M.C.
Mehta Vs. Union of India & Ors [2006] Insc 79 (16 February 2006)
Y.K.
Sabharwal, B.N.Srikrishna & R.V. Raveendran
INTERLOCUTORY
APPLICATION NO. 22 IN WRIT PETITION (CIVIL) NO.4677 OF 1985 [With IA Nos.1816
& 1860 in WP (C) No.4677/1985, C.A.Nos.5413 & 8694 of 2002, SLP(C)
Nos.23145, 23220, 23896, 23934 of 2002, 7128/2004, 23139/2002 &
C.A.Nos.608-611/2003] Y.K. Sabharwal, CJI.
In
respect of large number of immoveable properties throughout Delhi, flagrant violations of various
laws including Municipal Laws, Master Plan and other plans besides
Environmental Laws have been engaging the attention of this Court for number of
years. With a view to secure the implementation of laws and protect fundamental
rights of the citizens, various orders were passed from time to time.
This
Court has a constitutional duty to protect the fundamental rights of Indian
citizens. What happens when violators and/or abettors of the violations are
those, who have been entrusted by law with a duty to protect these rights? The
task becomes difficult and also requires urgent intervention by court so that
the rule of law is preserved and people may not lose faith in it finding
violations at the hands of supposed implementers. The problem is not of the
absence of law, but of its implementation.
Considering
such large-scale flagrant violations, this Court had to prioritize as to which
violations may be taken up first and then issue appropriate directions. In this
view, at first instance, directions were issued in respect of shifting of
hazardous and noxious industries out of Delhi. Directions were also issued for shifting of heavy and large industries
as also some extensive industries. For shifting polluting industries had to be
given top most priority. Later, directions were issued for shifting of other
extensive industries considering the continued unauthorized use contrary to
Master Plan and Zonal Plan, by those industries as well as some other
industries continuing in residential/non- conforming areas.
On one
hand repeated orders were made to seek implementation of the laws and, on the
other hand, simultaneously, more and more violations were taking place.
Detailed
reference to earlier orders made from time to time, the shifting stand of the
authorities, various laws being violated, requirements of Town Planning and the
constitutional obligations of the authorities, has been made by this Court in
the judgment dated 7th May, 2004 while dealing with unauthorized industrial
activity and issuing time bound directions for compliance and appointing a
Monitoring Committee with directions for filing of periodical progress reports
(M.C. Mehta v. Union of India [(2004) 6 SCC 588].
The
order dated 19th
August, 2003 sets out
various issues involved including the issue of misuse but, at that stage, the
issue of unauthorized industries was given priority and the directions in
respect of shifting of industries were issued. In a way, this judgment is in
continuation of the judgment dated 7th May, 2004 with the difference that now we
have taken up the issue of large scale misuse of residential premises for
commercial use.
With
regard to commercial use of premises in residential areas, it has been more
than three years, i.e., 30th
September, 2002 when
the order was made directing respondents to file reply. In fact, the question
of misuse of residential premises for commercial purposes was taken up even
earlier as is apparent from the orders dated 31st July, 2001 and 20th February, 2002. By order dated 31st July, 2001 passed in Writ Petition No.725 of 1994
titled News Item AQFMY v. Central Pollution Control Board, the Court directed that
:
"The
MCD will also inform this Court in the affidavit to be filed as to why no
requisite action has been taken for stopping the gross misuse of buildings in
the residential areas for commercial purposes and in the construction of
commercial buildings in residential areas where only residential usage is
permitted." Again on 20th February, 2002, the Order dated 31st July was reiterated in the following terms :
"MCD
is also directed to file within four weeks from today an affidavit indicating
as to what it intends to do for stopping the misuse of the buildings in the
residential areas which are being used for commercial purposes as has been
directed by this Court's order dated 31st July, 2001. If no affidavit is filed, the
explanation in respect thereof should be given to the Court by the Municipal
Commissioner." The learned Amicus Curiae filed IA No.1860/04 referring to
aforesaid orders dated 31st July, 2001, 20th February 2002, 30th September,
2002 and 19th August, 2003 and bringing to the notice of this Court a press
release dated 22nd July, 2004 issued by Municipal Corporation of Delhi ('MCD'
for short) declaring a scheme to facilitate registration of shops, establishments,
commercial establishments etc. in the non- conforming/residential areas by
granting ad hoc licences in respect of premises existing till 31st March, 2003.
This shows the apathy of a municipal body, which is constituted, amongst
others, to ensure compliance of the laws. In this application, learned Amicus
Curiae sought stay of the press release and the scheme. By order dated 2nd August, 2004, the press release and the ad hoc
Trade Registration Scheme were stayed by this Court.
The
question under consideration also is about the power of MCD and Delhi
Development Authority (DDA) to direct demolition and/or sealing of the
properties being misused.
Few
residents of a residential colony by the name of Green Park Extension, making
averments about large scale unauthorized constructions and stating that various
letters written to the MCD complaining about the illegal and unauthorized
constructions and misuser and consequent violation of Master Plan etc. resulted
in no action, filed in about October 1994, a writ petition in Delhi High Court
alleging how misuse of residential premises for commercial purposes was taking
place, citing specific instances and complaining about total inaction on the
part of the authorities in stopping such misuse. According to them, the
officers were, in fact, encouraging or conniving with persons who were
indulging in such misuse. The officers failed to carryout their statutory
duties in stopping such misuse. A writ of mandamus was sought against the
authorities directing them not to allow illegal commercial user. Petitioners
therein alleged that such misuser and acts of omission and commission by the
authorities was resulting in the environment in the residential colony being
totally polluted and civic amenities jeopardised.
MCD,
in reply, filed in April 1995, i.e., more than 10 years ago, admitted the
violations and said that show cause notices had been issued under the Delhi
Municipal Corporation Act, 1957 (for short, 'the DMC Act') and the Corporation
was doing its best in the matter. The same was the stand of DDA. All officers
being directed to file affidavits reporting as to what action had been taken,
filed affidavits with reference to the properties of which instances had been
given, inter alia, stating that owners had been booked and action was being
taken. Similar affidavits were filed by both MCD and DDA. In March 2000, MCD
filed a status report giving particulars of approximately 663 properties in
Green Park Main and 407 properties in Green Park Extension stating that many properties
were being used as commercial and others partly commercial. When this was the
position in a small colony, one can well imagine the plight in manifold other
residential colonies and of residents living in those colonies in the capital
city of Delhi.
By
impugned judgment dated 31st May, 2002, disposing of the aforenoted writ
petition and other connected matters, a Full Bench of the High Court came to
the conclusion that neither under the DMC Act nor under the Delhi Development
Act, there was any power to seal property for its misuse, inter alia, holding
that the power of sealing of premises is drastic as by reason of such sealing,
a person could become homeless, thus, affecting his human or fundamental rights
and that the power of sealing in relation to misuse has been intentionally
excluded from the provisions of two Acts. Later, some other matters were also
decided by the High Court following the Full Bench decision. Those judgments
are also under challenge.
The
judgment of the Full Bench is under challenge in Civil Appeal No.5413 of 2002
filed by the original writ petitioners/residents of Green Park colony and Civil Appeal No.8694 of 2002 filed by the MCD.
