DR. G.N. KHAJURIA AND ORS.versusDELHI DEVELOPMENT AUTHORITY AND ORS.

A                        DR. G.N. KHAJURIA AND ORS.
                                          v.
              DELHI DEVELOPMENT AUTHORITY AND ORS.

                                 AUGUST 31, 1995

B                [K. RAMASWAMY AND B.L. HANSARIA, JJ.]

           Delhi Development Act, 1957: Sections 7 and 8.

           Delhi Development (Master Plan and Zonal Development Plan) Rules,
 C   1959 - Rule 4.

             Zonal Development Plan-Residential Colony-Lay out plan
     f01----Need to indicate space rese1ved for Nurse1y School and Park.

            Land rese1Ved for Park-Allotment of pmt of land for Nursery 1
D    School--Held not pennissible and hence misuse of power by Auth01ity-Can-
     cellation of allotment--Direction for enquily against delinquent officers.

            A petition filed by the appellants, residents of Sarita Vihar, alleging
     that the Delhi Development Authority, Respondent- 1 allowed Respondent
     No. 2 to open a Nursery School on land which was part of park of the
E    locality, was dismissed by the High Court. In appeal to this Court on the
     point whether the school in question was in possession of the land in
     violation of the statutory provisions contained in Delhi Development Act,
     1957, it was contended for the appellant-residents that (i) as the land
     allotted to respondent No. 2 was kept reserved for park it could not have
 F   been allowed to be used for opening the school; (ii) in view of sections 7
     and 8 of the 1957 Act read with rule 4 of the Delhi Development (Master
     Plan and Zonal Development Plan) Rules, 1959 the Development Authority
     was under an obligation to specify in the Zonal Development Plan, loca-
     tions and extent of land uses, inter-alia, for parks and schools.
,G          On behalf of the Development Authority and the school it was
     contended that (i) there was no park at the site of the school; (ii) nursery
     schools are not required to be indicated either in the master plan or the
     zonal development plan as they are not tak.en to be schools stlicto sensu:
     and (iii) uprnoting the school at this stage would cause not only financial
 H   loss to the respondent but also would hamper the educational progress of
                                          212


                                                                                      ,.
                         G.N. KHAJURIA v. D.D.A.                        213

the students as well.                                                          A

        Allowing the appeal, this Court

       HELD : 1. In the zonal development plan visualised by section 8 of
the Delhi Development Act, 1957, land used for nursery school may not be
indicated, as a distinction is permissible to be made between a high school    B
and a primary school on one hand and nursery school on the other. Even
so it is necessary that any lay-out for residential colony should indicate
space reserved not only for nursery school but also for park. This follows
from what has been stated in Sections 8(2)(a) and S(d) (ii) of the Act and
Rule 4(3) (g) of the Delhi Development (Master Plan and Zonal Develop-         C
ment Plan) Rules, 1959. [215-H; 216-A-B]

       2. Record of the case leaves no doubt that at the site at which the
school was allowed to be opened there was a park. Therefore, it was not
open to the Delhi Development Authority to carve out any space meant for
parts for a nursery school. Consequently, allotment in favour of respondent    D
No. 2 was misuse of power by the Authority. Accordingly, it is a fit case
where the allotment made should be cancelled. The fact that some structure
had been put up on the site is not relevant as the same has been done on a
plot of land allotted in contravention of law. The submission that disloca-
tion from the present site would cause difficulty to the tiny tots, has been
advanced only to get sympathy from the Court inasmuch as children, for         E
whom the nursery school is meant, would travel to any other nearby place
where such a school would be set up. However, it would be open to the
respondent to continue to run the school at this site for a period of six
months to enable it to make alternative arrangements to shift the school,
so that the children are uot put to any disadvantageous position suddenly.     F
[216-G; ff; 217-A-D]

       3. Respondent-Authority is directed 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. There-
after, further orders would be passed. [218-A]                                 G
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7933 of
1995.

      From the Judgment and Order dated 8.3.94 of the Delhi High Court
in C.W.P. No. 3812 of 1992.                                                    H
    214                     SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.

A            P.P. Rao, Sanjay Bansal, G.K. Bansal and Ajay Jain for the Appel-
    lants.

          Arun Jaitley, Ms. Dania Pradhan, Ms. Indu Malhotra, Navin Chawla
    and .T.D. Jain for the Respondents.

B            The .Judgment of the Court was delivered by

          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
c   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
D 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
E   .Taitley, is that the the appellants have either mis-conceived the statutory
    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 DOA.
    The counsel for respondent No. 2 butresses this submission by contending
    that a school having been allowed to be opened and this respondent having
F   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 Section 7 and 8 of the Act, which find place in
G 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 divided for the purposes of development. Section 8 enjoins that a
    zonal development plan may contain a site-plan and use-land for the
H   development of the zone and show the approximate locations and extents
                    G.N. KHAJURIA v. D.D.A. [HANSARIA, J.]                    215

    of land-uses proposed in the zone, inter alia, for such public works and         A
    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 men-
                                                                                     B
    tioned 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" indicat-
    ing proposals for parks, open spaces, recreational, educational and cultural
    centres.                                                                         c
           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 the parks and schools. According to Shri Rao, the land which D
    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 E
    required to show in broad outlines "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 F
    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 layout 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 G
    allowed to be established.

          6. We would agree with Shri J aitley 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 H
    216                   SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A   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) and 8(d) (ii) of the Act and Rule 4(3) (g) of the aforesaid Rules. Wf'.
    have thought it fit to mention ab?ut this aspect because in the lay-out plan
B   on 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
C   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 order on a repre-
    sentation made by some residents of Sarita Vihar, Pocket 'A', complaining
                                                                                     -
D   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 institu-
    tion 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
E   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
    800sq. meters 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
F   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
G   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
H   to carve out any space meant for park of a nursery school. We are of the
                G.N. KHATURIA v. D.D.A [HANSARIA, J.)                   217

considered view that the allotment in favour of respondent No. 2 was A
misuse of power, for reasons which need not be adverted. It is, therefore,
a fit case, ~ccording 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 some structure stated to be permanent by his counsel is
not relevant, as the same has been done of a plot of land allotted to it in
                                                                             B
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 either by respondent
No. 2 or by any other body.                                                    c
      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 arrangements as it thinks fit D
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 E
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 reason_s. 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 p
blamed than the recipient of the illegal benefit. It is thus imperative,
according to us, that while undoing the mischief which would require the
demolition of the unauthorised construction, the delinquent officer has also
to he punished in accordance with law. This, however, seldom happens.
Secondly, to take care of the injustice completely, the officer who had
misus~~ his power has also to be properly punished. Otherwise, what G
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       H
    218                  SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A and inform the Court within three months as to who are the officers who
    had made the unauthorised allotment and permitted unauthorised con-
    struction. On knowing about this, such further order would be passed as
    deemed fit and proper.

B         12. Put up after three months.

    T.N.A.                                                 Appeal allowed.