Residents Welfare Association Of ... vs D.D.A. And Ors.
2002 Latest Caselaw 456 Del

JUDGMENT

A.K. Sikri, J.

1. CWP No.16/2000 is filed by the residents welfare association of B 5 & 6, Vasant Kunj, New Delhi and another resident of the same colony. This writ petition is in the nature of the Public Interest Litigation. The grievance of the residents of this colony is that although after construction of flats by the DDA allotments thereof are made to the residents in the year 1992 but the possession was given without any electricity and water. Later on the electricity was provided in the year 1993 but there was no regular water supply which continued to be supplied through private tankers. The water supply started in the year 1994 but all is not well on these fronts even today. The water pressure is so law that even in the Ground Floors the water does not come directly in taps, and therefore, the water is stored in tanks fitted on Ground Floor and then boosted to the overhead tanks. This water is not even fit for human consumption and the residents have to get the same filtered or boiled. It is further alleged in the writ petition that right from the year 1996, the petitioners have been making representations to various governmental authorities including the authorities at the highest level but without any results.

2. Apart from the above, it is alleged, all the roads around the colony in question were without street lights. In the absence of which it is unsafe, particularly for girls and ladies to go out after sun-set. There were no traffic signals either on the turnings which often cause accidents. The representations were made to the authorities pointing out these difficulties also but no heed has been paid.~ The colony is also inhabited by various jhuggis. Letters have been written to the DDA since February, 1998 for removal of JJ clusters. However, no action was taken.

3. To add insult to the woes of the residents, the park in the colony had been encroached upon by DJB since November, 1998 because of which more than 50 per cent tankers were being parked in front of the colony which had been causing traffic problems and constant nuisance. The representations of the residents about the parking of these tankers and misuse of the park have also got unheeded. As nothing was done to assuage the problems of the residents, present writ petition was filed.

4. CWP No.6827/2000 is filed by an individual who is also a resident of Vasant Kunj. He has also made grievances of almost the same nature. He also points out in this writ petition that nearest approach road from outer ring road to Vasant Kunj is a road leading from Katwaria Sarai cutting across vast jungles on both sides named as Aruna Asaf Ali Marg and at the edge of this Marg there is a JJ cluster where children play all day till late evening along the road and can be seen defecating apart from making the road accident prone. Two kilometres ahead of road towards Vasant Kunj, strong foul smell of dead animals spreads making it difficult for the commuters to travel without closing nose. The road has never been carpeted with paver finish eversince its existence. It is full of jumps, jerks and bumps. During monsoon potholes and cesspools are created. Therefore, the petitioner in this writ petition also prays for removal of JJ clusters, providing proper street lights and carpeting the road as well as removal of dirt and filth from the jungle so that foul smell does not spread.

5. Both these writ petitions were taken up together and orders are passed from time to time in CWP No.16/2000 treating that to be the leading case.

6. Cognizance of the matter was taken by issuing notices to the concerned respondents, namely, MCD, DDA, DJB, the Commissioner of Police, DVB, Govt. of NCT of Delhi as well as Central Social Welfare Board. It may be mentioned here that the land which is encroached upon by the JJ clusters has been allotted to the Central Social Welfare Board(for short `Board'). This allotment was made way back in the year 1990 but the possession has not been given to the Board as the JJ clusters have not been removed. Therefore, in a sense, this Board, although arrayed as one of the respondents, is also praying for removal of JJ clusters so that it is able to get the possession of the land allotted to it.

7. On 16th October, 2000, after hearing the matter at length, following order was passed in this writ petition:

"After hearing learned counsel for the parties in part we are of the opinion that D.D.A. and the M.C.D. should maintain a chart with regard to the encroachments which have taken place in the Vasant Kunj area. Both the organisations should set the targets for removal of encroachments and after every fifteen days review the situation. Copies of the chart and the progress reports should be filed in court by head of both the organisations.

On the next date we shall consider the question of appointment of a committee to oversee the programme and progress made in this direction. The S.H.O., Vasant Kunj, states that he is doing everything possible to regulate the traffic in the area. He, however, states that a notice be issued to the D.C.P.(Traffic) South-West District. Accordingly, court notice be issued to the D.C.P.(Traffic), South-West District, for his personal appearance on the next date.

