JUDGMENT A.K. Sikri, J.
1. This writ petition is filed under Article 226 of the Constitution of India by way of Public Interest Litigation. The petitioners raise number of grievances of the residents of the Rajouri Garden. The petition highlights various unauthorised constructions, encroachment on public land and problem of traffic congestion in the area. The prayer clause seeking numerous reliefs runs as under:
A. Issue a writ of mandamus directing the:-
1. respondent No.2 and respondent No.5 to demolish the unauthorised constructions in the area and seal the commercial properties, mentioned hereinabove, under Section 331(h)of the DMC Act, constructed in the residential area against the master plan and building bye-laws of the MCD.
CWP NO.6631/2000
2. directing the respondent No.2 and respondent No.5 to ensure that there is no encroachment on public land as also on the pavements in the main market and the entire area of Rajouri Garden, New Delhi,
3. to the Delhi Vidyut Board to daily switch on the street lights of all the blocks and further install/repair the street lights of the main roads.
4. to direct respondent No.5 to immediately take necessary action for removal of cranes which are being parked on Major Sudesh Singh Road.
5. to the respondent No.3 that the workers deployed at park (i.e. `mali' etc.) be notified to the respective block associations and to maintain the park properly.
6. direct the Delhi Jal Board for regular supply of potable water in the area.
7. to direct the MCD to shift the shops selling chickens etc. on Major Sudesh Singh Marg to the alternative sites, which have already been allotted to them and also to direct the traffic police to declare the said road as NO Parking Area in view of the fact that vehicles are parked outside the `dhabas' which results in traffic congestion in the area.
8. to direct the respondents to institute an inquiry and identify the erring officials who had been in collusion and conspiracy with the persons violating the law. After identifying the said persons, the respondents be directed to take action against them in accordance with law.
2. The notice of this petition was issued to the various respondents, including MCD, DVB and Union of India who appeared in the matter and were represented by their respective counsel. On 19th December, 2000 after hearing the counsel for petitioners as well as counsel for MCD, this court passed the following order:
"We are amazed to find from the photographs attached to the writ petition that huge commercial structures have come up in residential areas of Rajouri Garden. We fail to appreciate how the Junior Engineer, Assistant Engineer and the Executive Engineer who were posted in the area were not able to perceive that the properties were meant for commercial use and the builders were deviating from the sanctioned plans. Such buildings cannot come up except with the active connivance of the staff on duty.
In the circumstances, therefore, we feel that action should be taken against the staff who were posted in that area during the relevant time. A status report with regard to the action taken against the staff shall be filed within ten days. In so far as the offending buildings are concerned, we expect that appropriate action shall be taken in accordance with law so that the residential area is rid of commercial activity. We also expect that appropriate steps shall be taken for removal of encroachments from public land.
List this matter on 4th January, 2001. A copy of this order be given dusty to Mr.Duggal, learned counsel for the MCD."
3. On 4th January, 2001, learned counsel appearing for the MCD presented in the court an affidavit of Mr.Arun Baroka, Deputy Commissioner, West Zone, Delhi with regard to the action taken against the offending structures Along with photographs. The petitioners were permitted to file response to that report. When the matter came up thereafter on 14th February, 2001, after hearing the learned counsel for the parties, this court was of the opinion that the Vigilance Department of the MCD had not discharged its duty properly by pin-pointing the erring officials and fixing responsibility. Accordingly a detailed order was passed giving various directions which is reproduced below:
"We have perused the report of the Vigilance Department of the M.C.D. We are not satisfied with the report. The Vigilance Department has not located individual lapses of the officers in respect of unauthorised constructions/deviations in the buildings located in the area. From a bare look at some of the photographs filed by the petitioners it appears that number of properties, which are under construction, have deviations and are obviously meant to be utilised for commercial purposes. At least lapses of each of the erring officers in respect of these properties could have been located. Learned counsel for the M.C.D. says that responsibilities of the officers qua the buildings which have been constructed recently or where constructions are still going on will be located and a fresh report in this regard will be filed. We also find that officers who have been jointly responsible for not taking timely action in respect of unauthorised constructions/deviations are being dealt with leniently by the department. The M.C.D. shall explain why minor penalty proceedings have been initiated against these officers.
Learned counsel for the petitioners shall file responses to the action taken report filed by the M.C.D. We find from the report that court proceedings are pending in respect of item Nos.9, 10 and 17 thereof. The court concerned should dispose of these matters expeditiously. A copy of this order shall be produced before the concerned court by the M.C.D.
In so far as chicken market is concerned, the same be shifted within eight weeks. D.C.P.(West), who is present in person, states that the necessary police protection shall be made available to the M.C.D. for shifting the chicken market from the present site. Liberty is, however, granted to the M.C.D. to file an application in case it finds difficulty in shifting the chicken market.
Status report with regard to the encroachments in the area have not been filed by the M.C.D. The same be filed before the next date.
List the matter on April 24, 2001. In the meantime, pleadings be completed.
