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Judgment
This Review Application is filed by Respondent no. 3 M/s Jhankar Banquets seeking review of the judgment and directions issued in Original Application No. 60 of 2014 dated 10th July, 2015 whereby the original application filed by the Respondent no. 1 herein namely "Society for Protection of Culture, Heritage, Environment, Tradition and Protection of National Awareness- SPCHETNA was partly allowed and certain specific directions were issued against the Respondent no. 3, the review petitioner herein.
The parties who were impleaded in original application no. 60 of 2014 have been again impleaded in this Review Application. Therefore, we will be referring to the ranks of the parties firstly according to the original rank and the rank in the present review application. The review applicant M/s Jhankar Banquets was the respondent no. 3 in the original application.
The Society for Protection of Culture, Heritage, Environment, Tradition and Protection of National Awareness- SPCHETNA through its Original Application No. 60 of 2014 had sought following reliefs:
a) Direct the Respondent no. 2 to take the possession of the land around the Asiad Tower situated adjacent to Siri Fort Complex admeasuring 18,500 sq. metrs, along with the remaining area and restore the area to its natural state and maintain the same as green for the purpose of District Park and allow the general public to use the same;
b) To quash the letter dated 18.12.1997 along with the site plan wherein the green area/land admeasuring 18,500 sq. mts. around the Asiad Tower was illegally handed over by Respondent no. 2 to Respondent no. 3.
The review applicant and the Delhi Development Authority were the contesting respondents in the Original Application No. 60 of 2014 while the MoEF & CC played a very docile role. In support of the relief sought, the applicant in the Original Application-Society for Protection of Culture, Heritage, Environment, Tradition and Protection of National Awareness- SPCHETNA had averred in detail several facts and circumstances but for the purpose of disposal of this review application only substance of it is will suffice. It is follows:
a) That, Delhi Development Authority (for short 'DDA'), is the owner of land around "Asiad Tower" situated adjacent to Siri Fort Complex measuring 18,500 sq mtrs. along with the remaining area. The said area is a District Park and meant for use by the general public. They alleged through a letter dated 18.12.1997, a green area/ land admeasuring 18,500 sq mtrs. Around the Asiad Tower was illegally handed over by the respondent no. 2 to respondent no. 3 and within the petitioner.
b) That the applicants being engaged in protection of environment and safeguarding the interest, the members of the Society approached the authorities but it was of no avail. Thus, question seriously in grant of possession of the said land to the respondent no. 3 contending, it is in violation of MPD 1962, 2001 and 2021 and the Zonal Development Plan which was categorized the area as a designated District Park, that by the judicial precedent, the land use in Delhi has to confirm to the Zonal Development Plan prepared under Section 8 of the Delhi Development Act, 1957 and as the said law was enforced in the decision of Hon'ble Delhi High Court in the case of Friend's Colony Residential Association Vs Lt. Governor of Delhi. Section 14 of the Delhi Development Act, 1957 prohibits any person from using the land included in the zone for any other purpose except for which it is indicated. Since, the land is categorized in the MPD as green area, it is to be meant for the purpose of use by public but running of recreational club is not authorized. The principal of public trust has been breached by the respondent in granting the license in respect of the said land to the respondent no. 3 who has by unauthorized construction built a structure thereby ruining the green area. The Asiad Tower which is in the South Zone is meant for District Park and not earmarked for marriages etc. but the respondent no. 3 is continuing to violate all laws, rendering legal provisions nugatory.
c) As stated in the para supra the respondent no. 1- Union of India has not seriously contested the proceedings but the respondent no. 3- Delhi Development Authority in its reply raised the preliminary objections about the maintainability of the application on the ground that the applicant had suppressed the material facts. The applicant has made incorrect statement that the land is a public park which is not so. It is part of the District Park and the use of it is permissible as indicated in the Master Plan 2001 and 2021. Therefore, the content, the land has been given on lease for 30 years to the respondent no. 3 to put to use for the purpose mentioned in the Plan.