Mr.V.Shekhar, learned counsel for the petitioners, points out that the condition of roads is pitiable. Learned counsel for the M.C.D. shall seek instructions as to whether the roads are under the M.C.D. or the P.W.D. In case the roads are under the M.C.D. , the requisite repairs should be undertaken immediately.

Mr.Joseph, learned senior counsel for the Central Social Welfare Board, states that requisite payment for allotment of land in favor of the Central Social Welfare Board has already been deposited with the D.D.A. Learned counsel has invited our attention to the counter-affidavit filed on behalf of his client. According to the affidavit, the Lt.Governor has issued orders for removal of encroachments over plot of land which has been allotted to the Central Social Welfare Board for construction of staff quarters. He also points out that the Central Social Welfare Board has informed the D.D.A. that the Board shall bear the expenses for removal of encroachments. Learned counsel for the D.D.A. states that she will seek instructions from her clients with regard to the question of removal of encroachments from the aforesaid area.

Learned counsel for the D.V.B. says that he will be filing an affidavit specifying the work done by the D.V.B. for providing street lights in the area. Let the affidavit be filed within two weeks.

Let the matter be listed on November 9, 2000.

Copy of this order be given dusty to learned counsel for the parties."

8. Since the DDA and the MCD did not comply with the aforesaid directions dated 16th October, 2000 by filing requisite charts and the progress reports, on 9th November, 2000 an order was passed for personal presence of the Vice Chairman, DDA as well as the Commissioner, MCD for 13th November, 2000. On 13th November, 2000, these officers appeared in person. The Commissioner, MCD gave an assurance that order dated 16th October, 2000 shall be complied with and targets in accordance therewith shall be fixed and implemented. The Vice Chairman, DDA also made a statement to the effect that he would be filing an affidavit specifying as to how the problem of JJ clusters shall be tackled by the DDA. He also said that the DVB can go-ahead with the work of the laying of cables in Vasant Kunj area so as to electrify the roads. On this statement the Executive Engineer, DVB assured the court that the remaining work of laying the cables and electrification of the roads in Vasant Kunj shall be started immediately and the work shall be completed within a period of three weeks. The matter was taken up thereafter from time to time but no progress made by the respective authorities. The progress made by the authorities, however, was not to the satisfaction of the petitioners.

9. On 20th April, 2001 after hearing the matter in detail the following directions were again issued by the court:

"It is stated by the learned counsel for the petitioner that there is an acute water scarcity in Vasant Kunj area and the residents are receiving water supply in the flats on the ground floor only for forty minutes each day. It is also stated that flats located on first and second floors do not receive any water supply directly due to lack of water pressure. Learned counsel appearing for the Delhi Jal Board says that various measures to augment water supply are in its contemplation. Learned counsel states that she will be filing an affidavit to furnish details of such measures. The Delhi Jal Board should apprise us of the short term and long term measures undertaken by it for removing the water scarcity from the area in question.

It is also stated by the learned counsel for the petitioners that the DVB has not complied with the order dated 16th October, 2000 whereby the DVB was directed to provide sufficient street lights in the area. Learned counsel appearing for the DVB, however, states that sufficient lighting has been provided in areas along the roads of pockets 2, 3, 4, 5 and 6 in Sector B, Vasant Kunj, New Delhi.

In so far as the plying and parking of heavy and medium goods vehicles at Mehrauli-Mahipal Road is concerned, it is stated by learned counsel for the petitioners that there has been no improvement in the situation. On the other hand, learned counsel appearing for the traffic department says that a notification was issued by the Deputy Commissioner of Police, Traffic, Delhi whereby plying and parking of heavy goods vehicles and medium goods vehicles at Mehrauli-Mahipalpur road from 6.00 p.m. to 9.00 p.m. has been prohibited. The learned counsel for the respondent in response to the assertion of the learned counsel for the petitioners states that heavy and medium goods vehicles are being plied and parked at Mehrauli-Mahipalpur road, Delhi at all times of the day and this can be checked up.