The
questions to be determined are :
-
Whether MCD
under the DMC Act has power to seal the premises in case of its misuser?
-
Whether DDA,
under the Delhi Development Act, has also similar power of sealing or not?
-
Directions to be
issued in respect of residential properties used illegally for commercial
purposes.
In
these matters, we are considering only the issue of misuser. We are not
considering the issue of unauthorized constructions.
Re
: Question A Whether
MCD under the DMC Act has power to seal premises in case of its misuser It is
not in dispute that large numbers of residential premises are being misused for
commercial purposes. The question is can the MCD stop such misuser by putting
a seal on misused property? For dealing with the question of power of MCD to
seal the premises in case of misuser, it is necessary to examine few provisions
of the DMC Act. The expression 'building' is defined in Section 2(3) of the DMC
Act as a house, out-house, stable, latrine, urinal, shed, hut, wall (other than
a boundary wall) or any other structure, whether of masonry, bricks, wood, mud,
metal or other material but does not include any portable shelter.
The
expression 'land' as per Section 2(24) includes benefits to arise out of land,
things attached to the earth or permanently fastened to anything attached to
the earth and rights created by law over any street.
Section
2(26) defines 'market' as under:
"Sec.2(26)
- "market" includes any place where persons assemble for the sale of,
or for the purpose of exposing for sale, meat, fish, fruits, vegetables,
animals intended for human food or any other articles of human food whatsoever,
with or without the consent of the owner of such place notwithstanding that
there may be no common regulation for the concourse of buyers and sellers and
whether or not any control is exercised over the business of, or the person
frequenting, the market by the owner of the place or by any other person;"
Section 2(34) defines 'occupier' as under:
"Sec.2(34)
"occupier" includes-
-
any person who
for the time being is paying or is liable to pay to the owner the rent or any
portion of the rent of the land or building in respect of which such rent is
paid or is payable;
-
an owner in
occupation of, or otherwise using his land or building;
-
a rent-free
tenant of any land or building;
-
a licensee in
occupation of any land or building; and
-
any person who
is liable to pay to the owner damages for the use and occupation of any land or
building;" Under Section 2(59) 'trade premises' means:
"2(59)
- "trade premises" means any premises used or intended to be used for carrying
on any trade or industry;" Chapter XVI of the DMC Act deals with building
regulations and comprises Sections 330A to 349A.
The
definition of the expression 'building' shows that it is very wide and
encompasses any structure only excluding portable shelter with which we are not
concerned. We are concerned with the building and its erection.
The
definition of the words 'to erect a building' is very pertinent for deciding
the present question. The expression 'to erect a building' is defined in
Section 331 as under:
"Sec.331
Definition.-- In this Chapter, unless the context otherwise requires, the
expression "to erect a building" means—
-
to erect a new
building on any site whether previously built upon or not;
-
to re-erect—
-
any building of
which more than one-half of the cubical contents above the level of the plinth
have been pulled down, burnt or destroyed, or
-
any building of
which more than one-half of the superficial area of the external walls above
the level of the plinth has been pulled down, or
-
any frame
building of which more than half of the number of the posts or beams in the
external walls have been pulled down;
-
to convert into
a dwelling house any building or any part of a building not originally
constructed for human habitation or, if originally so constructed, subsequently
appropriated for any other purpose;
-
to convert into
more than one dwelling house a building originally constructed as one dwelling
house only;
-
to convert into
a place of religious worship or into a sacred building any place or building not
originally constructed for such purpose;
-
to roof or cover
an open space between walls or buildings to the extent of the structure which
is formed by the roofing or covering of such space;
-
to convert two
or more tenements in a building into a greater or lesser numbers;
-
to convert into
a stall, shop, warehouse or godown, stable, factory or garage any building not
originally constructed for use as such or which was not so used before the
change;
-
to convert a
building which when originally constructed was legally exempt from the
operations of any building regulations contained in this Act or in any bye laws
made thereunder or in any other law, into a building which had it been
originally erected in its converted form, would have been subject to such building
regulations;
-
to convert into
or use as a dwelling house any building which has been discontinued as or
appropriated for any purpose other than, a dwelling house." Clauses (c),
(h) and (j) are very significant. These clauses bring in the concept of user of
a building for the purpose of definition of the expression 'to erect a
building'. Under clause (h), if any building not originally constructed for use
as a stall, shop, warehouse etc. is converted for use as such, it would fall
within the expression 'to erect a building'.
In
respect of an area where the notified/specified land use is residential,
sanction for erection of a commercial building cannot be accorded, as is
apparent from sub-section (2) of Section 336.
Section
336 reads as under:
"Section
336. - Sanction or refusal of building or work.—
-
The Commissioner
shall sanction the erection of a building or the execution of a work unless
such building or work would contravene any of the provisions of sub-section (2)
of this section or the provisions of section 340.
-
The grounds on
which the sanction of a building or work may be refused shall be the following,
namely:--
-
that the
building or work or the use of the site for the building or work or any of the
particulars comprised in the site plan, ground plan, elevation, section or specifica-
tion would contravene the provisions of any bye-law made in this behalf or of
any other law or rule, bye-law or order made under such other law;
-
that the notice
for sanction does not contain the particulars or is not prepared in the manner
required under the bye-laws made in this behalf;
-
that any
information or documents required by the Commissioner under this Act or any
bye-laws made thereunder has or have not been duly furnished;
-
that in cases
falling under section 312, lay-out plans have not been sanctioned in accordance
with section 313;
-
that the
building or work would be an encroachment on Government land or land vested in
the Corporation;
-
that the site of
the building or work does not abut on a street or projected street and that
there is no access to such building or work from any such street by a passage
or pathway appertaining to such site.
-
The commissioner
shall communicate the sanction to the person who has given the notice; and
where he refuses sanction on any of the grounds specified in sub- section (2)
or under section 340 he shall record a brief statement of his reasons for such
refusal and communicate the refusal along with the reasons therefor to the
person who has given the notice.
-
The sanction or
refusal as aforesaid shall be communicated in such manner as may be specified
in the bye-laws made in this behalf." This takes us to the provision of
sealing as contained in Section 345A of the DMC Act. That provision was
inserted by Act 42 of 1984 with effect from 10th December, 1985. One of the objects for the
amendments, as stated in the Statement of Objects & Reasons, is to contain
massive conversion of residential constructions into commercial complexes. The
Statement of Objects and Reasons, inter alia, states that 'in recent years,
growth of unauthorized colonies, encroachment on public streets, unauthorized
construction of public and private lands and conversion of residential
constructions into commercial complexes have assumed alarming proportions'.
Section
345A reads as under:
"Section
345A. Power to seal unauthorised constructions.—
-
It shall be
lawful for the Commissioner, at any time, before or after making an order of
demolition under section 343 or of the stoppage of the erection of any building
or execution of any work under section 343 or under section 344, to make an
order directing the sealing of such erection or work or of the premises in
which such erection or work is being carried on or has been completed in the
manner prescribed by rules, for the purpose of carrying out the provisions of
this Act, or for preventing any dispute as to the nature and extent of such
erection or work.
-
Where any
erection or work or any premises in which any erection or work is being carried
on, has or have been sealed, the Commissioner may, for the purpose of
demolishing such erection or work in accordance with the provisions of this
Act, order such seal to be removed.
