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Allotting Park Reserved in Residential Area to Nursery School is Illegal 1995 Sc

Allotting Park Reserved in Residential Area to Nursery School is Illegal 1995 Sc

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DR. G.N. KHAJURIA & ORS. Vs. DELHI DEVELOPMENT AUTHORITY & ORS. DATE OF JUDGMENT 31/08/1995 BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) RAMASWAMY, K. CITATION: 1996 AIR 253 1995 SCALE (5)172 SUPREME COURT OF INDIA

DR. G.N. KHAJURIA & ORS. Vs. DELHI DEVELOPMENT AUTHORITY & ORS. DATE OF JUDGMENT 31/08/1995 BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) RAMASWAMY, K. CITATION: 1996 AIR 253 1995 SCALE (5)172 SUPREME COURT OF INDIA

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PETITIONER:DR. G.N. KHAJURIA & ORS.Vs.RESPONDENT:DELHI DEVELOPMENT AUTHORITY & ORS.DATE OF JUDGMENT31/08/1995BENCH:HANSARIA B.L. (J)BENCH:HANSARIA B.L. (J)RAMASWAMY, K.CITATION:1996 AIR 253 1995 SCC (5) 7621995 SCALE (5)172ACT:HEADNOTE:JUDGMENT:JUDGMENTHANSARIA,J.The appellants are some of the residents of SaritaVihar. According to them, respondent No. 1, DelhiDevelopment Authority (DDA), permitted a nursery school tobe opened in Park No.6 of Pocket ‘A’ of Sarita Vihar byrespondent No.2 in complete violation of the provisions ofDelhi Development Act, 1957 (for short ‘the Act’). When theyapproached with this grievance, the High Court of Delhifound no merit and dismissed the writ petition.2. The short and important point which is required to bedetermined is whether the school in question is inpossession of the land in question in violation of thestatutory provisions contained in the Act. According to ShriP.P. Rao, learned Sr. Counsel appearing for the appellants,there is no escape from the conclusion that the school wasallowed to be opened in the park in violation of what hasbeen contained in Sections 7 and 8 of the Act. The stand ofDDA on the other hand, as put forward by Shri Jaitley, isthat the appellants have either mis-conceived the stautoryprovisions or are interested, for one reason or the other,in seeing that the nursery school does not function at theplace allotted to it by the DDA. The counsel for respondentNo.2 butresses this submission by contending that a schoolhaving been allowed to be opened and this respondent havingspent substantial amount of money in raising a permanentstructure at the site, we may not do anything, at thisstage, to uproot the school which would cause not onlyfinancial loss to the respondent but would hamper theeducational progress of the students as well.3. A perusal of Sections 7 and 8 of the Act, which findplace in Chapter III under the heading "Master Plan andZonal Development Plans", shows that the DevelopmentAuthority is under an obligation to prepare a master planwhich shall define the various zones into which Delhi may be
 
