TMI Blog2020 (8) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... and unauthorized colonies that have come up on the public land and were wholly unauthorized without sanction. At no point in time, this Court had empowered the Monitoring Committee to act vis vis to the purely residential premises. The power of sealing of property carries civil consequences. A person can be deprived of the property by following a procedure in accordance with law. The Monitoring Committee is not authorized to take action concerning the residential premises situated on the private land. If there is unauthorized construction or in case of deviation, the requisite provisions are under the DMC Act, such as sections 343, 345, 347(A), 347(B). The mode of action and adjudication under the Act is provided including appellate provisions and that of the Tribunal. It would not be appropriate to the Monitoring Committee to usurp statutory powers and act beyond authority conferred upon it by the Court. The Monitoring Committee could not have sealed the residential premises, which were not misused for the commercial purpose as done vide Report No.149, nor it could have directed the demolition of those residential properties. After going through the report of the Monitoring Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Naveen Kumar, Advocate, Mr. Ejaz Maqbool, Advocate, Mr. Rahul Narayan, Advocate, Ms. Akriti Chaubey, Advocate, Mr. Yashraj Singh Deora, Advocate, Mr. Chirag M. Shroff, Advocate, Mr. Aman Gupta, AOR, M/S. Saharya Co., AOR, Mr. Mushtaq Ahmad, AOR, Ms. Usha Nandini. V, AOR, Mr. V. K. Verma, AOR, Mr. S. Chandra Shekhar, AOR, Ms. Prasanthi Prasad, AOR, Mr. Prakash Kumar Singh, AOR, Ms. Purnima Jauhari, Adv., Ms. Kamakshi S. Mehlwal, AOR, Mr. Abhinav Mukerji, AOR, Mr. Surya Kant, AOR, M/S. Law Associates, AOR, Mr. Prashant Bhushan, AOR Petitioner(s)-in-person, Mr. Hardeep Singh Anand, AOR, Mr. M. C. Dhingra, AOR, Mr. Manu Shanker Mishra, AOR, Mr. Prakash Kumar Singh, AOR, Mr Pukhrambam Ramesh Kumar, Adv., Ms. Anupama Nagangom, Adv., Mr. Karun Sharma, Adv., Mr. P.B. Suresh, Adv., Mr. Karthik Jayshankar, Adv., Mr. Kshitez Kaushik, Adv., For M/S. M. V. Kini Associates, AOR, Mr. M. C. Dhingra, AOR, Mr. Mushtaq Ahmad, AOR, Mr. Praveen Swarup, AOR, Mr. Prashant Bhushan, AOR, Ms. Usha Nandini. V, AOR, Mr. Hardeep Singh Anand, AOR, Mr. Manu Shanker Mishra, AOR, Mr. Prakash Kumar Singh, AOR Petitioner-in-person, Mr. V. K. Verma, AOR, Mr. Aman Gupta, AOR, Dr. Surender Singh Hooda, AOR, M/S. Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anani, AOR, Mr. Ashok Anand, AOR, Mr. Karunakar Mahalik, AOR, Mr. Naveen R. Nath, AOR, Mr. Vishnu Sharma, AOR, Mr. M. M. Kashyap, AOR, Mr. A. Raghunath, AOR, Ms. K. V. Bharathi Upadhyaya, AOR, Ms. Rajani Ohri Lal, AOR, Mr. Rakesh Mishra, AOR, JUDGMENT ARUN MISHRA, J. IN RE: ISSUE RELATING TO JURISDICTION OF THE MONITORING COMMITTEE 1. We are dealing with the authority of the Monitoring Committee to seal the residential premises on the private land particularly when they are not being used for the commercial purpose . Whether the Monitoring Committee could have sealed these residential premises is the only question which we are examining in this order. 2. Report No.149 dated 2.4.2019 submitted by the Monitoring Committee concerning specific unauthorized constructions allegedly carried out in the Vasant Kunj and Rajokari area. These constructions were not on public land. The respective persons owned the land, and the Committee had submitted that a letter was received from the SDM, Mehrauli on 22.2.2019 regarding unauthorized construction in Vasant Kunj, Delhi. 3. A reply was filed on behalf of the residents that various residential premises were sealed where constructions were made l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toring Committee is entitled to inspect premises in which any illegal construction has been made. This Court restored its power on 6.12.2017. A Special Task Force was set up to ensure that the order of the court and applicable bylaws were implemented. LDRA Policy in derogation of the MPD 2021 is notified on 7.2.2007. 7. Learned Amicus attracted the attention of this Court to orders dated 24.4.2018, 8.5.2018, 15.5.2018, 18.5.2018, 24.5.2018, and various other orders and certain reports, which we will refer later. He has pointed out that the Special Task Force was constituted on 25.4.2018. The Monitoring Committee has the power to seal unauthorized construction, and regularization thereof cannot be allowed. He has attracted the attention of this Court to the O.M. dated 23.5.2018 issued by the Government of India containing an action plan for monitoring of all construction activities in Delhi and fixing responsibility in case of violations of MPD 2021 for unauthorized encroachments and other illegal construction activities. 8. Learned Amicus Curiae also argued that the Monitoring Committee is authorized to see construction with sanction plan or construction contrary to sanction plan. