Smt. Champa Gulati And Anr. vs Commissioner, Mcd And Ors.
2002 Latest Caselaw 2181 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The scrounge of rampant unauthorized construction and misuse of residential properties for commercial use permeates almost all over Delhi. This has resulted in an attitude of the builders and owners that despite breaking all rules and regulations for construction and user of the property, no action would be taken. The only answer of such people is that others are also doing the same thing. They have become law unto their own selves. This brazen violation of all norms necessary for the maintenance and planned development of Delhi must be put down with a firm hand and no indulgence is liable to be shown to such persons in exercise of jurisdiction under Article 226 of the Constitution of India.

2. The present case is one such case where the order of the Appellate Tribunal dated 23rd July 1987 has been impugned.

3. The property in question is bearing No. H-10 Rajouri Garden, New Delhi and building plan for construction of a residential structure was sanctioned on 17th July 1986. Low behold a mini market was constructed instead of a residential building in violation of all norms with consequential deviations in construction. A Show Cause Notice was issued under Section 345(1) and 343 of the Delhi Municipal Corporation Act, 1957 (hereinafter called and referred to as "the said Act") on 1st December 1986 pointing out the unauthorized construction and finally a demolition order was passed on 21st May 1987. (The said demolition order is, however, referred to as a fresh demolition notice). It is his demolition order which was impugned before the Appellate Tribunal. The Appellate Tribunal dismissed the appeal by a detailed and reasoned order on 23rd July 1987 which has been impugned in the present writ petition.

4. The factual matrix has been set out in detail in the impugned order. There is excess coverage in the basement, ground floor, first floor, second floor and third floor apart from the nature of construction being commercial and the mini market running in the said property. The petitioners herein alleged that the deviations could be regularized and that proper opportunity was not afforded to them before the order dated 21st May 1987 was passed.

5. The appellate Tribunal has noticed that Show Cause Notices were issued in view of the deviations having been found during the progress of construction. Further, even earlier appeals were filed before the Tribunal in anticipation of alleged threat of demolition which were held not to be maintainable and another suit was filed in the civil court when the Show Cause Notice dated 3rd March 1987 was served on the petitioners. The petitioners admitted before the appellate Tribunal that the Show Cause Notice was duly served on the petitioners on 3rd March 1987 which was replied to on 1st April 1987. The petitioners never filed any sanctioned building plan in spite of the directions of the Tribunals but only a proposed building plan was filed. It was been found that there was more than 50% coverage on the third floor whereas third floor was not proposed to be constructed according to the plan and this construction was wholly without sanction. The coverage on the basement, ground floor and first floor instead of 50% of the plot area is 100% and instead of a residential house, the whole building has been constructed for use for commercial purposes.

6. It is thus apparent from the aforesaid recital of facts that the petitioners have violated all norms with impunity and there is gross excess coverage.

7. The Appellate Tribunal also noticed that neither the excess coverage nor the change of use was compoundable under the bye-laws. The petitioners did not file a plan of the existing structure and in fact, did not appear for personal hearing despite letters being issued by the concerned authorities. None of the petitioners even appeared before the Tribunal and only the husband of petitioner No. 1 was present at the time of arguments. The Tribunal thus rightly concluded that every attempt had been made to delay the proceedings of the Tribunal.

8. The petitioners have disputed the authority of the person who had issued the notice under Section 343 of the Act and this contention was rightly negated in view of the authority having been conferred under Section 491 of the Act on the Zonal Engineer (Buildings). In fact, in the reply, no objection was taken about the authority of the person issuing the notice.

9. At the stage when the writ petition came up for admission, it was contended on behalf of the petitioners that the Special Zone Committee (West Zone) had already resolved to make the area in dispute where the premises was situated as a commercial area. It was in these circumstances that notice was issued in the writ petition and the operation of the demolition and ceiling order was stayed. It is the negligence on the part of the respondent No. 1 and 2 to defend the petition that resulted in the petition being admitted and interim order stay being confirmed on 28th April 1988 since the counter-affidavit was not filed despite five opportunities granted for the said purpose.

10. Interestingly, even while confirming the interim order on 28th April 1988, a Division Bench of this court observed that if the construction was unauthorized in violation of the bye-laws, the respondents were free to take any action as would be permissible under law after hearing the petitioners. However, no action was taken.