-
No person shall
remove such seal except—
-
under an order
made by the Commissioner under sub-section (2); or
-
under an order
of an Appellate Tribunal or the Administrator, made in an appeal under this
Act." A plain reading of the aforesaid provisions shows that sealing can
be resorted to at any time, before or after making an order of demolition under
Section 343 or under Section 344 in respect of such erection being carried on
or completed, for the purpose of carrying out the provisions of the Act.
Sections
343 and 344 read as under:
"Sec.
343Order of demolition and stoppage of buildings and works in certain cases and
appeal.—
-
Where the
erection of any building or execution of any work has been commenced, or is
being carried on, or has been completed without or contrary to the sanction
referred to in section 336 or in contravention of any condition subject to
which such sanction has been accorded or in contravention of any of the
provisions of this Act or bye-laws made thereunder, the Commissioner may, in
addition to any other action that may be taken under this Act, make an order
directing that such erection or work shall be demolished by the person at whose
instance the erection or work has been commenced or is being carried on or has
been completed, within such period (not being less than five days and more than
fifteen days from the date on which a copy of the order of demolition with a
brief statement of the reasons therefor has been delivered to that person), as
may be, specified in the order of demolition:
Provided
that no order of demolition shall be made unless the person has been given by
means of a notice served in such manner as the Commissioner may think fit, a
reasonable opportunity of showing cause why such order shall not be made:
Provided
further that where the erection or work has not been completed, the
Commissioner may by the same order or by a separate order, whether made at the
time of the issue of the notice under the first proviso or at any other time,
direct the person to stop the erection or work until the expiry of the period
within which an appeal against the order of demolition, if made, may be
preferred under sub-section (2).
-
Any person
aggrieved by an order of the Commissioner made under sub- section (1) may
prefer an appeal against the order to the Appellate Tribunal within the period
specified in the order for the demolition of the erection or work to which it
relates.
-
Where an appeal
is preferred under sub-section (2) against an order of demolition the Appellate
Tribunal may, subject to the provisions of sub-section (3) of section 347C stay
the enforcement of that order on such terms, if any, and for such period, as it
may think fit:
Provided
that where the erection of any building or execution of any work has not been
completed at the time of the making of the order of demolition, no order
staying the enforcement of the order of demolition shall be made by the
Appellate Tribunal unless security, sufficient in the opinion of the said
Tribunal has been given by the appellant for not proceeding, with such erection
or work pending the disposal of the appeal.
-
No court shall
entertain any suit, application or order proceeding for injunction or other
relief against the Commissioner to restrain him from taking any action or
making any order in pursuance of the provisions of this section.
-
Subject to an
order made by the Administrator on appeal under section 347D, every order made
by the Appellate Tribunal on appeal under this section, and subject to the
orders of the Administrator and the Appellate Tribunal on appeal, the order of
demolition made by the Commissioner shall be final and conclusive.
-
Where no appeal
has been preferred against an order of demolition made by the Commissioner
under sub-section (1) or where an order of demolition made by the Commissioner
under that sub-section has been confirmed on appeal, whether with or without
variation, by the Appellate Tribunal in a case where no appeal has been
preferred against the order of the Appellate Tribunal, and by the Administrator
in a case where an appeal has been preferred against the order of the Appellate
Tribunal the person against whom the order has been made shall comply with the
order within the period specified therein, or as the case may be, within the
period, if any fixed by the Appellate Tribunal or the Administrator on appeal
and on the failure of the person to comply with the order within such period,
the Commissioner may himself cause the erection or the work to which the order
relates to be demolished and the expenses of such demolition shall be
recoverable from such person as an arrear of tax under this Act." Sec. 344
Order of stoppage of buildings or works in certain cases.—
-
Where the erection of any building
or execution of any work has been commenced or is being carried on (but has not
been completed) without or contrary to the sanction referred to in section 336
or in contravention of any condition subject to which such sanction has been
accorded or in contravention of any provisions of this Act or bye-laws made thereunder,
the Commissioner may in addition to any other action that may be taken under
this Act, by order require the person at whose instance the building or the
work has been commenced or is being carried on to stop the same forthwith.
-
If an order made by the Commissioner
under section 343 or under sub-section (1) of this section directing any person
to stop the erection of any building or execution of any work is not complied
with, the Commissioner may require any police officer to remove such person and
all his assistants and workmen from the premises or to seize any construction material,
tool, machinery, scaffolding or other things used in the erection of any
building or execution of any work within such time as may be specified in the
requisition and such police officer shall comply with the requisition
accordingly.
2.A
Any of the things
caused to be seized by the Commissioner under sub- section (2) shall be disposed
of by him in the manner specified in section 326.
-
After the requisition under
sub-section (2) has been complied with, the Commis- sioner may, if he thinks fit,
depute by a written order a police officer or a municipal officer or other
municipal employee to watch the premises in order to ensure that the erection
of the building or the execution of the work is not continued.
-
Where a police officer or a
municipal officer or other municipal employee has been deputed under
sub-section (3) to watch the premises, the cost of such deputation shall be
paid by the person at whose instance such erection or execution is being
continued or to whom notice under sub-section (1) was given and shall be
recoverable from such person as an arrear of tax under this Act." Section
347 contains a specific prohibition for change of the use of any land or
building. The said section reads as under:
"Sec.
347 Restrictions on uses of buildings.-- No person shall, without the written permission of the
Commissioner, or otherwise than in conformity with the conditions, if any, of
such permission—
-
use or permit to
be used for human habitation any part of a building not originally erected or authorised
to be used for that purpose or not used for that purpose before any alteration
has been made therein by any work executed in accordance with the provisions of
this Act and the bye-laws made thereunder;
-
change or allow
the change of the use of any land or building;
-
convert or allow
the conversion of one kind of tenement into another kind." Section 349A
contains the power of the Central Government to make bye-laws for carrying out
the provisions of Chapter XVI. Regulations may provide for various matters including
the use of sites for buildings from different areas etc. as mentioned in
Clauses (a) to (w) of sub-section (2) of Section 349A, having regard to the
requirement of town planning by the municipalities. Town planning is now part
of constitutional obligation on insertion of Part IX-A in the Constitution of
India w.e.f. 1st June,
1993. Section 349A was
inserted soon thereafter on 1st October, 1993.
Reference
may also be made to Chapter XX of the DMC Act which deals with markets,
slaughter houses, trades and occupations and maintenance and regulations
thereof. Section 416 recognises the importance of the density of population,
pressure on the services in case more number of persons use the facilities or
services. The said section under the heading 'Trade and Occupations' reads as
under: "Sec. 416 Factory, etc., not to be established without
permission of the Commissioner.
-
No person shall,
without the previous permission in writing of the Commissioner, establish in
any premises, or materially alter, enlarge or extend, any factory, workshop or
trade premises in which it is intended to employ steam, electricity, water or
other mechanical power.
-
The Commissioner
may refuse to give such permission, if he is of the opinion that the
establishment, alteration, enlargement or extension of such factory, workshop
or trade premises, in the proposed position would be objectionable by reason of
the density of the population in the neighbourhood thereof, or would be a
nuisance to the inhabitants of the neighbourhood." A bare perusal of
building bye-laws shows how relevant is the user, commercial or residential,
and the large impact of occupation load on various facilities including water,
sanitation and drainage.
