Court can't second-guess policy decision under Art 226 but can review process which made it: Delhi HC

The Delhi High Court has stated while it cannot second-guess a policy decision taken by a State authority in the exercise of its powers of judicial review under Article 226, it can certainly review the process followed by the authority to make and put the policy decision into effect. (Friends of Rajouri Garden Environment & Anr vs SDMC).The Judgment was passed by a Single Judge Bench of Anup J Bhambhani in a petition challenging South Delhi Municipal Corporation's proposal of constructing an automated multi-level car parking facility near a market in city’s Rajouri Garden..The Petitioner, Friends of Rajouri Garden Environment, was a society under the Societies Registration Act 1860 and worked against unauthorised development in the area..A Request for Proposal (RFP) was issued by the South Delhi Municipal Corporation (Respondent) for construction of an automated multi-level car parking facility on a vacant plot measuring approximately 1800 sq. yds, primarily to serve the requirements of a market in the area. .It was the Petitioner’s grievance that although the land vested in the Municipal Corporation, it was originally earmarked for building an MCD school. The Petitioner submitted that till date, there was no change in the designated land-use of the land..It was further submitted that the market itself was “unauthorised” as the area housing the shops was not designated for purposes of a shopping centre or market under the municipal plans. Therefore, the proposal of providing parking facilities to an unauthorised market was impermissible as a matter of public policy, if not as a matter of law, it was contended..The Petitioners contended that the construction of a multi-level Parking was conceived of as a “stand-alone project” which was not in accordance with the mandate of Master Plan for Delhi-2021 (MPD 2021) which called for a comprehensive Parking Management District plan to address the issue holistically..The Court was further informed that the subject land was the last school plot left in the colony and no other plot of land was available for the inevitable future requirement of a school in the area..The Municipal Corporation (Respondent), on the other hand, stressed upon the acute shortage of public parking in the locality and stated that the land in question was “essentially vacant”. .It was stated that as per a survey conducted through an expert agency, there was an immediate requirement of 802 Equivalent Car Spaces parking in the area and therefore, administrative and functional approvals and expenditure sanction for construction of a multi-level parking on the land was obtained for an estimated cost of Rs.28.76 crores..The Respondent submitted that the mandate to change land-use was required under the provisions of the Master Plan for Delhi-2001 and the requirement has since been relaxed in MPD 2021..It was added that there was no violation of any provision of MPD 2021 as under clause 12.14, parking was permitted in all "use-zones" except in Recreational Open Spaces. The clause, the Respondent argued, permitted creation of parking sites even in a residential area..After noting the submissions made by the parties, the Court concluded that for constructing a 'multi-level parking', the use-zone of the land had to be modified from 'Public and Semi Public Facilities' to 'Transportation', which required modification of the Zonal Development Plan. .The Court added that such a change would not be in conformity with the MPD 2021 which requires a multi-level parking to be part of a PMD plan and not be as a stand-alone project..Holding that parking as a 'utility' had to be distinguished from parking as a 'use-premises', it added, ".. it is necessary to park vehicles even in a residence, or a hospital, or a school or, for that matter, even in and around a public park or a playground. Such parking is an ancillary requirement that must be allowed to enable use of the premises for the designated purpose. That however does not mean that such parking, as an ancillary amenity for using the residence or hospital or school or playground or park, would imply that the entire residence or school or hospital or park or playground can be converted into a dedicated public parking space.".The Court further stated that as per Section 11A of the DDA Act, only two entities, namely the DDA and the Central Government, had the power to modify the Master Plan or the Zonal Development Plan. .The Court clarified that the Municipal Corporations simply did not have the power to do so and said, "This salutary provision would be given a go-by if change of land-use is permitted at the hands of the respondent, especially without compliance with the requirement of notice to affected parties. In this view of the matter, the question of putting land meant for a school to use as a multilevel parking, without changing its designated land-use does not arise.".The Court thus stated, ."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."Delhi High court.The Court also considered the fact that the parking was proposed to be constructed on a land which was not approved for such use, to cater to the need of a market which itself was not authorised under municipal laws.."If two wrongs do not make a right, permitting the construction of the Parking without following the procedure for conversion of land-use, would be anathema to the rule of law."Delhi High Court . In view of the above, the Respondent's proposal of constructing an automated multi-level car parking facility near a market in city’s Rajouri Garden was quashed..The Petitioner was represented by Advocates Rohan Thawani, Gunjan Ahuja, Iqram Govind Singh. The Intervenor was represented by Advocates Sachin Chopra, Astha Gupta..The Respondent was represented by Senior Advocate Sanjay Poddar with Advocates Ruchi Jain, Sharaf Habibullah, Pratish Goel, Smriti Kataria..Read the Judgement: