Greater
Kailash Part-Ii Welfare Association & Ors Vs. DIF Universal Ltd. & Ors [2007]
Insc 576 (15 May 2007)
C.K. Thakker & Altamas Kabir
CIVIL APPEAL NO. 2520 OF 2007 (Arising out of S.L.P.(c) No. 4909/2006)
ALTAMAS KABIR, J.
Leave granted.
2. This appeal involves the apprehension of serious traffic problems by the
residents of Greater Kailash Part -II, Alaknanda Complex, Mandakini Enclave and
Chittaranjan Park on account of the change of user of the plot situated at
the junction of Outer Ring Road and the main entry point to the aforesaid
colonies on which the Savitri Cinema is located.
The said plot, (hereinafter referred to as the 'Savitri Plot' ), though
situated in a residential area, was earmarked as a cinema complex in the Delhi
Master Plan at the initial stage when Greater Kailash Part -II was being
developed.
3. The appellant No. 1 herein is a society duly registered under the
Societies Registration Act and claims to have over 3400 members who are all
residents of Greater Kailash Part II Colony.
4. There is no dispute that that the Savitri Cinema Hall had been operating
on the Savitri Cinema Plot ever since the Greater Kailash Part II Colony had
come into existence, that is, for a period of about thirty years. The cinema
hall was closed in 1997 by the respondent No.1 after a fire broke out in the
Uphaar Cinema complex. Subsequently, a decision was taken by the respondent
No.1 to convert the Savitri Cinema Hall into a smaller capacity mini cinema
hall with modern features and facilities. The respondent No.1 submitted its
alteration/renovation plans to the Municipal Corporation of Delhi (hereinafter
referred to as 'MCD') for requisite sanction.
As required by the MCD, the respondent No.1 duly obtained the following
clearances :- (a) Approval from Delhi Urban Arts Commission on 24.9.2001;
(b) No Objection Certificate from the office of DCP Traffic, Delhi on
1.3.2002;
(c) No Objection Certificate from Delhi Fire Service on 9.9.2002;
(d) No Objection Certificate from BSES Rajdhani Power Ltd. on 30.10.2002;
(e) Provisional Clearance Certificate from the office of DCP Licensing
(Cinema), Delhi on 29.11.2002.
5. On the basis of the above and being satisfied that the Building Plans
were in consonance with the Building Bye Laws 1983, Master Plan 2001 and Delhi
Cinematograph Rules, 2002, the MCD accorded sanction to the said plans on 4th December, 2002 with a direction that such renovation should be completed by 3rd December, 2004.
6. It also appears from the materials on record that as per the sanction
granted by MCD, the respondent No.1 completed the renovation of Savitri Cinema
within the time prescribed and applied to the MCD for Completion Certificate on
2nd December, 2004.
7. It is at this stage that the appellants herein filed four Writ Petitions,
being Nos.19798-19801/2004, in the Delhi High Court in the month of December,
2004, inter-alia, complaining of the change of user of the Savitri Cinema Plot
by converting it into a multiplex -cum- commercial complex.
8. The case made out in the writ petitions was that the respondent No.1
herein was converting the single screen cinema hall into a multiplex
-cum-commercial complex with four cinema halls which would result in a much
larger number of visitors to the complex, which, in turn, would result in a
larger number of vehicles being parked in and around the complex and
particularly on the road branching off from Outer Ring Road as the entry point
into Greater Kailash Part II and the other colonies situated in the area. It
was also the case of the writ petitioners that the said entry point from Outer
Ring Road being a single entry point into the colonies it is already congested
and there are continuous traffic jams causing great hardship to the inhabitants
of the aforesaid colonies. According to the writ petitioners, the congregation
of more vehicles on the already congested entry point would cause a complete
breakdown of the traffic system both to and from the colonies in question and
also on Outer Ring Road notwithstanding the construction of a flyover at that
particular point.
