Sh. Joginder Kumar Singla And ... vs Municipal Corporation Of Delhi ...
2002 Latest Caselaw 1478 Del

JUDGMENT

A.K. Sikri, J.

1. Both these writ petitions are filed in public interest. The petitioner in CWP No. 1397/2001 is Mr. Joginder Kumar Singla who has filed the petition as a President of D.D.A. Market Traders Association, Rohini, Delhi. This association consists of members who purchased the shops at various DDA shopping complexes from DDA in an open auction. These shops are located in different sectors and named as Commercial Shopping Complex (CSC) and Local Shopping Centres (LSC). They are running their shops from their respective commercial sites. He states in the writ petition that these shopping centres have incurred huge investment with the hope to recover these investments in the near future by running their business from their respective allotted sites. However, due to colossal unauthorised constructions whereby the residential plots were converted into commercial complexes by the land mafia and local builders, the investments made by the members of the petitioner association have got stuck up.

2. The petition details out the manner in which the residential properties are converted into commercial properties by investing black money and such conversion, in any case, is alleged as against the provisions of Delhi Municipal Corporation Act as well as the DDA Act. It is also in violation of user prescribed in Master Plan, Delhi and Zonal Plan for the zones in question as per which residential properties cannot be put to commercial use. It is also detailed in the petition that due to commercial activity in residential plots/flats on the main and branch roads of Rohini, the traffic position has worsened. The occupiers thereto have also encroached upon every inch of footpath and roads are blocked by parking vehicles of the owners of these offenders as well as customers visiting their shops. It is also leading to nuisance in the locality and creating law and order problems.s The petitioner also makes a grievance to the effect that inspite of the fact that the petitioner and his association approached the authorities of Municipal Corporation as well as the DDA time and again pointing out the aforesaid illegalities and seeking redressal thereof, these authorities have turned their blind eye towards the menace which is spreading day by day.

3. CWP No. 4980/2001 is filed by the Delhi Builders and Promoters Association raising identical grievance, namely, conversion of residential premises into commercial and unauthorised use thereof. Such illegal and unauthorised use of residential premises, in this writ petition, relates to the properties situated on both sides of the main road (150 ft. wide road), i.e., Road No. 41 leading from Wazirpur Bus Terminal to Madhuban Chowk, Pitam Pura, New Delhi.

4. Both these writ petitions were accordingly taken up for hearing together because of commanlity of the problem involved.

5. Interestingly, in the responses filed by the MCD and the DDA in both the cases, such a misuse is not denied. In CWP No. 1397/2001 the stand of the DDA is that the area in question, namely, Rohini and Pitam Pura is denotified and does not fall within the jurisdiction of the DDA. It is the MCD which is the appropriate authority to take action against the encroachments. IN so far as misuse of residential plots and flats to commercial use is concerned, it is stated in the affidavit that the DDA has already taken steps and issued show cause notices to the occupants of the premises who are misusing the premises in question. As per the Action Taken Report annexed Along with the affidavit in respect of these properties show cause notices have been issued and in many cases, prosecutions have also been launched. The DDA has taken same stand in its affidavit filed in CWP No. 4980/2001 giving details of the properties booked for taking action of the nature mentioned above.

6. As far as MCD is concerned, although it has not filed separate affidavit in CWP No. 1397/2001, various affidavits are filed by it in CWP No. 4980/2001 from time to time. In its affidavit dated 15th October, 2001 there is a candid admission of conversion of properties from residential user into exclusive commercial user on both sides of Road No. 41 starting from Wazirpur Depot to Madhuban Chowk. It is, however, stated that many of them are having adhoc licenses for commercial user of their respective premises. However, in this affidavit, the MCD further states that the building activities of this area was handed over by the DDA after the development was complete but even after transfer of the maintenance and remaining building activities, the activity of lease management and conversion to freehold etc. remains with the DDA. Further, it is the DDA which is also prescribing the land use as well as changes in the land use by way of Master Plan. Thus, according to the MCD, the appropriate authority would be the DDA for taking necessary action against the misuser/unauthorised constructions in the flats/plots and the constructions, if any. It is also pointed out that after handing over of the area for maintenance etc. to the MCD, the DDA has dumped truckload of records of these properties and it becomes difficult to trace out the details in relation to any particular property. Even the said records, the affidavit further states, are not reflective of the actual or complete state of affairs as existing at the site. The sanctioned building plan is provided, whereas the construction may go up to extra floors also. Inspite of these constraints, the MCD, its officers were assigned the duties of carrying out property by property verification of the properties on both sides of the main road but finding much difficulties in doing so because of the reasons stated in the affidavit contained in paras 12 and 13 thereof which make the following reading:

"12. That the property owners/occupants having constructed additional/ unauthorised portions or converted their properties long back during the tenure of DDA, they are extremely hostile and non-cooperative towards the MCD officials whom they consider to be unnecessarily interfering in the conversion which has become almost the norm for both sides of the entire road.

13. Even, in the face of hostility and non-cooperation, and also the fact that in most commercial establishments the owner is not available and the employees do not permit inspection in the absence of the owners, still by making special efforts, it has been possible to carry out the survey in relation to 102 buildings, tabulated statement in relation to which is being filed herewith showing the unauthorised construction/ misuser Along with remarks indicating the bookings relatable to recent MCD period and those relating to DDA time. True copy of the said tabulated statement is at Annexure-A."

7. The MCD, however, stated that it was likely to complete the verification within a further period of 4-6 weeks. The position in respect of on-going construction is also mentioned in the Status Report as filed Annexure-A to the affidavit. As per the remarks column of this annexure most of the unauthorised construction is of the time when the properties were under the control of the DDA. In respect of some of the the properties, it is mentioned that when the MCD noticed unauthorised construction, it booked the same and necessary action initiated. In respect of certain other properties, it is stated that action is yet to be initiated.

8. Thereafter, the MCD filed affidavit dated 8th January, 2002 annexing another Survey Report as per which unauthorised construction in respect of certain unauthorised construction and they are booked for necessary action. Similar affidavits dated 20th April and 22nd May, 2002 were filed in respect of certain other properties.

9. The admission on the part of the MCD and the DDA clearly reveals that conversion of residential properties into commercial properties on the areas in question, in most of the cases, in unauthorised. Although an averment is made in the affidavit of the MCD that in some of the cases the occupiers are having adhoc licenses for commercial user, it is a vague statement made in the affidavit and not a single case is pointed out in the various Status Reports filed by the MCD where in a particular case the occupier was having such a license. Be as it may, even if such cases are to be excluded, there is no denial of the fact that those residential properties which are converted into commercial ones after carrying out huge unauthorised construction are in violation of the provisions of the DMC and the DDA Act. The photographs annexed by the petitioners in both the writ petitions clearly demonstrate the rampant misuse which is not only gross in nature but colossal as well.

10. The MCD in its various Status Reports filed Along with affidavits has further conceded that many such unauthorised constructions come up not only during the DDA regime but even thereafter when the MCD assumed jurisdiction over the area. In fact such unauthorised constructions in blatant violation of the provisions of the DMC and DDA Act as well as Rules and Regulations framed under these Acts have come up even after filing of these writ petitions and in many cases, the construction activities are still going on. However, apart from stating the action is contemplated or under consideration, nothing else has been pointed out which shows clear lack of will on the part of the Corporation authorities to take serious action against such offenders. In some case, as per the Status Report, notices were issued on the residential properties as far back as in May, 1998/99. However, the follow up action thereafter is shrouded in mystery.

11. There are sufficient provisions in the DMC Act which empower the authorities not only to check and contain such unauthorised constructions and encroachments when they are taking place but also empower these authorities to take appropriate measures for stopping such misusers. Section 332 lays down that no person shall erect or commence to erect any building except with the previous sanctions of the Commissioner, or otherwise than in accordance with provisions of Chapter XVI and of the bye-laws make under the Act in relation to the erection of buildings. Section 336 further lays down that the Commissioner shall sanction the erection of a building unless such building would contravene any of the provisions of Sub-section (2) or the provisions of the Section 340 and Sub-section (2) enumerates the grounds on which the sanction of a building may be refused. Section 338 empowers the Commissioner to cancel the sanction if any time after the sanction of any building, the Commissioner is satisfied that such sanction was accorded in consequence of any material misrepresentation or fraudulent statement contained in the information furnished for the sanction. The MCD has been empowered to discourage, prevent and stop the illegal and unauthorised building and construction activities under Sections 343, 344, 345, 345A, 346 and 347 of the Act to demolish and stop the building work, require alteration of work and seal unauthorised construction. In view of the above provisions of the Act the MCD has been endowed with ample powers to discourage, prevent and stop illegal and unauthorised use of buildings.