Keeping
future needs in view, experts prepare Master Plans. Perusal of the Delhi Master
Plan, 1962 and 2001 shows what were plan projections. At the time of planning,
the experts in the field of town planning, take into account various aspects,
such as, healthy living, environment, lung space need, land use intensity,
areas where the residential houses to be built and where the commercial
buildings to be located, need of household industries etc. Provision for
household industries in residential areas does not mean converting residential
houses in the commercial shops. It only means permitting activities of
household industry in a part of a residential property. It does not mean that
residential properties can be used for commercial and trading activities and
sale and purchase of goods. Master Plan contemplates shops in District Centres,
Community Centres, Local Shopping Centres etc. and not in residential areas. Be
that as it may, for the present, we are not considering the cases of small
shops opened in residential houses for catering to day-to-day basic needs, but
are considering large-scale conversion, in flagrant violation of laws, of
residential premises for commercial use.
In
respect of planning, reference can usefully be made to Section 313 of the DMC
Act as well. The said section provides for the requirement of layout plan of
the land. It, inter alia, provides that before utilizing, selling or otherwise
dealing with any land under Section 312, the owner thereof shall send to the
Commissioner a written application with a layout plan of the land showing various
particulars including the purpose for which the building will be used. For
breach of Section 313, action can be taken under Section 314. It has rightly
not been disputed by any counsel that neither layout plan, nor the building
plan, can be sanctioned by MCD except in the manner and for the purpose
provided in the Master Plan. If in the master plan, the land use is
residential, MCD cannot sanction the plan for any purpose other than
residential.
In the
impugned judgment, while dealing with the provisions of the layout plan, it was
observed that the provisions for user 'are only regulatory in nature'. While
dealing with the user, the High Court observed that 'the power, whereby and whereunder
the basic human rights or the fundamental rights conferred upon a person is
taken away, must be specifically conferred by a statute'. The provision of user
may be regulatory but all the same, they are mandatory and binding. In fact,
almost all the planning provisions are regulatory. The violations of the
regulatory provisions on massive scale can result in plans becoming merely
scraps of papers. That is the ground reality in the capital of the country.
None has any right, human or fundamental, to violate the law with immunity and
claim any right to use a building for a purpose other than authorised.
Further,
the words 'unless the context otherwise requires' in Section 331 of the DMC Act
are of no consequence for determining the point in issue as the context herein
does not provide otherwise for the present purposes. It does not provide that
the power of sealing under Section 345A cannot be exercised in case of misuser.
In view of the clear language of Section 345A, we are also unable to sustain
the view of the High Court that action under Section 345A can be taken only
when there exists order of demolition under Section 343 or an order under
sub-section (1) of Section 344. The conclusion of the High Court that action
under Section 345A can be taken only when there exists an order of demolition
under Section 343, or on passing of an order under sub-section (1) of Section
344, and in no other contingency cannot be accepted in view of the clear
provision of Section 345A that action can be taken even before or after an
order is made under those provisions.
It is
clear from a conjoint reading of the definition of the expression 'to erect a
building' in Section 331 and Section 345A that conversion of user would come
within the purview of the expression 'to erect a building'. In this respect
useful reference can also be made to Building Bye-Laws for the Union Territory
of Delhi, 1983, in particular Bye-Law Nos. 2.17 and 2.85, defining the
expressions 'Conversion' and 'To Erect' respectively, which read as under:
"2.17
Conversion
The
change of an occupancy to another occupancy or change in building structure or
part thereof resulting into change of space or use requiring additional
occupancy certificates.
2.85
To Erect
To
erect a building means:
-
To erect a new
building on any site whether previously built upon or not;
-
To re-erect any
building of which portions above the plinth level have been pulled down, burnt
or destroyed; and
-
Conversion from
one occupancy to another." Having regard to these definitions if a
Building/structure not originally constructed for use as a shop, is put to use
as a shop, such conversion of use would come within the ambit of the expression
'to re-erect' and, consequently, within the ambit of the definition of the
expression 'to erect a building'.
In
view of the aforesaid, reversing the impugned judgment of the High Court, we
hold that under Section 345A of the DMC Act, the Commissioner of MCD is
empowered to exercise power of sealing in case of misuser of any premises.
Re
: Question No.B Whether
under the Delhi Development Act, DDA has power to seal premises on account of
its misuser? The High Court held that both under Section 345A of the DMC Act
and under Section 31-A of the Delhi Development Act, there is no power to seal
premises on account of 'its' misuser. We have held that MCD has such a power
under the DMC Act. The position, however, is different when the provisions of
the Delhi Development Act are examined.
The
Delhi Development Act defines in Section 2(e) 'development area' to mean any
area declared to be a development area under sub-section (1) of Section 12.
Section 12 reads as under:
"Sec.
12 Declaration of development areas and development of land in those and other
areas.—
-
As soon as may
be after the commencement of this Act, the Central Government may, by
notification in the Official Gazette, declare any area in Delhi to be a development area for the
purposes of this Act :
Provided
that no such declaration shall be made unless a proposal for such declaration
has been referred by the Central Government to the Authority and the Municipal
Corporation of Delhi for expressing their views thereon within thirty days from
the date of the receipt of the reference or within such further period as the
Central Government may allow and the period so specified or allowed has
expired.
-
Save as
otherwise provided in this Act, the Authority shall not undertake or carry out
any development of land in any area which is not a development area.
-
After the
commencement of this Act no development of land shall be undertaken or carried
out in any area by any person or body (including a department of Government)
unless,--
-
where that area
is a development area, permission for such development has been obtained in
writing from the Authority in accordance with the provision of this Act,
-
where that area
is an area other than a development area, approval of, or sanction for, such
development has been obtained in writing from the local authority concerned or
any officer or authority thereof empowered or authorised in this behalf, in
accordance with the provisions made by or under the law governing such
authority or until such provisions have been made, in accordance with the
provisions of the regulations relating to the grant of permission for
development made under the Delhi (Control of Building Operations) Act, 1955,
(53 of 1955), and in force immediately before the commencement of this Act:
Provided
that the local authority concerned may subject to the provisions of section 53A
amend those regulations in their application to such area.
-
After the coming
into operation of any of the plans in any area no development shall be
undertaken or carried out in that area unless such development is also in
accordance with such plans,
-
Notwithstanding
anything contained in sub-sections (3) and (4) development of any land begun by
any department of Government or any local authority before the commencement of
this Act may be completed by that department or local authority without
compliance with the requirements of those sub-sections." The power of DDA
to develop land in non-development area is provided in Section 22-A, which
reads as under:
"Sec.
22-A Power of Authority to develop land in non-development area.--
Notwithstanding anything contained in sub- section (2) of Section 12, the
Authority may, if it is of opinion that it is expedient to do so, undertake or
carry out any development of any land which has been transferred to it or
placed as its disposal under Section 15 or Section 22 even if such land is
situate in any area which is not a development area." Under Section 36,
DDA has been empowered to require the local authority, within whose local
limits area developed by it is situated, to assume responsibility for the
maintenance of the amenities provided in the area by DDA and other ancillary
matters. Section 30 provides for power of DDA to make an order of demolition of
building where any development has been commenced or is being carried on or has
been completed in contravention of the master plan or zonal development plan or
without the permission, approval or sanction referred to in Section 12 or in
contravention of any condition subject to which such permission, approval or
sanction has been granted. Section 31 empowers DDA to stop development which is
in contravention of the plan, permission, approval or sanction, mentioned
therein or contravention of the conditions stipulated in such permission,
approval or sanction.
