HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.17753 of 2001 Date of Decision: January 30th, 2009 DLF Qutub Enclave Residents Welfare Association …Petitioner Versus State of Haryana and others …Respondents --- CORAM: HON’BLE MR. JUSTICE T.S. THAKUR, CHIEF JUSTICE HON’BLE MR. JUSTICE JASBIR SINGH --- 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? --- Present:- Ms. Manisha Gandhi, Advocate for the petitioners Mr. Rameshwar Malik, Addl. A.G. Haryana for respondents No.1 and 2 Mr. A.K.Chopra, Sr. Advocate with Mr. Aashish Chopra, and Ms. Rupa Pathania,Advocates for respondents No. 3 and 4 Mr. Anupam Bansal, Advocate for respondent No. 5 Mr. Giridhar Govind & Ms. Noorun Nahar Firdausi, Advocates for respondent No. 6 **** Civil Writ Petition No.17753 of 2001 T.S.Thakur,CJ. This petition has been filed in Public Interest. It prays for a mandamus directing the respondents to discharge their statutory obligations under Haryana Development and Regulation of Urban Areas Act, 1975, and rules framed thereunder for removal of unauthorized structures that have come up on sites earmarked for parks in the originally approved lay out plan of the DLF Qutub Enclave Residential colony. It also prays for a mandamus restraining the respondents from converting the sites earmarked as parks into commercial ventures/project and from misusing the same and also restraining the respondents from using and converting the sites reserved for Parks into commercial ventures. A mandamus restraining the respondents from converting the public utility sites into commercial sites without making any alternative provision in the same and without providing public utility services has also been prayed for. The petitioners have in addition also sought a mandamus restraining the respondents from converting the Club shown in the sanctioned lay out plan into a five star Hotel or into any other commercial venture. A declaration to the effect that the said club is the common property of the residents of the area has also been prayed for among other similar reliefs. Petitioner No.1 is a Residents Welfare Association constituted with the object of safeguarding and protecting the interest of the residents of what is known as DLF Qutub Enclave Colony. The remaining petitioners happen to be the residents of DLF Qutub Enclave Colony who have jointly with the association filed the present writ petition. The Grievance of the petitioners primarily is that although respondents No.1 and 2 have obtained licence under the provisions of Haryana Development and Regulation of Urban Areas Act, 1975 which oblige them to strictly adhere to the terms of the said licenses, the colonizer company has in complete violation of the terms of the licence and the sanctioned lay out plan changed the land use and converted parks to various other uses to the prejudice of the petitioners and other residents of the area. The petitioners allege that respondent No.3 has started utilizing the spaces earmarked for Parks into residential plots/private 2 Civil Writ Petition No.17753 of 2001 schools in order to make more profit no matter to the detriment of the general public. The petitioners have in para 15 of the petition mentioned a large number of violations allegedly committed by the colonizing company. It has alleged that few of the sanctioned plans have been changed/revised contrary to the statute and the law laid down by the Supreme Court in collusion with and connivance with respondents No.1 and 2 who are statutory authorities bound by law to take action against any misuse or contravention of the statutory provision. It is also alleged that the residents of the colony or the association, who are affected by the said changes should have been given an opportunity of being heard before the competent authority could alter the land use as originally sanctioned. Innumerable representations are alleged to have been made by the petitioners to the respondent authority pointing out the illegalities in the conversion and misuse of the sites but no action in regard to any such representation was initiated by the latter. This has according to the petitioners left no option for them except to knock at the door of this Court to seek redress in general public interest. Respondents 1 and 2 have filed a reply on an affidavit sworn by Manjit Kaur, District Town Planner, Department of Town and Country Planning, Haryana in which it is inter alia stated that according to the policy of the Government a minimum area of 100 acres is required for establishing a plotted area colony. It is further stated that in the lay out plan of the licenced area at least 45% must be reserved for roads, open spaces, schools, public & community buildings and other common use. The affidavit goes on to state that composite norms for community facilities were finalized only in the year 1988 and the colonizers asked to provide the said facilities in their respective colonies as per the said norms. This called for major changes in the plans. It is further stated that whenever a colonizer acquired additional land and approached the authority for grant of a license, for the same land, he was allowed to make changes in the existing colony as such changes were according to the affidavit, necessary in order to integrate the planning of additional area with the adjoining licensed area. Revised lay out plans submitted by the 3 Civil Writ Petition No.17753 of 2001 colonizers were then approved by the competent authority ensuring that the provisions for various community buildings etc. are made as per norms. It is, according to the respondents, the responsibility of the colonizer to maintain open spaces, Public parks and Public Health Services for a period of 5 years. The