Supreme court judgement regarding demolition of unauthorized construction
Anuj Oberoi
(Querist) 19 October 2011
This query is : Resolved
I urge the learned members to kindly furnish me Hon'ble Supreme Court of India's judgement reagrding demolition of unauthorized constructions in residential areas like Nimri Colony, Motinagar in Delhi.
Raj Kumar Makkad
(Expert) 19 October 2011
You require particular judgment which cannot be traced out without any link.
Shailesh Kumar Shah
(Expert) 19 October 2011
need some more input to search. Eg case no, petitoner etc.
M V Gupta
(Expert) 20 October 2011
If u know the citation (i.e, the name of the parties or the number of the petition) you can get the judgement from the official web site of the Supreme Court.
prabhakar singh
(Expert) 20 October 2011
It is hard to guess what judgement you exactly need.
Gulshan Tanwar
(Expert) 20 October 2011
HC orders demolition of unauthorised constructions in Nimri colony
8 August 2007
The Delhi High Court has directed the Municipal Corporation of Delhi(MCD) to demolish all unauthorised constructions built beyond 135 sq meter area in Nimri Colony situated at Ashok Vihar in Rohini Zone.
Acting on Court Commissioner Rakesh Khanna's report, Chief Justice M K Sharma and Justice Sanjive Khanna directed MCD to demolish all constructions which were built on land more than the prescribed 135 sq meter and file the action taken report in the court within three weeks.
The court directed the MCD Deputy Commissioner to either ensure the implementation of court orders or be prepared to face the consequencies. He has been asked to be personally present before the court on the next date of hearing.
The court has directed the police to provide all necessary help and security to the MCD.
Nimri Colony was in fact a double-storey Government colony, built in 1960-61, where about 600 flats measuring 62.26 sq meters were built for MCD employees.
About 325 flats were alloted to the MCD employees and the remaining were either sold out or alloted to people who had to be rehabilitated.
MCD later sold the same houses to the occupants of the flats, that is the MCD employees, who then became owners of the flats by paying the requisite cost.
The problem arose when the ground floor occupants started encroaching the front and back portions of the vacant land. The first floor flat owners formed an association and approached the Delhi High Court in the year 1994 seeking relief that they may also be allowed to construct roof on the land occupied by the ground floor dwellers.
Even as the case was pending in the court, MCD passed a resolution that all the flat owners may be allowed eight feet of space in front of the flat and 22 feet on the back side. This amounted to sanction of 135 sq meters of land to the flat owners.
MCD also directed that the covered area of the flats shall not exceed 100 sq meters.
MCD also directed that all those who had covered more than 100 sq meters shall pay a fine of Rs 5830 per sq mt.
The unauthorised construction did not stop even then and more and more land was taken over by the flat owners.
The Court had directed Mr Khanna to inspect the site and file his report in the court.
According to the report filed today, the flat owners had covered more than 200 sq mt of adjoining land, with the corner flats being the biggest violators.
The court has made it clear that no construction will be allowed on the government land.
Gulshan Tanwar
(Expert) 20 October 2011
CASE NO.:
Writ Petition (civil) 4677 of 1985
PETITIONER:
M.C. Mehta
RESPONDENT:
Union of India & Ors
DATE OF JUDGMENT: 16/02/2006
BENCH:
Y.K. Sabharwal, B.N.Srikrishna & R.V. Raveendran
JUDGMENT:
J U D G M E N T
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 :
A. Whether MCD under the DMC Act has power to seal the
premises in case of its misuser?
B. Whether DDA, under the Delhi Development Act, has
also similar power of sealing or not?
C. 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-
(a) 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;
(b) an owner in occupation of, or
otherwise using his land or building;
(c) a rent-free tenant of any land or
building;
(d) a licensee in occupation of any land or
building; and
(e) 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--
(a) to erect a new building on any site
whether previously built upon or not;
(b) to re-erect--
(i) 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
(ii) 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
(iii) any frame building of which
more than half of the number of the
posts or beams in the external walls
have been pulled down;
(c) 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;
(d) to convert into more than one dwelling
house a building originally constructed as
one dwelling house only;
(e) to convert into a place of religious
worship or into a sacred building any
place or building not originally
constructed for such purpose;
(f) 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;
(g) to convert two or more tenements in a
building into a greater or lesser numbers;
(h) 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;
(i) 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;
(j) 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.--
(1) 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.
