IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) No. 7386/2007
Judgment reserved on: 12.5.2008
19.05.2008
Judgment delivered on:19.5.2008
Green Park Extension Residents ...... Petitioner
Association
Through: Ms. Garima Prasad, Adv.
versus
Municipal Corp. of Delhi and Ors. ..... Respondents
Through: Ms. Sumita Kapil for MCD.
Ms. Anju Bhattacharya for respondent no.4.
Mr.Suresh Tripathy for respondent no.3.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
KAILASH GAMBHIR, J.
By this writ petition filed by the Green Park Extension Residents
Association mandamus has been sought for the removal of unauthorized
construction raised by the office of Chief Electoral Officer in the ?C? Block
park and for restoration of the park to its original shape.
Vide order dated 22.4.2008, directions were given to the respondents to
file their respective affidavits to clarify the position with regard to
unauthorized construction having come up in the green area of ?C? block park in
the Green Park Extension Colony, New Delhi. Pursuant to the said directions,
affidavits have been filed by the respondents. The respondent MCD in their
affidavit filed through Commissioner, MCD, has taken a stand that the part of
the land on which office of the Election Commission was set up was a small
area of park measuring 8.2m X 11.2m in the said block ?C?, Green Park
Extension. It is further stated that as per the lay out plan, green area is
measuring around 4103.33 sq. yards. It is also stated that as per the record
maintained , the management of the park along with connected services vests in
MCD. It is further stated that portion on which office of the Election
Commission was constructed belonged to Delhi Jal Board since 1968, when DJB
was a part of the MCD. Earlier, there was a pump house which became non
functional and at the request of the officer of the Chief Election Commissioner,
site of the pump house was handed over by the DJB for setting up an office of
Chief Electoral Officer. It is further stated that the site of the entire park
has been handed over to the DMRC for a period of three years on temporary
basis and due to such allotment of the park, the present petition filed by the
petitioner has become infructuous. It is also stated that the Election Office
has already made alternate arrangements to shift in the village Humayunpur.
In the counter affidavit filed by respondent no.3/DJB, stand has been taken
that pursuant to the request received from the office of Principal Secretary
(Development) and Divisional Commissioner, GNCT the site of tube well was made
available to the office of the Election Commission for setting up a temporary
office for upgradation of the electoral rolls and issuing electoral photo
identity cards to all the eligible electors of the assembly area in which the
said locality of Green Park Extension falls. Acceding to the request of the
GNCT, two rooms were made available by the office of the DJB at the site of tube
well measuring around 600 sq. ft. in favour of the Electoral Registration
Officer and it was made clear that the said allotment was temporary not
exceeding period of two years subject to certain terms and conditions. In para
5 of the counter affidavit of DJB, it is stated that on inspection of the site
by their officers, it was found that gross violations were committed to the
terms and conditions of the allotment by the office of Electoral
Registration Officer. A letter dated 17.10.2007 to this effect was sent by
the DJB to the Office of the Electoral Registration Officer. It is also stated
by the respondent no. 3 that the office of the DJB had never authorized
Election Commissioner or its representative to raise any permanent structure at
the site in question. It has also been stated that raising of the structure by
the Election Commissioner at the said site is clearly unauthorized and invalid.
Stand has also been taken by respondent no.3 that the office of DJB never
handed over any portion of the green area to the Election Commission or its
representative and it was only a structure comprising of two rooms out of the
tube well premises which was handed over by the DJB to the office of the
Election Commission with a specific stipulation that no disturbance should be
caused to the existing structure.
The office of the Chief Election Officer in their affidavit has
taken a stand that pursuant to the directions given by this Court, they have
already set up their office at Humayunpur. It is also submitted by the
respondent no.4 that the site in Green Park was selected after due consultation
with the stake holders keeping in view the requisite parameters. It is also
stated that the site to the office of the Chief Electoral Officer was allotted
by the DJB at a location where there was existing an earlier abandoned pump
house. The stand has also been taken that the structure existing in the green
area can be used as senior citizens centre for the benefit of the senior
citizens. The demolition of swings in the said park with a view to raise
construction in the said green area has been denied by respondent no.4 in their
affidavit.
In juxtaposition to the stand taken by these Government bodies, counsel for
the petitioner took exception to such divergent stand of these authorities and
contended that no explanation and justification can be given by these
respondents so as to justify their stand for raising a permanent structure
in the green area for the purpose of setting up office of the Chief Electoral
Officer. Counsel for the petitioner also contended that large amount of money
was spent by the residents of the said locality to build and maintain the said
park where swings for the children were installed and even a badminton court was
set up for the benefit of the children of the locality. Counsel also contended
that on 21.9.2007 large scale digging and construction started in the said
park after uprooting the trees in the park dismantling the badminton court and
throwing away the swings of the children. Along with the petition,
photographs of the site have been placed on record which shows lot of
construction activity of permanent nature was in progress at the site.
