* IN THE HIGH COURT OF DELHI AT NEW DELHI +(1) W.P.(C) 19882-83/2005 J.R.DESARI & ANR ..... Petitioners Through Mr. Ravi Gupta, Advocate. Versus MAHARANI BAGH COOP.SOCIETY & O ..... Respondents Through Mr. Rahul Ravindran, Advocate for Respondent No. 1. Mr. Sumit Bansal, Advocate for Maharani Bagh Resients Welfare Association. Mr. Anoop Bagai, Advocate for MCD. Mr. Rajiv Bansal, Advocate for DDA. +(2) W.P.(C) 23885-86/2005 J.R.DESAI & ANR. ..... Petitioners Through Mr. Ravi Gupta, Advocate. versus D.D.A.& ORS. ..... Respondents Through Mr. Ajay Verma, Advocate for DDA. Mr. Anoop Bagai, Advocate for MCD. Through Mr. Rahul Ravindran, Advocate for Respondent No. 3. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R % 01.05.2008 1. Mr. J.R. Desai has filed these two writ petitions against Maharani Bagh Cooperative Society, Delhi Development Authority and Municipal Corporation of Delhi challenging and questioning allotment of plot and sanction of building plans of plot bearing No. 1, Central Avenue, Maharani Bagh, New Delhi measuring 961.5 square meters to the said society for construction of a “community hall”. In Writ Petition (Civil) No. 19882- 83/2005, Maharani Bagh Residents’ Welfare Association and two other residents of Maharani Bagh have also been impleaded as parties. The petitioner himself is resident of 2, Central Avenue, Maharani Bagh, New Delhi and shares a common boundary wall with plot No. 1, Central Avenue, Maharani Bagh. 2. Learned counsel for the petitioner has raised following objections to allotment of the said plot to the society and sanction of building plans, which has been permitted and allowed by the Municipal Corporation of Delhi :- (i) Allotment of plot vide lease deed dated 4th July, 2001 for the purpose of community hall is contrary to Master Plan of Delhi, 2001. It does not meet the parameters with regard to plot size, requirements etc. specified under the said Master Plan under the heading “Socio Cultural Facilities”. (ii) Sanction granted by MCD is contrary to Master Plan of Delhi, 2001 as it permits construction of rooms, violates FAR and the area specified for car parking is deficient. (iii) The plot in question should have been allotted to respondent- Residents’ Welfare Association. 3. The Maharani Bagh House Building Cooperative Society(Cooperative Society, for short) was originally allotted a large area of undeveloped land on licence basis. The land allotted to the Cooperative Society was developed and layout plan was submitted to Municipal Corporation of Delhi for their approval. In 1966, the lay out plan of the colony was approved by Municipal Corporation of Delhi. Copy of the said layout plan has been filed in this Court. As per the layout plan, plot No. B-II is earmarked for being used as office-cum-club. The size of the plot, which has been now re-numbered as 1, Central Avenue, Maharani Bagh is mentioned in the layout plan as 1150 square yards. After land was developed, a lease deed was executed in favour of the co-operative society and plots were allotted to its members. Rights in plot meant for club-office were retained by DDA and transferred to the co-operative society vide Lease Deed dated 4th July, 2001. In Writ Petition (Civil) No. 19882-83/2005, for the petitioner admits that the plot in question can be used as a “community hall”. 4. It is not the contention of the petitioner and it has not been alleged in the writ petitions that the layout plan sanctioned in the year 1966 is contrary to law or contrary to Master Plan of Delhi, 1962. Therefore, the Court proceeds on the basis that the layout plan as sanctioned complied with and met the statutory requirements of Master Plan of Delhi, 1962. The contention and allegation of the petitioner is that the lease for “Community Hall” was executed on 4th July, 2001 and, therefore, it should satisfy requirements of Master Plan of Delhi, 2001. The said contention of the petitioner cannot be accepted in view of Clause 3(4) of the Development Code of the Master Plan of Delhi, 2001. A similar Clause also exists in the new Master Plan of Delhi, 2021. Clause 3 of the Development Code of the Master Plan of Delhi, 2001 is as under:- “CLAUSE 3.0 ESTABLISHMENT OF USE ZONE AND USE PREMISES 3(1) The Union Territory of Delhi is divided into 37 use zones as mentioned in Clause 4.0 3(2) Each use zone shall be further sub-divided into required number of Use Premises out of 136 use premises described in Schedule-I with or without conditions. 3(3) Each use premises shall be permitted to have specific uses/use activities out of the prescribed 136 uses/use activities with or without conditions. 