Dr. Kapil Sethi vs Dr. Ajay Gambhir And Ors.
2006 Latest Caselaw 59 Del

JUDGMENT

Markandeya Katju, C.J.

1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 29.11.2005.

2. Heard the learned counsel for the parties and perused the records.

3. This case is a typical instance of a wide spread malady which has infected the urban areas of this country, and Delhi in particular, namely, the belief in a large number of people that they can violate the building rules and Bye-Laws with impunity by using power or pelf and get away with it.

4. The facts as stated in the writ petition are that the writ petitioner (respondent No.1 in this appeal) had purchased the flat bearing No. A-779, Sector 2, Avantika Market, Delhi and is in possession of the same. It is alleged that after purchase and possession of the flat the petitioner has been facing a lot of inconvenience in enjoying the civic amenities and had to compromise with the unhygienic and unhealthy conditions. There is a sewerage blockage next to the premises of the petitioner which is attributed to the fact that the neighbouring persons,residents of A-778, Sector 2, Avantika Market, Rohini Delhi (including the appellant herein) had encroached upon the public land and raised illegal and unauthorised construction over the swer line. The writ petitioner approached the Municipal Corporation of Delhi (MCD) vide letters dated 28.6.1995 and 10.7.1995 in this connection. The MCD vide its reply dated 10.7.1995 informed the petitioner that the building activities of Sector 2, Avantika Market, Rohini, Delhi were with the Delhi Development Authority (DDA). Thus, instead of taking steps to redress the grievances of the petitioner, the MCD tried to pass on the buck by stating that respondent No.1 was not vested with the maintenance of the area in which the petitioner resided. A true copy of the reply of the MCD is Annexure P-3 to the writ petition.

5. The petitioner then approached the DDA vide letter dated 14.7.1995, a true copy of which is Annexure P-4 to the writ petition, on which the DDA issued show cause notice to the persons who had encorached upon the public land and had been hampering the due sewage disposal. It is alleged that thereafter the DDA slept over the show cause notice issued by it and did not take any action for quite some time. However, after a lot of persuasion and follow up by the petitioner the DDA issued demolition order in respect of such encroachments on 2.1.1996. A copy of the demolition order issued by the DDA is Annexure P-6 to the writ petition.

6. However, despite the demolition order by the DDA nothing happened in concrete to remove the encroachments upon the public land in question and to improve the civic amenities. Being harassed due to the inaction of the DDA and after exhausting all his energy the petitioner was left with no option except to approach the Lt.Governor, who has administrative control over the DDA, for a direction for due execution of the demolition order dated 2.1.1996.

7. In para 6 of the writ petition it is stated that directions had been given by the Lt. Governor directing the DDA to carry out the needful to restore the civic amenities to the petitioner, but unfortunately those directions fell on the deaf ears of the DDA. The copies of the directions given by the Lt. Governor directing the DDA in this connection dated 9.6.1997, 10.7.1997 and 5.12.1997 are Annexures P-7 to P-9 to the writ petition.

8. Thereafter, the DDA informed the petitioner that since the area in which the property of the petitioner is situated was handed over and transferred to the MCD as such action for removing the encroachments had to be taken by the MCD. A true copy of the letter dated 28.7.1997 issued by the DDA is Annexure P-10 to the writ petition.

9. Thereafter the petitioner had to start the whole process afresh by approaching the MCD which he did, but despite the repeated requests it is alleged that the MCD has not done anything. True copies of the letters of the petitioner dated 29.8.2000, 22.11.2002 and 19.12.2003 are Annexures P-11 to P-13 to the writ petition. The petitioner also approached the Public Grievance Cell and Director (Enforcement). The Director presented the status report to the Deputy Secretary, Cabinet Secretariat, Govt of India, Directorate of Public Grievance, a copy of which was forwarded to the DDA. A copy of the status report dated 29.11.2002 and letter dated 16.12.2002 are Annexures P-14 and P-15 to the writ petition. The petitioner also approached respondent No.2 several times for cleaning of the sewerage blockage, but to no avail, vide letters copies of which are Annexures P-16 and P-18 to the writ petition.

10. In the writ petition the MCD filed a counter affidavit, paragraphs 5 & 6 of which state as follows:-

5.That in this respect it is submitted that the impugned site has been inspected by the area official on 9.11.2005 and during inspection it has been noticed that encroachment exists there at side and adjoining residents have encroached the public/municipal land by way of constructing shops over it.

It is further submitted that as per directions of this Hon'ble Court dated 17.8.2005 adjoining properties i.e. A-775 to A-780, Avantika, Sector-2, Rohini have been inspected by the area officials on 9.11.2005 and during inspection unauthorized construction noticed in these properties are booked as per the provisions as contained under Section 343/344 of DMC Act and the details are as under:-

 Sl.No.  Property No.   File No.            Extent of       
                                           unauthorized 
                                           construction
1.      A-775          438/B/UC/RZ/05      dt. 9.11.2005

Unauthorized construction/deviations at ground floor, first floor, second floor
2.      A-776           439/B/UC/RZ/05     dt. 9.11.2005
Unauthorized construction/deviations at ground floor, first floor, second floor
3.      A-777            435/UC/RZ/05      dt. 9.11.2005
Unauthorized construction/ deviations in the shape of two shops at ground floor
and unauthorized construction of first floor and second floor
4.      A-778            436A/UC/RZ/05     dt. 9.11.2005
Unauthorized construction/deviations in the shape of five shops at ground floor
and unauthorized construction of first floor and second floor and part third floor.
5.      A-779            437A/UC/RZ/05     dt. 9.11.2005
Unauthorized construction/deviations at ground floor, first floor and second floor
6.      A-780             440/UC/RZ/05     dt. 9.11.2005
Unauthorized construction/deviations in the shape of four shops at ground floor 
andunauthorized construction of first floor and part second floor
 

Consequently show cause notices have been served upon the owners/occupiers of the above mentioned properties. Demolition notices in respect of the properties booked have been issued and served upon the respective occupiers.

