out, all other land vested in the President of India. A colony called Deepali, Pitampura, Delhi came up on the land. Residential plots were given to the members of the society under a perpetual lease.
6. Lay out plan of the colony was sanctioned by DDA. U.P. Samaj Co-op. House Building Society was associated in the finalization of the lay out. The 2 sites in question for Nursery School were developed as per approved lay out.
7. Since these sites of Nursery School were vested in the President of India, control and management thereof was transferred to DDA, it allotted the 2 sites, one each to Value Education Society and P.D. Memorial Educational and Medical Society.
8. As per policy of DDA, no allotment of a school site is made by it, save and except, on recommendation/sponsorship by the education department of the Government of NCT of Delhi. Value Education Society and P.D. Memorial Educational and Medical Society obtained the requisite sponsorship from the education department of the Government of NCT of Delhi. It is not in dispute that the sponsorship letters issued by the Government of NCT of Delhi contains the following stipulation:
”The school shall follow the instructions of the Directorate of Education for minimum/ maximum enrollment of students in the school in the new building constructed on land allotted by the Government and at least 75% of the students shall be admitted room the locality in which the school is situated.”
9. Sponsorship letter in favor of P.D. Memorial Educational and Medical Society is dated 12.4.2001 and the one in favor of Value Education Society is dated 9.4.2001.
10. Allotment letter issued by DDA in favor of P.D. Memorial Educational and Medical Society is dated 24.5.2002. Clause 19 and 20 of the allotment letter stipulates :
”19. The society shall not refuse admission to the residents of the locality.
20. The society shall follow the instruction of the Directorate of Education or minimum/maximum enrollment of students in the school new building construction on land allotted by the Government/DDA.”
11. Allotment letter issued by DDA in favor of Value Educational Society is dated 11.10.2002. It contains clauses 19 and 20 in pari materia to the clauses in the allotment letter of P.D. Memorial Educational and Medical Society.
12. Notwithstanding that it was associated in the preparation of the lay out plan of the colony and had consented to the two Nursery school sites being carved out. U.P. Samaj Co-op. House Building Society desired a change in the lay out, of the colony. This was at a point of time when the colony was developed and most of its members had constructed houses on the plots allotted to them. Another important fact may be noted, society had wanted one of the two Nursery school sites to be allotted to it but DDA did not make the allotment.
13. U.P. Samaj Co-op. House Building Society filed a writ petition being WP(C) No. 7602/02. It prayed that direction be issued to DDA to change the lay out of the colony and convert the land use of the 2 Nursery school sites as park. WP(C) No. 7602/02 was disposed of vide order dated 27.11.2002. It was directed :
”CW.No.7602/2002
The petitioner has filed the writ petition seeking change of layout plan on the ground that the area in question have to be maintained as park. The petitioner has also prayed that the sites be not utilized for Nursery school as proposed.
Learned senior counsel thus confine his prayer at this stage for consideration of the request for change of lay out plan. It is directed that the petitioner may appear before respondent No. 3 on 2nd December,2002 at 3.00 P.M. and it will be open to the petitioner to file any application or document in support of the stand that the lay out plan should be changed. The petitioner shall be granted a personal hearing and a decision shall be taken on the representations of the petitioner within two month thereafter by a speaking order.
Writ petition stands disposed of in the aforesaid terms.”
14. On 28.11.2002, U.P. Samaj Co-op. House Building Society submitted the following representation :
”To,
1. The Vice Chairman
Delhi Development Authority,
Vikas Sadan, INA,
New Delhi-110027.
2. Shri Jagdish Chandra,
Director (Institutional),
Delhi Development Authority,
Vikas Sadan, INA, New Delhi.
Ref: Representation for converting nursery school sites located on 9 mt.wide road into park in Deepali Pitampura, Delhi-110034.
Sir/Sirs,
The present representation is in continuation of our earlier representations addressed to you from time to time. We are at pain to point out that in spite of passing of 2-3 years, no decision yet has been taken on the representations made by us on this behalf.
We were compelled to file a civil writ petition No. 7602/2002 titled as `Uttar Pradesh Samaj Cooperative House Building Society Ltd. v. Government of NCT and Ors.’
