2006 Supreme(SC) 133

2006(2) Supreme 179
Supreme Court of India
(Under Art. 32 of the Constitution of India)
Y.K. Sabharwal, CJI., B.N. Srikrishna and R.V. Raveendran, JJ.
M.C. Mehta —Petitioner
versus
Union of India & Ors. —Respondents
Interlocutory Application No. 22
In
Writ Petition (C) No. 4677 of 1985
[With IA Nos. 1816 and 1860 in WP (C) No. 4677/1985, C.A. Nos. 5413 and 8694 of 2002, SLP (C) Nos. 23145, 23220, 23896, 23934 of 2002, 7128/2004, 23139/2002 and C.A. Nos. 608-611/2003]
Decided on 16-2-2006
Counsel for the Parties :
For the Appearing Parties : B. Dutta, A.S.G., Ranjit Kumar, (A.C.), Ashwani Kumar, V.P. Singh, Manmohan, Sr. Advocates, M.C. Mehta-in-Person, Ms. B. Vijayalakshmi Menon, Sanjiv Sen, Praveen Swarup (N.P.), Sudhir Nand Raj Yog, Vishnu B. Saharya (for M/s. V.B. Saharya & Co.), Vijay Panjwani, Mrs. Sheel Sethi, Vikas Sharma, Mrs. Anil Katiyar, D.N. Goburdhan, Ms. Sandhya Goswami, Ajay Siwach, Sandeep Sharma, T.V. George, Ashok Bhan, Mrs. Kiran Bhardwaj, S. Wasim A. Qadri, Manish Jha, Ms. Bina Gupta, Mrs. Rakhi Ray, Ms. Inklee Barooah, Kamlendra Mishra, Rajiv Kumar Dubey, Ms. Rashmi Singh, Arun K. Sinha, Varinder Kumar Sharma, B.K. Prasad, B.V.B. Das, Suresh Chandra Tripathy, Ms. Indu Malhotra, Ms. Vibha Datta Makhija, Rajan Narain, R.P. Sharma and Ms. Madhu Sikri.

Important point
The Commissioner of MCD has power to seal premises in case of its misuser, therefore, considering the blatant misuse of residential premises on main roads of width of 80 ft., MCD is directed to give publicity in the leading newspapers directing major violations on main roads to stop misuser on their own, and in case misuser is not stopped, sealing of the premises shall commence after 30 days, from the date of public notice.

Headnote:Delhi Municipal Corporation Act, 1957—Sections 2(3), 2(24), 2(26), 2(34), 330A to 349A—Delhi Development Act—Sections 31-A and 36—Misuser of residential premises—Illegal commercial user—Power of Municipal Corporation of Delhi and Delhi Development Authority to direct demolition and/or sealing of properties being misused—Large scale flagrant violations—Residents of residential colonies making averments about large scale unauthorized constructions—MCD, in reply, admitted violations—Whether MCD under the DMC Act has power to seal premises in case of its misuser—(Yes)—Whether under the Delhi Development Act, DDA has power to seal premises on account of its misuser—(Yes).

       Held : 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. (Para 61)

       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. (Para 46)

       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. (Paras 53 and 54)

       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 Jewellery, sale of Car Parts etc. (Para 60)