(2) The grounds on which the sanction of
a building or work may be refused shall
be the following, namely:--
(a) 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;
(b) 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;
(c) 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;
(d) that in cases falling under
section 312, lay-out plans have not
been sanctioned in accordance with
section 313;
(e) that the building or work would
be an encroachment on Government
land or land vested in the
Corporation;
(f) 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.
(3) 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.
(4) 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.--
(1) 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.
(2) 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.
(3) No person shall remove such seal
except--
(a) under an order made by the
Commissioner under sub-section
(2); or
(b) 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.--
(1) 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).
(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.
(3) 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.
(4) 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.
(5) 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.
(6) 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.--
(1) 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.
(2) 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.
(2A) 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.
(3) 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.
(4) 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--
(a) 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;
(b) change or allow the change of the use
of any land or building;
(c) 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.
(1) 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.
(2) 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:
(a) To erect a new building on any site
whether previously built upon or
not;
(b) To re-erect any building of which
portions above the plinth level have
been pulled down, burnt or
destroyed; and
(c) 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.--
(1) 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.
(2) 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.
(3) 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,--
(i) 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,
(ii) 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.
(4) 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,
(5) 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.--
(1) 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.
(2) 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.
(3) No person shall remove such seal
except--
(a) under an order made by the
Authority or the competent
authority under sub-section (2); or
(b) 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
1. Shri P.S.Bhatnagar,
Chief Secretary,
Government of National Capital
Territory of Delhi,
Delhi.
2. Shri P.K.Ghosh,
Vice-Chairman,
Delhi Development Authority,
Vikas Sadan, INA, New Delhi
3. Shri S.P.Aggarwal,
Commissioner,
Municipal Corporation of Delhi,
Town Hall,
Delhi
4. Shri B.P.Misra,
Chairperson
New Delhi Municipal Committee,
Palika Kendra,
New Delhi
5. 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.
(i) All illegal constructions should be
demolished, not cosmetically but in
toto.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
(vi) In cases, where after demolition,
reconstruction is done, personal
responsibility of the officer in-charge
should be fixed and departmental
action taken against him.
(vii) 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.
(viii) 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.
(ix) 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.
(x) Field officers should be asked to
maintain filed diaries and submit
them to the Supervisory Officer
regularly.
2. It is also requested that a monthly
report should be sent to the Ministry of
Urban Development by the 5th of each
succeeding month.
3. 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:
1. Deputy C.V.O., Ministry of UD&PA,
Nirman Bhawan, New Delhi.
2. L&DO, Ministry of UD&PA, Nirman
Bhawan, New Delhi
3. 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 :
1. Walled city and other built up areas.
2. Schemes executed by the Delhi Improvement Colonies.
3. Schemes executed by the Ministry of Rehabilitation
Colonies.
4. Resettlement Colonies.
5. Urban Villages
6. Unauthorised regularized colonies.
This scheme is not applicable to the following areas :
1. NDMC and Delhi Cantonment area.
2. Planned Colonies and housing schemes developed after
1957.
3. Unauthorised colonies not regularized.
4. J.J. Clusters.
5. Staff Housing colonies.
6. 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 :
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. Particulars of cases where violators may have obtained
orders of stay will be filed in this Court by MCD.
9. MCD shall file monthly status report as to action taken
by 15th of each month commencing from 10th April, 2006.
10. 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.
Gulshan Tanwar
(Expert) 20 October 2011
This judgment was the groundnorm for the drive against illegal use of land in Delhi.
prabhakar singh
(Expert) 20 October 2011
Best job done by you Mr. Gulshan Tanwar
Anuj Oberoi
(Querist) 21 October 2011
Thanks Mr. Gulshan Tanwar
S.B.adil rahman
(Expert) 12 December 2015
See the Apex Court judgement Dipak Kumar Mukherjee Vs Kolkata Municipal Corporation
Adinath@Avinash Patil
(Expert) 21 October 2011