Section
31A empowers DDA to seal unauthorised development. If the misuser of the
premises would come within the ambit of unauthorised development, DDA would
have power to seal the premises. On the other hand, if misuser does not come
within the ambit of 'unauthorised development', the power of sealing would be
lacking. Section 31-A of the Delhi Development Act reads as under:
"Sec.
31-A Power to seal unauthorised development.—
-
It shall be
lawful for the Authority or the competent authority, as the case may be, at any
time, before or after making an order for the removal or discontinuance of any
development under Section 30 or Section 31, to make an order directing the
sealing of such development in the manner prescribed by rules, for the purpose
of carrying out the provisions of this Act, or for preventing any dispute as to
the nature and extent of such development.
-
Where any
development has been sealed, the Authority or the competent authority, as the
case may be, may, for the purpose of removing or discontinuing such
development, order the seal to be removed.
-
No person shall
remove such seal except—
-
under an order
made by the Authority or the competent authority under sub-section (2); or
-
under an order
of the Appellate Tribunal or the Lieutenant Governor of the National Capital
Territory of Delhi, made in an appeal under this Act." The expression
'development' is defined in Section 2(d) as under:
"Sec.2(d)
"development" with its grammatical variations means the carrying out
of building, engineering, mining or other operations in, on, over or under land
or the making of any material change in any building or land and includes
redevelopment;" The Scheme under the Act clearly seems to be that during
development it is the responsibility of DDA to demolish and seal any premises
if there is contravention. After the handing over of the area to the local
authority under Section 36, the power of demolition and/or sealing is conferred
on that authority. That local authority may be MCD or cantonment or any other
authority depending upon the developed area falling in the local limits of one
or the other. The 'development area' is any area declared to be such under
sub-section (1) of Section 12. So long as an area is a development area, the
power to deal with it remains with the 'authority' which means Delhi
Development Authority in terms of Section 3(1) of the Act. After the
responsibility of any area has been assumed by the local authority in the
manner provided in Section 36, the power to deal with properties in that area
for any contravention would be exercisable by such authority depending upon the
statutory provisions governing the said local authority, referred to in Section
31-A as 'competent authority'. The power of 'Competent Authority' to seal
premises would depend upon the statute governing it. The language of Section
31-A when it states that 'it shall be lawful for the authority, or the
competent authority, as the case may be' shows that either the authority or the
competent authority would have the power therein. The Act does not contemplate
that both DDA and the competent authority would have concurrent power even
after the local authority has assumed responsibility as provided in Section 36.
Unlike Section 331, there is no provision in the Delhi Development Act to
confer on the authority the power of sealing in case of misuse. The power under
Section 31-A is to seal development under Section 30 or Section 31. The words
'such development' in Section 31-A refers to removal or discontinuance of
development under Section 30 or Sec. 31-A and not for any development for the
purpose of carrying out the provisions of the Act, as was sought to be
contended by Mr. Ranjit Kumar.
Section
31-A does not provide that sealing can be resorted to also for the purpose of
carrying out the provisions of the Act.
It can
be resorted to for sealing of development under Section 30 or Section 31 for
the purpose of carrying out the provisions of the Act. Misuse does not come
within the ambit of development.
In
view of the aforesaid, the High Court has rightly held that under the Delhi
Development Act, there is no power of sealing in case of misuser.
Re :
Individual cases and the Directions to be issued in respect thereof and also in
respect of other residential properties used illegally for commercial purposes.
In
Special Leave Petitions and Civil Appeal Nos. 608- 611of 2003 challenge is to
the judgments of High Court disposing of writ petitions in terms of law laid
down by Full Bench.
In
Civil Appeal No.610 of 2003, it is contended on behalf of the private
respondents that a factual error seems to have occurred when the matter was
disposed of by the High Court along with batch matters. It has been pointed out
that the Court has failed to note that the plot in question has been leased out
by DDA for commercial purposes; due licence has been issued by the MCD to open
a restaurant which is being run in the name of Copper Chimney and, therefore,
there is no misuser. Our attention has been drawn to the copy of the lease deed
and the licence. If this is the factual scenario, the authorities will examine
it before taking action, if any, and the same would be subject to such legal
remedy as may be available in law to the private respondents.
In
Special Leave Petition No.23896 of 2002 on behalf of respondentbank, it has
been pointed out that as per scheme of DDA, banks have been permitted in the
residential properties. For DDA, it was submitted that the benefit of the
scheme is available subject to the fulfillment of various conditions stipulated
therein. In this view, the matter will have to be examined by the authorities
in the light of the scheme, before proceeding to take action, if any, that may
be available in law and subject to legal remedies of the Bank.
In
respect of C.A. No. 608 of 2003, MCD issued to the respondents, a show cause
notice dated 1st
August, 2000 under
Section 345A read with Sections 347, 343 and 344 of the DMC Act stating that
property No. 39 Ring Road, Lajpat Nagar III was being misused in the name and
style of "Jagdish Store". In reply dated 15th September, 2000, it was, inter alia, stated that the MCD itself has
been allowing non-residential activities in residential areas under a special
scheme, without, however, giving any details or filing any document in support
thereof. Further, we asked the learned counsel for the respondents to place on
record the plan for the construction of the building which may have been
sanctioned so as to ascertain whether the sanction was for construction of the
residential property or commercial property. The plan has not been filed. The
reasons are not far to seek. One of the simple method for ascertaining that
there is misuser or not, is to examine the sanctioned plan.
At
this stage, it would be useful to notice letter dated 28th August, 2000 sent by
the Ministry of Urban Development to the Commissioner, MCD, Vice-Chairman, DDA
and other authorities conveying the deep concern of Parliament Consultative
Committee over the rising menace of unauthorized construction, suspected
connivance of the staff of the different authorities in the matter and
requesting the authorities to take strong and prompt action and suggesting ten
measures for strict enforcement. The letter reads as under:
"Annexure-R-1
No.J-13036/3/96-DDIIB Government of India Ministry of Urban Development &
Poverty Alleviation *** Nirman Bhawan, New Delhi Dated: 28.08.2000 To
-
Shri P.S.Bhatnagar,
Chief Secretary, Government of National Capital Territory of Delhi, Delhi.
-
Shri P.K.Ghosh,
Vice-Chairman, Delhi Development Authority, Vikas Sadan,
INA, New Delhi
-
Shri S.P.Aggarwal,
Commissioner, Municipal Corporation of Delhi, Town Hall, Delhi
-
Shri B.P.Misra,
Chairperson New Delhi Municipal Committee, Palika Kendra, New Delhi
-
The Development
Commissioner, Government of National Capital Territory of Delhi, Town Hall, New
Delhi Subject: Unauthorised Encroachment and Illegal Constructions in Delhi
Sir, I am directed to say that the menace of illegal encroachment/unauthorised
construction in Delhi has been considered by the Government of India at its
highest level and it has been decided to eliminate this menace with a firm
hand. You are, therefore, requested to take strong and prompt action against
all illegal constructions/unauthorised encroachments and also against misuses
of land in violation of the provisions of the Master Plan of Delhi. The
following measures are particularly required to be enforced strictly.
