Menace of unauthorised construction in Delhi.

Prelude of the problem of unauthorised construction in Delhi:

Invaders have pillaged Delhi for hundreds of years, but for the last couple of decades it is being ravaged by its own citizens and officials governing the capital city – we refer to unauthorized constructions and misuse of residential premises for industrial and other commercial purposes. This Court has focussed on these illegal activities in several decisions and has issued directions from time to time to try and bring  some sanity to urban living but to little or no effect.

Way back in the 1990s it was brought to the notice of this Court that a variety of illegal activities were being carried on in the capital city of Delhi with reference to industries established in residential or non- conforming areas as well as misuse of residential premises for other commercial purposes. On an application having been moved, this Court realized that those in authority and power were not at all keen to take steps to remove hazardous and noxious industries and heavy and large industries out of Delhi, prohibit or prevent the continuing illegalities or even otherwise stop the misuse of residential premises for a commercial purpose. Since the attitude of the powers that be raised an issue of mis- governance or non-governance affecting the well-being of the citizens of Delhi, this Court felt that it could no longer be a mute spectator to the whims and fancies of those in power and authority. It was also felt that it would be necessary to direct those in authority and power to implement the law for the sake of the citizens of Delhi. This Court faced a situation where there was little or no support to the rule of law by the concerned officials and today the citizens of Delhi are faced with and are witnessing, among other issues, outrageous levels of pollution in Delhi entirely due to the lack of concern for the rule of law – the citizens of Delhi are paying a heavy price with hopelessly polluted air to breathe and consequent damage to their lungs, respiratory problems and possible damage to the brain of infants and children.

Earlier directions of Supreme Court:

This Court observed that if the laws are not enforced and orders of the Courts to implement the laws are ignored, the result can only be total lawlessness. In the decision rendered on 16th February, 2006 this Court noted, quite explicitly and not in a veiled manner, that blatant misuse of properties in Delhi for commercial purposes on such a large-scale could not take place without the connivance of the officers and that it was therefore necessary to take action to check corruption, nepotism and total apathy towards the rights of citizens – and we may add, chaos and disaster. This Court noted that there must be some accountability not only of those violating the law but also of those errant officers who turn a blind eye to the misuse of residential premises for commercial purposes. It was observed in paragraph 61 of the Report as follows:

“Despite passing of the laws and repeated orders of the [Delhi] 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 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 officers concerned. 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.” [Emphasis supplied by us].

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.

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 towards the rights of the citizens of Delhi – who are today facing the brunt of the decades of illegalities having been committed.

Appointment of Monitoring Committee:

Faced with this situation, in its decision of 24th March, 2006 in M.C. Mehta v. Union of India this Court observed that the MCD had issued appropriate notices but, to oversee the implementation of the law regarding residential premises used for commercial (non-industrial) purposes, it would be appropriate to seal offending premises. Therefore, rather than leave any discretion to the officers of the MCD (for obvious reasons) a Monitoring Committee was appointed consisting of Mr K.J. Rao, Former Advisor to the Election Commissioner, Mr Bhure Lal, Chairman, EPCA and Major General (Retd.) Som Jhingan. All necessary facilities to the members of the Monitoring Committee were directed to be provided by the MCD including facility of transport, secretarial services, honorarium etc.

On 12th May, 2006 the Delhi Laws (Special Provisions) Bill, 2006 was passed by the Lok Sabha and it was passed on 15th May, 2006 by the Rajya Sabha. The Bill received the assent of the President on 19th May, 2006 and was notified on the same day. The statute is hereafter referred to as the Act.

The very next day, on 20th May, 2006 the Government of India issued a notification placing a moratorium in respect of all notices issued by the local authorities and directing them to give effect to the provisions of the Act instead, which virtually restored the status quo ante.

Court passed the following directions on 29th September, 2006:

(i) Re: Premises relating to which undertakings were given The commercial activities by those who gave undertakings deserve to be stopped forthwith. Having regard, however, to the plea of forthcoming major festivals, we permit those who gave undertakings to stop misuser on or before 31-10-2006.

