JUDGMENT

Najmi Waziri, J. (Oral) The learned counsel for the respondents states that the plot earmarked for parking in the layout plan can be used for the purpose of constructing a public toilet since that is a permissible user under Clause 8.2 of Chapter 17 of the Delhi Master Plan (MPD), 2021. He relies upon the dicta of this Court in Shanti Devi Gupta v. Delhi Development Authority, 1994 AIR (Del) 299 to contend that Nazul land can be used for public purposes.

2. The Court is unable to see how the said case is applicable to the facts of the present case because it dealt with construction of a road admeasuring 20 x 8 ft. which was already provided for in the layout plan. Therefore, there was no violation of the layout plan. The second judgment relied upon by him is Maya Devi v. Union of India, 1997(65) DLT 405 which dealt with a case in which the original area as per the affidavit of the Delhi Development Authority was 0.64 hectare for a primary school. However, the Master Plan itself earmarked an area of 0.40 hectare. The said area when handed over for construction of the primary school was found short by 184 sq. mtrs. The Court held that there is not much reduction in the area even after the modification of the layout plan. Therefore, there is no violation of the Master Plan. Nevertheless, the important question addressed by the Court was:

"A careful scrutiny of the provisions of the Act reveals that Chapter 3-A deals with the modification of the Master Plan. Sections 11A(i) to (vi) deals with the modification of the said plan. There is no other provision in the entire Act which deals with the modification of the lay out plan. It implies thereby that the lay out plan can be modified by the Vice Chairman of the DDA. Mr. Karanwal, Senior Architect, DDA has stated in the additional affidavit with regard to the modification carried, out in the lay out plan. According to him, the modification in the lay out plan was got approved by the Vice Chairman, DDA who is the Competent Authority, in the 56th Screening Committee Meeting held on July 10,1990 (vide para 6 of the Additional Affidavit). According to him, the lay out plan was further got amended and the said modification was also got approved by the Vice Chairman, DDA in the 75th Screening Committee Meeting held on April 1, 1991 (vide para 8 of the Additional Affidavit). Thus it is manifest from above that the lay out plan was got modified twice."

It implies thereby that the layout plan can be modified by the Vice Chairman of the DDA. In other words, there being a layout plan given to an agency (the SDMC) to maintain the industrial area, the maintaining agency cannot tinker with the layout plan except with the permission of the DDA. This has been emphasised by the Supreme Court in R.K. Mittal and others v. State of Uttar Pradesh and others, (2012) 2 SCC 232 as under:

"All the above judgments clearly show that it is not merely at the discretion of the Development Authority concerned to designate user of a site and then alter the same without following due process of law. Even where such an exercise is required to be undertaken by the Development Authority, there also it is expected of the Development Authority to act for the betterment of the public and strictly in accordance with the plans and the statutory provisions. It cannot take recourse to its powers and use its discretion contrary to such provisions and that too, to frustrate the very object of the Act. Exercise of power ought not to be destructive of the provision of the Act and the plans having the force of law. We would hasten to add that even where the requisite prescribed procedure is followed, still the discretion should be exercised sparingly and achieving the object of the statute and not to completely vary or destruct the purpose for which the sector has been earmarked."

3. In view of the above, the MCD cannot alter user specified in the layout plan. If they wish to change the user for whatever reason, they