The said writ petition was listed before Hon’ble Mr.Justice Sanjay Kishan Kaul on 27th November,2002. Hon’ble Mr.Justice Sanjay Kishan Kaul was pleased to dispose of the above noted writ petition and was pleased to allow us to make a representation to your good-self.
Hon’ble Court was pleased to issue directions to your good-self to decide th representations made by us within two months. The Hon’ble Court was also pleased to direct us to appear before our good-self on 2.12.2002 at 3.00 P.M. We have been asked to appear before Shri Jagdish Chandra, Director (Institutional), DDA on 2.12.2002 at 3.00 P.M.
Kindly note that we have been protesting against the allotment of nursery school site in Deepali Pitampura for long. Even the political leaders of the area have requested for shifting of the said nursery schools to some other area and the said areas earmarked for the schools should be developed and used as parks.
The location of the nursery schools are not conducive for the residents of the Deepali Pitampura. If the said schools are allowed to run, it would play havoc for the residents of the Deepali Pitampura as the running of the schools on the said sites would lead to an utter chaos, traffic congestion and would worsen the living conditions of the residents of the area.
The sites should be as parks as residents are in immediate need of said parks for breathing fresh air and for their healthy living. There are nursery schools, one of which is Nursery to Senior Secondary, namely Navbharti Public School and another is Nursery School on private land, namely ‘Mother Pride’, which are operating in the area in question. Besides this there are 14-16 other schools which are also operating within the radius of one kilometer of Deepali Pitampura.
The neighborhood park of the area has already been encroached by jhuggi dwellers and the said neigbourhood park has been converted into toilets by MCD and the same is being used as `Sulabh toilets’ by slum dwellers.
We also are annexing Along with this representation the Layout Plan of the area in question as Annexure A-1. The four plots in question which are to be allotted for nursery schools are marked purple and are marked `A’ to `D’ in the said Plan. The existing parks are marked `E’ to `J’ in the Layout Plan marked as Annexure A-1.
The location of the said nursery schools is risk and dangerous for children as the buses pe se have to take back turn to reach on main road as the said schools are located inside the colony on 9 mt.wide road. The existing schools do not have sufficient students from locality in question to justify their existence. The students who are from nearby areas and of poor families mainly use the existing schools. The students of the locality in question go for their studies to private and convent schools.
Conversion of nursery school sites into parks is essential for the residents of Deepali Pitampura and they have already submitted before your good-self that they want to develop parks as befitting memorials for two Paramvir Chakra Vijeta Kargil heroes. The profiles of two kargil martyrs have already been attached Along with our representation dated 10.10.2000.
It may be noted that in October, 2002 at site marked `D’ in Annexure A-1, some people tried to do ‘boomi pooja’ as they contended that they have been allotted site marked `D’ in Annexure A-1. The residents of the area strongly protested the said allotment and the memorandum was sent to your good-self.
In view of the strong protest by the residents of Deepali Pitampura and our members, the said allotment was cancelled by your goodself and you had agreed and conceded the need of the residents for more parks in the area. According to you knowledge the P.D.Memorial Education and Medical Society’ have surrendered their allotment. The D.D.A as per their rules/policies have been making changes in the layout plan of the area. It may be noted that as per latest policy of D.D.A only two nursery schools are required for a population of 5000 residents. As such we don’t need any other school. In fact as per the planning of DDA there was no need/provision for senior secondary school which is functioning in the area. The two schools in existence are more than enough.
It may be noted that already the students are being transported from Shakti Nagar, Bharat Nagar and other surrounding areas in the present Senior Secondary School. The proposed nursery schools are likely to be misused by the allottees in the absence of dequate students/demand potential from Deepali Pitampura. The allottees would carry out all sorts of illegal activities which again the residents of the area would suffer.
You are once again requested to change the land use of all nursery sites marked `A’ to `D’ in Annexure A-1 into parks and not to allot sites `A’ to `D’ to any person/institution till the consideration of our representation pending before your active consideration.
With regards,
Yours sincerely,
sd/-
(Shri B.B.Lal)
President
U.P.Samaj Cooperative
House Building Society Ltd.”