affidavit also deals with the individual violations alleged in para 15 of the writ petition in an attempt to explain that there has been no inaction on the part of the competent authority as alleged by the petitioners. In the counter affidavit filed on behalf of DLF House & Construction, It is stated that the colonizer has strictly adhered to the statutory requirements of the Act or the rules and reserved the requisite percentage of the area for roads or space, schools, Public and Community Buildings and other common uses. The respondent alleged that they have not infringed any contractual or legal right of the petitioners to call for the intervention of this Court. It is also alleged that respondent No.3 Company does not intend to change the Club into a Five Star Hotel as alleged. We have heard the learned counsel for the parties at considerable length and perused the record. Several contentions were urged in the course of arguments by Ms.Manisha Gandhi, learned counsel appearing for the petitioner-Association. The burden of submissions made by the learned counsel was the alleged failure of the Statutory Authorities to effectively enforce the provisions of the Act and prevent violations of the sanctioned plans inter alia by cancelling the licenses wherever such violations were found to have been committed. One of the major thrust area of the submissions made on behalf of the petitioner-Association was that while in the sanctioned plans, certain areas were shown to be reserved for community facilities, parks and green patches, with the development of the colonies and consequent rise in the prices of the land in the developed area, the colonizers had shifted the green patches and community facilities to another location, in the process depriving the owners of the residential plots in the vicinity of such areas of the benefit accruing from the same. It was argued by Ms.Gandhi that the purchasers of a residential plot would have had several 4 Civil Writ Petition No.17753 of 2001 considerations in mind while buying such plots including whether the plot is near or opposite a park and whether any community facility is available in the neighbourhood. There were, according to her, cases where people have paid higher prices for the plots having those advantages in the very same locality in comparison to those, which do not have such advantages. On account of an irrational, wholly unregulated and arbitrary revision of the plans motivated more by greed on the part of the colonizers then by any legitimate compulsion, such reserved areas are put to commercial use by the colonizers by selling or leasing the same to third parties. The result is that what may be an ideal location for a residential house on the date of purchase of a plot of land, according to the sanctioned plan, may cease to be so sometime later on account of the revision brought about by the statutory authorities without taking the relevant factors into consideration and contrary to the norms. The fact that such revisions have been made repeatedly and remained unabated is the only compelling circumstances, according to the petitioner, calling for intervention of the Court to put an end to the situation, which is looming large over urban planning and development in prime areas in the vicinity of the National Capital Region. On behalf of the respondents, it was argued that revisions of the sanctioned plan were essential on account of extension of the licensed areas and with a view to ensuring an integrated development of the larger area which the colonizers had acquired during the continuance of the earlier process of development. It was also contended that till the year 1988, there were no composite norms for community facilities with the result that such facilities were provided by the colonizers on general and adhoc principles. In the year 1988, however, composite norms were finalized and the colonizers asked to provide such facilities in their colonies as per the said norms. Consequent upon the introduction of the composite norms for community facilities, the colonizers had to make major changes in their colonies. Certain town level facilities like Police Post, Fire Station etc. which were earlier provided in the colony were deleted and the neighbourhood level facilities were introduced. Similarly area required for various community facilities already 5 Civil Writ Petition No.17753 of 2001 existing in the colony was also standardized as per the approved composite norms. It was further argued that when ever a colonizer acquired additional land and approached the Director, Town and Country Planning, for the grant of license for additional land, he was allowed to make changes in the existing colony for which he had already obtained a license. This change was allowed with a view to integrating the planning of additional area with the adjoining licensed area. These changes, according to the learned counsel for the respondents, necessitated some changes even in other parts of the licensed areas. All these changes were reflected in the revised plans which is then submitted by the colonizer and which in turn are approved by the competent authority while ensuring that the provisions of various community buildings, plots, commercial areas etc. are maintained as per norms. It was also contended that the colonizers are required to furnish an undertaking to the effect that due to revision of plan, the rights of the plot holders, who have purchased the plots are not infringed. Changes in the location of the green areas and community centres were, therefore, not motivated by any consideration other then an integrated development of the larger area available with the colonizer. The need for a critical evaluation of the