3(4) The lay out plans already approved by the Authority of any other local authority concerned in accordance with law shall be deemed to have been approved under this Code. 3(5) An area in respect of which there is no approved layout plan shall be governed by the provisions of the master plan/zonal development plan.” 5. The aforesaid Clause stipulates that Delhi has been divided into 37 use zones and each use zone has been divided into 136 use premises described in Schedule I, which may be with or without conditions. Each premises in the use zone is permitted to have specific uses or activities out of the prescribed 136 uses/use activities. Sub- Cluase 4 which is important states that layout plans already approved by the Authority or any other local authority in accordance with law shall be deemed to have been approved under this Code. The effect thereof is that a layout plan approved by Municipal Corporation of Delhi in 1966 earmarking plot No. B-II, now numbered as 1, Central Avenue, Maharani Bagh and earmarked for use as office-cum-club shall be deemed to have been approved under the Development Code of Master Plan of Delhi, 2001. The layout plan approved in 1966 is, therefore, deemed to be fully compliant and approved under the Development Code of the Master Plan of Delhi, 2001. By deeming friction the layout plan already approved is treated and regarded as satisfying all conditions mentioned in the Development Code itself. Thus, by artificial friction the layout plan passed in 1966 earmarking the plot in question as office-cum-club is treated as fully in accord with the Development Code of the Master Plan of Delhi, 2001. The Master Plan of Delhi, 2001, therefore, need not be examined to find out whether the plot size etc. meets the prescribed parameters mentioned in the said plan. They are deemed to be satisfied. In these circumstances, it is not possible to accept the plea of the petitioner that no allotment of plot No. 1, Central Avenue, Maharani Bagh could have been made to the Cooperative Society without ensuring that the Development Code and the parameters prescribed in the Master Plan of Delhi, 2001 for community hall/club are satisfied. In the present case, the lay out plan which was sanctioned in 1966 will have over riding effect in view of Clause 3(4) of the Development Code of the Master Plan of Delhi, 2001. 6. It may be mentioned that lease deed dated 4th July, 2001 specifically stipulates that the plot in question will be used for community hall. Learned counsel appearing for the Cooperative Society during the course of hearing had stated and given an undertaking that the plot in question will be used for activities permitted and allowed in a building/plot meant for a community hall. The respondent Cooperative Society will file an undertaking in this Court within a period of one month from today stating that they shall abide by the Master Plan of Delhi prescribing use, restrictions and conditions for use of the plot/building as per activities permitted in a community hall and the said plot/building will not be used for any other purpose. In case there is violation of the said undertaking, the petitioner will be at liberty to approach this Court and DDA. The respondent-DDA will be also entitled to initiate proceedings as per law under Section 14 read with 29 of the DDA Act, 1957. 7. The contention of the learned counsel for the petitioner that there is violation of the FAR and, therefore, building plans should not have been sanctioned by MCD, is controverted and denied by the MCD in the reply filed by them. It is pointed out by MCD that as per building bye laws, which were applicable when the plan was sanctioned, 35% ground coverage and 100 FAR were allowed. It is stated that as per sanction plan, the ground coverage is 33.815% and FAR allowed is 97.18, which is within the prescribed limits. It is further stated that with regard to the parking area, provision was made as provided in Master Plan of Delhi, 2001. The counter affidavit states that parking area has been calculated @ 1.33 car space per 100 square meters of the total built up area, which works out to 12.79 equivalent car space. The counter affidavit also states that in the parking plan, space for 20 equivalent car space has been specified and indicated. The respondent-MCD was asked to produce before this Court the plan submitted by the Cooperative Society making provision for 20 equivalent car spaces. The relevant plan has been shown to me in the Court today. The plan shows that the petitioner society has indicated and marked equivalent car parking space for 20 cars. Learned counsel for the petitioner on examination of the plan has submitted that the plan does not take into account free movement space for the cars. This aspect is not for the Court to examine but for the MCD. Learned counsel also submitted that the plan shown in the Court today does not bear the requisite stamp or sanction certificate. I am not inclined to go into these aspects as the plan shown to me in the Court today is by MCD itself and