C.Ms.1728/2001 & 1729/2001 Notice to the respondents, returnable on April 24, 2001. In the meanwhile, property No.J-144, Rajouri Garden, New Delhi, shall be inspected by the M.C.D. and in case the deviations still exist a report shall be filed."
4. On 24th April, 2001 the court passed directions for shifting of chicken market within six weeks for which Deputy Commissioner of Police, Traffic, Delhi had given NOC.(This part of order was challenged in Supreme Court by filing SLP and the matter is still pending)
5. This court also took note of the affidavit filed by Mr.S.K.Jain, Additional Director of Vigilance, MCD as per which recommendations for initiation of minor penalty proceedings against the JEs, AEs of the area were given. Some other direction was also issued.
6. It may be mentioned that various orders were passed from time to time regarding unauthorised constructions having been done and certain properties pointed out by the petitioners also with regard to other problems being faced by the residents of the colony. Various status reports were filed by the MCD from time to time on the action taken and progress made, particularly in the matter of removal of unauthorised constructions in the colony and removal of misuse of residential properties for commercial purposes.
7. The petitioners, however, felt that the MCD as well as the Police authorities were not taking any action suo motu and in all earnestness. Only when the petitioners would point out about any illegal construction etc. and only when the direction would be issued by this court thereon, that these authorities would swing into action and not otherwise. The petitioners also felt that there were hardly any concrete steps taken by the respondents for removal of encroachments on pavements, roads and paths. In these circumstances on 27th November, 2001 the petitioners filed in this case various suggestions. These suggestions, 17 in number, read as under:
1. A Committee be constituted with representatives from (a) MCD-say Deputy Commissioner of the Zone and Executive Engineer(Buildings); (b) Local Police-say ACP; (c) Traffic Police-say ACP(Traffic); (d) Delhi Vidyut Board-say Asstt. Engineer of the area; (e) Delhi Jal Board-say Asstt.Engineer of the area;
(f) President or General Secretary of RWAs Federation of Rajouri Garden or any other person nominated by the President;
(g) President or General Secretary of Rajouri Garden Market Association;
2. The Deputy Commissioner of the MCD Zone may be the Convener of the Committee;
3. The Committee should meet atleast every fortnight to discuss and sort out various issues;
4. The Committee be entrusted with the task of firstly completing the action initiated by MCD for removal of unauthorised constructions and removal of misuse in the properties in question in a time bound manner;
5. The Committee should within the time fixed by this court survey the entire area of Rajouri Garden and submit report to this court of all on going construction of the properties in which violation of sanctioned plan and bye-laws is noticed;
6. The Committee should ensure that action in such matter is taken by the authorities in accordance with law within time bound schedule as may be fixed by this court;
7. The Committee should also make survey of the area and make a report of all residential buildings being misused for commercial purposes and submit such a report to this court within the time as may be specified;
8. The Committee to ensure that misuse is stopped by the concerned authorities within time bound schedule;
9. The Committee to identify all such pavements and sites on which encroachments exit and submit report to this court within the time specified by this court;
10. The Committee to ensure that concerned authorities i.e. MCD and Police remove all encroachments from pavements in the market and elsewhere as well as public land within the time as may be specified by this court;
11. The Committee to also ensure that unauthorised parking of motor vehicles on public roads and parks is prevented by the concerned authorities i.e. MCD and Traffic Police;
12. The Committee to also ensure that concerned authorities take adequate steps for proper development and maintenance of the parks by deploying adequate strength of Malis and also for ensuring hygiene and cleanliest in public places;
13. The local Police and Traffic Police be directed to provide aid and assistance to MCD without delay as and when demanded for carrying out its operations against encroachments and unauthorised constructions;
14. The Committee to ensure that all the street lights in the area are made functional and are maintained properly by the Delhi Vidyut Board.;
15. The Committee to ensure that adequate potable water at adequate pressure is supplied at regular intervals by the Delhi Jal Board;
16. MCD, local Police/Traffic Police, Delhi Vidyut Board and Delhi Jal Board, as the case may be, shall take cognizance and suitable required action immediately whenever the representative of the RWAs Federation shall bring any illegal activity or any other problem of the residents of the colony to their notice or to the notice of the Committee;
17. The Committee to function under the supervision of this court and to submit its report to this court periodically as deemed necessary by this court.
8. By order dated 28th November, 2001 counsel for the MCD was directed to go through the same and file counter suggestions, if any. The matter was adjourned to 25th January, 2002. However, on that date and even by the next date i.e. 21st February, 2002 to which date the matter stood adjourned on 25th January, 2002 as no steps were taken by the MCD, this court directed the Commissioner, MCD to remain personally present on the next date i.e. 6th March, 2002. The Commissioner of MCD appeared before this court on 6th March, 2002 when the arguments in the case were also heard in detail.
9. It may be pointed out that on 4th March, 2002 the MCD filed its response to the aforesaid suggestions given by the petitioners stated by way of affidavit. It is stated in the affidavit that the suggestions were discussed in the meeting taken by the Commissioner, MCD on 1st March, 2002. The response of the MCD to the suggestions of the petitioners was as under:
1. That the deponent is fully agreeable to the suggestion of constitution of this committee. The deponent is also agreeable to become Convener of the Committee. However, if this court deems fit, this Committee should meet once in a month or if there is any necessity, the Committee can meet on requisition made on behalf of any member of the Committee.
