The Single Judge Bench of Justice Anup J Bhambhani, of the Delhi High Court, has stated that while the Court doesn’t have power to second-guess policy decisions taken by the State authorities in the exercise of its power of judicial review under Article 226 of the Constitution of India, it have certainly the power to review the procedure followed by the authority to make and put the policy decision into effect. The Judgment was passed in a petition challenging South Delhi Municipal Corporation’s proposal of constructing a multi-level car parking near the market in Rajouri Garden.
The petition was filed by a society, Friends of Rajouri Garden Environment, who works against unauthorized development in the area. The society is registered under the Societies Registration Act, 1860. The South Delhi Municipal Corporation issued a Request for Proposal (RFP) for the construction of a multi-level parking at Rajouri Garden. There were vacant plot measuring approximately 1800 sq. yds, where the construction was to be done for meeting the requirements of a market in the area.
The petitioners out forward their grievance that although the land in question was vested in the Municipal Corporation, the land was originally earmarked for the construction of a MCD School. It was submitted by the petitioners that till date no change in the land-use of the land that was designated to it. The petitioners further added to their submissions that, the market itself was “unauthorized” as the area was not designated for shopping area or market under the Municipal plans, therefore constructing parking for an unauthorized market would be impermissible as a matter of public policy. Further, it was added that the construction of the parking as a standalone project would be against the Master Plan for Delhi-2021 (MPD 2021). It was also pointed out to the Court that the said land in question is the only designated land left for construction of school in that area and there are no other lands nearby to be used for that purpose, this might hamper with the future schooling requirements of the area.
The South Delhi Municipal Corporation, in their respond stated, that there are acute shortage of parking in that area. It was further submitted that, as per a survey conducted by an expert agency, it was an immediate requirement of parking equivalent to 802 cars in the area. The respondents further added that the requirement to change land-use was a necessity under the MPD-2001 which was relaxed by the MPD-2021. Respondents further pointed, that there was no violation of the MPD-2021 as per clause 12.14, parking was permitted in all “use-zones” except in Recreational Open Spaces. As per the Respondent, the said clause permitted creation of parking sites even in a residential area.
- The Court concluded, such construction, use-zone of land had to be modified, from “public and semi-public facilities” to “transportation”, this requires modification of the Zonal Development Plan.
- As per Section 11A of the DDA Act, only the DDA and the Central Government had the power to modify the Master Plan or the Zonal Development Plan.
- The Court stated that Municipal Corporations do not have the power to modify Master Plan or Zonal Development Plan.
The Courts Order
After hearing both the sides, the Single Judge Bench of the Delhi High Court, stated that constructions such as “multi-level parking”, the use-zone of the land had to be modified, from “public and semi public use” to “transportation”, which requires modification in the Zonal Development Plan. The Court further added that such change would not be in conformity with the MPD-2021 as it requires parking to be part of the PWD plan and not as a standalone project.
The Court also stated that as per Section 11A of the DDA Act, there are only two entities, the DDA and the Central Government, which had the power to modify the Master Plan or the Zonal Development Plan. Therefore, the Municipal Corporation would have no power at all to modify the Zonal Development Plan.
Thus it was stated by the Court:
“While it is not for this court to exercise its powers of judicial review under Article 226 to second guess a policy decision taken by a State authority, it is certainly the remit of the court in these proceedings to review the process followed by the authority to make and put into effect a policy decision; as also to ensure compliance by State authorities with statutory provisions and statutory instruments, in this case the DD Act, the DMC Act and MPD 2021.”
The Court also considered to the fact that the parking was proposed to be constructed in a land which was not approved for such use, to provide the need of the market which in itself was unauthorized under the Municipal Laws. In view of the above the Court concluded that the proposal of the Respondents to construct a multi-level parking facility in Rajouri Garden be quashed.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
1. Friends of Rajouri Garden Environment (Regd.) and Anr v. South Delhi Municipal Corporation, Writ petition (Civil) no. 4691 of 2018.