Having regard to the submission of learned counsel for the parties, we are of the view that Committee comprising of Ms.Gita Mittal, Mr.V.K.Sharma, Mr.Sanjeev Sachdeva and Mr.Rajiv Awasthi should inspect the area to find out as to whether the areas under the jurisdiction of the DVB have been properly lighted or not. The Committee shall also verify the claim of the traffic department that the plying and parking of heavy and medium goods vehicles in Mehrauli-Mahipalpur area have been prohibited and the prohibition is being strictly observed. Let the inspection be carried out within the next two days. The report be submitted before the next date.

It is stated in the affidavit filed by the MCD that on 29th December, 2000, 18th January, 2001 and 24th January, 2001, the necessary police force was not provided for removal of encroachments. If this be so, it is a clear violation of our order by the police department. Let an affidavit be filed by the concerned S.H.O. stating as to why on the aforesaid dates, police force was not provided to the MCD for removal of the encroachments. The affidavit be filed before the next date.

List the matter on 25th May, 2001. A copy of this order be given dusty to the learned counsel for the NCT of Delhi."

10. The Committee of the lawyers constituted by the aforesaid order inspected the area in question and submitted its report on 21st May, 2001. The report, in nutshell, showed that areas in question had not been fully lighted up by the DVB. Other deficiencies were also pointed out. Keeping in view the observations made by the Committee in its report, the court again gave certain directions by passing the following order on 3rd August, 2001:

"We have perused the report of the committee dated 21st May, 2001. From the report it appears that the areas in question have not been fully lighted up by the DVB. Learned counsel for the DVB says that one more opportunity be given to the DDA to fully light the area. Having regard to the statement of the learned counsel for the DVB we are willing to give one more opportunity to DVB. Let the needful be done within four weeks. Insofar as the regulations of traffic on the Mehrauli Mahipalpur road is concerned the A.C.P.(Traffic) South-West District, who is present in Court says that further steps shall be taken to fully comply with the order dated 20th April, 2001.

It is stated by the learned counsel for the petitioner that the main reason why the streets are not free from garbage is that the sanitation staff of the MCD does not visit the areas regularly and remain absent and their place someone else works. It appears to us that the problem may be controlled to a very large extent if the MCD makes the payment to the sanitation staff by means of account payee cheques or by crediting the salary to their individual bank accounts. In the circumstances, we would direct the MCD to adopt this method. The MCD will see to it that by adopting the new method employees get their salaries at an early date. Mr.Mukherjee, learned counsel for the MCD says that he would sit with the counsel for the petitioner and evolve a methodology for keeping the colony clean.

The committee should again inspect the areas to find as to whether our orders are being complied with by the DVB and the traffic department. The committee should inspect the entire Vasant Kunj area as set out in the map accompanying the report. Let the report be filed within four weeks.

It is also the grievance of the petitioner that the water supply has not improved. Ms.Geeta Mittal says that she will seek instructions from her client and interact with the petitioner. DJB shall file an affidavit stating the steps taken by it to improve the water supply.

To come up on 28th September, 2001.

Copy of the order be given to the counsel for the MCD under the signature of the Court Master today."

11. The Committee of the lawyers again inspected the site and submitted its report. The respondents were directed to file their responses to this report. The DVB, MCD and the Traffic police have filed their responses. The matter was thereafter heard at length.

Now, we would examine each problem in the light of report of the Committee and responses thereto filed by the authorities.

1. Plying of heavy and medium vehicles on the road.

12. The Committee has observed that there is free flow of heavy and medium goods vehicles on the Mehrauli-Mahipalpur road although some improvement in the situation is visible as the number of heavy and medium goods vehicles now plying is considerably less. It is further reported that with the commissioning of flyover there is a smooth flow of traffic on the said road although there is a persistent blockage of traffic at the crossing of Mahipalpur and also the Andheria Modh during peak times. These vehicles are being parked on the said road even during peak traffic times.