11. Learned senior counsel for the petitioners referred to the Minutes of the Meeting of the Special Zonal Committee (West Zone) dated 24th July 1987 and in item No. 11, it was resolved that the market existing on both sides in between Shiv Shakti Mandir and Taxi Stand, Rajouri Garden in West Zone be declared a commercial area and the case be recommended to the Standing Committee for approval. It is this resolution which is sought to be strongly relied upon by learned senior counsel for the petitioners to contend that the Zonal Committee itself had decided, taking into consideration the ground realities, to convert the area into commercial area. Having, nothing has been brought on record to show that this resolution was ever approved by the Standing Committee. In my considered view, the same cannot thus have force of law as it was only a recommendation which was subject to approval by the competent authorities.

12. Learned senior counsel for the petitioners have laid great stress on the inadequate pleadings in the counter-affidavit in response to the averments made in the writ petition. In the writ petition, specific examples have been given of three properties in the same locality where commercial user was going on and even licenses had been issued by the respondent/Corporation. In para 6 of the writ petition, it was specifically stated that all the buildings in Blocks F, H and J, Rajouri Garden comprising the main market were being put to commercial use but in the counter-affidavit, it is only stated that the area in question is residential area and any use of residential building for commercial use is a misuse. Similarly, in para 32 of the writ petition, again illustration have been given of commercial user to which there is no response in the counter-affidavit. The petitioners has also filed licenses issued by the Corporation in different adjacent buildings.

13. The issuance of these licenses have not been denied but it is stated that in certain buildings, there was commercial use prior to the formation of the Corporation or the master plan by the DDA, it is further stated that the plans have already been revoked and the orders served on the petitioners. The petition is replete with such examples and even photographs have been annexed to the writ petition. In my considered view, there can be no doubt about the fact that there has been gross inaction, if not collusion, of the officers of the respondent/Corporation without which such mass scale violation of all norms could not have taken place. The question, however, remains whether this can be a license for the petitioners to justify their illegal conduct.

14. Learned senior counsel for the petitioners referred to the provisions of Section 347 of the said Act which describes that no building can be used without the written permission of the Commissioner otherwise than in conformity with the conditions of such permission. It is thus contended that there is implied permission for conversion of user in view of no action having been taken against other buildings and even against the petitioners despite the orders of the Division Bench dated 28th April 1988 in the present writ petition. A reference has also been made to the provisions of Section 417 of the said Act prescribing the grant of license for certain purposes of user in the premises. It is thus contended that licenses have been given in other buildings. Thus the petitioners should also be granted the same benefit.

15. The last contention advanced by the learned senior counsel for the petitioners arises from the plea of the applicability of the doctrine of desuetude. Learned counsel has referred to Sutherland on Statutory Construction (5th Edn.) Volume 2 at p. 558 which dealt with this doctrine in relation to penal statutes. The doctrine is based on the problem posed by the long unenforced penal statute. It was observed as under:

"The anglo-saxon sheds statutes which grow obsolete and obnoxious the same as a snake sheds his skin. He has seldom bothered to repeal them as every one acquainted with the history of laws very well knows. No citizen any longer makes a complaint under them [or observes them], and thus they become dead letter laws. It is not the business of the police to revive them. They are not employed and paid by the citizens for any such purpose."

16. Learned senior counsel contents that this doctrine has in fact been accepted and incorporated in the Indian Law by the Supreme Court, not restricted to penal statute. In this behalf, a reference has been made to the judgment in the case of Municipal Corporation for City of Pune and Anr. v. Bharat Forge Co. Ltd. and Ors. , (1995) 3 SCC 434. The Supreme Court has held that in India, the doctrine of desuetude does not appear to have been used so far but it found no objection in the principle to apply this doctrine to the statutes in India. The reason is that a citizen must know whether he is required to act as per the "dead letter". It would be useful to reproduce the relevant paragraphs from the said judgment.

"31. In Craies Statute Law (7th Edn.) it has been stated at p. 7 that desuetude is a process by which an Act of Parliament may lose its force without express repeal. It does not, however, consist merely of obsolescence or clause; there must also be a contrary practice, which must be of some duration and general application. Lord Mackay's view in Brown v. Magistrate of Edinburg (1931 SLT (Scots Law Times Reports) 456, 458) has also been noted, which is as below:

"I hold it clear in law that desuetude requires for its operation a very considerable period, not merely of neglect, but of contrary usage of such a character as practically to infer such completely established habit of the community as to set up a counter law or establish a quasi-repeal."

