Kamal Goods Carrier (Regd.) vs Mcd & Ors.
2011 Latest Caselaw 1961 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 5th April, 2011

+                     W.P.(C) 8796/2009 & CM No.6090/2009

%        KAMAL GOODS CARRIER (REGD.)               .... Petitioner
                    Through: Mr. V.K. Sharma, Adv.



                                      Versus

         MCD & ORS.                                             ....Respondents
                            Through:      Mr.        Mukesh     Gupta    with
                                          Ms.      Shuchismita, Advocates for
                                          MCD

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may                          Yes
         be allowed to see the judgment?

2.       To be referred to the reporter or not?                 Yes

3.       Whether the judgment should be reported                Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The writ petition impugns the challaning of the petitioner and upon

non-payment of the challan amount, the consequent proceedings initiated

against the petitioner under Sections 357 & 397 of the Delhi Municipal

Corporation (DMC) Act, 1957 before the Special Metropolitan Magistrate.

Notice of the writ petition was issued and vide interim order, coercive steps

against the petitioner stayed.

2. While Section 357 supra inter alia prohibits owner/occupier of any

premises from throwing / depositing rubbish upon any street, Section 397

supra inter alia prohibits deposit of material of any description in any public

street. The petitioner was challaned with respect to the street outside its

premises in Transport Centre at Punjabi Bagh, Rohtak Road, developed by

the respondent no.3 DDA.

3. The challenge to the challan / proceedings is made on the ground that

the respondent no.3 DDA having not handed over the operation of the said

Transport Centre to the respondent no.1 MCD, MCD is not entitled to

challan or initiate the aforesaid proceedings.

4. It is the case of the petitioner that the respondent no.2, being an

official of the MCD has challaned / initiated the said proceedings against the

petitioner for the reason of the petitioner refusing to pay the bribe demanded

by the said official. It is further the case of the petitioner that the occupants

of other properties in the said Transport Centre similarly placed as the

petitioner but who have succumbed to the demand of the respondent no. 2

have not been so challaned.

5. Needless to state that the factual aspects cannot be the subject matter

of writ jurisdiction and have also not been urged and are stated only to

complete the picture.

6. The only ground urged is that without the respondent no.3 DDA

handing over the Transport Centre to the respondent MCD, the provisions of

Sections 357 & 397 are not applicable thereto or to the streets within the

said Transport Centre. The petitioner relies upon the response given by the

respondent no.3 DDA to the query of the petitioner and in which reply it

was stated that civic services like scavenging of roads and storm water

drains etc. in the said Transport Centre are being looked after by the

respondent no.3 DDA.

7. In view of the aforesaid position, this Court also on 28 th July, 2009

directed the counsels for the respondents MCD and DDA to obtain specific

instructions as to whether the said Transport Centre fell within the

jurisdiction of MCD or not.

8. The respondent no.3 DDA has filed an affidavit in which it is stated

that the maintenance of civic services of the Transport Centre is yet to be

handed over to MCD.

9. The respondent MCD in its counter affidavit has stated that the

petitioner was challaned because the petitioner had deposited on the road

outside its premises in the Transport Centre its goods, creating nuisance and

insanitation conditions. The respondent MCD has asserted its right to take

action therefor in accordance with law and has further asserted that the

Transport Centre falls within its jurisdiction.

10. Finding that the provisions of the DMC Act by virtue of Section 1(2)

thereof extend to "Delhi" defined in Section 2(10) of the Act as "the entire

area of Union Territory of Delhi except New Delhi and Delhi Cantonment",

it was enquired from the counsel for the petitioner whether the Transport

Centre fell in Delhi so defined or not.

11. The counsel for the petitioner while not controverting that the

Transport Centre is in Delhi however refers to Section 12 of the Delhi

Development Act, 1957 (DD Act) to contend that the Transport Centre is a

"development area" within the meaning of the said provision. Reference is

further made to para 42 of the judgment in M.C. Mehta Vs. Union of India

AIR 2006 SC 1325 laying down that the Scheme under the DD Act is that

during the development, it is the responsibility of DDA to demolish and seal

any premises if there is contravention and after handing over of the area to

the local authority under Section 36 of the DD Act, the power of demolition

and/or sealing is conferred on local authority whether it be MCD or Delhi

Cantonment or any other authority depending upon the development area

falling in the local limits of one or other. It was further held that so long as

a area is a development area, the power to deal with it remains with the

DDA in terms of Section 3(i) of the Act and it is only after the responsibility

thereof has been assumed by the local authority in the manner provided in

Section 36, the power to deal with the properties in that area for any

contravention would be exercisable by the local authority.