d) They also questioned maintainability of the application on the ground that the applicant had filed several complaints and a writ petition before the Hon'ble High Court of Delhi raising the same issue and writ petition was dismissed by the Division Bench of the Hon'ble High Court of Delhi. They have referred to the inspection conducted in 2000 which reveals that greenery has increased in the area by growth of more trees over the years by the respondent no. 3. If relying of the orders of the Division Bench of the Delhi High Court, they contend that the issue has finally been decided and, therefore, the present application is not maintainable as it is full of mala-fide intention.
e) Referring to the transaction of the license between DDA and the respondent no. 3, they have stated that Asiad Village was constructed in 1982, when Asian games were conducted in Delhi and number of people had to be accommodated and with a view to provide all civic amenities a huge over head water tank was created. The project and other amenities were developed. The Project Board set up by the DDA under the chairmanship of the Vice-Chairman of the DDA for executing the Project of Asian Games Village and accepted the proposal for building a over head tank-cum as a gallery-cum-restaurant named as "Tower Restaurant". The Tower Restaurant was being built at the cost of 72 lakhs on a plot of land in the Master Plan- Delhi 1962 for recreational use like outdoor games, restaurant etc. In 1984, the Tower Restaurant was allotted on the license fee of Rs. 50,000/- or 5% of gross sales which was the higher initially for a period of 5 years which was subsequently extended to 5 years. Several stringent conditions were imposed and thereafter a tender was floated showing a reserve price of 87.1 lakhs. There was no bidder. Again in April 1990, it was put to auction showing a reserve price as Rs. 98 lakhs and one bid of Rs. 1 crore was received submitted by respondent no. 3. It was accepted as it was only the marginally higher price. In this manner, the respondent no. 3 has granted license. The respondent no. 1 bid was accepted granting him license of the said Tower Restaurant.
f) The area surrounding the Tower was reassessed and the Horticulture Department confirmed the surrounding area as 16784 sq mtrs or 4.15 acres and in the meeting held on 17.06.1996 to decide to modify the earlier agenda and at certain facilities to the Tower Restaurant to accommodate, parking of car etc.
In this case there is no need to refer to detailed averments in the main application and also the replies filed by the respondents for the reasons Respondent No. 3 who has suffered, an order has sought review of the judgment dated 10.07.2015 invoking Section 19(4)(f) of the NGT Act therefore we would refer to the ground in the Review Application for ascertaining whether ground are legally acceptable with regard to the review of the judgment, if so what is the consequential order. The first ground urged is the area in question falls in the "Use Zone" of the "Distinct Park" permits activity which the DDA has allowed to be carried out by Respondent No. 3, i.e. holding of marriages, parties, banquet bookings and other commercial activities in the area measuring 18,500.
The Tribunal did not raise the question of limitation which the Respondent No. 3 had urged as a valid defence to oppose the action of the Original Applicant.
Several other grounds are urged inter-alia amongst which the main challenge is opposed to restricting the right of use of land for commercial activity like banqueting and marriages for a period of 10 days in a month while allowing 20-21days for public use etc.
In the response to the review Application the Original Applicant in O.A. No. 60/2014 has entered appearance so also the UoI and DDA.
The UoI is not seriously contesting respondent in this case but the DDA has supported the grounds urged by the Review Petition against the order under review. As far as Original Applicant is concerned Learned Counsel for the Original Applicant haselaborately urged supporting the finding of this Tribunal and sought rejection of the review on the ground that the right to seek a review is very restrictive. Referring to the provision of Order 47 of CPC and Section 19(4)(f) of the NGT Act it was urged that the review application permits correction of errors apparent on record and secondly it makes no ground for interfering with order in question. It is also urged that unless and until circumstance in under Section 14 read with order 47 of the CPC is made out and unless the applicant shows that there is an error apparent on record, even if there is strong ground in favour of the applicant it can only generate an appeal action, but does not permit to seek review.