9. Complaining that the construction of the multiplex -cum- commercial
complex was also in violation of the Master Plan of Delhi, the Building
Bye-laws and the Cinematograph
Act, 1952,
the writ petitioners, interalia, prayed for the following reliefs :
"(i) Certiorari quashing the sanction of building plans for
additions/alterations in the existing building and for conversion into a
multiplex mini cinema-cum-commercial complex at Savitri Cinema point, Greater
Kailash Part II, New Delhi 110048 issued in favour of Respondent No.7;
(ii) Mandamus restraining Respondent No.7 from raising construction of
multiplex mini cinema-cum- commercial complex in place of the pre-existing
Savitri Cinema in Greater Kailash Part II, New Delhi 110048;
(iii) Certiorari quashing the clearances and permissions granted to the
building Plans for addition/alterations and construction of a mini
multiplex-cum-commercial complex submitted by Respondent No.7 to the Respondent
Authorities at Savitri Point, Greater Kailash-II, New Delhi;
(iv) Mandamus directing the Respondent Authorities to discharge their
statutory obligations and duties in respect of the parking and traffic
circulation matters raised by the Petitioners."
10. The writ petitions were duly contested by the respondent No.1 herein by
filing a counter affidavit in which it was contended that there was absolutely
no substance in the averments and submissions made in the writ petitions.
11. It was also contended that the writ petitions were based on a mistaken
impression that the respondent No.1 was converting the existing single screen
Savitri Cinema into a multiplex cinema complex having four cinema screens which
would lead to a considerable increase in the number of cinema seats and the
number of people who could visit the cinema complex, which in turn, would lead
to traffic congestion at the T junction where the cinema hall was situated. It
was stated in the affidavit that the writ petitioners were also under an
impression that the alteration and/or renovation of the Savitri Cinema Hall was
being carried on by the respondent No.1 without obtaining statutory clearances
and in contravention of the existing Building Bye laws.
12. It was stated that both the above-mentioned apprehensions were incorrect
and the respondent No.1 had decided to convert the existing Savitri Cinema
Hall, which had provision for 1000 seats, into a single screen mini cinema hall
with only 300 seats after obtaining sanction from the Municipal authorities. In
fact, there would be a substantial reduction in the number of seats in the
cinema hall which would also reduce the number of visitors to the cinema
complex.
13. The learned Single Judge proceeded to dispose of the writ petitions upon
holding that while the existing capacity of the cinema hall was to be reduced
considerably, the remaining portions of the renovated structure consisting of
six storeys was to be used pre-dominantly as a shopping/commercial complex. The
learned Single Judge noted the fact that the ground-floor plan disclosed a vast
shopping area and the sanctioned plan indicates that the entire ground-floor
was to be converted into a departmental store. The learned Judge observed that
the mini cinema hall was only a small part of the proposed alterations of the
building and that the rest of the areas were to be utilized as shops or as
commercial spaces.
14. The learned Judge also took note of the fact that the parking norms as
indicated in the Delhi Master Plan, 1990, read with the Building Bye-laws and
the Delhi Cinematograph Rules, 2002, were in apparent conflict with each other
and, in fact, the Master Plan while enumerating the parking standard for the
different categories indicated in the Master Plan, did not indicate the parking
space required to be reserved for a building which was pre-dominantly to be
used for commercial/shopping purposes and only a small space was to be utilized
as a cinema hall. Based on his aforesaid observations, the learned Single Judge
held that the claim by the Delhi Police and the respondent No.1 about proper
compliance with the parking norms was not accurate and that after reserving
certain spaces for scooters and motor-cycles, the aggregate space required to
be reserved for parking would be 104 Equivalent Car Space (hereinafter referred
to as "ECS"), while the sanctioned plan provided for 93 ECS.
