Mehta Vs. Union of India & Ors  Insc 625 (29 September 2006)
Y.K. Sabharwal,C.K. Thakker & R.V. Raveendran
NO. 1970 IN I.A. NO. 22 IN WRIT PETITION (C) NO. 4677 OF 1985 [With W.P. (C)
Nos. 263, 264, 266, 450, 464 & 470 of 2006, I.A. Nos. 3-6, 8-12, 15-16,
18-22 in W.P. (C) No. 263 of 2006, I.A. No. 17 in I.A. Nos. 5-6 in W.P. (C) NO.
263 of 2006 AND I.A. Nos. 1926-27, 1928-29, 1948, 1949, 1961, 1969, 1971-72,
1974, 1975, 1976, 1977-78, & 1973 IN I.A. 22 IN W.P. (C) No. 4677 of 1985]
Y.K. Sabharwal, CJI.
city of Delhi is an example of a classical case,
which, for the last number of years, has been a witness of flagrant violations
of municipal laws, town planning laws and norms, master plan and environmental
laws. It is borne out from various orders and judgments passed by this court
and Delhi High Court, whether in a case of shifting of hazardous and polluting
industries or providing cleaner fuel (CNG) or encroachment of public land and
streets or massive unauthorized construction and misuser of properties. It is a
common knowledge that these illegal activities are also one of the main sources
issue of commercial use of residential premises was decided by this Court by
judgment dated 16th
February, 2006 in M.C.
Mehta v. Union of India and Ors. reported in (2006) 3 SCC 399. While reversing
a Full Bench decision of Delhi High Court, the stand of Municipal Corporation
of Delhi (MCD) was accepted and it was held that the Commissioner of MCD is
empowered to exercise power of sealing in case of misuse of any premises. The
judgment also noted certain individual cases as also other residential
properties being illegally used for commercial purposes. Besides noting orders
passed by this Court, from time to time, in the last so many years which had no
effect on the authorities, reference was also made to some of the orders passed
by the High Court in last about 15 years. There was, however, no
implementation. It was also observed that such large scale misuser cannot take
place without the connivance of the officers who will have to show as to what
effective steps were taken to stop the misuser but the issue of accountability
of officers would be taken up after misuser is stopped at least on main roads.
The misuser activities included big furnishing stores, galleries, sale of
diamond and gold jewellery, sale of cars etc. While issuing directions for
implementation of laws, it was noted that if the entire misuser cannot be
stopped, at one point of time because of its extensive nature, a beginning has
to be made in a phased manner by first taking sealing action against major
violators. The cases of small shops opened in residential houses for catering
day-to-day basic needs were left out for the present.
the plea of M.C.D. that it has power to seal premises in case of misuser having
been accepted, various directions were issued. The directions included giving
of wide publicity for stoppage of misuser by the violators on their own and the
commencement of sealing process if the misuser is not stopped. The sealing
process in a phased manner was to commence on 29th March, 2006.
On 24th March, 2006, considering the prayer of the
traders, time to stop misuser was extended upto 30th June, 2006 subject to persons claiming benefit of extended time filing
affidavit stating that
on or before 30th June, 2006, misuser shall be stopped and no
further extension on any ground whatsoever shall be asked for, and
undertaking to the effect that violation of condition of not stopping the misuser
by 30th June, 2006 would subject him/her to offence of
perjury and contempt of court for violation of the order of the court. It was
further directed that premises in respect of which affidavits are not filed the
process of sealing shall commence with effect from 29th March, 2006.
Monitoring Committee was also appointed to oversee the implementation of the
law, namely, sealing of the offending premises in letter and spirit of the
court's directions. However, on 28th March, 2006, a Notification was issued by Delhi Development Authority
(DDA) modifying Master Plan insofar as the chapter on mixed use is concerned.
