K.C. Chopra vs Rakesh Mehta

S. Ravindra Bhat, J.

WP (C) No. 7616/2005 with CCP No. 770/2004:

The petitioners herein under Article 226 of the Constitution are seeking order of the Court to restrain the respondent-Municipal Corporation of Delhi (MCD) from converting a children''s park situated at E-6 Krishna Nagar, Delhi. The petitioner is a Society, it avers that its members are residents of Krishna Nagar. A heavily populated locality. As per the allegations of the petitioners in the vicinity of the locality there are few parks, hence open space/green areas have to be preserved. Reliance has been placed on a letter dated 11.1.1996 issued by the Government of India. Ministry of Urban Affairs and Employment stating that areas developed as ''Green'' in the Regional/District/neighborhood parks or other recreational zones in the city should not be converted into other uses. The proposal of the MCD to use the area in question for the purpose of construction of a pump house, to drain out water has been questioned.

The petitioner had approached the Municipal Authorities eliciting details about the proposed works. The concerned Assistant Commissioner of MCD area namely. Shahdara (South) Zone by a letter informed that a storm water drain/Nallah was proposed to be dug starting from premises F-13, Block Krishan Nagar. The details of this work and the proposed areas where the Nala was to pass were also indicated. The petitioner has annexed a copy of the order in WP No. 1575/2003.

The MCD has filed is counter affidavit. The petitioner has filed a rejoinder which is taken on record.

The contempt petition namely, CCP No. 770/2004 complains of non-implementation of the directions in WP No. 1575/2003. That writ petition was disposed of by order dated 22.4.2003. The order reads as follows:

"The status report has been filed stating that there is a proposal for construction of a drain from Vijay Chowk to Haryana Handloom and from Haryana Handloom to E Block Krishna Nagar Pump House. The said scheme is stated to have been sanctioned and is under process. Learned Counsel for the respondent states that the needful shall be done within a maximum period of seven months from today.

Insofar as the problem which may arise during the next monsoon season, it has been stated in para 5 of the report that manpower and diesel pump sets are deployed in Krishna Nagar to handle water logging.

It is directed that the needful be done well before the onset of monsoon so that the problem of water logging does not occur. This arrangement shall specifically be made in view of the problems stated to be existing on the road coming from Vijay Chowk Krishna Nagar towards Road No. 57."

The petitioner in the contempt proceedings alleges that MCD had to take up and complete the project within seven months. Reliance has been placed upon the undertaking/statement made in that regard. It is alleged that the officials of the MCD are deliberately not proceeding with the work and that this has resulted in acute hardship to the residents of the locality on account of water logging due to heavy downpour, particularly in the monsoons.

The reliefs claimed in the writ petition, impinge directly on the orders passed by the Court in WP(C) No. 1575/2003. That order had recorded the obligation of the MCD to carry out the works in a particular manner. A time period too had been indicated.

I have heard the learned Counsel for the petitioner in WP(C) No. 7616 2005 as well as the learned Counsel in the contempt petition. Mr. Ashok Bhasin appearing on behalf of MCD made submissions in both the proceedings.

The contention of Mr. Gupta, appearing for the writ petitioners is that the area sought to be utilised for putting up the pump house is in fact used as a children''s park. He submits that in accordance with the directions of the Government of India, the MCD is under an obligation to preserve the park in its entirety .He further submitted that there are two existing pipes on the Mandir Marg and that they lead to two pump houses. A sketch/site plan has been annexed along with the petition. It is, Therefore, submitted that there is no necessity for putting up a large pump house on the proposed site.

Learned Counsel also submitted that the route proposed to be taken for the Nallah/storm water drain is circuitous and in the final analysis the water would be brought back into the Mandir Mary. He, Therefore, submitted that apart from other considerations, the plan itself is not feasible. Reliance has also been placed upon a letter written by a Municipal Counsellor in which there is mention of inspection of the local area and the fact that there are three-four curves. The letter states that the Scheme ought to be routed in some other direction.

Counsel for the petitioner in the contempt proceedings on the other hand, submitted that the MCD is duty-bound to comply with the directions of the Court in WP(C) No. 1575/2003. The order itself recorded the nature of the work and the route which was proposed to be taken. The problem that had been addressed was also noticed by this Court in those proceedings. Counsel made impassioned submissions that the attempt of the writ petitioners to somehow scuttle the entire works, which are absolutely necessary to eliminate the problem of water logging which the residents has to face year after year. Learned Counsel submitted that the area in question is one at the end of a slope. Consequently, water tends to accumulate there causing unfold misery to the local residents.

The Counsel for MCD has produced the records. He submitted that the work was proposed some time in the year 2001. It involves an expenditure of Rs. 95.30 lakhs. Learned Counsel submitted that this proposal was itself before the Court, when the writ petition was disposed of on 22.4.2003.