the requisite sanction/stamp is available on the relevant plans for the ground floor and other floors including elevation drawings. The Master Plan requires provision for car parking space and no construction should be allowed in the area marked for car parking. Reference in this regard can be made to the decision of the Supreme Court in the case of Greater Kailash Part-II Welfare Association & Ors. versus DLF Universal Ltd. & Ors., .reported in AIR 2007 SC 1938, wherein it has been observed as under:- “52. The owner of a plot of land is entitled to use and utilize the same for any lawful purpose and to erect any construction thereupon in accordance with the existing Rules. So long as such owner does not contravene any of the provisions which restrict his use of the plot in any manner, he cannot be prevented from utilizing the same in accordance with law. In this case, the respondent No. 1 which is the owner of the plot in question cannot be denied the use of the plot on account of the apprehension of the appellants, particularly when he has already raised the structure in accordance with the sanctioned plan. It is not the case of the appellants that the respondent No. 1 has in any manner deviated from the building plan as sanctioned. The grievance of the appellants is confined to the possible problem that may arise from the use of the building as a Cinema-Hall-cum-Commercial Complex. Once the authorities who are competent to do so have indicated that the apprehension was unfounded, it is not for the Writ Court to interfere with such decision.” 8. However, at the same time the petitioner will have a genuine concern and cause if cars are parked in a haphazard manner in the area around the house of the petitioner so as to cause him inconvenience and harassment. This aspect is to be looked into by the traffic police and it will be also the duty of the respondent Cooperative Society to ensure that cars are not parked on the main road or the street outside the house of the petitioner and others so as to cause inconvenience and problem to residents. In case any disturbance or inconvenience is caused to the petitioner, he will be always at liberty to approach Court or authorities concerned for appropriate action. However, there cannot be any presumption that the petitioner will be harassed. 9. The last objection raised by the petitioner is in respect of allotment of the plot to the Cooperative Society instead of Residents Welfare Association. No statutory rule or provision has been pointed out by the counsel for the petitioner for the said claim. Learned counsel for the petitioner, however, relies upon circular dated 26th August, 1999 issued by DDA. The said circular has been examined by me. The circular refers to two different categories of clubs, one which are run by Residents Welfare Associations without any facility of bar and card room and clubs which are run on commercial basis. The circular stipulates that DDA while approving the proposal for allotment of land to clubs run by Residents Welfare Associations shall ensure compliance with certain requirements and the club shall not have a bar room, card room and a restaurant. As already stated above, directions have been issued and an undertaking shall be given that the respondent society will not use the plot/building in question contrary to the provisions of Master Plan and property will be used for the activities permitted in a community hall. The circular dated 26th August, 1999 does not stipulate that plots for club/community hall cannot be allotted to a cooperative society but allotments can be only made to Residents Welfare Association. I may note that the Residents Welfare Association has not filed any writ petition and questioned the allotment made in favour of the Cooperative Society. Moreover, the allotment was made in the year, 2001 and the Writ Petitions in question have been filed in the year, 2005. It was for the DDA to decide whether allotment should be made in favour of the Cooperative Society or the Residents Welfare Association. DDA has made allotment in favour of the Cooperative Society. The Residents Welfare Association never challenged and questioned the said allotment. I do not think the petitioner is entitled to file a proxy litigation on behalf of the Residents Welfare Association and challenge the allotment. 10. As directed above, the respondent Cooperative Society will file the undertaking within a period of 30 days from today. On the undertaking being filed, the respondent Cooperative Society will be permitted to use the plot/building for the community hall purposes and uses as specified in the Master Plan of Delhi and as per circulars and guidelines issued by DDA in this regard. With the aforesaid directions and observations, the writ petitions are disposed of. SANJIV KHANNA, J. MAY 01, 2008 VKR/vld