Union of India filed I.A. No.1931, inter alia, praying that the local bodies be
directed to complete the exercise of identification of mixed use of
roads/streets in residential areas within a period of six months. An order was,
therefore, passed on 28th
April, 2006 permitting
the Government to place detailed facts before the Monitoring Committee to find
out if it is possible to give some relief to the traders. It was directed that
the Monitoring Committee will examine the facts broadly from prima facie point
of view to assist the Court and report if, in its view, some relief in regard
to the ongoing sealing can be given in respect of some of the areas temporarily
till the exercise as contemplated in the application was complete. The
Monitoring Committee heard all concerned including Secretary of the Urban
Development Ministry of Government of India and examined the matter and filed its report on 4th May, 2006.
the Application along with the report of the Monitoring Committee came up for
consideration before this Court, the same was withdrawn by the Government of
India on 11th May, 2006.
On 12th May, 2006, the Delhi Laws (Special Provision)
Bill, 2006 was passed by Lok Sabha; Rajya Sabha passed it on 15th May, 2006 and on receipt of assent of the
President on 19th May,
2006, it was notified
the same day.
On 20th May, 2006, the Government of India issued a
Notification placing a moratorium for a period of one year in respect of all
notices issued by local authorities in respect of categories of unauthorized
development. In exercise of powers conferred by Section 5 of the Delhi Laws
(Special Provisions) Act, 2006 (22 of 2006), the Central Government directed
local authorities to give effect to provisions of the said Act, namely,
sealed by any local authority in pursuance of a judgment, order or decree of
any court after the 1st day of January, 2006, shall be eligible to be restored,
for a period of one year, with effect from 19th day of May, 2006, to the
position as was obtaining as on 1st day of January, 2006.
establishments which are required to cease carrying out commercial activities
at their premises by the 30th day of June, 2006, may continue such activities,
as they were being carried out on the 1st day of January, 2006 for a period of
one year, with effect from 19th day of May, 2006.
aforesaid Act and the notice dated 20th May, 2006, the Government purported to
relieve the persons of the undertaking though given to this Court and also
purported to issue directions for removal of seals though placed on the
premises under the order of this Court.
writ petitions being filed to declare the aforesaid Act unconstitutional, on 23rd May, 2006, notices returnable for 17th July, 2006 were directed to be issued to the
respondents in the writ petition as well as on the Applications for stay. The
matters were, however, taken up on 1st August, 2006, when the writ petitions
were admitted and rule issued by the Court noting that serious challenge had
been made to the constitutional validity of the Act.
stay applications were considered on 10th August, 2001. In support of plea for grant of
stay, it was contended on behalf of the petitioners that it is a unique statute
which overrules, annuls and sets aside the decision of this Court dated 16th February, 2006 and other orders passed thereafter.
terms of Order made on 10th
August, 2006 while not
granting the complete stay of the impugned legislation, the aforenoted two
directions were stayed. Considering, however, that those who had given
undertaking may have been misled by directions contained in the notice dated 20th May, 2006, time to comply the same was
extended upto 15th
September, 2006. It
was further directed that premises de-sealed pursuant to notice dated 20th May, 2006 shall have to be again sealed with
effect from 16th
September, 2006 in
case misuser is not stopped by 15th September, 2006. Certain other directions were also issued on 10th August, 2006. After this Order, the Government withdrew the
public notice that had been issued on 20th May, 2006 in respect of the undertakings and
the premises that were sealed by the Court.
further note that on 21st
July, 2006, public
notices were issued by DDA in exercise of power under Section 11-A of Delhi
Development Act stating that it proposed further modifications in the Master
Plan and inviting objections within 30 days from the date of publication of the
notice, namely, 23rd
aforesaid public notice was in respect of mixed use policy. Another public
notice was also issued on the same date inviting objections to the proposal for
regularization of constructions carried out in excess of the norms laid down by
the notification dated 23rd July, 1998. According to the Government, public
hearings on the aforesaid notice were conducted between 23rd August, 2006 and 3rd September, 2006. DDA recommended the amendment of the Master Plan on
5th September, 2006. The Master Plan was accordingly
amended. On 7th
September, 2006 and on
15th September, 2006 about 2002 patches/streets were notified for mixed use.
constitutional validity of the Notification dated 7th September, 2006 is under challenge on various grounds in W.P.(C)
Nos.450, 464 and 470/2006. The challenge deserves to be examined in depth and,
therefore, in these writ petitions, we issue Rule. Counter affidavit shall be
filed by respondents within 4 weeks. The respondents are further directed to
place before this Court material which was taken into consideration for
arriving at the decision leading to the amendment of the Master Plan in terms
of the Notification dated 7th September, 2006 and the consequential Notification dated 15th September, 2006.