6. That it is further submitted that owner/occupier of Flat No.778, Avantika, Sector-2, Rohini has encroached upon the public/municipal land in front of his property and converted the same into five shops by way of amalgamating the same with his property. It is further submitted that said encroachment is part of the monolithic structure of P.No. A-778, Avantika, Sector-2, Rohini. As such, joint action shall be taken in respect of the encroachment as well as unauthorized construction in the month of December, 2005.

11. We see no reason to disbelieve the allegations made in paragraphs 5 & 6 of the counter affidavit of the MCD. It is evident that the appellant has made illegal and unauthorized construction of shops etc on public land.

12. Learned counsel for the appellant submitted that he should be permitted to move an application for regularization.

13. In Friends Colony Development Committee v. State of Orissa , the Supreme Court in paragraph 25 observed as follows:-

Though the municipal laws permit deviations from sanctioned constructions being regularized by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some mis-understanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum.

14. Thus the Supreme Court has held that even though there is a provision for regularization, no regularization should be ordinarily permitted unless there was a bona fide deviation. In the present case, it cannot be said that there was only a bona fide deviation from the building plan.

15. The time has come when a very strict view has to be taken by the Court regarding illegal construction and illegal encroachments. If there are rules, they have to be followed otherwise there is no use having rules at all, and the Rule of Law will be thrown to the winds.

16. If the building rules and regulations are not strictly followed, a wrong message will be sent that they are not to be taken seriously and can be got over by 'fixing' the municipal authorities by some extraneous manner. The time has come in our country for very strict observance and enforcement of the building rules and regulations.

17. We have read in our history books that 5000 or 6000 years ago in the Harappa and Mohanjodaro civilization there was proper town planning and building regulations, which is required in a civilised society, and it was thus running in a proper manner. It seems that we have gone backwards in these 5000 or 6000 years rather than forward. Town planning or at least its implementation has gone haywire and such rules and regulations are violated with impunity by people with power or pelf. The time has come when this wrong impression must be rectified and the building rules and regulations be enforced strictly, otherwise the urban areas will become like Jungles where people will not be able to live peacefully.

18. It is indeed lamentable that in our country building rules and regulations are being flouted left and right by persons who think that they are above the law because they have money or some high post. Time has come that a clear message must be given that the building rules do not exist merely on paper but will be strictly enforced to forthwith demolish any construction made in violation of the rules. Unless that is done a wrong impression will be created and a wrong message sent that the building rules exist only on paper and are not to be taken seriously.

19. In M.I. Builders Pvt.Ltd v. Radhey Shyam Sahu and Ors. , the Supreme Court observed (vide paragraph-73): -

The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots.

20. In Ram Awatar Agarwal v. Corporation of Calcutta , the Supreme Court directed demolition of a multi-storeyed building, which had been constructed in violation of the building rules, and had also granted police protection for carrying out compliance of the order.

21. In Dilip Bhandari v. The Commissioner, Corporation of Chennai, Rippon Buildings 2004(5) CTC 481, a Division Bench of the Madras High Court upheld the demolition order and observed that unauthorised construction should not be condoned even if the builder has invested considerable amount, as this dictum is bordering the rule of law.

22. In Palani Hills Conservation Council etc. v. The State of Tamil Nadu, etc. 1995 (2) Writ L.R 737, a Division Bench of the Madras High Court directed demolition of a building constructed by a hotel contrary to the plan sanctioned by the second respondent therein.

23. In Pratibha Co-operative Housing Society Ltd. and Anr. v. State of Maharashtra and Ors. while considering the unauthorised construction the Supreme Court had observed in paragraph-6 as follows:-

We are also of the view that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the safety of occupiers and residents.... Before parting with the case we would like to observe that this case should be a pointer to all the builders that making of unauthorised constructions never pays and is against the interest of the society at large. The rules, regulations and bylaws are made by the Corporations or development authorities taking in view the larger public interest of the society and it is the bounden duty of the citizens to obey and follow such rules which are made for their own benefits.

24. Time has come where this Court has to come down with heavy hands on those who violate the building rules, and to send a clear message to all concerned that such violations will no longer be tolerated. Often such violations have been done in collusion with the authorities, and hence we also give a stern warning to the authorities that they will be taken to task if they permit, condone or tolerate violations of the building rules, as has been clearly done in this case. In almost every city in this Country, it is found that constructions are being made in violation of the building rules and byelaws, and this is usually done in collusion with the authorities concerned. The result has been that there has been large scale unauthorised encroachments and illegal constructions resulting in cities becoming like slums or jungles everywhere, and citizens are not able to live properly. The price of urbanisation is habitat discipline, failing which the result will be chaotic urban jungles. All these will no longer be tolerated by this Court.

25. With these observations, the appeal is dismissed.

26. The appellant is granted one week time to remove the illegal construction/encroachments otherwise they will be removed with the help of a bulldozer. During this period of one week the MCD will not demolish the illegal construction/encroachments, so as to enable the appellant to do it himself.