Soar as the allegations with regard to the location of the pump house in the open area/children park is concerned, it has been submitted that the entire area would not be utilised and that roughly half the area would be used as pump house. Counsel for MCD further submits that as per the regularised layout plan in respect of the area, the plot in question has not been earmarked as a park but merely as "open space". He, however, did not dispute that trees are located at the site and that there are few swings, etc. meant for use by the children. Learned Counsel further submitted that the proposal in question has received the consideration of MCD at the highest levels. He has relied upon the affidavits sworn to by the Commissioner, MCD on 24.3.2005. The Commissioner has indicated the schedule for completing the work after reviewing progress of the project. According to this affidavit, the work was awarded after the process of tendering was completed on 17.3.2005. The affidavit also states that the work is scheduled to be completed within six months from the date of the above order, in respect of the pump house. As far as the construction of drain is concerned, it has been stated that the work was awarded on the same date namely, 17.3.2005 and the period granted is four months. Raising construction of pump house of drain No. 1 has been proposed. It has been affirmed that this would be completed within six months after getting administrative approval from the Trans Yamuna Area Development Board.

Learned Counsel for MCD states that on instructions by Mr. Haidar Ali, Assistant Engineer states that the area approval was in fact granted some time in March, 2005.

The factual position in these two matters discloses that after litigation this Court had directed the works to be carried out. The works in question namely, construction of a drain and the pump house are to be carried out. The Court was even aware about proposal for construction of a drain as is evident from the reference of two places namely, Vijay Chowk to Haryana Handloom and from Haryana Handloom to E Block Krishna Nagar Pump House.

In this view of the matter and having regard to the fact that the proposal was made as far back as in the year 2001, the question requiring consideration is whether the writ petitioners can claim any relief. The nature of relief claimed in the writ petition virtually is by way of a review of the final order passed in WP(C) No. 1575/2003. Besides other technical considerations as to the question of finality, etc. the one important aspect which is to be kept in mind is whether the previous order was passed in ignorance or overlooking of any material fact.

The writ petition, in my considered opinion does not disclose any new material apart from the existing use of the open area. It is not as if the petitioners have been able to show that the MCD''s proposal is illegal or based on irrelevant considerations. The proposal to dig a Nallah and construct a pump house is in public interest. The record produced in Court shows that these issues were engaging the consideration of the MCD for the past four year. This Court which was seized of the matter in previous proceedings namely, WP(C) 1575/2002 too had occasion to consider the nature of the work. After hearing parties, directions were issued to complete the project in a time-bound manner. As far as the submission on behalf of the petitioner in WP(C) No. 7616/2005 with regard to the location of the routed drain or the location of the pump houses is concerned, I am of the view that there is no illegality made out. As stated earlier, in the absence of any indication to show that the open area had to be kept apart as a park it would not be possible for this Court to go into the decision making and give finding as to which alternative would be better. The observation that it would be convenient if the existing pipes are continued without the digging of another Nallah and the construction of another pump house is one consideration. However, that would merely be a factor which would go into the decision making process. The fact that eventually the MCD did not consider the alternative is no ground for this Court, in exercise of the power to interfere what is undoubtedly a public project having meant for the benefit of the large section of the population.

An oft-repeated aphorism is that judicial review is concerned with the correctness or legality in the decision-making process, rather than the merits of the decision. Illegality, lack of bona fides, non-application of mind to relevant factors, unfairness and arbitrariness are the grounds on which the Court of law intrude and set aside an administrative decision. In absence of these, the Court cannot become an appellate forum for evaluation of the merits of the decision.

During the course of hearing it transpired that the entire open area is not proposed for putting up/constructing a pump house. Counsel has submitted that half the area would be in fact constructed upon and that every attempt would be made to ensure that the balance area would be kept open and that in such area no trees would be disturbed.

In view of the foregoing discussion. I find no merit in the writ petition which is disposed of. The MCD is, however, directed to ensure that the unconstructed or unutilised portion of the open area after construction of the pump house shall be preserved for the use by children and other residents and, if necessary, it shall be greened appropriately.

In view of the above, nothing further survives as far as the contempt proceedings too are concerned. The contempt notice is hereby discharged.

The Contempt petition stands disposed of.

CM No. 5669/2005 in Cont Case (C) No. 770/2004:

The applicant/contempt petitioner has sought a direction to install temporary diesel pumps during the forthcoming monsoon season at a point near Road No. 57. Counsel submits that this is necessary and is a purely temporary measures, to eliminate the hardship of local residents on account of heavy rain-fall which would lead the water logging in the year. It is stated that the point is located on the road coming from Vijay Chowk to Haryana Handloom. The MCD would consider this proposal and take appropriate action during the monsoon season as a temporary measures, till such time the Nallah and the pump house is not constructed and becomes functional.

dusty.