15. The learned Single Judge noted the fact that while prescribing parking
standards for different establishments, the Delhi Master Plan had not laid down
the standards for buildings to be used both as a cinema hall and a commercial
complex. In such cases, however, Note I of the Parking Standard provided that
where such parking standard had not been prescribed, the same would be
prescribed by the authority depending upon the merits and requirements of each
individual case. The learned Single Judge held that the role of the Delhi
Development Authority as the Authority designated by the said Note in the table
appended to Clause 8 (4), had escaped the notice both of the Municipal
Corporation of Delhi as well as the Government of the National Capital
Territory of Delhi. The learned Single Judge observed that even the Delhi
Development Authority had returned the reference made to it in May 2002 stating
that it had no role to play in the matter. After considering the submissions
made on behalf of the respective parties, the learned Single Judge came to the
conclusion that the respondent-authorities had mechanically granted sanction to
the plan submitted by the respondent No.1 and had not examined the matter in
regard to applicability of the relevant parking standards with the required
seriousness. The learned Single Judge felt that the position of the plot, in
the sense of its being at the entry point to several colonies, the number of
existing vehicles in those colonies, the number of religious and educational
institutions, were all relevant factors which should have been taken into
consideration while granting sanction to the plan, at least from the parking
angle. On the basis of his aforesaid findings, the learned Single Judge
disposed of the writ applications with the following directions:- "(a) The
impugned sanction granted to the seventh respondent shall not be operated upon;
(b) The respondent Municipal Corporation of Delhi shall refer the issue of
parking in the mini- theater complex, along with details of the plans approved
by it, to the Delhi Development Authority, which shall take its decision and
indicate the appropriate parking standard having regard to all relevant
factors, such as location and size of the plot; its being an entry point from
the Outer Ring road, to a number of colonies, containing residential
structures, educational and religious institutions, etc. if page 1744
necessary, the DDA shall indicate the additional parking requirements, and the
underground coverage required for the purpose;
(c) The DDA shall also consider the issue of exit from the cinema complex,
and the likely inconvenience to or friction that would ensue to the local
residents;
(d) The MCD shall make a reference within a period of 3 (three) weeks to the
DDA, which shall decide the matter, and formulate a suitable parking norm in
respect of the plot in question;
(e) The decision of the DDA shall be suitably incorporated in the plans
sanctioned in favour of the respondent No.2, within a period of 4 weeks after
receipt of its order by MCD;
(f) The directions at sub-para (a) above shall cease to subsist, upon steps
having being taken, as per sub-paras (c) to (e) above; the respondents shall
ensure that constructions/alteration to the cinema complex is in strict
conformity with the changed plans; as per the decision of DDA."
16. As will be evident from the above, the respondent No.1 was restrained
from acting on the basis of the sanction granted till such time as the other
directions of the learned Judge were complied with.
17. Aggrieved by the judgment passed by the learned Single Judge on 18th
October, 2005 and the directions made therein, the respondent No.1 herein filed
a Writ Appeal against the said judgment in the Delhi High Court, being L.P.A.
No.
2633/2005.
18. The Division Bench took the view that the learned Single Judge had
practically sat as a court of appeal over the decisions of the executive
authorities. The Division Bench observed that whether the relevant standards
and requirements had been met was ordinarily for the concerned authorities to
look into and not for the Court, unless there was a clear violation of law or
something shockingly arbitrary.
The Division Bench also noted that the writ petition had been filed
challenging the renovation/modification project in December, 2004 when the
project had been duly completed in terms of the sanctioned plan and the
appellant had applied for a Completion Certificate. It was observed that the
writ petitions should have been dismissed on the ground of laches without going
into the merits.
19. Apart from the above, the Division Bench also observed that even on
merits the writ petitions were liable to be dismissed since they were based on
a complete misconception that the respondent No.1 had planned to convert the
single screen Savitri Cinema Hall into a four-screen multiplex and that the
same was being done without requisite permissions from the concerned
authorities. The Division Bench disagreed with the views expressed by the
learned Single Judge regarding the role to be played by the Delhi Development
Authority in the matter. It was observed that the Delhi Development Authority
Act, 1957, classified land into two categories; (i) Development areas; and (ii)
areas other than a developed area. It was noted that for development in a
developed area, the express written permission of the Delhi Development
Authority was essential, whereas Section 12 (3) (ii) of the Act makes it clear
that for development in an area other than the development area, only prior
written approval or sanction of the local authority regulating the development
of such other area was required. The Division Bench was also of the view that
Clause 8 (2) of the Development Code to the Master Plan for Delhi 2001 permits
commercial areas within a cinema. The parking requirements for the same had
been prescribed and the parking space reserved in the sanctioned plan was well
over the requirement prescribed not only under the Master Plan but also under
the Delhi Cinematograph Rules, 2002 and the Delhi Building Bye-laws.
20. Observing that it did not find any illegality in the orders passed by
the Municipal Corporation of Delhi or the other authorities, nor any shocking
arbitrariness, the Division Bench allowed the appeal and set aside the judgment
of the learned Single Judge.
21. The instant appeal has been filed against the said judgment and order
passed by the Division Bench allowing the writ appeal.
22. Appearing for the Association, Mr. U.U. Lalit, learned Senior Counsel,
submitted that the traffic congestion that was likely to occur on account of
renovation of Savitri Cinema Hall was within the knowledge of the Deputy
Commissioner of Police (Traffic), Delhi when such proposal was initially made.
