A.S. Rawat And Ten Ors. vs D.D.A. And Ors.
2006 Latest Caselaw 1580 Del

JUDGMENT

S. Ravindra Bhat, J.

1. Issue Rule. Mr. B.B. Sharma, Advocate waives service of rule. With consent of parties, the matter was heard for final disposal.

2. The writ petitioners seek directions to the respondent DDA to take appropriate action and ensure that residential flats in Sector-6, Pocket-2, DDA Flats, Dwarka are used strictly in accordance with law and unauthorised constructions are removed.

3. The petitioners are resident of Sector-6, Pocket-2, DDA Flats, Dwarka. It is alleged that there are 456 flats in the said pocket. Nearly 70% of flats are used for commercial purposes, according to the petitioners. They allege that large scale unauthorised constructions exist in several flats.

4. The petitioners have relied upon 43 instances where flats have been used for commercial or non-residential purposes such as Beauty Parlours, Electronic Shops, Dental Clinic, Orthopedic Clinic, Confectioner's and other commercial activities which can never be countenanced in terms of the policies of the DDA.

5. After notice was issued, the DDA filed a counter affidavit. It avers that action was proposed and notices were issued to various occupants; both in respect of unauthorised constructions as well as mis-user of properties. The DDA has not seriously disputed, that there is rampant illegal construction and mis-use of properties. It has also not disputed the list of 38 flats that are used for unauthorised commercial purposes.

6. Learned Counsel for the petitioner submitted that the pleadings on records clearly show not only a culpable inaction but utter disregard to the needs and rights of the residents in the colony who face daily nuisance both by way of unauthorised constructions and commercial establishments which exist in the locality. He relied upon several orders of the Court and also the judgment of the Division Bench in CWP 2710/1998.

7. Learned Counsel submitted that the inaction of the DDA has to be appropriately dealt with by the Court and that apart from issuing notices to erring occupants, nothing concrete had been done by DDA. It was also submitted that despite several requests, the DDA has neither indicated the total land area of the locality/colony nor has taken action to effectively secure the properties by way of putting up boundary wall. It is also claimed that though the DDA collected money for about 28 electricity poles for the purposes of internal electrification, no further action was taken. Copies of the letter written by the DDA to the BSES indicating deposit of Rs. 47 lakhs have been relied upon.

8. Mr. Sabharwal, learned senior counsel submitted that the inspection carried out undoubtedly disclosed that the flats have been put to use which is not in conformity with the leases and in conformity with the policies and regulations of the DDA. Apart from that, it is also admitted by the DDA that there is large scale unauthorised construction in several properties and such properties are being used by persons not residing in the areas. He, however, submitted that DDA has to take action in conformity with the provisions of the Delhi Laws (Special Provisions) Act, 2006. The enactment prescribes a moratorium for enforcement against unauthorised constructions or mis-use for a period of one year. Learned Counsel also submits that in any event DDA does not dispute the existence of unauthorised construction and need to take appropriate action. He submitted that so far as the question of boundary wall is concerned, a suit was field by some respondents (Suit No. 481/2001) in which Civil Judge issued interim orders which bind the parties. Till the disposal of that suit, no further action to complete the boundary wall can be taken.

9. Learned senior counsel further submitted that the DDA has no primary responsibility to carry out electrification and even though full electrification is not effected , the money has been deposited with the BSES which has the responsibility to do so and that in any event no specific relief has been sought for in these proceedings.

10. The pleadings and contentions of the parties disclose that the area in question i.e. Pocket 2, Sector 6, SFS Dwarka is residential. It would necessarily fall within the description housing estates as per the DDA Disposal Housing Estates Regulations, 1968. In terms of the Regulations, the DDA is obliged to issue lease deed to each allottee or occupants; such allotment letters indicate clearly that the use of the flat as purely residential. It is not in dispute that the area has not been handed over to the MCD for maintenance and that the petition in this case was filed in the year 2004 The counter affidavit in fact of the DDA was filed on 1.8.2005.

11. The pleadings and materials, in my opinion, establish that there are unauthorised constructions and misuse of properties by way of non-residential use in at least 38 to 40 flats. That has been admitted in the counter affidavit of the DDA and was not disputed by learned senior counsel. In these circumstances, the question is whether the DDA can use the provisions of the Delhi Laws (Special Provisions) Act, 2006, as a cloak to defend its inaction.

12. Section 3 of the Act enable the Central Government, to take all possible measures to finalise norms, policy, guidelines, any feasible strategy to deal with the problems of unauthorised development with regard to certain categories such as mix land use not conforming Master Plan, construction beyond sanction plan and encroachment by jhuggy dwellers and hawkers and street vendors. Section 3(2) enacts that subject to provisions of Section 3(1) and notwithstanding any judgment and order of the Court, status quo as on 1st January, 2006 is to be maintained in respect of the categories of unauthorised development mentioned in Sub-Section (1).

13. Unauthorised development has been widely defined under Section 2(i) as use of land/building in contravention of the sanctioned plans or without obtaining the sanction of plans or in contravention of the land use as permitted under Master Plan. Section 4 of the Act carves out an exception from the protection afforded under Section 3; all unauthorised constructions started or continued on or after 1st January, 2006, or commercial activity commenced in residential areas in violation of Master Plan as on or after 1st January, 2006 do not enjoy the moratorium from enforcement according to other provisions of law.

14. Having regard to the nature of use alleged and admitted by the DDA as well as the unauthorised constructions and what is admittedly a 100% DDA residential locality, where the flats have been constructed and are still being maintained by the DDA, there cannot be a blanket immunity. Section 4 of the Act recognises as much. The provisions of the Act have been construed by the Supreme Court as authorizing action in many categories of unauthorized constructions and misuse of properties, particularly, ongoing unauthorized constructions.

15. The very nature of DDA housing estates is such that the residents are assured, both in terms of the DDA's regulations and in terms of provisions of law, that the neighborhood is used exclusively for residential purposes. If other uses of such flats are permitted, the object of building flats, and creating infrastructure in support of that use would be defeated. Though unauthorized development is widely defined, in situations like the present, where there is no controversy about mixed land use, the expression has to receive a narrow interpretation. Any other view would lead to untenable situations where such flats can be used as showrooms or commercial establishments.

16. In view of the foregoing discussion, the following directions are issued:

i) The DDA shall conduct a survey of the entire colony in question and take into consideration the extent of unauthorised construction and the use of the properties;

ii) Within three months of the completion of the survey, appropriate notices shall be given to the concerned violators both in respect of the unauthorised construction and mis-user;

iii) The DDA shall also take appropriate action, while issuing notice, to issue show cause notices wherever warranted, calling upon the occupiers to show cause why the lease should not be terminated having regard to the violation of the terms, noticed;

iv) The DDA shall also consider and wherever necessary take remedial action in accordance with Section 29 of the Delhi Development Act.

v) The entire process shall be completed in accordance with law within six months.

17. It is made clear that the above directions are subject to the provisions of the Delhi Laws (Special Provisions) Act, 2006. Compliance shall be indicated by way of an affidavit to be filed within eight months.

18. The Civil Judge, trying the Suit No. 418/01 (Meena Jain v. DDA) shall make all endeavor and dispose of the proceedings within six weeks from today in accordance with law. The DDA shall take up the issue of electrification of the 28 poles for which it has already deposited Rs. 47 lakhs with the erstwhile DVB (succeeded to by BSES Rajdhani Power Limited) within the time indicated. The compliance affidavit in respect of the directions shall be filed at the end of six months from today.

19. The writ petition is disposed off in the above terms. No costs.