12. I have enquired from the counsel for the petitioner as to whether the

observations in the judgment aforesaid, made with specific reference to

action against unauthorized construction should be extended to applicability

of the other provisions of the DMC Act and whether such an interpretation

would not amount to restricting the applicability of the DMC Act without

the Legislature having provided so. The counsel for the petitioner is unable

to show any provision, neither in the DD Act nor in the DMC Act permitting

such restrictions of applicability of the provisions of the DMC Act.

13. Section 36 of the DD Act entitles DDA to require the local authority

(within whose local limits the area so developed is situated) to assume

responsibility "for maintenance of amenities which have been provided in

the area" by the DDA and for the provision of amenities which have not

been provided for the DDA but which in its opinion should be provided in

the area. It will be seen that there is nothing therein also restricting the

applicability of the provisions of the DMC Act. Rather, the same recognizes

the development area being situated within the local limits of the local

authority i.e. the MCD in the present case.

14. The counsel for the respondent MCD has contended that Sections 357

& 397 supra are to be found under Chapter XVII titled "Sanitation and

Public Health" and under Chapter XIX titled "Public Safety and

Suppression of Nuisances" respectively. It is further contended that the

streets in the Transport Centre, with respect whereto the petitioner has been

challaned are public streets and vest in the MCD and MCD is entitled to

take action for violations with respect thereto, irrespective of whether the

area has been handed over by the DDA to MCD or not.

15. Attention of the counsel for the petitioner has been invited to MCD

Vs. Hira Lal Tota Ram AIR 1972 Delhi 29 where this Court held that the

DMC Act applied to villages situated in Delhi and the public streets in the

said villages vest in the MCD and MCD is empowered to prohibit

encroachment thereon and was rather obliged to remove encroachment from

the same and the Gaon Panchayats under the Delhi Land Reforms Act, 1954

are not placed in the same position as the MCD though under the Panchayat

Raj Act, 1954, the Gaon Panchayat was also entitled to remove

encroachment in the public street. It was held that merely because the Gaon

Panchayat was also entitled to take the said action, it could not be said that

the Gaon Panchayat alone had the exclusive power to do so and the MCD

was precluded from doing so. It was yet further held that even if there were

any inconsistencies between the provisions of the DMC Act and the Delhi

Land Reforms Act and the Panchayat Raj Act, then it would be the

provisions of the DMC Act which would prevail to the extent of the

repugnancy for the reason of the DMC Act being an enactment subsequent

to the Delhi Land Reforms Act and the Panchayat Raj Act and also for the

reason of Section 22 of the Government of Part C States Act, 1951.

16. It may be noticed that the DD Act on the basis whereof the powers of

the MCD are sought to be excluded in the present case is of the same year as

the DMC Act; rather, while the DD Act is Act 61 of 1957, the DMC Act is

Act 66 of 1957 and the DMC Act can thus be said to be an enactment

subsequent to the DD Act. Thus the principles laid down in the judgment

aforesaid apply on all fours.

17. Independently of the aforesaid judgment also, I am of the opinion that

no restrictions on the applicability of the DMC Act as contended can be

read. The scope of the DMC Act and the DD Act are entirely different;

while the DMC Act is concerned with the municipal governance of Delhi

and under Section 41 thereof municipal governance of Delhi has been vested

in MCD and which would include maintenance and removal of

encroachment from the streets, the DD Act is concerned with development

of Delhi and which has been defined in Section 2(d) thereof itself as

carrying out of building, engineering, mining or other operations in or over

or under land or the making of any material change in any building or land

including by way of re-development. The DD Act is thus not concerned

with municipal governance or with the removal of encroachment from

streets and/or sanitation, nuisance etc. except when in relation to

development.

18. The construction, maintenance, improvement of public streets and the

removal of obstruction in public streets are the obligatory functions of the

MCD under Section 42 (n) and (p) of the DMC Act. Section 2(57) thereof

defines "street" as including any way, road, lane, square, court, alley, gully,

passage over which the public have a right of way. It is not the case of the

petitioner that on the street, with respect to which it was challaned, the

public has no right of way. Thus the said street is a "street" within the

meaning of Section 2(57). Section 2(44) defines "public street" as a street

which vests in the MCD as a public street. Section 298 vests all streets

within Delhi which are or at any time become public streets, in the MCD

and to be maintained, controlled and regulated by MCD. Though under

Section 298(3) the Central Government is empowered to, by notification

direct that all or any of the functions of the Corporation in respect of public

streets shall be performed by such authority as may be specified but it is not

the case of the petitioner that there is any notification vesting the powers of

the MCD in relation to the said street in the Transport Centre in the DDA or

in any other Body / authority.