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction in appropriate cases. He submitted that the DMC Act is a complete code by itself as it provides how the sealing is to be done, when it is to be enforced, and in case of its failure, the remedy is provided under section 490. Statutory appeals are provided under the DMC Act to the Appellate Tribunal and the Administrator. A complete regulatory mechanism is provided for the sealing operation of properties. Thus, it cannot be deprived to exercise its powers conferred by the Monitoring Committee under the DMC Act. b. This Court appointed the Monitoring Committee on 16.2.2006 only to prevent misuse of residential premises for commercial use and not with respect to residential premises used for residential purposes. Once the Monitoring Committee does the sealing, no statutory appeal lies before the Appellate Tribunal constituted under section 347(A) and 347(B) of the Act. The Statutory Appeals were transferred to the Monitoring Committee, which ordered the sealing of the premises. The principle of natural justice was thus thrown to winds. The order appointing the Monitoring Committee was for limited purpose and power was passed under Article 142 of the Constitution. The order too de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articularly when it was not made on public land. He has also argued with respect to LDRA Policy and as to permissible regularization. 13. Shri Nalin Kohli, learned senior counsel has taken this Court through various orders passed by this Court and the Report of the Monitoring Committee to submit that this Court appointed the Monitoring Committee for the limited purpose of checking commercial misuse of the residential properties. At no point in time, this Court authorized the Monitoring Committee to seal the residential premises used for the residential purposes that too situated on private land. Thus, the action of sealing such houses is unwarranted and illegal. 14. Shri Naveen Kumar, learned counsel, has invited our attention to the order dated 7.5.2019. This Court sought the Monitoring Committee to specify with respect to its power conferred by the court and secondly, any prior example where the Monitoring Committee sealed such premises. The Monitoring Committee referred to the orders dated 23.11.2006, 12.2.2007, 9.3.2007, and 10.4.2007 to justify its action. It was argued that the orders relied upon by the Committee are not at all relevant for sealing of such premises. The Monit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; section 347A provides for an appeal before the Appellate Tribunal, section 347B deals with appeals against certain orders and notices issued under the Act and section 347E deals with the bar of jurisdiction of courts. Once the statutory right is conferred, it cannot be dealt with by the Monitoring Committee until and unless it is authorized. DISCUSSION: 17. The Monitoring Committee was appointed and empowered by this Court to take action within the powers conferred. In the teeth of various statutes, it would act strictly within the four corners of the powers conferred on it by this Court. 18. When we consider the various orders passed by this Court from time to time, before the constitution of the Monitoring Committee, we find that this Court at no point in time has empowered the Monitoring Committee to take action with respect to residential premises not used for commercial purpose. This Court initially passed an order on 7.5.2004 and constituted the Monitoring Committee comprising of (i) Chief Secretary of Delhi, (ii) Commissioner of Police, Delhi, (iii) Commissioner, Municipal Corporation of Delhi and (iv) Vice Chairman of Delhi Development Authority. It was ordered that Monit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies as also some extensive industries. For shifting polluting industries had to be given topmost priority. Later, directions were issued for shifting of other extensive industries considering the continued unauthorised use contrary to master plan and zonal plan, by those industries as well as some other industries continuing in residential/non-conforming areas. 5. With regard to commercial use of premises in residential areas, it has been more than three years i.e. 30-9-2002 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 31-7-2001 and 20-2-2002. By order dated 31-7-2001 passed in News Item AQFMY v. Central Pollution Control Board [W.P. No.725 of 1994 dated 31-7-2001] the Court directed that: 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. 6. Again on 20-2-2002, the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... town planning take into account various aspects, such as, healthy living, environment, lung space need, land use intensity, areas where the residential houses are to be built and where the commercial buildings are to be located, need of household industries, etc. Provision for household industries in residential areas does not mean converting residential houses into 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. (emphasis supplied) (iii) The court further considered that none has the right, human or fundamental, to violate the law with immunity and claim any right to use a building for a purpose ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 39, Ring Road, Lajpat Nagar III was being misused in the name and style of Jagdish Store . In reply dated 15-9-2000, it was, inter alia, stated that 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 methods for ascertaining that there is misuser or not, is to examine the sanctioned plan. 51. At this stage, it would be useful to notice letter dated 28-8- 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 unauthorised construction, suspected connivance of the staff of the different authorities in the matter and requesting the authorities to take strong and prom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pment. (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 constructions 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 local agencies concerned/DDA as per the bye-laws pertaining to layout/service plans, etc. (viii) In all cases where party obtains stay/status quo orders, prompt action to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect 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 the 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. (emphasis supplied) (v) The court focused on the misuse of the property and further observed in para 61 regarding misuse thus: 61. Despite passing of the laws and repeated orders of the High Court and this Court, the enforcement of the laws and the implementations 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks, 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 10-4-2006. 