Kumar, senior advocate appearing as Amicus Curiae and other learned counsel
appearing for the petitioners as also petitioners appearing in person seek stay
of the impugned Notification dated 7th September, 2006. The Government, on the other hand,
seeks modification of Order dated 10th August, 2006 in the light of the said
writ petition of Mr.Omesh Sehgal, a former Chief Secretary of Delhi, one of the
pleas raised is that inviting objections and grant of hearing was a farce since
decision had already been made to amend Master Plan even before inviting
objections and the hearing was a mere formality and further the modification of
an already expired Master Plan is not permissible. It has been further submitted
that if any interim relief is to be granted, it should be confined only to
small shops are presently protected as noted in the M.C.Mehta (supra). Further,
the Monitoring Committee classifying shops measuring 20 sq. meters as 'small
shops' has recommended that the said shops be exempted from the purview of
sealing operation in the residential areas.
to the Reports dated 14th
September, 2006 and 27th September, 2006 of the Monitoring Committee, the
shops falling in the category of small shops trading in the following items may
be allowed in residential areas :
office/Show room without LPG cylinders;
dressing saloon/Beauty Parlour;
shops/Tea stall without sitting arrangements;
repair shop; and
report dated 14th
September, 2006, the
Monitoring Committee has also noted about the survey conducted by MCD on 185
notified roads to find out nature of activities of the commercial
establishments on those roads. Broadly the activities of commercial
establishments on these roads are of automobile showrooms; automobile workshops;
branded showrooms; call centers; coaching institutes; business offices;
building materials; godowns; tent houses; guest houses; jewellery shops;
restaurants and iron & steel shops.
this stage, the question to be considered is whether pending the decision of
the writ petitions, should this Court modify Order dated 10th August, 2006 and
decline prayer for stay of the Notification dated 7th September, 2006 or
decline modification of the Order and stay the Notification or pass any other
order having regard to the facts and circumstances of the entire situation. We
have heard extensive submissions made by learned counsel.
of persons, who gave undertakings to remove the misuser by 30th June, 2006 have filed separate applications in
view of the Notification dated 7th September, 2006 and in substance sought to be relieved of the undertakings so that they
could continue commercial user. Likewise, those whose premises were sealed also
seek issue of directions for the opening of the seals.
sealing was to commence on 29th March, 2006.
in view of the undertakings, misuser was allowed to be continued upto 30th June, 2006. Despite the undertakings, the misuser
has continued till date, as noted hereinbefore.
cannot be any doubt that the Legislature would lack competence to extend the
time granted by this Court in the purported exercise of law making power. That
would be virtually exercising judicial functions. Such functions do not vest in
the Legislature. In fact, those who gave undertakings are already in breach of
the undertakings by not stopping misuser by 30th June, 2006. The dignity and authority of the
Court has to be protected not for any individual but for maintenance of the
rule of law. The fact that those who gave undertakings may have been misled in
view of subsequent developments can only be a mitigating factor while
considering the action to be taken for breach of the undertakings.
there are no equities in favour of those who gave undertakings to this Court
and obtained the benefit of time otherwise their premises could have been
sealed on 29th March, 2006 or soon thereafter. The nature of trade conducted by
most of them who gave undertakings has been noted above. There is serious
challenge to the validity of the Act and the Notification. Pending
determination thereof, such persons cannot be allowed to claim any benefit of
background of the above facts and having considered the submissions made, we
issue the following directions :
relating to which undertakings were given The commercial activities by those
who gave undertakings deserve to be stopped forthwith. Having regard, however,
to the plea of forthcoming major festivals, we permit those who gave
undertakings to stop misuser on or before 31st October, 2006.