He referred to a letter dated 18th July, 2001 written by the Deputy
Commissioner of Police (Traffic), Delhi to the Deputy Commissioner of Police
(Licensing), pointing out the difficulties that would be caused if the
Multi-Complex was allowed to be erected on the Savitri Cinema plot and it was
pointed out that even with the existing parking facility available in the
Savitri Complex, the situation becomes very grave especially during peak hours
and there was every likelihood that fatal accidents could occur as the smooth
flow of traffic would also be obstructed on account of such construction. A
request was made that in the event the proposal for renovation of the Savitri
Complex was to be approved, the traffic unit should also be consulted.
23. Mr. Lalit submitted that the proposal for conversion of the existing
Cinema Building into a Mini Cinema-cum- Commercial Building was forwarded by
the Municipal Corporation of Delhi to the Delhi Urban Art Commission
(hereinafter referred to as 'DUAC'), as would be apparent from the letter dated
24th September, 2001, written on behalf of DUAC to the Executive Engineer,
(Buildings) MCD, indicating that the said proposal had been considered by the
Commission in its meeting held on 24th September, 2001 and the same was
approved by the Commission on condition that the same was otherwise as per
Master Plan, Zonal Plan, Building Bye-Laws Fire-fighting Regulations, the
policy instructions of the Government of India and if 1% of the project cost
was set apart for "Works of Art" in the building.
24. It was then urged that the Deputy Commissioner of Police (Licensing) had
consulted the Deputy Commissioner of Police (Traffic) regarding grant of
"No Objection Certificate"
from the Traffic Department to the proposal for carrying out
alteration/modification of Savitri Cinema. On 1st March, 2002, the Deputy
Commissioner of Police (Traffic) had written to the Deputy Commissioner of
Police (Licensing) indicating that the Traffic Department had "No
Objection" from the traffic point of view to such alteration/modification
subject to certain terms and conditions, namely:- "(1) To close gate No.1.
(2) Entry will be only from gate No.2 and exit will be from gate No. 3 and
4. The capacity of Cinema Hall may be reduced to 300 seats instead of 1000.
(3) The use of basement for parking purposes, which is about 10,000 sq. ft.
should also be made available."
25. Ultimately, on 25th December, 2002, the Executive Engineer, Municipal
Corporation of Delhi (Building Department) (HQ), gave a Provisional Clearance
Certificate and informed the office of the Deputy Commissioner of Police
(Licensing) about the grant of sanction to the proposal for conversion of the
Savitri Cinema Hall into a Mini Cinema-cum- Commercial Complex. In fact, the
sanction under Section 336 of the Delhi Municipal Corporation Act was conveyed
to the Respondent No.-I by the Delhi Municipal Corporation by its letter dated 4th December, 2002, which also contained instructions relating to the commencement of the
construction of the building.
26. Once the construction was commenced, the members of the Appellant's
Association claim that they came to learn of the proposal for conversion of the
Single Screen Cinema Hall into a four-screen multiplex together with a
commercial complex which would give rise to grave problems for the residents of
G.K.-II, Alakanda, Mandakini Enclave and Chittarajan Park in entering and
moving out from the colonies through the T-Junction, where the Savitri Cinema
Hall is situated, on account of the traffic congestion likely to be caused by
visitors to the renovated complex. Accordingly, on 10th September, 2003, the
Association addressed a letter to the Commissioner, Municipal Corporation of
Delhi, indicating the difficulties that would result on account of a single
entry and exit at Savitri Point, to and from the above-named colonies in the
event the proposal for renovation of the Savitri Complex was allowed to stand.
27. Mr. Lalit submitted that in response to the objections raised on behalf
of the association, the DUAC had invited the representatives of the Association
to appear before the Commissioner on 12th November, 2003 to indicate their
grievances in the event of conversion of the Savitri Cinema Hall into a
Multiplex.
28. Pursuant thereto, the members of the Association appeared before the
Commissioner and pointed out that the role of DDA under Section 7 of the Delhi
Development Act, 1957 and the Building Bye-Laws of the MCD had been overlooked.
It was alleged that the relevant provisions of clause 13.1 and 13.2 of the
Building Bye-Laws relating to Parking and Parking Space had not been properly
followed and the entire matter required reconsideration. The objections taken
before the Commissioner were also separately conveyed to the Chairman, DUAC, by
a letter of even date requesting the Commissioner to have a re-look at the
whole scheme of things, keeping in mind the fact that the venue of the
multiplex complex is the entry point for all the residents living in the
colonies referred to hereinbefore and in particular G.K.-II.
