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Judgment
H.R. Khanna, J.—Sarojini Market Shopkeepers Association and its President Shri Vishwa Mitter Thukral have sought by means of this petition under Article 226 of the Constitution of India to prohibit and restrain the three respondents, The Union of India, the New Delhi Municipal Committee and the Delhi Development Authority from making allotments in the new building immediately adjacent to the Sarojini Market for use as shops or any similar purpose.
According to the allegations made in the petition the petitioners are shopkeepers of the Sarojini Market situated in Zone No. 21, in Planning Division ''D'' of Sarojini Nagar. The said Market consisting of 200 shops was constructed in 1950 for the purpose of rehabilitation of displaced persons. The Delhi Development Act, 1957 (Act No. 61 of 1957) hereinafter referred to as the Act was enacted for the development of Delhi according to plan and for matters ancillary thereto, and came into force on 30th December, 1957. The aforesaid Act envisages the appointment of Delhi Development Authority and the division of Delhi into zones for the purpose of development and to indicate the manner in which the land in each zone is to be used. Master Plan contemplated by the Act was published on 1st September, 1962. The plan divided the whole Metropolitan area of Delhi into eight planning divisions. The planing divisions were further sub-divided into a total of 136 Development Zones. The area comprising Sarojini Nagar and some neighbouring localities has been classified in a zone designated as''D-21''. It is stated that keeping in view the population of the Zone ''D-21''which, according to the petitioners, was 59,800, the total number of shops permissible in the zone was 400. There are, according to the petitioners, already about 475 shops in the area. It is alleged that despite the fact that shops in the above zone ''D-21'' are in excess of the requisite number, the Union of India constructed a building on the vacant area immediately adjoining the Sarojini Market in November or December, 1963. The petitioners later learnt that the new building was intended to be converted into a market and to allot the 120 shops in the building to retail traders. The petitioners claim that the construction and use of the aforesaid building as shops is contrary to the Master Plan and the provisions of the Act. It is further stated that if the allotments are made for another 120 shops, it would spoil economic ruination of the petitioners because it would be subjecting them to unwarranted competition. Prayer, has, accordingly, been made for restraining and prohibiting the respondents from making allotments in the new building for use as shops or any similar purpose.
The petition has been resisted by the Union of India and by the Delhi Development Authority. The petition has further been resisted by Surinder Singh and 164 other persons to whom it was proposed to allot the shops in question and who were impleaded as parties in this petition on their application under Order I, Rule 10 of the Code of Civil Procedure. The Union of India has in reply to the petition filed the affidavit of Shri Prem Krishen- Additional Secretary, Ministry of Works and Housing. According to the affidavit of Shri Prem Krishen the shops in Sarojini Market area did not prove to be adequate for the purposes of meeting the day today marketing needs of the residents of that locality. During the past few years, due to the pressing needs of the locality, the open plot of land adjacent to the market area came to be occupied by vendors who constructed kacha platforms which were in due course converted into jhuggies and bamboo hutments. The cluster of shops so formed was known as Babu Market. The shopkeepers of the Market successfully carried on their business on this site until October, 1963, when there was an accidental fire as a result of which the Babu Market was practically reduced to ashes. The population of the area covered by Sarojini Nagar and the adjoining localities was stated to be 72,391 according to the census of 1961 and the population was going up since then. The Central Government was stated to have the power to make such modifications as were considered necessary in the plans made under the Act. No Zonal plan for zone ''D-21'' has yet been prepared, and it is averred that the matters raised in the petition were not justiciable but were those which were for consideration exclusively by the Delhi Development Authority and the Central Government. The shops in question were proposed to be allotted to the original squatters of the Babu Market, a list of whose names has already been compiled. According further to the affidavit, there has been no infringement whatever of the Master Plan or of the other provision of law and the Market in question was a necessary amenity to cater for the needs of the locality. Pleas have also been raised that the petitioners have no locus standi to file the petition which has been described to be misconceived and mala fide.