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, MCD will take immed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misuser by 30-6-2006 would subject him/her to the offence of perjury and contempt of court for violation of the order of the Court. The benefit will be available only to those who file the affidavit with MCD on or before 28-3-2006. (emphasis supplied) This Court directed to prevent misuse of the property in accordance with the previous order to mean that residential premises/ area should not be used for commercial purposes. A large number of reports of the Monitoring Committee carried Caption REPORT OF THE MONITORING COMMITTEE, SEALING OF THE COMMERCIAL ESTABLISHMENTS IN RESIDENTIAL PREMISES . 21. In Report No.8, the Monitoring Committee reported liquor shops in convenient/local shopping centers located in residential areas and other professional activities. This Court passed an order on 18.10.2006 regarding Report No.8 thus: I.A.No.1983: In view of the order passed in I.A.No.1980 above, this application stands disposed of. Report No.8 of the Monitoring Committee: We have perused the 8th report of the Monitoring Committee dated 17th October, 2006. The recommendation contained in para 1 of the report, except last three lines, are accepted. The said three lines read as under: In addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... November, 2006, be now listed in February, 2007. The Monitoring Committee is directed to supply copy of each of its report to learned Solicitor General and learned counsel for the Municipal Corporation of Delhi. (emphasis supplied) It is apparent from the report that it was with respect to misuse of the residential premises for commercial purpose and unauthorized constructions on public land. 22. On 15.11.2006, this Court exempted ration shops and cycle repair shops running in residential premises from sealing. Report No.12 was considered with respect to the misuse of residential premises for commercial purposes. 23. This Court passed further order on 23.11.2006, which was also with respect to misuse of the premises. Undertakings were filed to the effect that they have stopped commercial activities in the residential premises. The relevant portion of the order dated 23.11.2006 is extracted hereunder: Subject to what we note hereinafter, persons who have either earlier or now have stopped commercial activity in terms of the undertakings/ affidavits filed but are covered by the two notifications above-noted, having regard to the peculiar facts and circumstances, are temporarily relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n paper only without any action. The Municipal Corporation of Delhi, as suggested in Paragraph (4), shall issue public notice in consultation with the Monitoring Committee. It is apparent from the order that the report and the order pertained to misuse of the residential premises for commercial purposes. 24. The order dated 12.2.2007 was in relation to the stopping of the sealing by the Monitoring Committee at the instance of the Municipal Corporation of Delhi and the Delhi Development Authority until further orders. It was to be operative only concerning those premises covered under the MPD 2021 and not for those which were not covered by the Master Plan. Following order was passed on 12.2.2007: .In view of this arrangement, the interim order stopping sealing by the Monitoring Committee with the assistance of MCD and DDA shall remain operative until further orders. This order shall be operative only in respect of those premises which are covered by the Master Plan, 2021 and not for those which are not covered by the Master Plan. . 25. The order dated 9.3.2007 was passed to comply with the order dated 12.2.2007. Following order was passed by this Court on 9.3.2007: We have perused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Report No.34 of the Monitoring Committee shall be kept in a sealed cover. Copies of the Monitoring Committee s said Report shall be given only to the learned counsel for M.C.D., Delhi Police and learned Solicitor General. The Charts submitted by Learned A.C. be kept on record. If any person, who has interest in the litigation wants to have a say in the matter, that can only be routed through learned AmicusCuriae. The necessary information and materials be given to learned Amicus-Curiae. The response of the DDA shall also be filed which shall be taken on record. Report No.34 was not regarding premises used purely for residential purposes. 