29. Referring to the Urban Art Commission Act, 1973, Mr.
Lalit submitted that Section 11 of the Act enumerated the functions of the
Commission which included advising the Central Government in the matter of
preserving, developing and maintaining the aesthetic quality of urban and
environmental design within Delhi and to provide advice and guidance to any
local body in respect of any project or building operations or engineering
operations or any development proposal which affects or is likely to affect the
sky-line or the quality of the surroundings or any public amenity provided
therein.
30. On 6th December, 2003, the DUAC informed the respondent No.I that the
proposed conversion of the Savitri Cinema Hall into a Mini
Cinema-cum-Commercial Complex had been considered by the Commission in its
meeting held on 12th November, 2003, and after hearing all concerned, the
Commission had decided to refer the matter to the Standing Sub-Committee on
Traffic Transportation Proposals for considering all aspects of the proposal.
It was also decided that the Sub-Committee would consider the matter along with
the Delhi Traffic Police as well as the Municipal Corporation of Delhi. In
addition, the architects were also advised to look into the possibility of
providing more parking space looking at the need of extensive parking for this
kind of complex.
31. Mr. Lalit contended that while the aforesaid proposal was being
considered by the different authorities, the Respondent No.-I changed its
original plan and decided to convert the single-screen cinema into a multiplex
having four-screens and commercial show-rooms. The said proposal was also
subsequently replaced by a plan to have two cinema screens, with each single
cinema having 150 seats, which would operate at staggered timings. However, on
9th March, 2004, all the different proposals were withdrawn by the Respondent
No.-I and the DUAC was informed that the first proposal of having one Cinema
Hall of 300 seats and some show rooms on the ground floor which was cleared on
13th August, 2002, and on the basis whereof the Building Plan had been
sanctioned on 4th December 2002, would be proceeded with. The Commission wrote
back to Respondent No.I on 16th March, 2004, indicating that since the proposal
had been revised the same was required to be routed through the Municipal
Corporation of Delhi.
32. Subsequently, in December 2004, four writ petitions were filed on behalf
of the Association and its office bearers, inter alia, for a writ in the nature
of Certiorari for quashing the sanction of the Building Plans for conversion of
the single screen cinema hall into a multiplex mini cinema-cum- commercial
complex at Savitri Cinema Point, G.K. and for other reliefs.
33. Mr.Lalit submitted that the learned Single Judge had taken into
consideration the parking standards prescribed by the Delhi Master Plan, 1990
requiring developers to set apart Equivalent Car Space in respect of the
establishments indicated under such parking standard. Mr. Lalit submitted that
the learned Single Judge also noted the fact that a cinema hall-cum-commercial
complex had not been mentioned in the list of establishments mentioned under
the parking standard, although premises used for "commercial plotted
development"
and as a "cinema" have been separately mentioned in the said list.
Mr. Lalit urged that since the type of construction to be erected in the
Savitri plot was not mentioned in the said list, the learned Single Judge
directed that recourse should be taken to Note I appended to the Parking
Standards, which provided that parking standards in respect thereof would be
prescribed by the Authority depending on the merits and requirements of each
individual case. Mr. Lalit submitted that besides the aforesaid provisions
relating to parking standards, the learned Single Judge also had occasion to
consider the provisions of the Building Bye Laws with regard to the same
subject. The learned Single Judge took note of Clause 13 of the Building Bye
Laws which also deal with parking space and provides the specification for the
areas to be set apart for parking in the basement, on the ground floor when the
building is on stilts and in the open spaces. In particular, the learned Judge
took note of Clause 26 which deals with assembly buildings such as cinemas,
theatres, etc. Clause
26.2 provides that where parking spaces are not specifically indicated, the
same is to conform to Bye Law 13 mentioned hereinabove.
34. Mr. Lalit submitted that apart from the above, the learned Single Judge
also noticed the provisions relating to parking under the Delhi Cinematograph
Rules 2002 framed under the Delhi Cinematograph Act.
