M.C. MEHTA v. UNION OF INDIA & ORS.

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A In view of the large number of complaints, efforts are being made to recruit additional staff. It is stated by Mr. Kapoor that additional staff will be recruited within 15 days or so or in any case before 31.12.2018. We expect the STF to expeditiously deal with all these B complaints and take appropriate action wherever necessary. This may be done in a time bound manner. We may note that the fact that the STF has received more than 7000 complaints indicates the magnitude of the problem of encroachments and unauthorized construction in Delhi.

C 2. A consolidated report of the actions taken on the recommendations of the Special Task Force has been shown to us today. On perusal of the report, we find that the total area cleared from encroachment by the STF under permanent structures is as high as 10,71,838 sq mts. The area under temporary structures that has been cleared from encroachment is 16,99,858 sq mts. In addition, about 3,202 sq mts of roads / streets / footpaths have been cleared on both sides. This confirms the severe problems being faced by Delhi due to unauthorized construction and encroachments and the magnitude of the problem.

3. In view of the huge amount of land that has been retrieved by the Municipal Corporations under the directions of the STF, it is necessary to preserve and protect the lands so that there is no encroachment upon it once again. F Since the Commissioners of the Municipal Corporations are part of the STF, we would require the STF to look into the matter with due seriousness and protect and preserve the land that has been taken possession/retrieved from the unauthorized encroachments. Needless to say, this also includes the roads/ streets/footpaths that have been cleared by the STF with the G assistance of the Municipal Corporations.”

39Copy pinpoint39. Learned Amicus relied upon order dated 14.1.2019. The relevant portion is extracted hereunder: “….The Monitoring Committee, along with the Deputy H Commissioner, Nazafgarh Zone, SDMC, inspected the area behind

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Sector 7 Dwarka Sub-city on 30.10.2018 and noticed major A unauthorised constructions in the amalgamated plots wherein huge showrooms, restaurants, Gyms etc. were found to be in operation. The Deputy Commissioner, Nazafgarh Zone, SDMC, were immediately directed to issue show cause notice to all the violators in respect of unauthorised constructions and misuse. B Let the SDMC explain as to why they have not taken any action under the provisions of DMC Act for unauthorised constructions and as to why the responsibility of taking action has to be fastened only to Revenue Department, District Magistrate and SDM. The needful be done within three weeks from today. C Let the Revenue Department also explain its stand on the action taken on the unauthorised constructions pursuant to the observations made by the Committee and the directions issued in respect of the plots vested in Sector 7 at Dwarka Sub-city. ….” It is apparent that in the order dated 14.1.2019, this Court has noted that construction of showrooms, restaurants, gyms that was for the “commercial purpose” and notice was issued in respect of “unauthorized constructions and misuse of the residential area”.

40Copy pinpoint40. Learned Amicus referred to the order dated 31.7.2001 passed in Writ Petition (C) No.27 of 1994. The relevant portion is extracted hereunder: “52. ….The perusal of the affidavits further shows that the parties concerned have not even touched the tip of the iceberg as far as demolition of unauthorised constructions is concerned. The number of unauthorised constructions which are said to have been demolished are a small fraction of what is required to be done. It is quote evident that there is now no fear of the law catching up at least with those persons who do not believe in adhering to following the rules and regulations laid down with respect to construction of property. Unauthorised encroachment and illegal construction even as per the affidavits are increasing. It is dangerous trend if the people do not have either respect for or fear of law primarily due to non-enforcement of the law. It is something which causes us some concern and it would be appropriate if serious thought is given to this aspect at the higher quarters……. H

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A 53. …. On one hand, various laws are enacted, master plans are prepared by expert planners, provision is made in the plans also to tackle the problems of existing unauthorised constructions and misusers and on the other hand, such illegal activities go on unabated openly under the gaze of everyone, without having any respect and regard for law and other citizens….. B

61. ……Despite passing of the laws and repeated orders of the High Court and this Court, the enforcement of the laws and the implementation of the orders are utterly lacking. If the law are not enforced and the orders of the courts to enforce and implement the laws are ignored, the result can only be total lawlessness. It is, C therefore, necessary to also identify and take appropriate action against officers responsible for this state of affairs. Such blatant misuse of properties at large scale cannot take place without connivance of the concerned officers. It is also a source of corruption….’’