27. This Court passed an order on 3.1.2012, which is extracted hereunder: After hearing Shri Ranjit Kumar, learned amicus on Report No.85 and related issues and considering the submissions made by other learned counsel, we deem it proper to hear the main matter involving challenge to the validity of the law enacted by Parliament and the notifications issued by the Central Government. List the case on 13.3.2012. It is expected that on that day no request will be made for adjournment. Till the matter is heard by the Court, the Monitoring Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in regard to the misuse/non-conforming use of residential premises, and power to seal premises, arising in IA No.22, as also, several appeals filed by the Municipal Corporation of Delhi (hereinafter referred to as MCD ) which arose out of a Full Bench of the Delhi High Court were decided by a judgment dated 16.2.2006 and is reported as, M.C. Mehta vs. Union of India, (2006) 3 SCC 399 . It was, inter alia, held that the MCD had power to seal the premises for nonconforming user in terms of Section 345 A of the MCD Act, and various directions were issued. 4. These cases relate to the matter of non-conforming user of premises, and the orders passed thereon, after the judgment of 16.2.2006, under the special provisions made by the Parliament qua Delhi, the various provisions of the Master Plan which according to some of the petitioners were flawed because of the non-availability of the physical and social infrastructure. Further, this Court observed with respect to authority or scope of the Monitoring Committee and the purpose for which the Monitoring Committee was appointed thus: 8. (i) We had, as noticed above, by our order dated 24.3.2006, appointed the Monitoring Committee for l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 7th May, 2004 in M.C. Mehta v. Union of India. [(2004) 6 SCC 588] *** *** *** 10. Having passed orders on 7th May, 2004 relating to unauthorized industrial activity in Delhi and being compelled to set up a Monitoring Committee, this Court focused its attention on yet another problem facing the citizens of Delhi, namely, that of misuse of residential premises for commercial purposes. In the decision dated 16th February, 2006 in M.C. Mehta, this Court noted in paragraph 53 of the Report that it cannot remain a mute spectator when violations of the law affect the environment and the healthy living of those who abide by the law. It was stated, and the pain and anguish of this Court is quite apparent: 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 violator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 largescale 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. [Emphasis supplied by us]. 12. In view of the above, this Court directed the Delhi Municipal Corporation (for short the MCD) to give wide publicity in leading newspapers of the requirement that those misusing their residential premises for commercial purposes should cease the misuse on their own. It was also directed that 30 days after the issuance of the public notices, and if the misuse is not stopped, the process of sealing the premises would start. The period of 30 days expired on or about 29th March, 2006. 13. Unfortunately, issuance of the public notices had no impact either on those violating the law or on those expected to implement the rule of law. Perhaps, as observed by this Court, the reason was connivance, corruption, nepotism and total apathy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utilise the premises in question for commercial purposes or for any purpose not permitted by law. That being the position, it would hardly serve any purpose if the applicants are required to formally file an appeal before the Appellate Tribunal which is apparently already dealing with a very large number of appeals. It would, therefore, be in the fitness of things to de-seal the premises in question for residential purposes subject to certain conditions. Directions 35. In our opinion, as far as Infinity Knowledge Systems is concerned the following conditions would meet the ends of justice and also provide a safeguard against possible misuse of residential premises for commercial (nonindustrial) purposes: (1) The applicants will file an affidavit before the Monitoring Committee stating that they will use the premises in question only for residential purposes and for no other purpose whatsoever. The applicants will identify the persons for whose residential use the premises in question are sought to be desealed. Any change will be notified to the Monitoring Committee. (2) The affidavit filed by the applicants will state the name, address and other particulars of the person who will b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke this order given the history of the case and the more than serious observations of this Court of an apparent nexus between some entities and the observations regarding corruption and nepotism. 38. We make it clear that this order will inure to the benefit of only those who are using residential premises for commercial purposes (nonindustrial) or for any other non-residential purpose and whose premises were sealed at the instance of the Monitoring Committee. This order will not at all inure for the benefit of anybody using residential premises for any industrial activity of any sort or nature whatsoever. 