The learned Judge noted that the norms prescribed by the different Rules and
Bye-laws appeared to be in conflict with each other and on a consideration of
the entire situation, the learned Judge was of the view that the Authority
contemplated in Note I to the Parking Standards under the Master Plan, namely,
the Delhi Development Authority, should decide the area to be set apart for
parking in the new complex which was to replace the Savitri Cinema Hall in the
Savitri Plot. The learned Single Judge accordingly disposed of the writ
petitions with the directions set out hereinbefore. Mr. Lalit pointed out that
the main purport of the directions given by the learned Single Judge was that in
terms of Note I the Delhi Development Authority should not only indicate the
additional parking requirements and the underground coverage for the purpose,
but should also consider the question involving the exit of vehicles from the
cinema complex and the inconvenience likely to be caused to the local residents
as a result thereof.
35. Mr. Lalit suggested that the question of constructing an underpass to
avoid the T. Junction could be considered by the Delhi Development Authority
while considering the questions relating to traffic congestion referred to
above.
36. Mr. Lalit lastly contended that although the High Court had held that
the writ petitioners were guilty of laches on account of the fact that the
sanction to the renovation plan had been granted in the year 2002, whereas the
writ petitions had been filed in the year 2004, in actual effect, the writ
petitioners were initially unaware of the nature of the building which was to
replace the existing Savitri Cinema Hall and once they came to learn of the
actual plan, they raised objections to the concerned authorities from
September, 2003, but in the absence of any positive response, they were
compelled to file writ petitions in order to prevent a disaster in the making
while it could still be prevented. Mr. Lalit urged that the DUCA, which was
required to consider the effect of building operations on any public amenity
provided therein could be directed to give the writ petitioners a fresh hearing
so that the problem which was looming large could be addressed.
37. Appearing for the respondent No.1, Mr. Arun Jaitley, learned senior
counsel, submitted that the apprehension of the writ petitioners on the
question of traffic congestion on account of the conversion of the Savitri
Cinema Hall into a Mini-Cinema Hall-cum-Commercial Complex was completely
unfounded as the parking space that had been set apart for vehicles visiting
the complex was in excess of the parking standard contemplated under the Delhi
Master Plan, 1990.
He indicated that while the parking standards under the Master Plan required
93 ECS to be kept apart for the complex, in effect 98 ECS had been set apart
for the said purpose, which included 10,000 Sq.Ft. in the basement. Mr. Jaitley
urged that even under the parking norms under the Delhi Cinematograph Act
and the Rules and the Building Bye Laws, a similar amount of space was required
to be kept apart for parking. The plan prepared by the respondent No.1 for
sanction was in complete conformity with the Building Bye Laws and the other
Rules and Regulations and the writ petitioners could have no cause for
complaint in respect thereof. Mr. Jaitley urged that the Delhi Development
Authority, which had been directed by the learned Single Judge to consider the
question of calculating and specifying the space to be kept apart for parking
in the renovated complex was not empowered to do so and it was only vested with
authority under Section 12 of the Delhi Development Act, 1957 to oversee the
development of lands. He also pointed out that where the area to be developed
was an area other then a developed area, such development would have to be
effected upon obtaining sanction from the local authority concerned or any
officer or authority thereof empowered or authorized in that behalf.
38. Mr. Jaitley also submitted that since the respondent No.1 had obtained
sanction for renovation and/or conversion of the existing Savitri Cinema Hall
into a Single Cine Complex cum Commercial Complex, which was in conformity with
the Building Bye Laws and the Parking Standards prescribed under the Delhi
Master Plan, it was not open to the writ petitioners to raise any objection to
the proposed renovation merely on the apprehension of likelihood of traffic
congestion.
39. Mr. Jaitley submitted that the Delhi Urban Art Commission had been
constituted under the Delhi Urban Art Commission Act, 1973, not for the purpose
of considering matters as are in issue in the writ petitions filed by the
appellants herein.
40. Mr. Jaitley submitted that the Licensing Authority, namely the Deputy
Commissioner of Police (Licensing) had consulted the Deputy Commissioner of
Police (Traffic) before granting "No Objection Certificate" to the
plan of renovation of the Savitri Cinema Complex.
41. Mr. Jaitley submitted that although an attempt had been made by the Writ
Petitioners to involve the DUAC in the process of grant of sanction, neither
the Delhi Urban Art Commission Act, 1973 nor the Building Rules and Regulations
under the various enactments contemplated such involvement of the DUAC in such
matters except to the extent of maintaining and preserving the aesthetic
quality of such building plans.