41Copy pinpoint41. In the order reported in (2004) 6 SCC 588 in this case, this Court considered the question of regularization of illegal industrial activities in the context of a violation of Master Plan and industrial activities in residential non-conforming areas of Delhi. Requisite directions were issued for closure or relocation of industrial units non-confirming with the ecological balance considering the right of a hygienic, clean and safe environment. The decision is not relevant with respect to the power and authority of the Monitoring Committee to act.

42Copy pinpoint42. It is pertinent to mention here that earlier this Court in the same matter passed an order reported in (2013) 16 SCC 336 whereby sent all the matters from Supreme Court to the High Court. Since in the High Court, the progress was slow, later on, vide order dated 15.12.2017, this Court called all the matters back to this Court.

43Copy pinpoint43. No doubt about it that matter of encroachment is a matter of concern, but the Monitoring Committee can act within the four corners of powers conferred upon it and purpose for which the court appointed the Monitoring Committee. It cannot exceed its powers and take any action beyond its authorization by the court.

44Copy pinpoint44. We have gone through the various reports referred to by the learned Amicus Curiae and other learned counsel concerning sealing. They reflect the following position: H

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REPORT NO.1 A

45Copy pinpoint45. Report No.1 dated 13.4.2006 submitted by the Monitoring Committee, is captioned under Para 1, which is extracted hereunder: “PRELIMINARY REPORT OF THE MONITORING COMMITTEE FOR SEALING OF COMMERCIAL ESTABLISHMENTS IN RESIDENTIAL PREMISES B

1. The Hon’ble Supreme Court of India vide its order dated 24th March 2006 had appointed a Monitoring Committee comprising of Sh.K.J. Rao, Former Advisor to Election Commission, Sh. Bhure Lal, Chairman, E.P.C.A. and Maj. General (Retd.) Som Jhingon, Kirti Chakra, VSM to monitor the sealing of commercial establishments in residential premises in Delhi. The Municipal Corporation of Delhi (MCD) had informed the members of their appointment as Members of the Monitoring Committee on 28th/30th March, 2006. Sh. Bhure Lal & Sh. K.J. Rao took charge of office on 29th March 2006 and had a meeting with the officers of the Municipal Corporation of Delhi and Senior Advocates of MCD.” REPORT NO.2

46Copy pinpoint46. In Report No.2 dated 6.5.2006 submitted by the Monitoring Committee, is captioned as under: E “REPORT NO.2 OF THE MONITORING COMMITTEE FOR SEALING OF COMMERCIAL ESTABLISHMENTS IN RESIDENTIAL PREMISES” The Report is with respect to the sealing of commercial F establishments in residential premises. Certain suggestions were made with respect to roads measuring 80 ft. wide and above, mixed land use and payment of conversion charges, zonal plans, parking, vacant commercial units built by Delhi Development Authority, and Banquet halls. Following is the Executive Summary of the Report: “EXECUTIVE SUMMARY G

20. Taking into consideration the above factual position, the Monitoring Committee recommends the Hon’ble Supreme Court kindly to consider to direct:

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A a. The MCD to recover from the beneficiaries, where mixed land use has been allowed, the conversion and parking charges together with interest thereon from the date of the notification allowing mixed land use of the premises besides revising the conversion charged fixed by the MCD in 1992. B b. The MCD to ensure that Front Setbacks are surrendered by the beneficiaries of mixed land use streets, as laid down in Clause 8(4) of the Master Plan 2001. c. The MCD to complete the sealing operations in respect of identified roads having width of 80 ft & above and to take up thereafter the sealing operations in respect of roads having width of 60 ft. & above after giving a Public Notice, as has been done in the case of roads of 80 ft width and above. d. The Ministry of Urban Development – Govt. of India to approve and notify the draft Zonal Plans already prepared and pending with the DDA in respect of the remaining nine zones wherein mixed land use roads have already been identified for which not more than 15 days time is required. Simultaneously the work regarding the survey and preparation of Draft Zonal Plans in accordance with the Master Plan 221 may continue.