39. With regard to the writ petitions that have been transferred to the Delhi High Court which challenge the Act and subsequent legislations, we find from a perusal of the website of the Delhi High Court that these petitions have not yet been heard, for one reason or another. We do not find any fault with the Delhi High Court. The intention of this Court in transferring the writ petitions to the Delhi High Court was for their expeditious disposal preferably within one year. Almost four years have gone by in this exercise but without any decision. Therefore, given the gravity of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lonies. The concerned authorities will ensure compliance. It has been submitted by learned Additional Solicitor General (Mr. Nadkarni) that a Task Force is contemplated that will ensure that the orders of this Court and the applicable byelaws are implemented and encroachments, etc. as well as unauthorized constructions are removed. The Task Force as suggested by learned Additional Solicitor General (Mr. Nadkarni) may be constituted with immediate effect. As a first step, the Task Force should remove encroachments on public roads, public streets and pedestrian streets, as mentioned in the immediate action submitted by Mr. Nadkarni in a Revised Note dated 18th April, 2018. The needful should be done within a period of two weeks from today. We make it clear that the Monitoring Committee may suggest to the Task Force the areas where immediate action is required to be taken. It is stated by learned Additional Solicitor General (Mr. Maninder Singh) that about 27.02 acres of public land has been taken over by the Delhi Development Authority since 1st April, 2018. The details of this have not been mentioned. An affidavit should be filed giving full details of the 27.02 acres of public land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 and thereby had passed certain orders. Report No.114 of 2018 is related to unauthorized constructions and commercial activities in 1797 unauthorized colonies. Thus, the order of this Court was confined to the unauthorized colonies and commercial activities mentioned in the report as to encroachment on the public land. 33. The order dated 8.5.2018 is with respect to the groundwater level, not pertaining to the matter in question. The order dated 15.5.2018 is with respect to the Central Government to hear and decide the objections as to Master Plan and the Special Task Force constituted under the DDA Act 1957 was ordered to continue with their duties and responsibilities and action plan submitted by the Attorney General was to be implemented by the Special Task Force, not by the Monitoring Committee. 34. In the order dated 24.5.2018, this Court issued the directions to the statutory authorities to take appropriate action. With respect to illegal and unauthorized structures, no direction was issued to the Monitoring Committee. Following observations were made: 14. We may mention that it has been recorded that Delhi is being ravaged by unauthorized encroachments and illegal construc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorization but have to be read in the context of the purpose for which the Monitoring Committee had been appointed. The power of the Monitoring Committee could not be said to be widened by the aforesaid observations made in the order. This Court specifically dealt with in several orders the questions relating to power and the purpose for which the Monitoring Committee had been appointed. 37. The learned Amicus invited the attention to the order dated 12.10.2018, in which this Court simply observed that the Monitoring Committee should carry out its activities and responsibilities. The order is quoted hereunder: The office report indicates that No Objection Certificate from Shri Ajay Kumar Singh has not yet been obtained. The alleged contemnor should file the No Objection Certificate in the Registry. The additional affidavit be filed in this regard before the next date of hearing. List the matter on 30th October, 2018. It is made clear that the pendency of these proceedings should not deter the Monitoring Committee or any other authority from carrying out its activities and responsibilities. The alleged contemnor should remain present in Court on the next date of hearing. (emphasis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorized encroachments. Needless to say, this also includes the roads/streets/footpaths that have been cleared by the STF with the assistance of the Municipal Corporations. 39. Learned Amicus relied upon order dated 14.1.2019. The relevant portion is extracted hereunder: .The Monitoring Committee, along with the Deputy Commissioner, Nazafgarh Zone, SDMC, inspected the area behind Sector 7 Dwarka Sub-city on 30.10.2018 and noticed major unauthorised constructions in the amalgamated plots wherein huge showrooms, restaurants, Gyms etc. were found to be in operation. The Deputy Commissioner, Nazafgarh Zone, SDMC, were immediately directed to issue show cause notice to all the violators in respect of unauthorised constructions and misuse. Let the SDMC explain as to why they have not taken any action under the provisions of DMC Act for unauthorised constructions and as to why the responsibility of taking action has to be fastened only to Revenue Department, District Magistrate and SDM. The needful be done within three weeks from today. Let the Revenue Department also explain its stand on the action taken on the unauthorised constructions pursuant to the observations made by the Committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 588 in this case, this Court considered the question of regularization of illegal industrial activities in the context of a violation of Master Plan and industrial activities in residential non conforming areas of Delhi. Requisite directions were issued for closure or relocation of industrial units non confirming with the ecological balance considering the right of a hygienic, clean and safe environment. The decision is not relevant with respect to the power and authority of the Monitoring Committee to act. 42. It is pertinent to mention here that earlier this Court in the same matter passed an order reported in (2013) 16 SCC 336 whereby sent all the matters from Supreme Court to the High Court. Since in the High Court, the progress was slow, later on, vide order dated 15.12.2017, this Court called all the matters back to this Court. 