contentions urged before us by the learned counsel for the parties is in our opinion obviated. We say so because when the matter came up before us for conclusion of the arguments on 9.12.2008, Mr.Rameshwar Malik, Additional Advocate General, Haryana appearing for the State, on the instructions of the Director, Town and Country Planning, Haryana stated that the Director was ready to furnish an undertaking in writing to the effect that whatever green areas are shown in the sanctioned plans of Phases I to IV of the D.L.F, Gurgaon, the same shall not be converted to any other use except where the State of Haryana or any statutory authority like National Highway Authority may decide to utilize the earmarked green belt and spaces along the road for widening of such roads. The Director also offered to file an undertaking that he shall consider the feasibility of restoring any green area reserved in the sanctioned plans but altered to some other use. He also agreed to examine the 6 Civil Writ Petition No.17753 of 2001 complaints by the petitioners or from any other citizen regarding violations of the sanctioned plans for Phases I to IV, D.L.F. Gurgaon and take such action for removal of the same, as was permissible under law. Ms.Gandhi was agreeable to the offer made by Mr.Malik and submitted that the petition could be disposed of on the basis of the undertaking to be filed by the Director leaving other questions raised in the writ petition open. Ms.Gandhi was even agreeable to the vacation of the interim order granted by this Court against respondent No.6 provided the said respondent agreed to limit the intake capacity of the School to 183 students and undertake not to allow any part of the park adjacent to the school building being used for parking of vehicles. Based on these submissions made at the bar, we had passed the following order on 9.12.2008: “We have heard learned counsel for the parties at considerable length and perused the record. Mr. Malik, learned Addl. Advocate General, Haryana submits on instructions of the Director, Town & Country Planning, Haryana that to allay the apprehensions of the petitioners, that green areas may be converted to commercial or other uses and the violations of the sanctioned plan, may go unabated and unchecked, the Director is ready to furnish an undertaking in writing to the following effect:- i) That whatever green areas are shown in the sanctioned plans of Phases I, II, III and IV of the D.L.F. Gurgaon, the same shall not be converted to any other use by the Director except where any statutory authority like National Highway Authority may decide to utilize and earmark the green belt and spaces along the road for widening of such roads. 7 Civil Writ Petition No.17753 of 2001 ii) That in cases where the site originally was reserved to be a green area but was converted to another use by revision of the plan, the Director would consider the feasibility of restoring the area as a green area subject to the condition that no third party interest in respect of that area has been created by the developer. iii) That the Director would entertain the complaints whether from the petitioners or from any other citizen regarding the violations of the sanctioned plans for Phases I to IV, D.L.F. Gurgaon and take appropriate action for removal of such violations, if the same are proved to have taken place after proper verification and enquiry on the spot. iv) Subject to the above, the plans, as sanctioned on date, shall remain frozen for the land use determined under the same and that no inter-se changes qua the Community sites shall be permitted.” Learned counsel for the petitioners submits that in case an undertaking to the above effect is furnished by the Director, and in case, the issues relating to the violations of the sanctioned plans, including those relating to misuse of the Community Centres, spaces for establishment of Community Centres, is examined by the competent authority, the other questions raised in the writ petition and touching the alleged violations of such plans could be left open, including the objection in relation to use of a part of the park identified in Phase-II where respondent No. 6 has already started construction of a school building. She submits that 8 Civil Writ Petition No.17753 of 2001 respondent No.6 should also be asked to furnish an undertaking to this Court to the effect that :- “i) the intake capacity of the School shall not exceed 183 students of all the classes including Nursery and K.G. permissible under the National Building Code, 2005. ii) respondent No.6 shall not allow any part of the park adjacent to the school building being used for parking of vehicles and that as far as possible the children admitted to the school shall alight and board the buses at the main arterial inter section at some distance from the school. Private cars and smaller vehicles like Vans carrying school children, can, however, be allowed to access the school right upto its gate subject to the condition that such vehicles are brought to the area only for picking or dropping the children. Mr. Giridhar Gobind, learned counsel appearing for respondent No. 6 is ready to file an undertaking on the above lines. The requisite undertakings shall be filed by the Director and respondent No.6 within one week from today. Subject to the above, the interim order passed by this Court on 26.08.2008 restraining further construction shall stand vacated. “ Shri S.S.Dhillon, Director, Town and Country Planning, Haryana, respondent No.2 in the writ petition, has pursuant to the above filed an undertaking on affidavit, which reads as under:- “Affidavti of S.S.Dhillon, Director, Town & Country Planning, Haryana, Chandigarh, Respondent No.2. 