E e. The Ministry of Urban Development – Govt. of India to modify its Notification dated 28th March 2006 based on the suggestions given by the Committee in paras 17, 18 & 19 above. f. Govt. of NCT of Delhi and all the local bodies to ensure the implementation of the parking policy.” F REPORT NO.3

47Copy pinpoint47. Report No.3 dated 23.5.2006 is again for sealing the “commercial establishments in the residential premises”. It has the reference with respect to the commercial establishments carrying out commercial activities at their premises. It also has a reference to the G Delhi Laws (Special Provisions) Act, 2006. Some explanations are also in the report concerning the de-sealing of commercial establishments. REPORT NO.4

48Copy pinpoint48. Report No.4 dated 24.5.2006 is again CAPTION as Report No.1. The report is concerning the “commercial establishments” as H

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mentioned in Para 2 such as automobile showrooms, Automobile A workshops, Branded showrooms, call centers, coaching institutes, business offices, building materials, go-downs, tent houses, guest houses, jewellery shops, restaurants and iron and steel shops. The report has a mention of “small shops”, which deals with private activities in “residential areas” such as Vegetable/ fruits/ flowers, bakery items, kirana, stationery, B cybercafé, barber shop, chemist shops, etc. The report further states about “prohibited commercial activities in residential areas,” such as banquet halls, storage, go-downs, junk shops, liquor shops, printing, dyeing, and varnishing, etc.

49Copy pinpoint49. Bistro Village is situated at Hauz Khas. In para 17, it is mentioned that it is an urban village where permitted land use for the area is residential, and no commercial activity within the village can be permitted. It was observed that a major part of the village is full of commercial activities, even though no commercial activity was permitted in Hauz Khaz village, which is a residential area. The report also mentions commercial activities in unauthorized colonies like Madhu Vihar, where area earmarked for a Community Centre, Health Centre, and other community facilities has encroached. The report was relating to “commercial use in the residential premises”. It was also mentioned that there is an encroachment of the monument on public land. REPORT NO.5 E

50Copy pinpoint50. Report No.5 dated 20.9.2006 CAPTION as Report No.1, following facts have been mentioned: “9. Commercial Activity in Unauthorised Colonies on Encroached Public Land – Madhu Vihar: In Its Report No. 4, the Monitoring Committee reported to the Hon’ble Supreme Court F regarding commercial establishments on encroached public land in many unauthorized colonies pending regularization. Examples of Madhu Vihar and New Ashok Nagar were given in the said Report. The photographs enclosed as Annexure ‘E’ with the said Report clearly show the extent of commercial activities on the G encroached public land even on the roads of 80’ and above in Madhu Vihar. The Monitoring Committee visited Madhu Vihar on 19 th September 2006 and noticed that in the entire colony commercial activities have almost been stopped and hectic activities going on for conversion of those places as residential houses. The H

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A entire commercial area has again been photographed. The photographs now taken on 19th September 2006 are enclosed. Development Notification, dated 7 th September, 2006, the Government of NCT of Delhi had notified such streets/stretches (Number not Indicated) by way of a Notification No.149, dated 15 th September, 2006. It had further been stated that the B Government of India and the Government of NCT of Delhi have enacted the notifications under the powers conferred to them under the DDA Act and that they are valid and constitutional. The Commissioner MCD concluded that “what amounted to mis- user prior to the above Notifications cannot be termed as mis- C user at the present point of time to the extent provided for in the Notifications. The Hon’ble Supreme court of India has directed the MCD to take sealing action in case of mis-user. Thus, to the extent mis-user continues after the above Notifications, the same will be sealed as per the directions of the Hon’ble Supreme Court”. A copy of the Note of the Commissioner, MCD is enclosed herewith D and marked as Annexure ‘C’.

6. As the Notification No.149, dated 15th September, 2006 referred to in the Note of the Commissioner, MCD had not been received by the Monitoring Committee till 11 A.M. on 18th September, 2006, a letter was sent to the MCD for a copy of the same. The E Commissioner MCD informed the Monitoring Committee to say that they had received only the first eight pages of the Notification and that the full text of the Notification would be available only by the evening of 18th September, 2006. A copy of the Notification, dated 15th September, 2006, has finally been received by the F Monitoring Committee at 6 P.M. on 19th September, 2006.

7. The Monitoring Committee would submit to the Hon’ble Supreme Court that the rationale and the stand taken by the MCD on sealing operations Vide its Note, dated 16th September, 2006 is different from the stand earlier taken by it on the 15th September, G 2006, in the meeting of the Monitoring Committee with the Commissioner and other officers of the MCD, which is somewhat surprising. The Monitoring Committee further submits that as per the sealing programmes received from the MCD, the sealing operations are being done by the MCD as per the stand taken by it in its Note, dated 16th September, 2006. Accordingly, sealing H