19. The object of the DDA as specified in Section 6 of the DD Act do not

show that the DDA is concerned with such public streets. Similarly, I do

not find anything in Sections 12 or 36 or any other provision of the DD Act

to show that the streets open to the public in such development areas of the

DDA do not vest in the MCD. Merely because DDA has chosen to carry

out the work of scavenging in relation to the streets in the Transport Centre

itself, would not lead to any such inference of the streets not vesting in the

MCD. Even otherwise there is no power in the DD Act empowering the

DDA to remove encroachments from the public streets within development

areas as the Transport Centre is. If it were to be held that MCD has no such

power in the development areas of DDA it would lead to incongruous

situation whereby no Public Body or Authority would have jurisdiction to

remove such encroachments / obstructions on public streets and which state

of affairs cannot be permitted.

20. The Supreme Court in Municipal Committee, Karnal v. Nirmala

Devi (1996) 1 SCC 623 held that every street which is a public street vests

in the Municipal Committee and if unauthorized construction is made by

encroaching on it, the Municipal Committee has the power to have the

unauthorized encroachment and construction removed even if such

encroachment is in the nature of a private property. The Supreme Court in

Gobind Pershad Jagdish Pershad v. New Delhi Municipal

Committee (1993) 4 SCC 69 also held that even if a private space is

dedicated by the owner thereof to the public and acquires the character of a

street, the owner ceases to have any right thereto and the Municipality

becomes entitled to exercise its powers with respect thereto as owner.

Applying the said principle to the instant case, even a street open to the

public in a development area belonging to the DDA would vest in the MCD

and be governed by the provisions of the DMC Act.

21. The Division Bench of this Court as far back as in Refugees Co-

operative Housing Society Ltd. and Ors. v. Municipal Corporation of

Delhi ILR (1972) 1 Delhi 725 held that the provisions of Section 42 are

mandatory and that a statutory duty has been placed upon the MCD to make

adequate provision for each of the matters enumerated in the various clauses

of the Section. The reason is not hard to fathom. The obstruction, if any, by

the petitioner on the public street prejudices other citizens and affects the

rights of other citizens and the public Body/authority in which the power to

safeguard such interest is vested is certainly entitled to take action with

respect thereto.

22. Section 53A of the DD Act may also be noticed in this regard. In my

view it recognizes the applicability of the Municipal laws also, including to

the development areas. All that it requires is for the rules, regulations or bye

laws, if any, made by the local authorities as the MCD in respect of the

matters specified in Section 53A(2) to be with the approval of the DDA.

Section 53A nowhere makes any mention of streets/public streets.

23. The Division Bench of this Court in M.K. Vasuraj v. Delhi

Development Authority ILR (1971) 2 Delhi 21 held that throughout the

scheme of the Act, the spheres of operation of the "Authority" and the "local

authority" are kept distinct. The aforesaid judgment also lays down that

when an administrative authority files a complaint against a person in a

criminal court as has been done by the MCD in the present case, the merits

of the complaint can be fully gone into by the Criminal Court including all

questions of fact and law, and petitions under Article 226 of the Constitution

of India at the stage of filing of the complaints are not entertainable.

24. After having reached the conclusion as aforesaid that "streets" in

"development areas" of DDA also vest in MCD as public street, I find the

question to be no longer res integra. This Court as far back as in Chander

Bhan Sharma v. Suraj Bhan ILR (1970) 1 Delhi 792 was faced with the

question as to whether the declaration of Krishan Nagar as development area

for purposes of the DD Act had the effect of divesting the jurisdiction which

MCD had over Krishan Nagar. It was held that entrustment if any of an area

to DDA is just for the purposes of development as defined in the DD Act

and the MCD continues to be responsible for the performance of the

obligatory and discretionary functions under Sections 42 and 43 of the DMC

Act and that the area though entrusted to the Development Authority for the

purposes of development, continues to be subject to the jurisdiction of MCD

if situated within the territorial limits of MCD.

25. Mention in this regard may also be made to the recent dicta in Bondu

Ramaswamy v. Bangalore Development Authority (2010) 7 SCC 129

noticing the distinction between a Development Authority and a

Municipality and their respective functions and laying down that the

provisions relating to one will not nullify or render redundant the provisions

of the other.

26. As far as the reference by the counsel for the petitioner to M.C.

Mehta (supra) is concerned, the question which fell for adjudication therein

was relating to the power of MCD and DDA to seal the premises in case of

misuse. The Court in para 14 of the judgment expressly noted that it was

considering only the issue of misuser and not even the issue of unauthorized

construction. It was in this context that the observations in para 42 of the

judgment relied upon by the petitioner came to be made. The Apex Court in

that case was not concerned with the question for adjudication in the present

petition.

27. There is thus no merit in the petition. The same is dismissed with

costs of Rs.5000/- on the petitioner payable to the MCD within four weeks

of today.

RAJIV SAHAI ENDLAW (JUDGE) APRIL 05, 2011 bs