On the contra, the Respondent No. 3-review applicant would contend that review permits taking into consideration of additional material and also justifies review specifically where certain grounds are urged in defence which are not taken into consideration by the Tribunal. In this case where a question of limitation was raised. We have bestowed our serious concern to the grounds urged by the parties and we have perused the order under review dated 10.07.2015 passed by this Tribunal.
On careful consideration of the reasons assigned. it could be seen that while considering the case on merit this Tribunal has framed certain point for consideration.
Considering the grounds urged the Tribunal has issued following direction while disposing of the Application:-
The third respondent shall be entitled to use the green area to the extent of 18500 sq. Mtrs around the Tower restaurant for marriages, parties, etc, not more than 10 days in a month and subject to the conditions that it shall also run the Tower Restaurant and pay all necessary lease and license charges in accordance with the terms and conditions of lease and license to be executed.
It will be open to the second respondent to execute the necessary license deed in favour of the third respondent regarding the use of 18500 sq. Mtrs of Green area around tower restaurant the use of 18500 sq mtrs of green area around tower restaurant subject to the above conditions and other conditions as may be stipulated by it.
The second respondent shall ensure that the third respondent complies with all the conditions of lease/license and take appropriate action on violation of the same.
The third respondent shall be responsible for the conduct of anyone permitted by it to use the green area for any recreational activities regarding the adherence of standards of noise level as prescribed by DPCC both during day and night hours. In the event of the limit being exceeded either by loud speakers or by use of crackers, the SDMC, DPCC and local police shall take immediate action including criminal prosecution. This direction is needed to protect hte interest of senior citizens, children and unhealthy persons undergoing medical treatments, as right to life in includes decent living with peaceful conditions guaranteed under the constitution of India and repeatedly insisted by the Hon'ble Supreme Court of India.
The third respondent shall not be permitted to put any permanent structures in the green area and even the temporary structures erected for recreation shall be removed immediately and while doing so ensure that no damages are caused to trees, green area or land in the surrounding area.
The second respondent shall permit public including the members of applicant association in the remaining 20/21 days to be used as lung space however with usual conditions as may be imposed by it as the policy.
The third respondent shall ensure that vehicular parking is regulated properly on the roads adjourning the green area and in the surrounding areas during the times of marriages and parties.
In the event of failure of the third respondent in ensuring any of the above conditions that second respondent shall take all appropriate legal actions in accordance with the terms of lease and license and in accordance with the law.
Keeping in mind the directions of this Tribunal we have perused the reasons assigned.
It is pertinent to note that the points framed by this Tribunal were:-
a) Whether the letter dated 18.12.1997 would confer any right of license on the Respondent No. 3 in respect of the green area in the district park to the extent of 18500 sq. mts.
b) Whether the issue raised in this case has already attained finality by virtue of the order passed by the Hon'ble High Court.
c) Whether the issue Respondent is entitled to exclusive use of 18500 sq. mtrs around Asiad Tower Restaurant for the marriages and parties or the green area is liable to be used by public for recreation also.
The Tribunal has recorded reasons as could be seen from paragraph 26 of the judgment wherein on legal consideration of the grounds urged the bench has concluded;
"in any event if such violations are effected its is that statutory duty of the Respondent No. 2 either as a lessor or licensor to take appropriate action. As long as the statutory nature of the Master plan remains operative and unchallenged in an appropriate manner in the appropriate forum, it is not for this Tribunal to hold that the Respondent No. 2 is either not entitled to lease or give on license either the Tower Restaurant or the surrounding areas. Moreover, there has been a specific finding that during these years, the Respondent No. 3 has taken steps to make the green area by planting more trees. Therefore looking into any angle, we are unable to accept the contentions of the learned senior counsel for the applicant in this regard."
This would show that the first ground urged by the applicant questioning the validity of the licence dated 18.12.1997 has been negated.
It is not disputed that the Tribunal has framed specific point with regard to validity of the licence and it has upheld as referred to in the finding in paragraph 26. Therefore, we find there is no need for us to examine legality of the licence as same has been upheld. It is further necessary to refer to the direction of this Tribunal which affirms this Tribunal is opinion that the licence is held valid. The final directions in paragraph No. 31 direction No. 2 reads :-
it will be open to the respondent no. 2 to execute the necessary license deed in favour of the Respondent No. 3 regardin the use of 18500 sq.mtrs of green area around Tower restaurant subject to the above conditions as may be stipulated by it.