15. DDA rejected the request of the society vide order dated 20.2.2003. Inter alia, order dated 20.2.2003 records :
”With reference to the above, it is stated that the petitioner society was allotted a piece of land for development of the same into residential plotted colony with the condition that after the development of the colony all the residential plots will be given to the members of the society on perpetual leased hold basis for constructing residential accommodation and the remaining land meant for facilities like park, roads, nursery school, community centre, community hall and etc. will revert back to the Government.
On the basis of the above terms, the society undertook the development of the said land and after development, the residential plots were allotted to the members of the society and the remaining land stood reverted back to the government. The layout plan of the area was prepared by the society itself with the provisions of facilities like park, community hall, nursery school etc. as per the provision of Master Plan norms and the same was approved by the competent authority at the relevant point of time. Therefore, the society can not now claim that the disputed said land was earmarked for nursery school in violation of the Planning Norms.
The claim of the society that they have converted the above said nursery school site into park is prima facie found to be not correct. It can be sent that the site already stand allotted in favor of P.D. Memorial and Medical Society on 24.5.2002 and after receiving the premium, the possession of the land without any encumbrance was handed over to the society on 4.7.2002. At the time of handing over of the said land to the allotted society there was no park on the said land. In fact, petitioner society had tried to convert the said Nursery school into park after handing over of the site by DDA and put up a board of park in the said land. Therefore, the claim of the petitioner society that disputed land was developed as a park is not supported by facts. It seems that in order to get the allotment cancelled, now the petitioner society is taking a plea that the said land has been converted into park which seems to be an after thought.”
16. It is not in dispute that as per Master Plan, norms for a residential colony having population of 5000 persons, 2 nursery school sites having plot area of 1600 sq.meters each can be provided in the lay out of the colony. It is not in dispute that no other person or society has been allotted any site for a nursery school. 1 senior secondary school functions from an approved site in the colony.
17. U.P. Samaj Co-op. House Building Society states that a nursery school is operating from a residential building. This, to my mind, is neither here nor there. If functioning, the school is being illegally run. Society would be advised to seek its closure.
18. In WP(C) No. 9545/03, U.P. Samaj Co-op. House Building Society has additionally predicated its case on a resolution passed by DDA on 21.1.2002 vide Item No. 5/2002. Same reads as under :
Item No. Sub: Policy for utilisation of sites ear-
5/2002 marked for the approved layout
plans.
A-21.1.2002 F.20(5)2000-MP PRECIS
1.0 Proposal in Brief.
This is a proposal for allotment/ utilization of the nursery school sites in the approved lay out plan. Briefly given as under :
i) Nursery school sites which are located on the road less than 9 mt. R/W be allowed to be converted into open spaces/parks etc. for the use of the residents.
ii) Nursery school sites located on road of 9 mt. R/W be examined by a Committee comprising the representatives of Planning/Architecture and Land Deptts. of the concerned areas.
iii) Sites located on road more than 9 mt. be continued to be allotted for nursery school purposes or alternatively other uses as permitted in the Master Plan.
iv) MOUD be requested to allow use of nursery of school sites as per the Master Plan provisions.
2.0 Details of examination :
2.1 A number of representations are received/decisions taken for conversion of public and semi-public facilities in the developed residential areas to green areas in DDA.
2.2 It is found difficult to either accept or reject such requests in the absence of a policy decision.
2.3 In view of the above, the whole issue is examined.
2.4 This was discussed in the Authority Meeting held on 19.2.2001 vide item No. 6/2001 (at P-39-41 App.’A’) wherein following was decided :-
”The Authority postponed this item for next meeting and would also like to examine in detail the utilization of areas allotted for primary school, nursery school. Directorate of education norms of space for upgradation of the schools etc. It was stated in the meeting that it is not only floor space but he various other facilities which are required in the school which includes administrative and extra curricular activities area for healthy development of child. The extracts of the norm of Directorate of Education, which were given to me by CLD, are enclosed to examine the matter in detail. A detailed audio presentation will be made during the next meeting of the Authority.”
2.5 The issue of conversion of the nursery school sites into non-remunerative areas i.e. parks etc. have also been examined by the Finance Deptt. of the DDA and it has been observed that at an average conversion of nursery school site would incur a loss of Rs. 28 lakhs as per current zonal variant rates.