43. No doubt about it that matter of encroachment is a matter of concern, but the Monitoring Committee can act within the four corners of powers conferred upon it and purpose for which the court appointed the Monitoring Committee. It cannot exceed its powers and take any action beyond its authorization by the court. 44. We have gone through the various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter the sealing operations in respect of roads having width of 60 ft. above after giving a Public Notice, as has been done in the case of roads of 80 ft width and above. d. The Ministry of Urban Development Govt. of India to approve and notify the draft Zonal Plans already prepared and pending with the DDA in respect of the remaining nine zones wherein mixed land use roads have already been identified for which not more than 15 days time is required. Simultaneously the work regarding the survey and preparation of Draft Zonal Plans in accordance with the Master Plan 221 may continue. e. The Ministry of Urban Development Govt. of India to modify its Notification dated 28th March 2006 based on the suggestions given by the Committee in paras 17, 18 19 above. f. Govt. of NCT of Delhi and all the local bodies to ensure the implementation of the parking policy. REPORT NO.3 47. Report No.3 dated 23.5.2006 is again for sealing the commercial establishments in the residential premises . It has the reference with respect to the commercial establishments carrying out commercial activities at their premises. It also has a reference to the Delhi Laws (Special Provisions) Act, 2006. Some expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... colony commercial activities have almost been stopped and hectic activities going on for conversion of those places as residential houses. The entire commercial area has again been photographed. The photographs now taken on 19th September 2006 are enclosed. Development Notification, dated 7th September, 2006, the Government of NCT of Delhi had notified such streets/stretches (Number not Indicated) by way of a Notification No.149, dated 15th September, 2006. It had further been stated that the Government of India and the Government of NCT of Delhi have enacted the notifications under the powers conferred to them under the DDA Act and that they are valid and constitutional. The Commissioner MCD concluded that what amounted to mis-user prior to the above Notifications cannot be termed as mis-user at the present point of time to the extent provided for in the Notifications. The Hon'ble Supreme court of India has directed the MCD to take sealing action ln case of mis-user. Thus, to the extent mis-user continues after the above Notifications, the same will be sealed as per the directions of the Hon ble Supreme Court . A copy of the Note of the Commissioner, MCD is enclosed herewith a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upto 50 sqm. DDA has not taken cognizance of these violations on encroached public land. In view of the foregoing, the Monitoring committee reiterates its recommendations to the Hon ble Supreme Court to direct the DDA to take immediate action, in a phased manner, to demolish all such buildings having commercial activities on encroached public land in all colonies in Delhi. REPORT NO.6 51. In Report No.6 dated 22.9.2006 by the Monitoring Committee, the following facts have been mentioned: 3. The Monitoring Committee, in addition, would like to bring it to the kind notice of the Hon ble Court that despite clear instructions from the Monitoring Committee to carry out the sealings colony-wise instead of road-to-road basis, in respect of prohibited activities in residential areas, the MCD had issued contrary orders to the Sealing Teams of various zones to carry out the sealings in parts in various colonies in the zone without completing the work in a particular colony at a time. The reasons and the rationale for this changed action not in consonance with the directions of the Monitoring Committee are not known. REPORT NO.7 52. In Report No.7 dated 27.9.2006 the CAPTION remains the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (f) Specific Commercial establishments / properties mentioned in the judgment dated 16th February 2006 of the Hon ble Supreme Court (While disposing of the Civil Appeals, Interlocutory Applications (other than IA 22) and Special Leave Petitions in the matter, the Hon ble Supreme Court has, in its Judgement dated 16th February, 2006, directed that in case misuser is not stopped in the premises involved in the Civil Appeals and Special Leave Petitions, subject to what had been stated in the Judgement, the MCD would take immediate steps to seal those premises soon after expiry of 30 days). The MCD has been requested to furnish a list of such properties which have to be sealed in terms of this order). Specific properties mentioned in the Report No.4 dated 14th September 2006 of the Monitoring Committee (commercial establishments on encroached public land meant for public utility services), as per directions of the Hon ble Supreme Court in its order dated 29th September 2006. REPORT NO.34 56. Report No.34 dated 9.4.2017 CAPTION is as Report No.1. Nonavailability of the police force was required to carry out sealing operation in the Report. REPORT NO.38 57. In Report No.38 dated 21.7.