13. As per the stand taken by the Delhi traffic Police it has issued Notification dated 3rd November, 2000 by virtue of which plying and parking of heavy goods vehicles and medium goods vehicles on Mahrauli-Mahipalapur road from 6 AM to 9 PM has been prohibited. Copy of this Notification has been annexed along with the affidavit dated 14th December, 2000. In view of this, Mr.V.K.Shali, learned counsel for this respondent submitted that statutory steps which could be taken had already been taken. If the aforesaid vehicles are still plied on this road during prohibitory hours, the only option for the traffic police was to prosecute the offenders which is being done. To demonstrate, a statement of challans for the period from 1st January, 2000 to 28th February, 2002 has been filed on 9th March, 2002 giving details of the type of vehicles, namely, heavy goods vehicles, light goods vehicles and buses who were challaned during this period and the offences for which they were challaned and also giving total number of challans.

14. In these circumstances, no further directions can be passed on this account as the necessary steps have been taken by the Delhi Traffic Police. However, having regard to the submission made by learned counsel for the petitioners to the effect that the traffic police was not taking adequate steps for prosecuting the violators, we would expect that the strict steps for challaning and prosecuting the offenders be taken inasmuch as if the traffic police acts sincerely and seriously, sending message to the violators that it means business and no offender would go scot free, this problem can be almost wiped out. We say so in view of the fact that as per the Committee, the movement of heavy and medium goods vehicles on this road during peak hours is still there. Such a regular flow for these vehicles normally is not expected if there is a prohibitory order, and therefore, this lends credence to the submission of the learned counsel for the petitioners that the traffic police may not be discharging its duties in right earnest. We would, therefore, direct the DCP(Traffic) to take personal interest in the matter and ensure strict compliance of Notification dated 3rd November, 2000.

2. Lighting up of Vasant Kunj area:

The Committee has painted dismal picture about this problem in its report as it states as under:

"The Committee inspected the entire Vasant Kunj area as set out in the Map accompanying the report dated 23.5.2001 and the position in the rest of the areas of Vasant Kunj was found to be similar to the areas inspected earlier. It was found that most of the areas were without electricity and barely 10% of the poles were in working order. At most of the places the poles were not even having bulbs or complete fittings and were largely fixed without serving any useful purpose. It is submitted that some of the areas were pitch dark and passage there from would be a grave security risk for the residents. The committee observed that the main Mahipalpur-Mehrauli was reasonably well lit however the areas within the various pockets were by and large without any lighting. It was observed that even though on the Main Nelson Mandela Road there were electricity poles fixed but most of the times they were not lit up at all. On the Main Aruna Asaf Ali Road it was observed that there was no provision for electrification and for street lights."

15. The DVB has filed its affidavit dated 13th March, 2002 responding to the aforesaid report a perusal whereof would show that as per the DVB things are not as bad as projected by the Committee. The .PL64 relevant paras of this affidavit read as under:

"4. That A total number of 14 inspections have been carried out by the DVB. On average, street lighting was found about 90% functional. A chart giving details of the date of inspections, the areas inspected, number of poles checked and number of poles/street lights found functional is annexed herewith as Annexure R-5.

5. That endeavor was made to accompany the members of the Residents Welfare Association also. The members of the Residents Welfare Association joined the inspecting team and have also noticed the street lights functional. Some of the Residents Welfare Association have given the appreciation letters to DVB which are annexed herewith as Annexure R-6. It is pertinent to mention here that the Residents Welfare Association have appreciated the endeavor made by DVB and are satisfied with the street lighting provided in their pockets."

16. The letters of the Vasant Kunj(C-8) Residents Welfare Association and B-7 & 9(Vasant Kunj) Residents Welfare Association have been filed and as per these letters the DVB is maintaining street lights properly. This affidavit of the DVB, however, does not address the problem of electrification on the main Aruna Asaf Ali road. We, accordingly, direct the DVB to take necessary steps for electrification of this area consistent with the earlier orders passed in this respect from time to time. In case no progress is made on this front, the petitioners shall be entitled to approach this court again.

3. Unauthorised occupants/encroachments: It is an admitted fact that along side the main Mehrauli-Mahipalpur road various temporary and in some case permanent structures have come up which are illegal and unauthorised. As per the Committee many JJ clusters were coming up in the open areas in and around Vasant Kunj. Same was the position along side the main Mehrauli-Mahipalapur road where some of these structures were being used for the purpose of shops as well. The Committee has also observed that at various places open areas have been converted and were being used for the purposes of parking of vehicles and also for dumping of broken and unused vehicles. Some areas meant for agricultural land were being misused by various persons in violation of the Master Plan. The Committee has annexed various photographs in respect of its report to the aforesaid effect.