42. Mr. Jaitley submitted that there was no provision in the 1973 Act which
enabled the DUAC to entertain objections from citizens in respect of Building
Plans submitted by individuals for construction on a particular plot. So long
as the said Building Plans were in conformity with the Building Bye-Laws and
the norms laid down in the Master Plan and so long as the plan did not offend
the aesthetic quality of urban and environment design, the DUAC had no role to
play in the grant of sanction to the building plan.
43. Mr. Jaitley submitted that, in fact, about 1 acre of parking space had
been provided for in the sanctioned plan, both in the open area and also in the
basement, which was required to be set apart under the parking standards laid
down by the Delhi Master Plan, 1990. It was also urged that it would be against
all equitable considerations to disturb or alter the sanction as granted since
the construction has already been completed as per the sanctioned plan and a
'Completion Certificate' had been issued by the Municipal Corporation of Delhi
to the Respondent No.-I on 6th March, 2006.
44. Mr. Jaitley urged that the directions given by the learned Single Judge
purportedly in keeping with Note-I of the Parking Standards as indicated in the
Delhi Master Plan, 1990, amounted to legislation by the Court since provisions
had already been made under the said Parking Standards for the ECS to be set
apart for a Cinema Complex or even for commercial plotted development.
According to Mr. Jaitley, since the Savitri Complex had been earmarked as a
Cinema Hall, the entry relating to "Cinema" under the Parking
Standards was sufficient to meet the parking space required to be set apart in
the renovated Single Screen Cineplex-cum- Commercial Centre. He added that
although it had been suggested that under the 2021 Delhi Master Plan, the ECS required
to be set apart was 3, the same could have no application to the complex which
has been erected by the Respondent No.I in keeping with the plan sanctioned by
the concerned authorities.
45. Mr. Jaitley urged that the writ petitions filed by the appellants should
not have been entertained on account of the delay and laches of the writ
petitioners. Although, sanction had been granted to Respondent No.-I as far as
back as on 4th December, 2002, and construction had been commenced soon
thereafter, the first time an objection was taken by the appellants was on 10th
September, 2003 and the writ petition was, thereafter, filed in December, 2004,
when the construction had already been completed. Mr. Jaitley submitted that it
would be inequitable at this stage to consider the contentions now being raised
by the appellants.
46. Mr. Jaitley ended his submissions by referring to the affidavit affirmed
on behalf of the DUAC by its Secretary which supported the case of the
Respondent No.-I and wherein it had been stated that as far as the DUAC was
concerned, the grounds indicated by the writ petitioners in the special leave
petition were misconceived and the special leave petition deserved to be
dismissed.
47. Very little was added on behalf of the State and the DUAC to the
submissions made on behalf of the appellant and the respondent No.1. On behalf
of the State, the provisions of Rule 3 of the Delhi Cinematography Rules, 1981,
were referred to for the purpose of reiterating that any person desirous of
erecting a cinema house or converting an existing building into a cinema house
has to apply to the Licensing Authority for a Provisional Clearance Certificate
in respect of the building and the site plans. If the plans were found to be in
conformity with the Rules, the Licensing Authority was under an obligation in
consultation with the Executive Engineer, P.W.D. to grant a Provisional
Clearance Certificate. It has also been stipulated that the grant of such
Provisional Clearance Certificate would not ipso facto entitle the applicant
for grant of a regular cinema licence on completion of the building or give any
immunity from the application of any new provisions to the Rules which may be
incorporated after the issue of such Certificate and before the grant of a licence
under the Act.
48. What transpires from the submissions made on behalf of the
appellant-Association is its apprehension of serious traffic problems if the
respondent No.1 is permitted to use the Savitri Cinema Complex for the purposes
mentioned in the sanctioned plan without suitable modifications. On the one
hand, the owners of the Savitri Plot have obtained requisite sanction under the
relevant Rules and Regulations and Building Bye Laws to convert the existing
single-screen cinema hall into a mini cinema hall -cum commercial complex.
There is no denying the fact that the respondent No.1 has complied with all the
requirements of the law for the aforesaid purpose. On the other hand, there is
a real apprehension on the part of the appellants that the approach to the
above-mentioned colonies will be completely choked on account of the traffic
congestion that is likely to be caused as a result of the number of visitors
who are likely to visit the renovated complex which will consist of not only a
cinema hall, but a six-storeyed building dedicated to commercial activities.