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guest houses, other commercial premises, business schools, etc. were also mentioned. None of the items is for purely residential premises . The Monitoring Committee further observed: The MCD has already been informed by the Monitoring Committee that industrial units in residential areas do not fall under its purview and the same may be sealed or de-sealed as per the directions of the Monitoring Committee constituted by the Hon ble Supreme Court for the purpose. REPORT NO.75 62. Report No.75 dated 1.1.2020 is concerning the commercial activities and unauthorized construction by Reebok Showroom , Hotel West End Inn, Central Plaza, NH 8, and Rangapuri Extension. 63. Concerning ensuring the implementation of the Master Plan of Delhi, 2021 (MPD 2021), in its true spirit, all commercial activities in residential premises are identified and removed. Following facets have been mentioned by the Monitoring Committee in its Report: 2. SPECIAL SUBMISSION OF THE MONITORING COMMITTEE The Monitoring Committee submits that the Committee has been appointed by the Hon ble Supreme Court to ensure implementation of its orders in the matter after taking into consideration large scale commercialization ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... badi area (including urban villages constructed on public land) were given. The details were given about the refusal of the Standing Committee of the erstwhile MCD to de notify 140 Roads in Shahdara North, Rohini, Central, South, and West Zones resurveyed. Violations of the orders dated 3.1.2012 and 30.4.2013 by various commercial establishments were pointed out and other facts regarding interference of Lt. Governor of Delhi in the sealing matter of Dr. Lal Path Labs Pvt. Ltd. etc. and unauthorized construction on Government and public land were given thus: The Monitoring Committee would submit to the Hon ble Court that the Municipal Authorities, NDMC and DDA are lax in the performance of their duty with respect to unauthorised construction and encroachment on public/ govt. land. The public at large is violating the laid down orders i.e. Building Bye Laws and Master Plan etc. The fear factor with respect to the punitive action by the Authorities is totally missing from the public mind thereby creating a chaotic situation on the ground in whole of Delhi. The officers concerned are not performing there assigned duties. The DDA has not been able to safe guard/ protect its land and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncroachment of DDA land at Sanjay Market, Mangolpur Kalan in Rohini Zone and misuse of premises for commercial activities REPORT NO.119 72. Report No.119 dated 24.5.2018 is regarding the slow progress of the sealing operations in Lajpat Nagar IV and Amar Colony Refugee Colony, where large scale encroachments were made by owners/ occupants on the Government land . REPORT NO.120 73. Report No.120 dated 11.6.2018, again referred to this Court s order dated 29.9.2006 regarding conversion of residential user into commercial user except with the leave of this Court. It was observed that the Government's obligation was to ensure compliance of the order of this Court, and the Special Task Force and the Monitoring Committee were directed to continue with its duties and responsibilities. REPORT NO.121 74. Report No.121 dated 13.6.2018 was concerning non cooperation of the local bodies with the Sealing Officer, where after inspection, it was found that certain rooftops were being used as pubs and dance floors after clubbing the plots illegally. REPORT NO.124 75. In Report No.124 dated 4.7.2018 again, a complaint was made relating to non cooperation of authorities in the sealing process as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be constructed on the premises in question. In view of this undertaking, the seal on the premises may be opened. The Monitoring Committee as well as the South Delhi Municipal Corporation should give their report within ten days. The applicant may respond to these reports within four days thereafter. 82. Certain violations of MPD 2021 were also pointed out to be complied with by the concerned authorities. REPORT NO.144 83. Report No.144 dated 11.12.2018 is in respect of the cases pending before the High Court of Delhi regarding property situated at 22A, Janpath. The report was submitted regarding change of the land used for residential purposes as commercial and the residential premises were used to run a chemist shop. Similarly, other cases were also pointed out. Regarding the 20 Point Programme (TPP) certain allotments of plots were made for the residential purpose but they were being used for the commercial activities . Showrooms, Restaurants, Gyms, etc. were reported to be in operation on those plots. The report further states with respect to Singla Sweets (commercial) at Madhu Vihar and Vanasthali Public School, which were constructed on public and acquired land. 84. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Abhimanyu Bhandari, learned counsel, it is open to the applicants to maintain the horticulture and watering of the plants etc. For taking out the essential items etc., it is open to the applicant to apply to the Committee. This Court directed the Monitoring Committee to give its considered opinion specifically as to whether at any point in time in the past, it sealed any residential premises, which were not misused for commercial purposes. The Monitoring Committee kept silent on this aspect and did not cite even a single such instance. Four orders referred to by the Monitoring Committee neither deal with the question of the power of the Monitoring Committee, nor they are relevant to the point in question. 85. It is apparent from the various orders passed by this Court from time to time and from the various reports of the Monitoring Committee that it was never authorized by this Court to take action against the residential premises that were not being used for commercial purposes. It was appointed only to check the misuser of the residential properties for commercial purposes. After that, this Court directed that the Monitoring Committee should also look into the matter of encroach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of law made by a competent legislature. The expression property in Article 300-A confined not to land alone, it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognised by law. 169. This Court in State of W.B. v. Vishnunarayan and Associates (P) Ltd. [(2002) 4 SCC 134] , while examining the provisions of the West Bengal Great Eastern Hotel (Acquisition of Undertaking) Act, 1980, held in the context of Article 300-A that the State or executive officers cannot interfere with the right of others unless they can point out the specific provisions of law which authorises their rights. (emphasis supplied) (c) In T. Vijayalakshmi v. Town Planning Member, (2006) 8 SCC 502, the Court observed: 13. Town Planning legislations are regulatory in nature. The right to property of a person would include a right to construct a building. Such a right, however, can be restricted by reason of a legislation. In terms of the provisions of the Karnataka Town and Country Planning Act, a comprehensive development plan was prepared. It indisputably is still in force. Whether the amendments to the said comprehensive development plan as proposed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 21 and 300-A is meant to prevent deprivation of rights. Insofar as Article 21 is concerned, it is a fundamental right whereas in Article 300-A it is a constitutional right which has been given a status of a basic human right. (f) It was further argued that planning laws are expropriatory and should be strictly construed, and any ambiguity is to be construed in favour of the property owner as laid down in Delhi Airtech Services (P) Ltd.v. Anr. v. State of U.P. Anr. (supra) thus: 129. Statutes which encroach upon rights, whether as regards person or property, are subject to strict construction in the same way as penal Acts. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights and if there is any ambiguity, the construction which is in favour of the freedom of the individual should be adopted. (See Maxwell on The Interpretation of Statutes, 12th Edn. by P. St. J. Langan.) 130. This Court in Devinder Singh [(2008) 1 SCC 728] held that the Land Acquisition Act is an expropriatory legislation and followed the case of Hindustan Petroleum Corpn. v. Darius Shapur Chenai [(2005) 7 SCC 627] Therefore, it should be construed strictly. The Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all: (emphasis supplied) (j) In Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111, it was opined: 40. The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof. (emphasis supplied) (k) In Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher (2013) 5 SCC 627 it was held: 43. This is the reason why time-limit of ten years has been prescribed in Section 31(5) and also under Sections 126 and 127 of the 1966 Act for the acquisition of land, with a stipulation that if the land is not acquired within six months of the service of notice under Section 127 or steps are not commenced for acquisition, reservation of the land will be deemed to have lapsed. Shri Naphade s interpretation of the scheme of Sections 126 and 127, if accepted, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are not going into the merits of the other submissions, whether the premises are authorized or unauthorized, can be regularized or not, compounding can be done, or whether there is any deviation made. The report of the Monitoring Committee and findings recorded by it are of no use as it had no such authority to go into the various questions. This Court did not appoint the Monitoring Committee concerning each and every residential building on private land not misused for commercial purposes and to deal with the same. In the present matter, this Court itself is monitoring the matter for a limited public purpose. It has not taken away the powers of statutory authorities under the Act concerning other matters except specified in the order. 92. Since we have considered only the ambit of powers of the Monitoring Committee, we have not touched with the submissions which were not relevant to decide, as raised by Mr. Govardhan. 93. We quash Report No.149 and other reports submitted subsequently in connection with Report No.149 and entire action of sealing pursuant thereto. We also quash notices issued directing demolition where the matter was being heard by this Court and the Monitoring C ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