Therefore, the Tribunal has granted further relief to the Respondent to get the deed of license to be executed in its favour and permitted the Respondent No. 2 to do so.
This would imply that the transaction of the DDA and the Respondents No. 3 to grant of license for use of green area measuring 18500 sq. mtrs is upheld.
We must now understand the consequences of such relief granted by the Tribunal.
The lease and license are two distinct terms, but are transactions which are recognised in law. Lease confers exclusive possessory right on the lessee subject to restriction that lessor may impose. But during subsistence of lease there will be no interference in its use even by its lessor. As far as licence is concerned, it is a transaction by which the owner of the property grants licence i.e. right of user is distinct. As long as the license is in force, subject to conditions imposed the right of exclusive user is conferred on the licensee but the corpus will remain with the owner. The license is terminable at the discretion of the licensor in respect of the period which is fixed, which is not permissible is the case of lease. If we apply this proposition then we have to consider whether the Respondent No. 3 has right of the user in respect of the land in question to the exclusion of others. As could be seen from the finding the transaction between the DDA and Respondent No. 3 granting necessary lease and license to Respondent No. 3 for using 18500 sq. mtrs of land appurtenant to tower restaurant is permitted to be use for banqueting and marriage parties, which is undoubtedly a commercial activity.
The question now is whether the conditions stipulated by this Tribunal restricting use of said area for only a period of 10 days in a month is justified and is called for.
In this regard it is necessary to note that the finding of the Tribunal upholding the transaction between DDA and the Respondent No. 3 licence in respect of 18500 sq.mtrs of land in favour of Respondent No. 3 has not been questioned by the Original Applicant before appellant forum and has reached finality. It is the only restriction imposed by affirming the transaction that the review application has questioned. We must in this regard take into consideration the fact that this transaction took place in the year 1997 much before the NGT came into force. It is not in dispute that NGT Act came into force on 18.10.2010 and any order/direction prior to that is not amenable for appeal etc before this Tribunal.
Similarly the jurisdiction of this Tribunal to consider validity or justification of any transaction under Section 14 may also be not legally permissible if transaction is before 2010. Be that as it may. In view of the fact that this Tribunal has upheld the transaction and put certain restriction taking into consideration legal provision relating to right of the licences and fact that till now no order has been passed in the Civil Court cancelling such transaction, it has been concluded transaction valid. Besides though the applicant had questioned the transaction and this Tribunal recorded its finding in the negative it has not been challenged. In this factual situation we are of the opinion that the imposing a ban on Respondent No. 3 to use land in question only for 10 days in a month while allowing the rest of the period of 2012 for public use is not legally just and if allowed will be in conflict with the earlier part of the order, of this Tribunal.
As far as other findings of this Tribunal are concerned, we feel it is not necessary to examine these points for the reason this is only an order adverse to the Review Applicant and the relief granted by this Tribunal being in his favour no further opinion is necessary.
As a result while confirming the findings of this Tribunal on various points recorded, we are of the opinion that the ban imposed by this Tribunal by the Judgment under review restricting the use of the land measuring 18500 sq.mtrs by the Respondent No. 3 for a limited period of 10 days in a month needs to be modified and we permit him to utilise the land in terms of the licence granted by DDA un-interrupted
Apart from the condition imposed by the judgment in question, we direct DDA to finalise complete documentation in this regard to the transaction within a period of one month from now and while doing so keep in mind the finding recorded by this Tribunal and comply with directions recorded therein.
With these observations, the Review Application No. 23/2015 is allowed partly and disposed of, accordingly.
Learned Counsel for the Original Applicant submits that the M.A. No 1061 of 2015 is pending for consideration in this case. Registry is directed to issue notice in this regard. Post M.A. No. 1061/2015 for consideration on 4th September, 2017.