-
All illegal constructions
should be demolished, not cosmetically but in toto.
-
The cost of
demolition should be recovered from the illegal builders within 15 days of
demolition. In case of non-payment within 15 days, the amount due should be
recovered as arrears of land revenue.
-
In all cases of
illegal constructions, prosecution should invariably be launched against
builders under the Delhi Municipal Corporation Act, Delhi Development Authority
Act, New Delhi Municipal Council Act, etc. and the cases followed vigorously with
the police authorities/courts.
-
Wherever the
property is on lease, action should be taken under the terms and conditions of
lease agreement and re-entry effected within the shortest permissible period
under such lease agreement.
After
re-entry, physical possession of the property should be taken by invoking the
provisions of Public Premises Eviction Act and damages collected immediately.
The rates of damages/misuse charges should be the same as per the formula
followed by the L&DO and approved by the Ministry of Urban Development.
-
In case of DDA
flats, where constructions have come up beyond the condonable limits,
cancellation of allotment should be carried out in addition to the demolition
of the additional construction. Orders in respect of condonable and non-
condonable items are being issued separately.
-
In cases, where after demolition, reconstruction is done, personal
responsibility of the officer in-charge should be fixed and departmental action
taken against him.
-
In cases where
illegal construction have taken place on rural agricultural lands, action under
the Provisions of the Delhi Land Reforms Act, 1954, should also be taken and
such lands should be taken over as per provisions of the Delhi land Reforms
Act. Action in this respect should be taken as soon as the plots are cut by the
colonisers and construction done in the shape of boundary walls, etc. In other
words, construction should be nipped in the bud. If it comes up, it should be
demolished immediately.
Action
in this respect should also be taken by the concerned local agencies/DDA as per
the bye-laws pertaining to lay out/service plans, etc.
-
In all cases
where party obtains stay/status quo orders, prompt action to get the stay order
vacated should be taken and higher court moved, wherever necessary.
-
All Senior Field
Officers should be asked to carry out physical inspection of the area under
their charge and the Supervising Officer should also make surprise checks to
ensure that the subordinate staff takes immediate action to check/demolish unauthorised
construction. Deterrent action should also be taken against the subordinate
staff such as Building Inspectors, Junior Engineers, Assistant Engineers, etc.
who do not take prompt action.
-
Field officers
should be asked to maintain filed diaries and submit them to the Supervisory
Officer regularly.
-
It is also
requested that a monthly report should be sent to the Ministry of Urban
Development by the 5th of each succeeding month.
-
In this
connection, it may be noted that both the Parliament and the Parliament
Consultative Committee have expressed deep concern, through questions and
interpolations, over the rising menace of unauthorised constructions in Delhi and the suspected connivance of the
staff of the different authorities in the matter. A Flying Squad has been
constituted in the Ministry and if, as a result of findings of this Squad, it
is found that the subordinate staff has not done its duty or not carried out
the aforesaid instructions, strict action against the Subordinate/Supervisory
Staff would be taken by the Government. Yours faithfully, Sd/- (Dr.Nivedita P.Haran)
Joint Secretary to the Government of India Copy for information and necessary
action to:
-
Deputy C.V.O.,
Ministry of UD&PA, Nirman Bhawan, New Delhi.
-
L&DO,
Ministry of UD&PA, Nirman Bhawan, New Delhi
-
DG(W), CPWD, Nirman
Bhawan, New Delhi Sd/- (N.L. Upadhyay)" The aforesaid letter has been
considered by this Court while passing order dated 31st July, 2001, part
whereof has been quoted earlier. Although the letter and also the observations
made in the order are in the context of unauthorized constructions, the same
would equally apply to the misuser as well. It would be useful to reproduce the
entire order which reads as under:
"Order
dated 31.7.2001 in W.P.(C) No.725/1994 We have seen two affidavits, one of the
Chief Secretary as well as the affidavit on behalf of the M.C.D. We are sorry
to note that the affidavits do not specifically deal with the points in issue.
Vide our order dated 9th May, 2001 these authorities along with Vice-Chairman,
D.D.A, Chairperson, N.D.M.C. and the Development Commissioner were required to
file affidavit to indicate as to what measures they have taken in the
implementation of the letter dated 28th August, 2000. At least ten measures
were required to be taken in terms of the said letter dated 28th August, 2000. The affidavits in reply do not
deal with them specifically and general averments have been made which are not
satisfactory.
The
perusal of the affidavits further shows that the parties concerned have not
even touched the tip of the iceberg as far as demolition of unauthorised
constructions is concerned. The number of unauthorised constructions which are
said to have been demolished are a small fraction of what is required to be
done. It is quite evident that there is now no fear of the law catching up at
least with those persons who do not believe in adhering to following the rules
and regulations laid down with respect to construction of property. Unauthorised
encroachment and illegal construction even as per the affidavits are
increasing. It is dangerous trend if the people do not have either respect for
or fear of law primarily due to non-enforcement of the law. It is something
which causes us some concern and it would be appropriate if serious thought is
given to this aspect at the highest quarters.
We
direct the Chief Secretary as well as the Commissioner, M.C.D. to file within
four weeks specific affidavit dealing with each of the clauses of the letter
dated 28th August, 2000. They will also indicate as to what
is the total encroached area in Delhi as well as the number of unauthorised/illegal constructions which have
been raised.
The
affidavit of the Chief Secretary seems to give some indication of action taken
for removing encroachment from some of these areas in Delhi. We would require the Union of
India/Ministry of Urban Development to check and inform the Court whether what
is stated in the annexures to the affidavit of the Chief Secretary from pages
43 to 63 is correct.
The Central
Government will be at liberty to ask for information from the local authority
in order to enable it to comply with the orders passed today.
The
M.C.D. will also inform this Court in the affidavit to be filed as to why no
requisite action has been taken for stopping the gross misuse of the buildings
in the residential areas for commercial purposes and in the construction of
commercial buildings in residential areas where only residential houses are
permitted. To come up after four weeks." Now, we revert to the task of
implementation. Despite its difficulty, this Court cannot remain a mute
spectator when the violations also affect the environment and healthy living of
law-abiders. The enormity of the problem which, to a great extent, is the doing
of the authorities themselves, does not mean that a beginning should not be
made to set things right.
If the
entire misuser cannot be stopped at one point of time because of its extensive
nature, then it has to be stopped in a phased manner, beginning with major
violators. There has to be a will to do it. We have hereinbefore noted in
brief, the orders made in the last so many years but it seems, the same has had
no effect on the authorities. The things cannot be permitted to go on in this
manner forever. On one hand, various laws are enacted, master plans are
prepared by expert planners, provision is made in the plans also to tackle the
problem of existing unauthorised constructions and misusers and, on the other
hand, such illegal activities go on unabated openly under the gaze of everyone,
without having any respect and regard for law and other citizens. We have
noticed above the complaints of some of the residents in respect of such
illegalities. For last number of years even the High Court has been expressing
similar anguish in the orders made in large number of cases. We may briefly
notice some of those orders.