Before dealing with the contentions raised at the hearing of the petition, it would be useful to refer to the different provisions of the Act which have a bearing. The preamble of the Act shows that the Act is to provide for the development of Delhi according to plan and for matters ancillary thereto. Section 2 contains the definition clauses and according to it "development" with its grammatical variations means the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in any building or land and includes redevelopment. Section 3 provides for the constitution of the Delhi Development Authority which would be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to contract and sue and be sued. Sections 4 and 5 provide for the staff and Advisory Counsel of the Authority, while section 6 states that the object of the authority shall be to promote and secure the development of Delhi according to plan. Section 7 of the Act provides for the carrying out of the civil survey and the preparation of a Master Plan of Delhi. According to subsection (2) of section 7 of the Act the Master Plan shall -
(a) define the various zones into which Delhi may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out; and
(b) serve as a basic pattern of frame-work within which the zonal development plans of the various zones may be prepared.'''' Section 8 provides for the preparation of the zonal development plan for each zone into which Delhi may be divided, simultaneously with the preparation of the Master Plan or as soon as may be thereafter. Subsection (2) of section 8 specifies the provisions which may be made in a zonal development plan. Section 9 provides that the Master Plan as well as the zonal development plan shall be submitted by the Authority to the Central Government for approval and the Government may approve the plan with or without modifications or reject it with directions to the Authority to prepare a fresh plan. Section 11A provides for the modification of the Master Plan and the zonal development plan by the Authority under the Act and by the Central Act, and the procedure with regard to that. Section 12 makes provision for the declaration of development areas and development of land in those and other areas. Clause (ii) of sub-section (3) as well as sub section (4) of section 12 to which a reference has been made on behalf of the petitioners, read as under :
(3) After the commencement of this Act no development of land shall be undertaken or carried out in any area by any person or body (including a department of Government) unless,
(i) * * *
(ii) Where that area is an area other than a development area, approval of, or sanction for such development has been obtained in writing from the local authority concerned or any officer or authority;hereof empowered or authorised in this behalf, in accordance with the provisions made by or under the law governing such authority or until such provisions have been made, in accordance with the provisions of the regulations relating to the grant of permission for development made under the Delhi (Control of Building Operations) Act, 1955, and in force immediately before the commencement of this Act :
(4) After the coming into operation of any of the plans in any area no development shall be undertaken or carried out in that area unless such development is also in accordance with such plans." Section 14 deals with user of land and buildings in contravention of the plans and as reference has been made to this section also it may too be reproduced as under :
After the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or budding in that zone otherwise than in conformity with such plan :
Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force." Chapter V of the Act deals with the acquisition and disposal of the land, while Chapter VI deals with Finance, Accounts and Audit. Chapter VII deals with the supplemental and miscellaneous provisions. According to section 28 the Authority under the Act may authorise any person to enter into or upon any land with a view to ascertain as to whether land is being developed according to development plan. Section 29 provides for the penalties, while section 30 gives a power of demolition of building to the Authority or officer empowered by it. Section 34 gives powers of composition of offences to the Authority.
Mr. Aggarwal on behalf of the petitioners has at the outset argued that the construction of the building in question consisting of 120 shops was in contravention of clause (ii) of sub-section (3) of section 12 of the Act reproduced above as the sanction of the New Delhi Municipal Committee was not obtained in writing with regard to the construction of the aforesaid building. This argument, in my opinion. is devoid of force because an objection about the construction of building without the sanction of the local Authority concerned can either be raided by the Authority concerned or by the Authority under the Act and not by third persons. In case the local Authority concerned or the Authority under the Act do not raise an objection about the construction of the building without the sanction of the local Authority concerned, it is not open to a third person to raise an objection on that score.
The main contention advanced by Mr. Aggarwal is that the use of the building in question as a shopping centre would be contrary to the Master plan, my attention has been invited to the following observations on page 16 of the publication entitled Master Plan for Delhi:
Only District Centres and Sub-District Centres are shown in the Land Use Plan, Shopping facilities would also have to be provided at various tiers of the residential area. These should be shown in the local development plans. The standard of one shop for 150 persons has been adopted for the entire urban population and then distributed at various levels as shown below.
It is urged that as a result of the opening of the new 120 shops in the building in question there would be more shops than are permitted according to the criterion of one shop for 150 persons laid down in the plan. In this respect I find that though the Master Plan has, as stated in section 7 of the Act, to indicate the manner in which the land in each zone is to be used and to serve as a basic pattern of the frame-work within which the zonal development plans are to be prepared, the approximate locations and extent of land uses for markets and other public and private purposes have to be specified in zonal development plan. This is made clear by sub-section (2) of section 8 of the Act according to which a zonal development plan may, inter alia, show the approximate location and extent of land uses for business and markets, and may make provision for the allotment or reservation of land for markets and other public purposes. It is not disputed that no zonal development plan of the zone in question has been prepared so far. As primarily it is for the zonal development plan to make provision for the location and extent of land uses proposed in the zone for such things as business, markets and other public purposes, the construction of the building in question cannot be deemed to be in contravention of such a plan which has yet to come into existence. So far as the observations with respect to the standard of one shop for 150 persons is concerned I find that the framers of the Master Plan have themselves indicated that the above is not to be a rigid rule which admits of no flexibility and must invariably be applied. The number of shops would depend upon a variety of factors including the local needs, the density of population, the potentialities of future expansion and the economic strata to which the majority of the residents in the locality belong, and consequently power has been given to the Authorities concerned to allow use for shopping purposes on ad hoc basis after quick service till zonal development plans are prepared. Reference in this connection may be made to the following observations on page 45 of the Master Plan for Delhi :
The land use plan does not show local shopping, local parks, schools etc. Hence, in build up areas, the local municipal authorities may allow such uses, based on quick surveys and on an ad hoc basis, until zonal development plans are prepared. The latter, when prepared, will incorpo�rate the land use proposals prepared by the local authorities. In new areas development shall take place only on the basis of the zonal deve�lopment plans.
In the present case I find that the site of the building in suit was already being used by the persons to whom the shops in the said building are proposed to be allotted for selling their goods. The jhuggiss and such other temporary constructions, which had been constructed by the aforesaid persons on the site in dispute, were destroyed in the course of accidental fire in October, 1963. The Government then felt that the needs of the public were not sufficiently met by the existing shops and, accordingly, the Government decided to build pucca shops at the site of the old market. This had also the effect of rehabilitating the victims of the fire in the Old Babu Market. As the scheme of the Act shows that it is the Central Government which has the power to approve and modify the Master Plan and the zonal development plan, the Government, in my opinion, was well within its rights to construct the pucca shops with a view to allot the same to the victims of the fire.
Sub-section (2) of section 11A of the Act which was added by Act No. 56 of 1963 provides that the Central Government may make any modifications to the Master Plan or the zonal development plan. According to sub-section (2) of section 9 of the Act every plan prepared under the Act after its preparation should be submitted by the Authority to the Central Government for approval and the Government may either approve the plan without modifications or with such modifications as it may consider necessary or reject the plan with directions to the Authority to prepare a fresh plan according to such directions. As the zonal development plan of the zone where the shops in dispute in the present case are situated has not so far been prepared, it would be open to the Central Government to provide for the existence of a shopping centre consisting of 120 shops at the site of the shops in dispute. In the circumstances if the Central Government decides to construct 120 pucca shops at the site which was already being used as a shopping centre with a view to rehabilitate the persons thrown out of jobs as a result of the fire in October, 1963, it cannot be said that there has been an infringement of the plans and the statutory provisions of the Act.
Assuming that the construction of the shops in dispute was not strictly in conformity with the Master Plan the use of the land in dispute as a shopping centre is permissible under the proviso to section 14 of the Act because the aforesaid land was previously used as a shopping centre Mr. Aggarwal has, however, urged that the above proviso is not applicable because no regulations mentioned in the proviso have so far been framed. In this respect I am of the view that the non-framing of the regulations cannot stand in the way of the persons to whom the shops in dispute are proposed to be allotted from using them for the purpose of selling their merchandise. The proviso to section 14, in my opinion, carves out an exception to the general rule laid down in that section. The exception embodied in the proviso would, however, be subject to such terms and conditions as may be prescribed by regulations made in this behalf. Where no regulations are made, the use of the land for a purpose for which it was being used on the date the plan came into force would not make it subject to any further restriction. Mr. Aggarwal has referred to case Narendra Kumar and Others Vs. The Union of India (UOI) and Others, . In that cast their Lordships of the Supreme Court dealt with the provisions of Non-ferrous Metal Control Order, 1958, which had been issued u/s 3 of the Essential Commodities Act, 1955 (10 of 1955). Under clause 4 of that Act no person could acquire any non-ferrous metal except under and in accordance with a permit issued in this behalf by the Controller in accordance with such principles as the Central Government might from time to time specify. No such principles were, however, published in the Gazette or laid before the two Houses of Parliament. If clause 4 could not be enforced and as such was void. It would follow that a disability was created by clause 4 and it was held that if the clause were enforced without the due promulgation of the principles it would lead to a total stoppage of the copper trade. The proviso to section 14 of the Act in the present case, however, does not create a disability but enables the use of land for a purpose for which it was being previously used and the proposed allottees of the shops cannot be deprived of the benefit of that proviso because of the omission of the Authorities concerned to frame regulations mentioned in the proviso.
Mr. Aggarwal has also placed reliance upon the following observations on page 48 of the Master Plan for Delhi:
Any non-confirming building or structure which is damaged to an extent exceeding fifty per cent of its reproduction value, exclusive of foundations, by fire, floods, explosion, earthquake, war, riot or an act of God, may not be restored, reconstructed and used for any other than a purpose permitted in the Master Plan for the area in which the building or structure is located.
