Sunil Jain: Will Delhi's new master plan stand?

RATIONAL EXPECTATIONS

Given the extent of the blatant misuse of land in the Capital, it was obvious the political class would find ways to legalise this even though the residents didn't want their colonies to deteriorate into congested commercial complexes. On February 16, 2006, the Supreme Court supported the residents and ordered sealing of shops/offices located in residential areas, to start from March 29.

In response, on March 28, 2006, a beleaguered government issued a notification outlining a mixed land use pattern that was, in fact, part of the Master Plan for Delhi 2021 (MPD 2021), which had been notified for public comments in March 2005 itself""this never came into force, though. So, the mixed land use chapter of MPD 2021 was notified in advance of its coming into force. This said that mixed land use in planned colonies would be allowed only on ground floors on roads external to the colony and at least 18 metres wide.

While reasonable enough, this didn't save more than a handful of commercial establishments, effectively those in the tony 'A' and 'B' category colonies. So, the government appointed its Tejendra Khanna committee to find solutions more in touch with "ground realities". Its controversial recommendations were notified in September, removing restrictions that commercial activity would be limited to just the ground floor, and proscribed commercial misuse in the 'A' and 'B' category colonies. A few days after this, 2,183 roads were notified to permit mixed land use.

Since the courts didn't find all this tenable, the current rush is to come up with a new master plan which sanctifies everything. This may horrify town planners and others, but the law is clear ""according to Section 14 of the Delhi Development Act of 1957, once a new master plan comes into force, subject to certain conditions (such as the payment of a one-time penalty, for instance), all existing misuse gets legalised. So, once MPD 2021 comes in, most sealed offices/shops can pay the penalty and become upright citizens!

Here's where technicalities come in. Can the government just come up with a new master plan whenever it wants? If it can, that means anything can be condoned after a token public hearing process. Appalling though it may sound, the Delhi Development (Master Plan and Zonal Development Plan) Rules, 1959, very clearly say all or parts of the master plan can be amended every five years or even earlier if need be (Rule 12), legally making it a new master plan. Rule 13, the next one, says the amendment could not take place unless it was approved by the central government.

But, and here's the catch, on May 30, 1966, the government says it came out with a gazette notification""No. 19015(3)/66-UD""which said "In the Delhi Development (Master Plan and Zonal Development Plan) Rules, 1959:- (a) rules 12 and 13 shall be omitted"! In other words, there can be no new master plan. Sure there can be modifications from time to time, but the crucial difference between the two is that modifications do not change the basic character of the plan""in the current context this means you can't change a residential area into a mixed-use one through just a modification. And unlike a new master plan, a modification is prospective in nature and does not provide an amnesty to those who are misusing their land by having shops in residential areas.

On June 26, 1992, however, the government gazetted yet another notification""No. K-13011/2/92-DDIB""amending the same Delhi Development (Master Plan and Zonal Development Plan) Rules, 1959 to say "In Rule ... 12 and 13(2) the expression 'or Central Government' shall be inserted after the expression 'Authority' ..." That is, the Central Government also has the right to amend the master plan, and not just the DDA. But, the 1966 notification said there was no longer any Rule 12. So where is the question of adding anything to it?

So was there some notification between 1966 and 1992 which restored Rule 12? While that's possible, what's interesting is that under a Right to Information disclosure last year, the ministry of urban development was asked to provide a copy of the Delhi Development (Master Plan and Zonal Development Plan) Rules, 1959, and it did so. This copy, however, does not incorporate either the 1966 or the 1992 gazette notifications! In other words, apart from those in the government who probably keep copies of each amendment, no one even knows just what parts of the law apply/don't apply today. Indeed, in the case of the controversial 1966 notification, even the government has no proof that it was ever tabled in Parliament! Clearly, when the government does notify MPD 2021 on February 7, as the minister has promised, this question will come up to haunt it.

Regardless of what it says to that question, the next question that will surely come up will be that of whether the September notifications constitute a modification or an amendment (which is a new master plan). While the Rules say a 90-day period is mandatory for an amendment, only a 30-day period was given for reacting to the Tejendra Khanna recommendations. The government has justified this by saying the Khanna recommendations were "modifications" and so a 30-day period was in order. But if these were just modifications under Section 11A of the Delhi Development Act, can these find place in Master Plan 2021 since only an amended plan notified under Section 11 (as distinct from 11A) can now give amnesty to those who are currently misusing their premises. The fun will only begin on February 7.

suniljain@business-standard.com