A perusal of this judgment shows that Lord Mackay ventured to prefer the Scottish system to that of England regarding which Lord Eldon, as a member of House of Lords, had stated thus in Johnstone v. Scott, (1802) 4 Pat 274 at p. 285:

"The English lawyer feels himself much at a loss here; he cannot conceive at what period of time a statute can be held as commencing to grow in desuetude, nor when it can be held to be totally worn out. All he can do is to submit to what great authorities have declared the Law of Scotland to be."

Lord Mackay thereafter enunciated the afore-quoted test of tesuetude for it to permit quasi-repeal."

32. It would be useful to note what has been stated in this regard in the chapter headed "Repealand Desuetude of Statutes" by Aubrey L. Diamond, printed in Current Legal Problems (1975), Vol. 28 at pp. 107 to 124. Diamond has quoted on this subject what Lord Denning, Mr. Observed in Buckoke v. Greater London Council (1971 Ch 655: (1970) 2 All ER 193 : (1970) 1 WLR 1092) at p. 668 which reads:

"It is a fundamental principle of our Constitution, enshrined in the Bill of Rights, that no one, not even the Crown itself, has 'the power of dispensing with laws or the execution of laws'. But this is subject to some qualification. When a law has become a dead letter, the police need not prosecute, nor need the Magistrate punish. They can given an absolute discharge."

33. Diamond has thereafter referred to the Scottish approach to desuetude at pp. 122 and 123 and has noted some decisions wherein an Act of Scottish Parliament was not enforced because of desuetude. It would be of interest to note that when an argument was advanced that the particular Act (which was of 1606) had been left unrepealed by the Statute Law (Repeals) by one of the Law Lords (sic Repeal) Act to determine whether Act of 1606 was or was not in desuetude".

34. Though in India the doctrine of desuetude does not appear to have been used so far to hold that any statute has stood repealed because of this process, we find no objection in principle to apply this doctrine to our statutes as well. This is for the reason that a citizen should know whether, despite a statute having been in disuse for long duration and instead a contrary practice being in use, he is still required to act as per the "dead letter". We would think it would advance the cause of justice to accept the application of doctrine of desuetude in our country also. our soil is ready to accept this principle; indeed, there is need for its implantation, because persons residing in free India, who have assured fundamental rights including what has been stated in Article 21, must be protected from their being, say, prosecuted and punished for violation of a law which has become "dead letter". A new path is, therefore, required to be laid and trodden."

17. Learned counsel has also refereed to a subsequent judgment of the Supreme Court in Cantonment Board, MHOW and Anr. v. MP State Road Transport Corporation , where the Bharat Forge Co. Ltd. (supra) was discussed.

The Supreme Court observed as under:

"16. Coming to the conclusion of the applicability of the doctrine of desuetude Mr. Lekhi, the learned Senior Counsel strongly relied upon the decision of this Court in Municipal Corporation For City of Pune v. Bharat Forge Co. Ltd. (6 (1995) 3 SCC 434) and submitted that the provisions of the Motor Vehicles Taxation Act must be held to be of disuse as no grant as provided in Section 7 of the Taxation Act has ever been made at any point of time after the enactment of the said Act in 1947. This contention is wholly unsustainable in law inasmuch as we are not concerned with the question of grant to local authorities and Cantonment Boards as provided under Section 7 of the Taxation Act but we are concerned with the leviability of tax on motor vehicle under Section 3(2) of the Taxation Act. It is nobody's case that no tax was being levied on motor vehicles which is used or kept for use under Section 3(2) of the Madhya Pradesh Motor Vehicles Taxation Act, 1947. That apart to apply the principle of desuetude it is necessary to establish that the statute in question has been in disuse for long and the contrary practice of some duration has evolved. In other words to make the aforesaid principle applicable in the case in hand it is required to be established that the provisions of Section 3(2) of the Motor Vehicles Taxation Act has been in disuse for a long period and that the imposition of tax on entry of motor vehicles into the Cantonment limit has been in operation for a fairly long period. Neither of these two ingredients has been satisfied in the case in hand and therefore the aforesaid principle of desuetude is of no application to the case in hand."