(ii) xxx xxx xxx

(iii) Re: Other premises for which protection is extended by the Notification dated 7-9-2006 Regarding the remaining premises which may be covered by the Notification dated 7-9-2006 read with 15-9-2006 we direct that the said premises may not be sealed pending decision of these petitions on undertakings being filed before the Monitoring Committee on or before 10-11-2006 that misuser shall be stopped as per the directions of this Court if the Act is invalidated and/or the Notification is quashed. ……..

(iv) Re: Premises for which protection is not extended by the Notification dated 7-9-2006 In respect of the remaining premises not covered by the Notifications dated 7-9-2006 and 15-9-2006, the sealing process will continue in terms of the order dated 16-2-2006 and 10-8-2006…….”

Order winding up Monitoring Committee:

On 30th April, 2013 this Court passed a significant judgment and order in M.C. Mehta v. Union of India.6 This decision related to the (2013) 16 SCC 336 challenge to the Act and subsequent legislations extending the provisions of the Act. A few directions were issued but two of them need particular mention: (i) All the writ petitions challenging the Delhi Laws (Special Provisions) Act, 2006 (and subsequent legislations virtually extending the provisions of the Act) and I.As. connected therewith were transferred to the Delhi High Court with a request to hear the matters at an early date, preferably within one year from the date of receipt of the entire records and papers. (ii) The order passed by this Court on 3 rd January, 2012 in M.C. Mehta v. Union of India, (2012) 11 SCC 759 to the following effect would continue:

“Till the matter is heard by the Court, the Monitoring Committee shall not order further sealing of the premises which are under its scrutiny. We also direct that no construction, temporary or permanent, shall be made on the premises which have been the subject-matter of scrutiny of the Monitoring Committee and no order shall be passed by the Government or any authority regularising such construction or sanction the change of user.”

30. With the above orders, this Court disposed of all the pending writ petitions on the challenge to the Delhi Laws (Special Provisions) Act, 2006 and subsequent legislations on the same subject.

31. With regard to the sealing orders passed at the instance of the Monitoring Committee, it was directed, inter alia, that: (i) I.As filed in this Court for de-sealing the premises will be treated as statutory appeals and will stand transferred to the appropriate statutory Appellate Tribunal  for disposal. (ii) Where I.As or statutory appeals have not been filed, this Court granted 30 days time to file an appeal before the appropriate statutory Appellate Tribunal for disposal.

Directions to revive Monitoring Committee:

We make it clear that henceforth it will not be necessary for any person whose residential premises have been sealed for misuse for any commercial (other than industrial) purposes at the instance of the Monitoring Committee to file an appeal before the appropriate statutory Appellate Tribunal. Instead, that person can directly approach the Monitoring Committee for relief after depositing an amount of Rs. 1,00,000/- with the Monitoring Committee which will keep an account of the amounts received by it. Any person who has already filed an appeal before the appropriate statutory Appellate Tribunal but would prefer approaching the Monitoring Committee may withdraw the appeal and approach the Monitoring Committee for relief on the above terms and conditions and on deposit of Rs. 1,00,000/- as costs with the Monitoring Committee, provided that the premises were sealed at the instance of the Monitoring Committee. Any challenge to the decision of the Monitoring Committee will lie to this Court only. We are constrained and compelled to make 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.

We make it clear that this order will inure to the benefit of only those who are using residential premises for commercial purposes (non- industrial) 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.

Transfer of Writ Petitions:

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 the situation as revealed from the Reports of the Monitoring Committee, we think it appropriate that this Court ought to hear the writ petitions on an expeditious basis and, accordingly, withdraw the writ petitions that were transferred to the Delhi High Court to this Court. The Registry will place these writ petitions on receipt from the Delhi High Court for directions on 12th January, 2018.

[Source: M.C.Mehta vs Union Of India, decided by SC on 15 December, 2017]