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Judgment
CM APPL. 26263/2018 (for vacation of stay)
By this application, the Respondent No.1 seeks vacation of the order of stay, passed by us on 1st June, 2018, which reads thus:
“W.P.(C) 6402/2018 & CM No. 24580/2018 (stay)
Issue notice to show cause as to why rule nisi be not issued.
Mr. Sandeep Bajaj, Advocate accepts notice for respondent No.1 and Mr. Mini Pushkarna, learned Standing Counsel accepts notice for
respondents no.2 &3.
Time is sought to file counter affidavits. Let the same be filed within six weeks from today. Rejoinder thereto, if any, be filed before the next date
of hearing.
List on 5th September, 2018.
In the meantime, the respondents shall stand prohibited from converting any land meant for use as a school or park into multilevel parking. The
respondents are restrained from raising any further construction on the impugned sites.
Order be given dasti under the signatures of the Court Master.â€
The writ petition, filed in public interest, contains the following prayers:
“In the light of the following averments, it is most respectfully prayed that this Hon’ble Court may graciously be pleased to:
a) Issue writ of mandamus or any other appropriate writ/order direction to the Respondents/Municipal Corporation of Delhi to ensure that Schools or
School Playgrounds and Children Parks and Land or Plots earmarked for Schools or School Playgrounds or Children Parks; allotted to the respective
Municipal Corporation, for the benefit of Children of Delhi, by way of making provisions in the Statues and Master Plan 2021, within their respective
jurisdiction; shall not be used for any other purpose, other than building and running such Schools or School Playgrounds or Parks. And;
b) Pass  all  necessary directions to uphold “the Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE)â€,
which ensures right of free and compulsory education to children in India under Article 21A of the Indian Constitution and reiterate that education has
become a fundamental right of every child since the Act came into force on 1st April, 2010.
c) Pass any other or further orders/directions, as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present
case.â€
A reading of the prayers contained in the writ petition, as extracted above, makes it clear that the petitioner does not, in the writ petition, espouse his
cause qua any particular plot or piece of land, but seeks an omnibus mandamus, directing the respondents to ensure that schools, school playgrounds,
childrens parks and lands/plots earmarked for the said purposes, as per the Master Plan of Delhi (MPD) 2021, be not used for any other purpose.
Given the public interest purpose involved, we had, vide our above extracted order dated 1st June, 2018, injuncted the respondents, pending the
decision in the writ petition, from converting any land, meant for use as a school or park, into multi-level parking.
The  present miscellaneous application concerns itself  only with one of the sites at which multi-level parking is beingconstructed i.e. J-Block,
Rajouri Garden. It is contended in the application, filed at the instance of the SDMC (Respondent No.1), that the construction of the multi-level
parking at the said plot at J-Block, Rajouri Garden is being undertaken as per the MPD 2021. It is urged that Rajouri Garden is a suburban area in
West Delhi which has severe parking problems, being highly congested and over populated with a market which has developed over a period of time.
It is also pointed out that the stretch of the Ring Road from Mayapuri Chowk to Raja Chowk is declared as commercial and the stretch of road
known as Major Sudesh Kumar Marg is in the category of mixed land use.
Various other grounds have also been urged, on the basis whereof vacation of the order of stay, passed by us on 1st June, 2018, qua the plot of land
at J-Block, Rajouri Garden, has been sought; however, it is not necessary for us to refer to all the said grounds.
Suffice it to state that, as the application for vacation of stay discloses, the project of construction of multi-level parking at J-Block, Rajouri Garden,
stands specifically challenged, in W.P.(C) 4691/2018 [Friends of Rajouri Garden Environment (Regd.) vs SDMC], in which notices stand issued, and
which is presently pending before the learned Single Judge. A copy of the said writ petition has been annexed to the present application, and a reading
thereof discloses that the petitioner has, in that case too, specifically prayed for quashing the notice inviting tenders, issued by the SDMC, for
construction of  automated multi-level car parking facility at J-Block, Rajouri Garden, as well as an injunction, to the SDMC, not to construct any
such automated multi-level car parking facility.
Grounds 6.2, 6.5 and 6.6 of the writ petition read thus:
“6.2 Because the plot on which the automated multilevel car parking is proposed to be constructed is admittedly reserved for school use, and
without changing the land user, the plot cannot be used for parking purposes. This was admitted by the MCD itself in its above mentioned affidavit
dated 29.3.2007 filed in Writ Petition No.6631 of 2000.
6.5 Because there is no explanation coming forth from the SDMC as to why the land use should be changed from ‘school’ to parking. There is
no gainsaying the fact that construction of a school as original envisages would subserve the public interest for more than construction of a needless
parking lot, and that too right in the middle of a residential area.
6.6 Because in 2007-2008 a similar proposal of the MCD was shelved for another site, which was a school site, and in 2009 there was yet another
attempt to make underground parking beneath a primary school, which was also shelved on the Petitioner’s intervention.â€
(Emphasis supplied)
A perusal of the pleadings and prayers in W.P.(C) No.4691/2018, with the present writ petition and the prayers contained herein, make it apparent
that the issue of construction of a multi-level car parking at J-Block, Rajouri Garden is sub-judice before the learned Single Judge, who is in seisin
thereof.
Without expressing any opinion on the merits of the stand of the petitioner, in respect of the said area at J-Block, Rajouri Garden, and the
feasibility, or legality, of construction of a multi-level car parking thereon, we are of the opinion that; as the same issue is pending before the learned
Single Judge, any continuance of the stay granted by us on 1st June, 2018, qua the said plot, would amount to an overlap of exercise of jurisdiction,
which would be prejudicial to judicial comity and discipline.
Accordingly, we vacate the order of stay granted by us on 1st June, 2018, qua the construction of multi-level car parking at J-Block, Rajouri
Garden.
The present application filed by the Respondent No.1 is allowed in the above terms.
We, however, permit the present writ petitioner to intervene in W.P.(C). 4691/2018 pending before the learned Single Judge, if so advised.