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divided for the purposes of development. Section 8 enjoinsthat a zonal development plan may contain a site-plan anduse-land for the development of the zone and show theapproximate locations and extents of land-uses proposed inthe zone, inter alia, for such public works and utilities asschools, public and private spaces. This is what finds placein sub-section (2) of Section 8. Clause (d) of sub-section(2) provides that the zonal development plan to be preparedby the Authority would in particular contain provisions,inter alia, for the allotment or reservation of land foropen spaces, gardens, recreation grounds and schools, asmentioned in sub-clause (ii). Our attention is furtherinvited by Shri Rao to Rule 4 of the Delhi Development(Master Plan and Zonal Development Plan) Rules, 1959, whosesub-rule (3) (g) states that a draft master plan may include"education, recreation and community facilities plan"indicating proposals for parks, open spaces, recreational,educational and cultural centres.4. Relying on the aforesaid provisions, the submissionadvanced for the appellants is that the DevelopmentAuthority was under an obligation to specify in the zonaldevelopment plan, locations and extents of land-uses, interalia, for parks and schools. According to Shri Rao, the landwhich ultimately was allotted to respondent No. 2 foropening a nursery school had originally been kept reservedfor park because of which the land could not have beenallowed to be used for opening the school by any executiveor administrative decision of the DDA.5. Shri Jaitley contends that the zonal development plansare really required to show in broad cutlines "Approximatelocations of High Schools and Primary Schools" as has beenmentioned in what has been described as "Sub-DivisionRegulations" a copy of which is placed at page 196 of thepaper book. It is submitted by Shri Jaitley that nurseryschools are not required to be indicated either in themaster plan or the zonal development plan, as they are nottaken to be schools stricto sensu, but are akin torecreational places, some space for which is required to bereserved in residential colonies in the lay-out meant forthem. The further limb of this submission is that in thelay-out for Pocket ‘A’ of Sarita Vihar, some space was, infact, reserved for nursery schools. Not only this, ShriJaitley would contend that there was no park at all at theplace where the school was allowed to be established.6. We would agree with Shri Jaitley that in the zonaldevelopment plan visualised by Section 8 of the Act, landused for nursery school may not be indicated, as adistinction is permissible to be made between a high schooland a primary school on one hand and nursery school on theother. Even so, we are of the firm view that any lay-out forresidential colony, like that of Sarita Vihar, has toindicate space reserved, not only for nursery school, butfor park. This follows from what has been stated in Sections8(2) (a) and 8(d) (ii) of the Act and Rule 4(3) (g) of theaforesaid Rules. We have thought it fit to mention aboutthis aspect because in the lay-out plan of Sarita Vihar, asput on record, we find no mention about reservation of spacefor park. This is simply inconceivable to us.7. We also do not entertain any doubt that at the site atwhich the school was allowed to be opened, there was a park.This is apparent from the report submitted by Director(Monitoring) to the Vice-Chairman of the DevelopmentAuthority pursuant to his order dated 26.10.1992 which hecame to pass on a reference being made to him by the ChiefSecretary on 23.10.1992. The Chief Secretary had passed the
 
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order on a representation made by some residents of SaritaVihar, Pocket ‘A’, complaining about unauthorisedconstruction in Park No.6. The Director (Monitoring) visitedthe site on 2.11.1992 and found that a part of the parklocated in Pocket ‘A’ had actually been enclosed with aboundary wall by an institution named RattanatryaEducational Research Institute, which body is none else thanrespondent No.2. The report further says that the Institutewas running a nursery school in a few temporary barracksconstructed along with one of the boundary walls. Ondiscussion with some office bearers of the Institute it wasinformed that the land in question measuring 800 sq. metreshad been allotted to the Institute by the DDA in July 1988for the purpose of running a nursery school. The Director(Monitoring) reported that the residents of surroundingareas started making objections when this Institute took upthe construction of a regular school building after gettingthe plan duly sanctioned from the Building Department of theDDA. The report has categorically mentioned that in theoriginal lay-out (which we understood to be of 1984) therewas no provision for a nursery school in the park inquestion. Subsequently, however, some portion of the parkwas carved out for the nursery school. That such a parkexists was sought to be proved by Shri Rao by producingcertain photographs as well, one of which contains a signboard mentioning about "D.D.A. Park".8. We, therefore, hold that the land which was allotted torespondent No.2 was part of a park. We further hold that itwas not open to the DDA to carve out any space meant forpark for a nursery school. We are of the considered viewthat the allotment in favour of respondent No.2 was misuseof power, for reasons which need not be adverted. It is,therefore, a fit case, according to us, where the allotmentin favour of respondent No.2 should be cancelled and weorder accordingly. The fact that respondent No.2. has put upup some structure stated to be permanent by his counsel isnot relevant, as the same has been one on a plot of landallotted to it in contravention of law. As to the submissionthat dislocation from the present site would causedifficulty to the tiny tots, we would observe that the samehas been advanced only to get sympathy from the Courtinasmuch as children, for whom the nursery school is meant,would travel to any other nearby place where such a schoolwould be set up aither by respondent No.2 or by any otherbody.9. The appeal is, therefore, allowed by ordering thecancellation of allotment made in favour of respondent No.2.It would be open to this respondent to continue to run theschool at this site for a period of six months to enable itto make such alternative arrangments as it thinks fit toshift the school, so that the children are not put to anydisadvantageous position suddenly.10. Before parting, we have an observation to make. Thesame is that a feeling is gathering ground that whereunauthorised constructions are demolished on the force ofthe order of courts, the illegality is not taken care offully inasmuch as the officers of the statutory body who hadallowed the unauthorised construction to be made or makeillegal allotments go scot free. This should not, however,have happen for two reasons. First, it is the illegalaction/order of the officer which lies At the root of theunlawful act of the concerned citizen, because of which theofficer is more to be blamed than the recepient of theillegal benefit. It is thus imperative, according to us,that while undoing the mischief which would require the

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