The respondent No.1 has complied with the parking standards prescribed under
the Building Bye-Laws, the Delhi Master Plan and the Cinematograph Rules and as
pointed out by Mr. Arun Jaitley, even more space than what was required under
the Rules have been set apart for the purpose of parking so that congestion at
the T. junction is avoided, notwithstanding the number of visitors to the
renovated complex. However, the problem that is envisaged by the residents of
the aforesaid colonies is not only the parking- related problems, but the
problems resulting on account of the increased flow of vehicles at the T.
junction. It is such apprehension that has led to the filing of the writ
petitions by the residents of the aforesaid colonies.
49. It has been submitted that the writ petitioners/appellants herein, would
be satisfied if they are given an opportunity of hearing by DUAC so that they
could explain the ground realities of the fall-out of the sanction granted for
conversion of the Savitri Cinema Hall into a Mini Cinema Hall cum - Commercial
Complex.
50. From the materials on record there is no ambiguity that sanction was
granted to the respondent No.1 to make the above-mentioned conversion strictly
in accordance with the Rules and Building Bye Laws, even to the point of
consultation by the Deputy Commissioner of Police (Licensing) with the Deputy
Commissioner of Police (Traffic) on the specific problem apprehended by the
appellants. It is only after clearance was obtained from the Deputy
Commissioner of Police (Traffic) that a No-Objection Certificate was issued by
the Deputy Commissioner of Police (Licensing) and sanction was granted by the
Municipal Corporation of Delhi. Although, it has been argued on behalf of the
appellants that the Deputy Commissioner of Police (Traffic) had mechanically
given his consent to the plan, we have to respect his decision and the decision
of the Municipal Corporation who are the experts in such matters.
51. Apart from the above, the DUAC appears to have considered the objection
made on behalf of the appellants in its meeting held on 12th November, 2003 and
after hearing all concerned, the Commission had decided to refer the matter to
the Standing Sub-Committee on Traffic, Transportation Proposals for the purpose
of considering all aspects of the proposal with the broad object of providing
more parking space in view of the need of extensive parking for this kind of a
complex. Moreover, the DUAC had in its affidavit filed in the proceedings
stated that as far as DUAC is concerned, the grounds indicated by the writ
petitioners in the Special Leave Petition are misconceived and the Special
Leave Petition deserved to be dismissed.
52. The owner of a plot of land is entitled to use and utilize the same for
any lawful purpose and to erect any construction thereupon in accordance with
the existing rules. So long as such owner does not contravene any of the
provisions which restrict his use of the plot in any manner, he cannot be
prevented from utilizing the same in accordance with law. In this case, the
respondent No.1 which is the owner of the plot in question cannot be denied the
use of the plot on account of the apprehension of the appellants, particularly
when he has already raised the structure in accordance with the sanctioned
plan. It is not the case of the appellants that the respondent No.1 has in any
manner deviated from the building plan as sanctioned. The grievance of the
appellants is confined to the possible problem that may arise from the use of
the building as a Cinema Hall cum- Commercial Complex. Once the authorities who
are competent to do so have indicated that the apprehension was unfounded, it
is not for the Writ Court to interfere with such decision.
53. Although, the parking standards under the Delhi Master Plan, 1990, do
not specify the parking space to be set apart for a Cinema Hall cum- Commercial
Complex, the Municipal authorities, who are the sanctioning authorities of any
building plan, have considered the parking space set apart for the renovated
complex to be sufficient to meet the requirements so as not to cause any
traffic congestion as apprehended. In fact, the Delhi Development Authority to
whom a direction has been given by the learned Single Judge in terms of Note I
of the Parking Standards prescribed under the Delhi Master Plan has little or
no role to play in the sanctioning of the building plan. Such a direction, in
our view, is misconceived and cannot be sustained.
54. In our view, the Division Bench was justified in observing that the
learned Single Judge had in effect sat in appeal over the decision of the
Executive authorities which he was not entitled to do in law.
55. We, therefore, see no reason to interfere with the orders passed by the
Division Bench of the Delhi High Court allowing the Writ Appeal and setting
aside the judgment of the learned Single Judge. If, however, in future the
necessity so arises, the concerned authorities will be at liberty to take
appropriate steps to contain any problem that may arise, in accordance with
law. The instant appeal fails and is dismissed.
56. There will be no order as to costs.
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