More
than fifteen years ago, on 17th May, 1990,
a Division Bench of the Delhi High Court presided over by Justice B.N. Kirpal
(as the former Chief Justice of India then was) in the case of Ahuja Property
Developers (P) Ltd. v. M.C.D. [1990 (42) Delhi Law Times 474], dealt with a
writ petition in respect of a building in Kailash Colony, New Delhi and noticed
the extent of illegalities and the massive construction made that could not be
used for residential purposes since there was no kitchen or kitchen facilities.
Dealing
with the argument put forth on behalf of builder that there is no power to seal
any building under Section 345A, dismissing the writ petition, it was observed
that the petitioner had admittedly violated the law and cannot now be permitted
to cry wolf. The Court said that the petitioner had admittedly constructed a
building not only at variance with the sanctioned plan but also at variance
with the completion certificate and completion drawings.
Again
on 22nd October, 1990, another Division Bench dealt with a property in Greater Kailash
II, New Delhi in the case of DDA v. Rajinder Mittal, [1991(20) DRJ 65] and
observed that the residential buildings can only be used for residential
purposes. The use of premises for widespread commercial activities is
prohibited. This was while dealing with a criminal matter arising out of
prosecution under Section 29 of the Delhi Development Act.
On May 18, 1995, Justice R.C. Lahoti (as the former
Chief Justice of India, then was) in the case of ANZ Grindlays
Bank v. The Commissioner, M.C.D. & Ors. [1995(34)DRJ 492] echoed similar
words and referred to decision of this Court, observing that the word 'environment'
is of broad spectrum which brings within its ambit hygienic atmosphere and
ecological balance. It is, therefore, not only the duty of the State but also
the duty of every citizen to maintain hygienic environment. There is
constitutional imperative on the State Government and the municipalities, not
only to ensure and safeguard proper environment but also an imperative duty to
take adequate measures to promote, protect and improve both the man-made and
the natural environment. Dealing with the Municipal Laws providing for power of
demolition, it was observed that while interpreting municipal legislation
framed in public interest, a strict constitutional approach must be adopted. A
perusal of the Master Plan shows that the public purpose behind it is based on
historic facts guided by expert opinion.
The
injurious effects on the health and well being of those living in the neighbourhood
were also noticed. Further, notice was taken of the fact of the unscrupulous
builders building properties in deviation of laws, master plan with the
connivance or collusion of the authorities.
On 9th
February, 1996 dealing with various properties at Pusa Road in the case of Anil
Kumar Khurana v. MCD [1996 (36) DRJ 558] writing separate opinion as a member
of Division Bench of Delhi High Court, one of us (Y.K.Sabharwal, CJ) noticed
that the unauthorised constructions and unauthorised user of residential
building for commercial purposes in Delhi had gained alarming proportions and
crossed all limits. It was said that these activities are against the interests
of the society at large and need to be dealt with firmly and that the public
interest demands that the court should not come to the aid of those who break
the law with immunity and put up commercial complexes on the land meant
admittedly for residential use. These complexes are put up and spaces purchased
for petty commercial consideration without any regard to the hardship and
inconvenience of other citizens. It was further said that in respect of blatant
unauthorised constructions and misuser, it cannot be said that the Commissioner
of MCD has a discretion to order demolition or not and vesting of discretion in
the circumstances would itself be arbitrary and illegal.
In the
concluding paragraph it was stated that:
"In
the end, I regret to notice that despite warning and caution given by the Apex
Court and also this court, from time to time, that stern action will be taken
against unauthorised constructions and misuse, these activities have gone on
unabated, without any let or hindrance and all the warnings have fallen on deaf
ears without any effect on the unscruplous builders and purchasers of these
spaces. It is, therefore, necessary to once again send a message, loudly,
clearly and firmly to all those who indulge in such illegal activities that
courts will not come to the aid of persons who indulge in such blatant unauthorised
constructions and misuser of the properties. It is also the duty of the courts
to examine these matters carefully before granting injunction restraining
demolition of such unauthorised constructions. Ordinarily the courts before
issuing injunctions in such matters should insist upon filing of the sanctioned
plans and details about the existing structures to prima facie find out whether
the existing structures are in accordance with the sanctioned plan and building
bye laws etc or not. The courts may also consider appointment of independent
person to verify correctness of representations made about existing structures
as in many cases unauthorised constructions are raised after issue of
injunctions and in cover and garb of orders of injunction. The alarming nature
of such illegal activities can be controlled only by due cooperation from all
citizens including the Media and the Press. It is the duty of all to expose
these law breakers. I hope the Media would bring to the notice of public in
general that unauthorised constructions and misuser have been severely dealt
with by this court and henceforth also no leniency would be shown in such
matters. A copy of this judgment shall be sent forthwith to Delhi Doordarshan
and All India Radio. Everyone has to be told that such unauthorised activities
are against public interest. These activities have to be stopped forthwith. If
in spite of this warning anyone indulges in such unauthorised construction or
misuse or in purchase of these unauthorized constructions he would be doing it
at his own risk and peril and would not be heard to say that he has made large
investments. I hope that at least now this message would be taken with all
seriousness.
In
view of the above, in my opinion, all the petitions and appeals deserve
dismissal with costs quantified at Rs.10,000/- in each case. These costs would
be utilised by M.C.D. for creating in a Special Cell which should be set up to
curb unauthorised construction and misuser of the immoveable properties so that
at least a beginning is made now to promptly check these illegal activities.
The
officials and officers manning this Cell will have to be informed that any dereliction
of duty would be severely dealt with." It seems that in view of the
aforesaid judgment attaining finality, some formal or cosmetic demolition had
taken place.
What
is the position of these properties now is evident from the affidavit dated 16th November, 2005 filed by Additional Commissioner,
MCD placing on record the present status after conducting inspections in second
week of November, 2005. A perusal of the status report in respect of properties
referred in the aforesaid case shows large scale violations in the shape of
show-rooms, commercial offices, shops, law institutes and gymnasiums. The
report shows that even after a lapse of 10 years, commercial activity is in
full swing. This also shows the urgent need to introduce stringent measures for
fixing accountability.
Despite
passing of the laws and repeated orders of the High Court and this Court, the
enforcement of the laws and the implementation of the orders are utterly
lacking. If the laws are not enforced and the orders of the courts to enforce
and implement the laws are ignored, the result can only be total lawlessness.
It is, therefore, necessary to also identify and take appropriate action
against officers responsible for this state of affairs. Such blatant misuse of
properties at large scale cannot take place without connivance of the concerned
officers. It is also a source of corruption. Therefore, action is also
necessary to check corruption, nepotism and total apathy towards the rights of
the citizens. Those who own the properties that are misused have also implied
responsibility towards the hardship, inconvenience, suffering caused to the
residents of the locality and injuries to third parties. It is, therefore, not
only the question of stopping the misuser but also making the owners at default
accountable for the injuries caused to others. Similar would also be the
accountability of errant officers as well since, prima facie, such large scale misuser,
in violation of laws, cannot take place without the active connivance of the
officers. It would be for the officers to show what effective steps were taken
to stop the misuser.