2.6 The issue has been further examined and a view has been taken that ”Revenue Loss cannot be a determining factor as sites located on road below 9 mt. R/W are prima facie unsuitable for nursery school. Compensatory conversion of unusable/suitable green land will minimise revenue loss.
2.7 Also, if we allow the nursery school sites to be used as per the provisions of MPD-2001 (at P-42 App.B), after seeking the clearance from the Ministry with reference to the order of Hon’ble Minister of Urban Development dated 2.12.99 (at P-43 App.C), we may be able to meet the requirement of facilities of the residential areas. However, while allotting these sites care will be taken that the activities located are not high volume traffic generating.
2.8 Looking into the feeling expressed by relations for causing inconvenience to them due to traffic generated by school on narrow roads, Chairman, DDA has agreed for the following :
i) We may request MOUD to reconsider/suitably modify, instructions contained in the order dated 2.12.99 so as to meet the requirements of the community also keeping in view the fact that the activities on the nursery school sites do not generate traffic which may cause inconvenience to the residents of the surrounding area.
ii) As a policy we may consider allotment of nursery school sites located on roads less than 9 mt. R/W to MCD if they require for setting up of nursery schools or else could be maintained green till the time they use them for the low intensity uses permissible as per MPD-2001 to meet the requirement of the community.
iii) In case of sites which are located on 9 mt. road, a case to case decision needs to be taken by a Committee comprising of representatives of planning, Architecture and Lands Deptt. of the concerned areas and if some sites are required to be converted into green due to circulation system etc. simultaneous attempt should be made to use undeveloped non-remunerative areas to compensate the financial losses by way of such conversion to the DDA. Nursery school sites on above than 9 y. Road be allowed to continue to be allotted for nursery school purposes. Submitted for information of members of the Authority.
RESOLUTION
Proposal contained in the agenda item were approved by the Authority subject to the following provisions :
a) Nursery schoo plots should be allowed upgradation to the primary school level if they qualify the rules and regulationis of the Directorate of Education, nursery schools not being financially.
b) Nursery school sites shall be allowed to be converted the green/parks only if the plots were ”internal to the colonies” and not on the periphery.
c) Such plots which were internal to the colony and sandwiched between the residential plots should be converted to residential land use only, rather than to green/ parks, in order to avoid possible encroachments.
ii) Decisions taken on this agenda item would not affect the allotments already made.”
19. CM.No.13716/04 has been filed by U.P. Samaj Co-op. House Building Society in WP(C) No. 5259/03. It is prayed therein that DDA be directed to reconsider the matter in light of its resolution dated 21.1.2002. CM.No.13713/04 has been filed by U.P. Samaj Co-op. House Building Society praying for similar directions.
20. Value Education Society and P.D. Memorial Educational and Medical Society state that they have paid premium in the sum of Rs. 24,51,737/- for the plot allotted to them but due to obstructions caused by members of U.P. Samaj Co-op. House Building Society Ltd. they are unable to utilize the land.
21. Resolution dated 21.1.2002 relied upon by the U.P. Samaj Co-op. House Building Society is an enabling resolution. It permits DDA to change the land use of Nursery school sites to park. It does not cast an obligation to do so. No right is created in favor of any person under the policy decision. One can only request DDA to change the land use.
22. It is not a case where DDA has acted contrary to law. Lay out of the colony was approved with the active participation of the U.P. Samaj Co-op. House Building Society. It is not a case of DDA developing a colony and the allottees of the plots having no say in the development. DDA had the right to allot the 2 plots for being used as nursery school sites. DDA has done so. Valuable consideration has passed from the two school societies to DDA. The clock cannot be put back. Reason given by DDA not to permit change of land use is that society had agreed to the lay out of the colony. Reason cannot be said to be fanciful, unreasonable or arbitrary.
23. Town planning is a legislative activity. Under Delhi Development Act, 1957, Master Plan has the force of law. Lay out plan is prepared keeping in view the development control norms stipulated under the Master Plan. So long as the lay out conforms to Master Plan norms, Court cannot substitute its own opinion as to what principle or policy would best serve the object of the Master Plan. As held in , Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh B.Seth and Ors. :
”14…………..It is exclusively within the province of the Legislature and its delegate to determine, as a matter of policy, how the provisions of a Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act.”