Without denying the fact that there was need to set up offices by the
Chief Electoral Officer in various assembly constituencies of Delhi for
upgradation of electoral rolls and for issuing electoral photo identity card to
the eligible electors pursuant to the directions given by the Election
Commission of India, the crucial question is that would such directive justify
the action of the DJB in allotting a site on a licence fee of Rs.1000/- p.m. in
the park in favour of the Electoral Registration Officer, AC-09, Hauz Khas, Old
Tehsil Buidling, Mehrauli, New Delhi, for a period of two years. No
justification can also be seen in the raising of a permanent structure in the
green area by the office of Chief Electoral Officer which act of Election
Officer is otherwise in blatant violation of the terms and conditions of the
allotment. Clause 3 of the terms and conditions of the allotment letter dated
20.6.2007 prohibits the licensee to carry out any digging in the land or any
alternation in the existing structure unless same is specifically approved by
the competent authority of DJB. The DJB has already taken a stand in the
counter affidavit that the structure raised by the office of Election Commission
is clearly unauthorized. It has also been submitted by the DJB that no portion
of the green area was handed over to the office of the Election Commissioner or
its representative.
This is a classic case of ?fence eating the grass?. It is beyond one?s
comprehension as to how DJB could allot the said site of pump house in favour of
the office of the Chief Electoral Officer, more particularly when the site of
pump house became non functional and redundant. It is also equally disturbing
to know how the office of Chief Electoral Officer could raise a permanent type
of structure in the green area extending beyond the earlier existing structure
of the said non-functional pump house. It is also interesting to know that the
MCD did not take any action against the office of the Chief Election Commission
for raising unauthorized structure in the green area. It is not in dispute
that as per the lay out plan the said structure was raised by the office of the
Election Commissioner in a green area. This is as per the stand taken by the
MCD in their counter affidavit and as per copy of the lay out plan annexed by
them in their counter affidavit. It is also an admitted position that there
was no change or modification in the lay out plan so as to convert a part of the
green area to house temporary office of the Chief Election Commissioner or to
raise a permanent structure therein. It is also not a case set up by the
respondents that no other site was available for setting up of the office of
the Chief Electoral Officer or there was any kind of compulsion on the part
of the Chief Election Commission to set up their office in the green area, at
the cost of the residents of the said locality. Uprooting of trees, removal of
swings which were meant for tiny tots, dismantling of badminton court by these
statutory bodies clearly exemplify that these bodies have scant regard for the
rule of law. The situation is more serious and alarming when you find that
the law enforcing agencies themselves were indulging into committing such gross
illegalities. These authorities should have at least spared the locality known
as Green Park by not depriving the people of its greenery. The illegal acts
committed by the respondents are in gross violation of the municipal laws and
in contravention of the designated purpose of the lay out plan. It has recently
been learnt that Delhi Cabinet has given an approval for setting up of society
to be headed by the Lt. Governor as Chief Patron under the name of ?Delhi Parks
and Gardens Society?, to undertake the task of ensuring maintenance of parks and
greening activities in the city. I feel that when the said society is in place
then the same shall certainly ensure that at least no green area or park in
the city is under encroachment of the Government body or instrumentalities of
the State.
As far as facts of the present case are concerned, since the said
site of green area in question has been given to the DMRC for a temporary
period of three years for the purposes of parking, therefore, at least for that
period, the petitioner association and its members shall be deprived to use the
said area as a green area or park for the benefit of its residents including
the children. However, since unauthorized construction has been raised in the
said green area, immediate steps shall be taken by the office of the Chief
Election Commission to raze the said structure to the ground and in case the
said unauthorized construction is not demolished by the office of the Chief
Election Commission within one week from the date of this order, then necessary
demolition action shall be taken by the respondent MCD within a period of one
week, thereafter. It has also been noticed that the DJB has charged licence
fee of Rs.1000/- from the office of the Chief Election Commissioner w.e.f
27.6.2007 and since the said money has been received by the DJB at the cost of
annoyance and harassment of the residents of petitioner society, therefore, the
said amount of Rs.11,000/- shall be paid by the office of the DJB to the
petitioner Association within two weeks from the date of this order. Costs of Rs.25,000/- is also imposed on the MCD for not taking any action to demolish the illegal structure in the green area. The petitioner Association shall spend the aforesaid amount to plant more saplings in the green area of the colony and for purchasing the swings for the children after the restoration of park by the MCD.With these directions, the writ petition stands disposed of.
19.5. 2008 KAILASH GAMBHIR, J.
mg
W.P.(C) No. 7386/2007
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