2. That in response to the suggestions mentioned in para (4) there is no difficulty in entrusting the task of initiating action for removal of unauthorised construction and removal of misuse in the properties in time-bound manner by the Committee. Otherwise the action of removal of unauthorised construction is taken on regular basis as per the policy of the Corporation.
Removal of unauthorised construction is a routine duty, which MCD is performing. A weekly or fortnightly Action Plan for this purpose is made by the Building department of the MCD and action against such unauthorised construction as per the Building Bye-laws is taken. This committee can monitor the same and whatever shortcomings are found by the Committee, the same will be fulfillled by the Corporation without any delay. As far as sealing action is concerned because of the matter pending before the Full Bench of this court, action in case of sealing the property on account of misuse is being taken rarely. However, if this court permits, the sealing action in case of misuse shall also be taken under the directions of this court. Prosecution action in case of misuser against the owner/builder is taken on regular basis. The said action can also be monitored by the Committee formed by this court.
3. That in response to the suggestions made in pars (5) to (8) as suggested by the petitioners, the Committee may undertake work. However, the concerned officers of the Corporation shall take action as suggested by this Committee and in time bound manner. The concerned officers if shall have any difficulty in implementing the directions of the said Committee, may be given opportunity to approach the Committee and get such difficulty removed.
4. In response to the suggestion No.(9) to (10) removal of encroachment on pavements and other public streets is being done regularly by the concerned Works Department of the Corporation, however, the deponent is agreeable to the suggestion that Committee can monitor the same and the concerned officers of the Corporation shall abide by the decisions of the Committee and implement the same in time bound manner.
5. In response to the suggestion No.(11) no parking is being allowed in the parks maintained by the Corporation. However, parking on road side is essentially an issue to be answered by Traffic Police. But it is a ground reality and hard fact that in the colony in question all the residents park their vehicles on road side in their colonies as they are hardly having any space to park their cars inside their residence/houses/flats.
However, it is agreeable that the said vehicles should be parked in a manner that these vehicles should not obstruct the free flow of traffic and should not cause any obstruction or hindrance to the other passer-by.
6. In response to the suggestion No.(12) the deponent has no difficulty if the Committee monitor the development and maintenance of the parks. However, to the satisfaction of this court that even otherwise Municipal Corporation is discharging its duty. The parks, which are 18 in numbers, have been developed and are being maintained excellently. The list of parks is enclosed as Annexure-A. In case the said Committee monitor the hygienes and cleanliness of the public places, the answering respondent is agreeable to the suggestion and in undertaking the said job, the answering respondent shall always provide all its assistance.
7. In response to the suggestions Nos. (13) to (15) the other respondents are supposed to answer the same.
8. In response to the suggestion No.(16) the MCD shall immediately look into the problem as represented by Federation of RWA without any delay and see to it that the said problem if comes under the purview of the MCD shall be solved.
9. In response to the suggestion given in para (17) the said Committee be directed to function independently but in case Committee comes to the conclusion that the desired results are not forthcoming and in any particular sphere, directions from this court are to be sought, then the said Committee be given an opportunity to approach this court.
10. The concluding paragraphs of this affidavit filed on behalf of the MCD read as under:
"That the answering respondent has no objection if this court monitor the functioning of the Committee periodically but still the answering respondent humbly suggest that it is not required as the Committee itself will be able to achieve the desired results.
That the answering respondent bow down to the authority of this court and undertakes to comply with each and every directions given by this court."
11. The learned counsel for the MCD also submitted the details regarding the prosecution initiated in the case of misuse or the change of user of the properties. As per this, in the West Zone(where the area in question falls) 56 prosecutions have been allowed till date.
12. After hearing counsel for the parties, we are also of the view that it would be appropriate, as agreed by the MCD, that a Committee be constituted and entrusted with the tasks delineated above.
13. Accordingly, a Committee consisting of the following persons is hereby appointed:
1. Ms. Anjana Gosain, Advocate who is also the resident of the Rajouri Garden area. She was present in the court on 6th March, 2002 and gave her consent for the same.
2. Secretary of the petitioner No.1, namely, Federation of Residents Welfare Association, Rajouri Garden.
3. SHO of the concerned police station.
4. Deputy Commissioner, West Zone, MCD.
14. This Committee shall hold periodical meetings, at least once a month and take stock of the situation, namely, unauthorised construction and misuse in the properties. In case of any urgency, the Committee can meet on requisition made by any member of the Committee. It would be entitled to initiate action for removal of unauthorised construction and removal of misuse in the properties in a time bound manner. In case it is felt by any of the members of the Committee that proper action is not being taken, it would be at liberty to bring the same to the notice of this court.
15. The Committee shall also undertake other functions as stated in response of MCD to the petitioners' suggestions.
16. The writ petition stands disposed of with the aforesaid directions.