12. Furthermore, the running of commercial activities from residential premises is not at all warranted under the provisions of the said Act and the MCD is duty bound to take measures to ensure that such misuse is not carried out in respect of the said properties. The MCD has however failed to do so thereby contributing to the continuing misuse of the said premises. Similarly, Section 14 read with Section 29 of the DDA Act authorises DDA to prosecute those who are misusing the properties in violation of Master Plan and Zonal Plan. The commercial activities are being carried out in the said premises and according to the petitioners, it is also causing safety, security and traffic hazards. The petitioners feel greatly concerned about it. They state that in case the MCD does not take remedial steps immediately, the traffic as well as law and order situation in the locality and the main road is likely to become more chaotic.

13. When the aforesaid provisions are on the Statute books, how such encroachments of footpath and huge unauthorised construction by converting residential premises into commercial premises either in violation of sanctioned plan or without even any sanctioned plan can take place? The reasons are obvious and it does not require any special knowledge or investigative machinery to understand the same. The Supreme Court as well as this court in number of such Public Interest Litigations, have passed orders from time to time, for stoppage of such unauthorised constructions and encroachments of public land.

14. In K. Ramadas Shenoy v. Chief Officers, Town Municipal Council, Udipi and Ors. , the Supreme Court had the occasion to point out as to how the special and substantial interest of the residents in the area is injured by such illegal constructions. It observed:

"27....The appellant can challenge at the threshold when the Scheme which is framed for the benefit of the residents in that area is violated by the Municipality. The Municipality acts for the public benefit in enforcing the Scheme. Where the Municipality acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the courts. If sanction is given to build by contravening a bye-law, the jurisdiction of the courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-law made by that authority is illegal and inoperative. (See Yabbicom v. King, (1899) 1 QB 44).

28. An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The Scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the Scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.

29. The Court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority wit its duty to observe statutory rights alone. The scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction."

15. In many cases, orders have been passed to the extent that appropriate action be taken against the erring officials who permitted in the first instance, such huge structures to come up. However, it appears that these orders do not have the deterrent effect on these officials. Their complicity, their collusion with the builders or such properties, their active co-operation and blessings continue to remain with such defaulters. It really depicts sordid state of affairs and is a sad commentary on the way the administration of these Bodies run. It has resulted in totally haphazard and unplanned growth of the capital city of the country, notwithstanding Master Plans prepared for the city and in existence for last more than 40 years wherein the planners have envisioned planned growth with beautiful city in mind.

16. It is observed that action is normally taken by these authorities only when such petitions are filed and the court issues directions. It is only then the administrative machinery of the MCD and the DDA is activated. It is only then necessary measures are taken and reports are filed of the action taken against the defaulting and erring persons/properties. However, as the present cases reveal, many times even such reports are mere eyewash and it does not appear that either the MCD has taken action against these properties in all earnestness or the DDA has initiated prosecution or pursuing those prosecutions with all sincerity.

17. Since the MCD and the DDA had stated in their affidavits that action is initiated against the defaulters, we dispose of these writ petitions with the following directions:

I. The MCD to complete the action in respect of the properties which is initiated, as per Action Taken Reports filed by it within a period of four months from the date of receipt of copy of this order.

II. Wherever further legal action is required to be taken [as is not within the domain of the MCD to seal these properties because of misuse in view of the recent Full Bench judgment of this court in the case of Bajaj Departmental Stores v. M.C.D. (FAO (OS) No. 293 of 1994) reported in 2002 V AD (DELHI) 985], such legal action should be initiated by filing appropriate proceedings in the competent court of law within a period of two months thereafter.

III. Similarly, the DDA shall initiate appropriate complaint under Sections 14/29 of the DDA Act in the competent court of Metropolitan Magistrate, Delhi/New Delhi within a period of four months from the date of receipt of copy of this order in respect of those properties disclosed by it in its affidavits.

IV. Both the MCD and the DDA shall files reports of the final action taken by them in this court within six months.