The above observations, in my opinion, cannot nullify the effect of statutory provisions as contained in the proviso to section 14 of the Act. It would, however, always be open to the Authorities concerned to make regulations so as to restrict the use of the land for a purpose for which it was being previously used but as long as those regulations are not framed a party cannot be prevented from taking the full advantage of the proviso to section 14.
Apart from the above I am of the view that the petitioners have no locus standi to file the present petition. The petitioners in order to be entitled to apply under Article 226 of the Constitution have to show that they are possessed of a legal right and there has been an infraction of the same. As observed in The Calcutta Gas Company (Proprietary) Ltd. Vs. The State of West Bengal and Others, in terms does not describe the classes of persons entitled to apply thereunder but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. The existence of the right is the foundation of the exercise of jurisdiction of the High Court under Article 226. The legal right that can be enforced under that Article must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. The right that can be enforced under Article 226 also should ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. Keeping these observations in view it cannot be said that the petitioners are possessed of a legal right under the Act which has been infringed. According to section 28 of the Ac. the Authority under the Act has been given the power to authorise any person to enter into or upon any land or building with a view to ascertain whether any land is being or has been developed in contravention of the plans or the provisions of the Act. Section 29 provides the penalties which may be imposed for contravention of the provisions of the Act while section 30 vests the authority or the officers empowered by it to order the demolition of buildings constructed in contravention of the Act or the plans. Section 34 gives a power to the authority to compound the offences under the Act. According to section 49 of the Act no prosecution for any offence punishable under the Act shall be instituted except with the previous sanction of the Authority or as the case may be the local Authority concerned under the Act. It would thus follow from the different provisions of the Act to which reference has been made above that it is the Delhi Development Authority and the officers empowered by it who have been entrusted with the power of enforcing the different provisions of the Act and to take action in case there is infraction of the plans. In case the Delhi Development Authority and the officers empowered by it do not take any action because of any alleged infringement of the provisions of the Act or the plans, the petitioners would not get invested with a right to move this Court on the allegations of such infringement. The fact that the use of the building in dispute as a shopping centre would subject the petitioners to competition by the other retail dealers would not clothe the petitioners with such a right. It is the admitted case of the parties that even before the destruction of the Jhuggies in the fire of October, 1963, the retail dealers of the Babu Market were selling their merchandise along with the petitioners and in the circumstances it is not disputed that the position of the petitioners as a result of the allotment of the shops in the building in question would not be worse than it was immediately before October, 1963. I, therefore, fail to understand as to how the allotments of the shops would spell economic ruination of the petitioners. The shops in dispute are being allotted because the existing shops have been found to be not sufficient to cater to the needs of the general public and as such the opening of these shops would definitely constitute an amenity to the general public. Be that as it may, the provisions of the Act are meant essentially for the development of Delhi according to the plan and they cannot be resorted to for creating monopolies for the existing shopkeepers and for affording them protection from the competition of other shopkeepers. Looked at in this light the present petition would appear to be wholly misconceived.
Mr. Aggarwal has relied upon case Boyce v. Paddington Borough Council (1903) I Ch. Div. 109, to show that the petitioners have loeus standi to file this petition. In that case a churchyard was an "open space" and was to be held for the perpetual use thereof by the public "for exercise and recreation." "in an open condition free from building," except for the purpose of enlarging the existing church. The plaintiff, shortly before action, erected buildings on land abutting on the churchyard, with windows overlooking it. The local authority (having control over the churchyard as an open space) thereupon resolved to erect a hoarding in it to obstruct the access of light to the plaintiff''s windows with a view to preventing him from gaining a prescriptive right to the access of light over the churchyard. The plaintiff then brought an action for an injunction to restrain the authority from doing so. It was held that as the plaintiff was suing in respect of an alleged private right to the access of light, or in respect of an alleged interference with a public right from which he personally sustained special damage, he could sue without joining the Attorney-General as a plaintiff. On merits, however, the action was dismissed, In my opinion, the observations made in the context of that case can be of no material help to the petitioners in the present case.
I may state that an objection has also been taken on behalf of the respondents that the petitioner No. 1, which is an Association, has in any case, because of its being an Association, no right to file this petition The present petition is, however, not only by an Association but also by its President Vishwa Mitter Thukral. Be that as it may, as the present petition is being dismissed on other grounds, it is not necessary to pursue this matter.
The petition, as a result of the above, fails and is dismissed with costs.