9 Civil Writ Petition No.17753 of 2001 Respectfully Showeth: I the above named deponent do solemnly affirm and declare as under:- 1 That the above noted case was last listed before the Hon’ble High Court on 9.12.2008. The copy of interim dated 9.12.2008 orders of the Hon’ble High Court have not been received by the deponent, However, the deponent is well versed will the facts and circumstances of the case. 2 That the green areas as approved as on date in the layout plans of DLF Phase-I to IV shall not be converted into any other use and shall be retained as such. Further the green belts planned along the National Highway or any other road shall not be put to any other use except for the purposes of the widening of the roads by a statutory authority like National Highway Authority of India, Public Works Department (Building and Roads), Haryana etc. 3 That the land use pertaining to community sites as depicted in layout plans as approved till date of DLF Phase-I to IV shall be frozen and no inter-se change shall be permitted vis a vis the community sites so provided. 4 That the parks alleged to have been converted into community sites but not constructed at site where no liabilities have been created in the form of third or fourth party rights, the case for restoration of the same to parks will be considered on merits. 5 That the Director, Town and Country Planning, Haryana, Chandigarh shall entertain complaints from the petitioners regarding violation of the sanctioned layout plan of DLF Phase-I to IV by the colonizer and take appropriate action after verification of the facts and pass speaking orders in respect of the representations, so received. 10 Civil Writ Petition No.17753 of 2001 Mr.Som Bakshi, respondent No.6 has similarly filed an undertaking in terms of the order extracted above, which may be read as under:- I, Som Bakshi son of late Sh. C.B. Bakshi, currently residing at L- 5/6, ground Floor DLF Phase-2, Gurgaon (Haryana ) do hereby solemnly affirm and declare as under:- 1 That I am respondent No.6 in the aforesaid writ petition, conversant with the facts of the case and competent to depose herein. 2 That as per order dated 9.12.2008 passed by this Hon’ble Court, I am furnishing my affidavit/undertaking. 3 that I undertakes to restrict total number of enrollments in the nursery school to 183. 4 That I say that private vehicles like cars, small vans being used by the public to drop the children to school gate will not be allowed to park except for dropping and picking up the children. 5 That no vehicle shall be allowed to park the vehicle inside the park. 6 That if the large full capacity buses need to be put into service, they would be made to halt outside the area, way from park and the school, on the main arterial road. The undertakings filed by the Director, Town and Country Planning, respondent No.2 and Sh.Som Bakshi, respondent No.6 are in terms of the order dated 9.12.2008 extracted above. We, therefore, see no reason why these undertakings cannot be accepted and the petition disposed of especially when the respondent-DLF has also no objection to the disposal of the matter on the terms set out in the undertakings. In the result, we accept the undertakings given by the Director, Town and Country Planning and Shri Som 11 Civil Writ Petition No.17753 of 2001 Bakshi and dispose of the writ petition in terms thereof. To make the matter clear, we direct as under:- i) that whatever green areas are shown in the sanctioned plans of Phases I, II, III and IV of the D.L.F. Gurgaon, the same shall not be converted to any other use by the Director except where any statutory authority like National Highway Authority may decide to utilize and earmark the green belt and spaces along the road for widening of such roads. ii) that in cases where the site was originally reserved to be a green area but was converted to another use by revision of the plan, the Director would consider the feasibility of restoring the area as a green area subject to the condition that no third party interest in respect of that area has been created by the developer. iii) That the Director would entertain the complaints whether from the petitioners or from any other citizen regarding the violations of the sanctioned plans for Phases I to IV, D.L.F. Gurgaon and take appropriate action for removal of such violations, if the same are proved to have taken place after proper verification and enquiry on the spot. iv) Subject to the above, the plans, as sanctioned on date, shall remain frozen for the land use determined under the same and no inter-se changes qua the Community sites shall be permitted. 12 Civil Writ Petition No.17753 of 2001 v) the intake capacity of the School shall not exceed 183 students of all the classes including Nursery and K.G. permissible under the National Building Code, 2005. vi) respondent No.6 shall not allow any part of the park adjacent to the school building being used for parking of vehicles and that as far as possible the children admitted to the school shall alight from and board the buses at the main arterial inter section at some distance from the school. Private cars and smaller vehicles like Vans carrying school children, can, however, be allowed to access the school right upto its gate subject to the condition that such vehicles are brought to the area only for picking or dropping the children. All other questions raised in the writ petition and the counter affidavit filed to the same are left open, which the petitioners-Association may raise at an appropriate time in appropriate proceedings, should the need to do so arise. The parties are left to bear their own costs. ( T.S.THAKUR ) CHIEF JUSTICE January 30th,2009 ( JASBIR SINGH ) `Kalra’ JUDGE 13