24. In para 16, it was observed :
”16. …………The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act.”
25. Judicial review is not an appeal from a decision. It is a review of the manner in which the decision was made. Judgment or decision of an expert body, entrusted with power, is to be treated as final and judicial function is exhausted when the decision is found to have warrant in the record and a rational basis in law. (See : Associated Provincial Picture House Ltd. v. Wednesburg Corporation, 1947 (1) All.E.R. 498).
26. A fleeting submission was made that population of the colony is 3000. No data has been provided. Plea cannot be sustained.
27. It was urged that on 31.12.2003, a show cause notice has been issued by the Government of NCT of Delhi to P.D. Memorial Educational and Medical Society as to why its sponsorship be not cancelled. U.P. Samaj Co-op. House Building Society cannot take any benefit thereof. Needless to state that if sponsorship is ultimately withdrawn, consequences will flow.
28. Grievance of U.P.Samaj Co-op. House Building Society that in the letter of allotment issued by DDA it has not been stipulated that the school societies would give admission to 75% students from the locality and hence allotment be cancelled has to be rejected in view of clauses 19 and 20 of the letter of allotment. DDA has made it a term of allotment that all directions of Director of Education shall be complied with. It has also been stipulated that no child from the locality would be denied admission.
29. WP(C) 5259/03 and WP(C) No. 9545/03 are dismissed with costs in the sum of Rs. 10,000/- each, to be shared equally by DDA and the school societies.
30. Reason given by DDA for not giving possession of the land allotted to Value Educational Society is :
”2.That the respondent was ready and willing to hand over physical possession of the property in question to the petitioner within the stipulated period, however, the A.E. (I.L) of the concerned area filed a report and as per this report of A.E. (I.L) dated 10.1.2003 area of the allotted site was found to be 2000 sq.mtrs. against the sanctioned allotment of 800 sq.mtrs. that was to be handed over to the petitioner i.e. 1200 sq.mtrs. more than the allotted land area. In these circumstances, the handing over of the site was postponed and the matter was referred to the Area (PLG) Cell for the sub-division of the plot and in furtherance of this the case of the petitioner was referred to the Planning Wing. Thereafter, as per report of the Director (A-II) dated 22.9.2003 the matter has been re-submitted to the Screening committee. Thereafter, as per report of AC (Plag.II) the sub-division plan after the approvals and relevant sanctions will be sent separately. The petitioner can be given the said plot only thereafter. It is pertinent to note at this stage that the plot that had been allotted to the petitioner was measuring 800 sq.mtrs. only. Even allotment letter dated 11.10.2002 clearly mentions that the land which has been allotted to the petitioner is measuring 800 sq.mtrs. In these circumstances, the plot could not be handed over to the petitioner. It is once again made clear that the case of the petitioner is already lying pending with the Planning Wing whose report is awited and as soon as this report is received from the Planning Wind and the land is sub-divided the possession will be handed over to the petitioner. It is pertinent to mention at this stage that the petitioner was explained the reasons for delay in delay in physical handing over of the plot. It is once again reiterated that the possession will be handed over to the petitioner as soon as the sub-division of the sites takes place and that the case of the petitioner is under active consideration with the Planning Wing of the DDA.”
31. Enough time has been gone by. DDA has to formalise the matter. Mandamus is issued to DDA to complete its in-house procedures within 6 weeks from today and hand over possession of the allotted plot to Value Education Society. Prayer for interest made by this Society is declined.
32. WP(C) No. 4215/03 filed by P.D. Memorial Educational and Medical Society is allowed as prayed for. U.P. Samaj Co-op. House Building Society and Deepali Residents Welfare Association, their members, servants and agents are prohibited from causing obstructions in the ownership and possession of P.D. Memorial Educational and Medical Society on the plot in question. S.H.O., P.S. Sultanpuri is directed to provide protection for the said society to enable it to construct upon the plot. Needless to state that present direction is not to be construed in derogation of the right of Government of NCT of Delhi to act as per law pursuant to show cause notice dated 31.12.2003 to P.D. Memorial Educational and Medical Society.