it cannot reassess the project in the absence of any specific challenge to the permissions for it.
It, however, said that there was a shortfall in compensatory tree plantation in lieu of the trees felled for the project and also “misuser” or excess earmarking of area for commercial use under the redevelopment.
The high court also observed that while decentralisation of offices was the need of the hour, it cannot be said that there was total prohibition on relocation of central PSU offices within Delhi at present, making the present project illegal.
“One can only say that the government must work towards the fulfilment of this goal that has been set in the MPD,” Justice Navin Chawla said.
The high court directed NBCC, which is carrying out the work, not to handover possession of the commercial/office block in the project to the allottees without first ensuring that the compensatory plantation was completed.
With regard to the excess commercial use of 16,241.9 square metres, the high court directed that the authorities would have to consider if the same can be compounded and if not, then the Centre and NBCC have to bring the construction in conformity with the usage requirement, “the mode and manner of which is again left to the relevant authorities to consider”.
“In such consideration, the authorities shall take into account the traffic and parking issues also which have been raised by the petitioners.. However, till such consideration and terms thereof are complied with, the respondent no. 19 (NBCC) shall stand restrained from handing over of the possession of such construction, i.e. 16,241.9 square meters to the third parties/allottees. It is directed accordingly,” the high court said in its 96-page judgement disposing of the plea by some residents of nearby South Extension-II colony opposing the project.
The high court came to the conclusion that there was “misuser” or excess commercial usage under the project after noting that out of the total project land of 86 acres, 14 acres were classified as land of the protected monument — Darya Khan Tomb — where no construction was permissible and therefore, it could not have been taken into account for sanctioning the plan or determination of the floor area ratio (FAR) applicable to the project.
“By adding the said area to the total area of land handed over to the respondent no. 19 (NBCC), what could not have been achieved directly was sought to be achieved indirectly. The same is not permissible. Mere sanction of the plan by New Delhi Municipal Council (NDMC) would also not come to the aid of the respondent no. 19 in this regard.
“There is a statutory ban on any construction over the protected area, the same, therefore, could not have been taken into account while sanctioning the plan and this court cannot shut its eyes to the said violation merely because there is no specific challenge to the same laid in the petition. Therefore, once it is found that the land of Darya Khan Tomb could not have been taken into account for determination of FAR applicable to the project, mere sanction of the plans by the NDMC cannot come to the protection of the respondent no. 19,” the high court said.
Excluding the 14 acres covered by the monument, the court observed that “there is an excess of 16,241.9 square meters earmarked for commercial usage in the project”.
“As the overall construction would be within the limit, this would be a case of misuser rather than unauthorized construction,” the high court added.
The project aims to construct both commercial and residential complexes, with the majority comprising houses under the General Pool Residential Accommodation (GPRA) for the government employees.
The residential towers, under the project, would include a play area, jogging tracks, pet parks, banquet hall, dispensary, primary and senior secondary schools, gardens, local shopping Centre, ATMs, the court noted in its judgement.
The petitioners had contended that the redevelopment would have “a devastating impact” on the lives of the residents of the South Extension-II colony as the project does not provide for adequate infrastructure in the form of roads, open spaces, water supply, green belt etc.
They had also alleged violation of various conditions imposed by the authorities while granting permissions for the project.
The court, however, said that the respondent authorities have given details of the permissions granted by them to the project.
“They have also taken a stand that there is no violation of the conditions imposed by them. In the petition there was no specific challenge to any of the permissions/sanctions so granted. In such a scenario, vague pleas of violation of any conditions imposed cannot hold any water. In absence of any specific challenge to any of such permissions, this court cannot sit as an appellate body over such authorities to reassess the permissions so granted,” it said.
Regarding the petitioner’s grievance that the project would lead to heavy vehicular congestion in the area, the high court said the “exponential” and “alarming” rate of increase in traffic in the city was a matter of general knowledge and the authorities have to be proactive and vigilant to address the same.