We
have perused the suggestions given by MCD. It has suggested four steps. MCD
requires six months to complete the whole survey in 12 zones divided into 134
wards. As a second step, after initial survey of all the zones, notice of the
proposed action/sealing and/or stopping misuse to be given to the concerned
persons. The third step is grant of opportunity to them of being heard. The
fourth step is the operations for sealing blatant and obvious cases of large
scale misuse at the first instance. Further suggestion is that the major
violations would be sealed first and simultaneously action in all 12 zones
would be conducted after following the due process of law. It is stated that
the success of operation would largely depend on the availability of the Police
force. Recognising that the parties later tamper the seal, it is suggested that
necessary directions be issued warning those who tamper the seal that they
shall be punished for contempt of court.
Regarding
the Ad hoc Trade Registration Scheme, 2004, the stand of the MCD is that, if
allowed by the Court, it will be implemented in the same area as is permitted
by the Master Plan for category 'A' household industry to the extent of 25% of
the floor space or 30 sq. mt., whichever is less, and this will be the maximum
space permissible. The minimum space having already been specified in the
scheme as 30 sq. ft. We may note that the scheme for ad hoc registration itself
provides that it is applicable to the following areas :
-
Walled city and
other built up areas.
-
Schemes executed
by the Delhi Improvement Colonies.
-
Schemes executed
by the Ministry of Rehabilitation Colonies.
-
Resettlement
Colonies.
-
Urban Villages
-
Unauthorised
regularized colonies.
This
scheme is not applicable to the following areas :
-
NDMC and Delhi
Cantonment area.
-
Planned Colonies
and housing schemes developed after 1957.
-
Unauthorised
colonies not regularized.
-
J.J. Clusters.
-
Staff Housing
colonies.
-
Rural Settlement
(except household and rural industrial units Group A & A1-Annexure-II) The
areas and the colonies above-referred themselves show that the so-called
Registration Scheme, 2004 can have no applicability to the nature of misuse
under consideration.
It
deserves to be noted that it is implicit in the scheme that a person to get
benefit of the scheme has himself to be resident of such premises.
The
introduction of the Ad hoc Registration Scheme would not only regularize the
illegalities but further encourage more illegalities to take place by sending a
wrong message underlying the press release. This ad hoc scheme has been stayed
by this Court. A similar scheme was also sought to be introduced by DDA as well
for grant of temporary permission for commercial use in industrial plots and
for condonation of misuse of industrial premises for offices and other
commercial purposes on payment of requisite charges. On learned Amicus Curiae
filing IA 1816 of 2002 seeking stay of the said scheme, the scheme was given up
and an affidavit filed that no action is being taken by DDA upon the scheme or
the notice, subject matter of the application. The introduction of such schemes
by MCD and DDA show the extent of the apathy and lack of concern of these bodies.
Mr. Ashwini
Kumar, learned senior Advocate appearing for MCD, also contended that since
there is a large scale misuse of residential premises for commercial purposes,
it is a physical impossibility to remove the misuser. The contention deserves
outright rejection. We have already noted how the misuser has attained such
enormity. Despite repeated orders and directions, MCD took no action. Such a
contention is not open to MCD. It is not merely a case of only lack of will to
take action, it appears to be a case of predominance of extraneous
considerations.
Rule
of law is the essence of Democracy. It has to be preserved. Laws have to be
enforced. In the case in hand, the implementation and enforcement of law to
stop blatant misuse cannot be delayed further so as to await the so called
proposed survey by MCD. The suggestions would only result in further
postponement of action against illegalities. It may be noted that the MCD has
filed zonewise/wardwise abstract of violations in terms of commercialisation as
in November, 2005.
According
to MCD, the major violation has been determined in respect of those roads where
commercialisation of the buildings is more than 50%. According to it, the major
violations in 12 zones are spread on 229 roads. Roads on which there are major
violations are, thus, known. In respect of these, there is no need for any
survey or individual notice.
Beginning
must be made to stop misuser on main roads of width of 80 ft. or more. The
names of these roads can be published in newspapers and adequate publicity
given, granting violators some time to bring the user of the property in
conformity with the permissible user, namely, for residential use if the plans
have been sanctioned for construction of a residential house. In case
owner/user fails to do so, how, in which manner and from which date, MCD will
commence sealing operation shall be placed on record in the form of an
affidavit of its Commissioner to be filed within two weeks. On consideration of
this affidavit, we will issue further directions including constitution of a
Monitoring Committee, if necessary. The issue of accountability of officers and
also the exact manner of applicability of Polluter Pay Principle to owners and
officers would be further taken up after misuser is stopped at least on main
roads. Civil Appeal Nos.608/2003 above referred relates to Ring Road, Lajpat Nagar-II.
The other cases relate to areas like Green Park Extn., Green Park Main, Greater
Kailash, New Friends Colony, Defence Colony, West Patel Nagar, etc. These areas
are illustrative. The activities include Big Furnishing Stores, Galleries, Sale
of Diamond and Gold Jewellary, sale of Car Parts etc.
Having
held that the Commissioner of MCD has power under the DMC Act to seal premises
in case of its misuser, we issue the following directions for taking immediate
steps to seal residential premises being used for commercial purpose :
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MCD shall within
10 days give wide publicity in the leading newspapers directing major
violations on main roads (some instances of such violators and roads have been
noted hereinbefore) to stop misuser on their own, within the period of 30 days.
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It shall be the
responsibility of the owner/occupier to file within 30 days an affidavit with
Commissioner of MCD stating that the misuser has been stopped.
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In case misuser
is not stopped, sealing of the premises shall commence after 30 days, from the
date of public notice, first taking up the violations on roads which are 80 ft.
wide and more. All authorities are directed to render full assistance and
cooperation. After expiry of 30 days from the date of public notice,
electricity and water supply shall be disconnected.
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Details of the
Roads and the violations shall also be placed on the website by the MCD and
copies also sent to Resident Welfare Associations of the area which should be
involved in the process of sealing of misuser. The Commissioner of MCD shall
file an affidavit, within two weeks, in terms of directions contained in this judgment,
whereafter directions for constitution of the Monitoring Committee would be
issued. The sealing would be effected by the officers authorised by the
Commissioner of MCD in consultation with the Monitoring Committee.
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The appropriate
directions for action, if any, against the officers responsible for the misuse
and for payment of compensation by them and by violators would be issued after
the misuser is stopped.
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None will tamper
with the seals. Any tampering with seal will be sternly dealt with. Tampering
with seal will include opening another entrance for use of premises.
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It would be open
to the owner/occupier to approach the Commissioner for removal of the seal on
giving undertaking that the premises would be put to only authorised use.
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Particulars of
cases where violators may have obtained orders of stay will be filed in this
Court by MCD.
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MCD shall file
monthly status report as to action taken by 15th of each month commencing from 10th April, 2006.
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In case misuser is not stopped in
the premises involved in the civil appeals and special leave petitions, subject
to what is stated in this judgment, the MCD will take immediate steps to seal
those premises soon after expiry of 30 days.
Civil
Appeals, Interlocutory Applications (except I.A.22) and Special Leave Petitions
are disposed of but MCD is granted liberty to seek further directions from this
Court from time to time.
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