Shops Small Shops, i.e., measuring not more than 20 sq. mts. in residential
areas are allowed trading in the following items :
office/Show room without LPG cylinders;
dressing saloon/Beauty Parlour;
stall without sitting arrangements;
repair shop; and
premises for which protection is extended by Notification dt. 7.9.2006
Regarding the remaining premises which may be covered by the Notification dated
7th September, 2006 read with 15th September, 2006, we direct that the said premises
may not be sealed pending decision of these petitions on undertakings being
filed before the Monitoring Committee on or before 10th November, 2006 that misuser
shall be stopped as per the directions of this Court if the Act is invalidated
and/or the Notification is quashed. Further, the undertakings shall state that
the trade is being conducted in respect of the permissible items and only in
that part of the premises in which commercial activity is now permitted as per
the impugned Notification dated 7th September, 2006 read with Notification
dated 15th September, 2006, viz. if commercial activity has been made
permissible on the ground floor, the affidavit shall state that it is being
carried out only in the ground floor and not on the other floors and in support
a certificate of the registered Architect shall be annexed. Any Architect
giving wrong certificate would subject himself to appropriate action including
cancellation of certificate to carry on the profession of Architect.
Premises for which protection is not extended by Notification dated 7.9.2006 In
respect of the remaining premises not covered by the Notifications dated 7th September, 2006 and 15th September, 2006, the sealing process will continue in terms of the
Order dated 16th February,
2006 and 10th August, 2006. The direction of sealing premises
will also apply to specific properties mentioned in the judgment dated 16th February, 2006 and in the Report of the Monitoring
Committee dated 14th
September, 2006. The
sealing would be done in a systemic manner as per directions of Monitoring
Committee and not in a haphazard manner. There shall be no misuser of public
land or public street. The authorities shall ensure that the Roads, Public
Streets and pathways meant for public is kept free for their use and the
commercial activity is not extended thereupon. The commercial user in
contravention of judgment in M.C. Mehta's case (supra), order dated 10th August, 2006 and Notifications dated 7th September, 2006 and 15th September, 2006 subject to what is stated in this order shall be
liable to be sealed.
We direct that
the owner/occupier of small shops and also others who have been permitted to
continue and not stop commercial activity for the present, under this order shall
get themselves registered upto 31st December, 2006.
In respect of
the premises which have been sealed under the orders of this Court, we permit
them to approach the Monitoring Committee which will consider each case on its
merit and make appropriate report to this Court on consideration whereof
necessary directions may be issued.
are restrained from issuing any other Notification for conversion of
residential user into commercial user except with the leave of this Court.
We also hope
that without any further loss of time the Government and the concerned
authorities, instead of ad hoc measures like the present, would now undertake
proper planning keeping into consideration all relevant factors including the
interests of those residents which may not have any voice.
concluding, we may note the grievance placed before us on behalf of
professionals including Doctors, Lawyers, Chartered Accountants and Architects
in respect of the Notification dated 7th September, 2006. Relying upon notifications dated 27th November, 1998 and 7th June, 2000 and Press Release dated 27th November, 1998, they say that restrictions sought
to put in the Notification dated 7th September, 2006 were not there earlier and may be restrictions have been
put by inadvertence. Mrs.Indira Jaisingh, appearing for Government of India
says that she will have it examined by the Government and, if required,
necessary correction will be made.
Common Cause Society is permitted to intervene in the matter. The Interlocutory
Application Nos. 5, 6, 8 to 12, 15-16, 18 to 22 in Writ Petition (C) No. 263 of
2006, I.A. No. 17 in I.A. Nos. 5-6 in Writ Petition (C) No. 263 of 2006 and
I.A. Nos. 1970, 1926-27, 1928-29, 1948, 1949, 1961, 1969, 1971- 72, 1974, 1975,
1976, 1977-78 and 1973 in I.A. No. 22 in Writ Petition (C) No. 4677 of 1985 are
disposed of in terms of the aforesaid order. List the matters in the month of
November 2006 for further directions.