It cannot be disputed that these unauthorised JJ clusters have to be removed. The matter of rehabilitation of these JJ clusters is pending before this court in number of writ petitions wherein this problem is examined on a wider scale. The JJ (Slum) department has in fact prepared some schemes for this purpose. It would be, therefore, appropriate if the petitioners file a separate writ petition in respect of this problem in Vasant Kunj area so that it is taken up along with other matters which are listed on 1st May, 2002. We are saying so because of the fact that in the instant case, the Slum Department has not been made party and therefore, there is no response from the concerned authority and in the absence thereof no positive directions can be issued. Moreover, it would be appropriate to deal with this problem along with other cases related to the same problem. This liberty is accordingly granted to the petitioners.

So far as parking of vehicles on the open areas and dumping of broken and unused vehicles in these open areas is concerned, we direct the MCD as well as the Traffic Police to take appropriate steps for removal of the dumped vehicles and also to ensure that the vehicles are not parked there. Needful be done by these authorities immediately. If no steps are taken by the concerned respondents within a reasonable time, the petitioners shall be at liberty to approach this court again.

                    4.     Removal    of     demolished    illegal
                           constructions:  

The Committee has reported that at various places there had been demolition of unauthorised constructions. However, the demolished structures had not been removed and had been lying in very dangerous conditions. Some of these demolished structures were still being used and were inhabited despite being in dangerous condition. Photographs are also filed in support of this contention. We have perused these photographs and are convinced that the report to this effect is correct. We direct the MCD to completely demolish the structures where partial demolition has taken place and some of the structures though in dilapidated condition after such demolition, are still being used. A compliance report be filed in this case within a period of four weeks from today.

5. Garbage disposal:

The Committee has confirmed the allegations made by the petitioners to the effect that large expanse of open areas of land at various places is being used for dumping of garbage wherein there was also water-logging of waste water which was becoming a breeding ground for mosquitoes and pigs. This is a very serious problem. The Municipal authorities should be sensitive to such a problem and show adequate concern by taking necessary steps inasmuch as there can be a threat of break of epidemic disease, if such garbage is allowed to remain. It is well known that epidemic plague which spread in the Surat in 1994 was primarily because of accumulation of filth and garbage which acted as breeding ground for rodents. Article 243W readwith twelfth schedule of the Constitution fastens the responsibility of solid waster management on the municipalities. It is a mandatory function of any municipality. There are specific provisions (Sections 350 to 364) in the Delhi Municipal Corporation Act, 1957 relating to conservancy and sanitation. As per Section 350 it is the obligation of the MCD to secure efficient scavenging and cleansing of all streets and premises and for that purpose, inter alia, to provide for the removal of the contents of all receptacles and depots and of the accumulations at all places provided for temporary deposit of rubbish and other polluted and obnoxious matter.

17. We may also put on record that in a Public Interest Litigation filed in the Apex Court seeking direction to the local bodies as well as the Government of India and the State Government to improve the solid waste management practices, a Committee was appointed by the court known as Barman Committee which submitted its report in March, 1999. As a follow up the Municipal Solid Wastes (Management and Handling) Rules, 2000 were issued by the Central Government in exercise of its power under the Environment (Protection) Act, 1986. These Rules also cast duties on the municipalities as well as citizens for solid waste management.

18. The Municipal Corporation of Delhi is accordingly directed to take effective steps on emergent basis immediately for removal of the garbage as well as water-logging of waste water and clear the area from such menace. The Municipal Corporation of Delhi is also directed to ensure that these areas do not become the places for dumping of garbage in future. If effective steps are not taken the petitioner shall be entitled to approach this court for bringing the same to the notice of the court.

19. The writ petitions are accordingly disposed of with the aforesaid directions. It is made clear that the non-implementation of these directions by the various authorities would be viewed seriously which may also call for action against the erring officials.