18. The contention of the learned counsel for the petitioners thus is that the norm requiring residential property to be used only for residential purposes at least in the area in question has been given a go-bye and has been followed only in breach. Thus, the bye-laws in this respect area archaic.

19. I have considered the submissions advanced by learned counsel for the petitioners. It would be appropriate to deal with the principal contention of learned counsel for the petitioners based or the doctrine of desuetude.

20. In Bharat Forge Co. Ltd. and Ors. Case (supra), the matter in controversy was the notification issued under the Cantonment Act, 1880 levying octroi duties. The observations in Craies Statute Law (7th Edn.) have been referred to where it has been observed that desuetude is processed by which an Act of Parliament being may lose its force without express repeal but the same does not consist merely of obsolescence or disuse but there must also be a contrary practice for some duration and general application. The Supreme Court was no doubt of the view that in principle there cannot be any objection to the application of this doctrine to our statutes as well. The object is to protect citizens from punishment for violation of laws which have become a dead letter. However, in the subsequent Supreme Court judgment in Cantonment Board's case (supra), it has been held that to apply the principle of desuetude, it is necessary to establish that the statutes in question have been in disuse for long and the contrary practice of some duration is evolved. In my considered view, this doctrine which is sought to be applied in so far as the bye-laws for construction are concerned, has no application. The fact that there has been repeated and continuous violation of the bye-laws, does not imply that a practice is evolved that such violation is not a violation in the eyes of law. In fact, wherever such incidence have come to the notice of the courts, the courts have been intervening and directing the respondent/Corporation to perform its statutory duty to ensure due compliance of the Act and the bye-laws. The object is to ensure that there is no unauthorised non-compoundable deviation. In case of compoundable deviation, compounding fee is paid and misuse of residential property for commercial purposes is stopped. To permit continuation of such activity and put a seal of approval of this court would be a traversity of justice. It would be a premium on dishonesty, even though it may have been achieved through collusion with authorities.

21. In fact, in the present case, the authorities did take prompt action to book the unauthorised construction and the misuse of the property. The petitioner have filed different proceedings to somehow prevent the action. These aspects have been dealt with logically and in detail in the order of the appellate authority. Interestingly, the plea based on doctrine of desuetude was not even raised before the appellate authority. The petitioners failed to produce the relevant material before the appellate authority and even failed to bring the property in conformity at that stage.

22. In my considered view, this is case of gross misuse of property and thereafter approaching the court for its discretionary relief. The initial interim orders were granted on a presentation that the Zonal Committee had recommended the change of commercial use. The matter went in default in view of the failure of the respondent/Corporation to file its counter-affidavit and defend the case and as a result the interim orders were confirmed. Even a that stage, the court took care to permit the respondent/Corporation to take appropriate action. However, it is inaction rather than action which has taken place on the part of the respondent/Corporation.

23. Admittedly, nothing has been brought to show that at any stage of time, the concerned authorities approved the proposal. The resolution of the Special Zonal Committee itself provides that the same is subject to approval of the Standing Committee and thereafter necessary action was further required. This has not happened.

24. The residents of Delhi are today faced with the situation where peaceful existence in their residences is endangered by rampant commercialisation of residential properties. The fact that others have followed suit or have, prior to that illegality, done the same thing is no defense. The process has to begin from some property or the other. Let it be this property in this area.

25. The issuance of licenses by the respondent/Corporation to carry on commercial activity in residential properties has to be deplored. The same can, however, not be a justification for continued misuse by the petitioners. The provisions of Section 347 of the Act itself prescribed that there has to be a written permission of the Commissioner prior to any change of use of land or building. There is no dispute that there is no such permission. Thus, there can be no question of any rights accruing in favor of the petitioners by reason of the failure of the respondent/Corporation to take action against other properties in the same area.

26. Lord Byron said "He who holds no law in awe, he must perish by the law". So be it in the present case with the petitioners.

27. The writ petition is without any merit and the same is dismissed with costs of Rs. 10,000/-. Interim orders stand vacated. The respondent/Corporation is directed to proceed in pursuance to the demolition order forthwith and nor later than four weeks from today. The SHO of the local police shall render assistance on the request being made at least seven days in advance by the respondent/Corporation.