HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 16338/2006 ROHIT PRASAD & Ors. v. State of Maharashtra & Ors.

% 19.01.2010

The petitioner has filed the present writ petition against rejection of building plans submitted by the respondent- MCD vide their letter dated 8th December, 2005 relying upon the letter dated 31st October, 2005 written by DDA that the petitioner’s land falls in the ridge/regional park under the Master Plan of Delhi 2001.

There was dispute whether the petitioner’s land as per the zonal development plan falls in the ridge area or the regional park. Respondent No. 3 has filed additional affidavit dated 2nd January, 2010 stating that survey of the area has been conducted and as per the report the khasras, in which the petitioner’s land is located, are not recorded as Gair Mumkin Pahar and do not form part of forest land as per notification dated 2nd April, 1996 issued by the Revenue Department of Government of NCT of Delhi under Section 154 of the Delhi Land Reforms At, 1954. It is stated that the said land falls within the WPC No.16338/2006 regional park as per the land use plan in the Master Plan for Delhi 2021.

Learned counsel appearing for the petitioner has submitted that in view of the said affidavit, the respondents have erred in rejecting building plans submitted by the petitioner. He submits that no fetters can be placed on the right to enjoy private land by the land use plan under the Master Plan and in this connection he relies upon judgment of the Supreme Court in Raje S. Jethmalani and Others versus State of Maharashtra and Others, Appeal (Civil) No. 8274-8275/2003 dated 5th May, 2005.

The aforesaid decision is distinguishable as in the present case the petitioner has not issued any notice under Section 55 of the Delhi Development Act, 1957. Learned counsel for the petitioner has stated that the application for sanction of building plan should be treated as an application under Section 55 of the Delhi Development Act, 1957. He submits that this application was referred to DDA by MCD. The application submitted by the petitioner for sanction of building plan to MCD cannot be regarded as an application under Section 55 of the DDA Act, 1957. The said provision is a substantive provision and has several legal consequences. There cannot be an implied application under Section 55 of the Delhi Development Act, 1957.

The petitioner has not challenged and questioned vires of the Master Plan of Delhi or any statutory enactment.

The building plans of the petitioner have been rightly rejected as sanction of the said plans would be contrary to the zonal development plan or the land use plan of the area. The land in question can be used and utilized as a regional park and no building can be constructed on the said land. It is well settled that Article 14 of the Constitution of India should be read as in a positive manner and the wrongs, if any, committed earlier do not justify issue of any direction under Article 226 of the Constitution of India to commit a further wrong. It is the stand of the respondent DDA that as per Master Plan of Delhi 2021, approved farm houses sanctioned prior to 1990 can continue in the regional park. WPC No.16338/2006

Learned counsel for the petitioner submits that the petitioner will like to issue notice under Section 55 of the Delhi Development Act, 1957. The Court expresses no opinion in this regard in favour of or against the petitioner or the respondents. The writ petition is accordingly dismissed. JANUARY 19, 2010 VKR SANJIV KHANNA, J. WPC No.16338/2006