ASHUTOSH KUMAR, J

CAV 853/2016

1. The learned counsel for the respondent No.1 caveator is present.

2. The caveat stands discharged.

LPA 540/2016

1. Two writ petitions, namely, (i) W.P(C) No.4429/2015, at the instance of Ashok Vihar Residents Welfare Association and (ii) W.P(C) No.5883/2015 by the appellant herein, were filed seeking restraint of construction over an area of 1378.47 square meters situated in Block-D, Ashok Vihar, Phase-I, New Delhi on the ground of the aforesaid plot having been allotted by DDA (respondent No.2) to Lawrence Road Modern Educational Society (respondent No.1) in a residential block for a multi storey building in violation of the provisions of Master Plan Delhi-2021 as also Delhi Building Laws and Delhi Building Byelaws, 2014. Cancellation of the perpetual lease deed in favour of respondent No.1 and revocation of the sanctioned plan which was granted on 18.07.2008 initially and which was revalidated on 17.07.2014 were also prayed for. Both the petitions were rejected by a common judgment and order dated 26.08.2016.

2. The petitioner in W.P(C) No.5883/2015 is the appellant before this Court seeking the setting aside of the aforesaid judgment and order.

3. Respondent No.1 was allotted a plot of land measuring 0.25 acres at Lawrence Road way back in the year 1989 but the physical possession of the said plot could not be given due to encroachment. Pursuant to an undertaking given by the DDA in W.P(C) No.2323/1997, preferred by respondent No.1 and in the light of the request made by respondent No.1 for being provided with an alternative site, site NS-2 (plot in question) in Ashok Vihar which was earmarked for a nursery school was sub-divided into two parts with post facto approval of the Commissioner of DDA and was allotted to the respondent No.1. The entire plot was of 2200 square meters, out of which 800 square meters had already been allotted to one Agroha Educational Society, where one nursery school was in operation. The present plot over which respondent No.1 has constructed a school is to the extent of 1378.47 square meters. The said plot NS-2 was allotted on 3.6.2005.

4. It appears from the records that respondent No.1 applied for sanction of the building plan of the nursery school before the competent authority on 10.5.2006 which was sanctioned on 9.1.2007. It may be noted here that Master Plan of Delhi-2021 had come into operation w.e.f 7.2.2007 only, i.e. after the plan was sanctioned in favour of respondent No.1. However, a revised plan was submitted by the respondent No.1 to DDA on 27.9.2007 keeping in mind the changes which had been brought about in MPD-2021 from MPD-2001. It would also be relevant, in this context to note that the revised plan was initially rejected but, on appeal, the revised plan was sanctioned in terms of MPD-2021 on 18.7.2008.

5. The appellant contended that the allotment was not in consonance with MPD-2021 as there was no provision for nursery school in MPD-2021 and if at all there was an allotment for opening nursery school, the building of the school could not have been raised beyond ground level. It was further pointed out that the Mixed Use Regulation of MPD-2021 especially contained in Chapters 15.1.1, 15.7.2 and 15.7.3, thereof did not permit of a school building of such dimensions as that of respondent No.1.

6. The further grievance of the appellant is that, first of all, the allotment and, secondly, permitting the respondent No.1 to raise a multi-storey building in the teeth of MPD-2021 and building regulations and byelaws was because of the connivance of the other respondents and that she being a resident of the area was put to severe difficulty in residing at a place, perhaps across the road, to a multi storey building in which a school is being run.

7. Similar grounds were raised by the writ petitioner in W.P(C) No.4429/2015.

8. The learned single Judge, after going into the issues, came to the conclusion that an area which was earmarked for nursery school w