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operations are being done in areas/roads which herewith and collectively marked as Annexure ‘D’. A comparison of these two sets of photographs show the extent of change of face of the commercial area. The Monitoring Committee brings it to the notice of the Hon’ble Court that any building having commercial activity on any encroachment of ‘public property is not eligible for regularization. Para 1.1 (b) of the Revised Guidelines for regularization of unauthorized colonies as framed by the Govt. of NCT Delhi provides that colonies /parts of ‘colonies which pose hindrances in the provision of infrastructure facilities would not be considered for regularization. As already mentioned in its Report No. 4 the Monitoring Committee had brought to the kind notice of the Hon’ble Supreme Court that as per the zonal plan entire encroached area is meant for development as Community Center, Medical Center and Public Utility facilities. Further para 1.1(d) of the said guidelines provides that no regularization will be done in respect of the buildings used for commercial purposes except for petty shops upto 50 sqm. DDA has not taken cognizance of these violations on encroached public land. In view of the foregoing, the Monitoring committee reiterates its recommendations to the Hon’ble Supreme Court to direct the DDA to take immediate action, in a phased manner, to demolish all such buildings having commercial activities on encroached public land in all colonies in E Delhi.” REPORT NO.6

51Copy pinpoint51. In Report No.6 dated 22.9.2006 by the Monitoring Committee, the following facts have been mentioned: F “3. The Monitoring Committee, in addition, would like to bring it to the kind notice of the Hon’ble Court that despite clear instructions from the Monitoring Committee to carry out the sealings colony- wise instead of road-to-road basis, in respect of prohibited activities in residential areas, the MCD had issued contrary orders to the Sealing Teams of various zones to carry out the sealings in parts G in various colonies in the zone without completing the work in a particular colony at a time. The reasons and the rationale for this changed action not in consonance with the directions of the Monitoring Committee are not known.” H

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A REPORT NO.7

52Copy pinpoint52. In Report No.7 dated 27.9.2006 the CAPTION remains the same as Report No.1, the following facts have been mentioned: “1. The Monitoring Committee has, in its Report No.4 recommended the perception of a small shop, in which 19 B commercial activities have been mentioned. The Monitoring Committee has inadvertently omitted the following activities which may kindly be considered for inclusion in the said list:- a. Cable TV/ DTH operations;

C b. Hosiery/ Readymade Garments/ Cloth Shops; c. ATM; 1.1 The Monitoring Committee further recommends that the Hon’ble Court may kindly consider to fix a date before which the owners of the small shops should get themselves registered after depositing the conversion charges and getting the Building Plans revised.

2. Similarly, the Hon’ble Court may kindly consider to fix a date before which owners of the shops under mixed land use/ commercial use get themselves registered after depositing the conversion charges and getting the Building Plans revised.” REPORT NO.8

53Copy pinpoint53. In Report No.8 dated 17.10.2006, the ‘CAPTION’ remains the same as Report No.1. The report states meeting with the Commissioner of Police, Delhi, and sealing programme in unauthorized colonies. REPORT NO.16

54Copy pinpoint54. Report No.16 dated 23.11.2006 is regarding the sealing of “CTC Plaza” at Kilokhri, Ring Road. It is a “branded showroom” of diamond jewellery, sarees, costumes, readymade garments, etc. It has been used for commercial activity. REPORT NO.31

55Copy pinpoint55. In Report No.31 dated 2.3.2007 ‘CAPTION’ is the same as Report No.1, the following facts have been mentioned by the Monitoring H Committee:

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“2. The Monitoring Committee brings it to the kind notice of the A Hon’ble Supreme Court that following establishments are not covered by the Master Plan 2021: (a) Commercial activities on encroached public land; (b) Commercial activities on floors other than ground floor in notified Mixed Land Use Roads/ Pedestrian Roads; B

(c) Prohibited commercial activities in residential and Mixed land use areas mentioned in para 15.6.2 of Master Plan Delhi-2021; (d) Commercial activities in basements in residential areas; (e) Commercial establishments on roads other than the 2183 roads C notified as Mixed Land Use or Commercial or Pedestrian roads by Notifications dated 7th September and 15th September 2006 for which no protection is extended (however 90 days time has been provided in the Master Plan-2021 for survey and to notify additional roads further to 2183 roads); D (f) Specific Commercial establishments / properties mentioned in the judgment dated 16th February 2006 of the Hon’ble Supreme Court (While disposing of the Civil Appeals, Interlocutory Applications (other than IA 22) and Special Leave Petitions in the matter, the Hon’ble Supreme Court has, in its Judgement dated E 16th February, 2006, directed that in case misuser is not stopped in the premises involved in the Civil Appeals and Special Leave Petitions, subject to what had been stated in the Judgement, the MCD would take immediate steps to seal those premises soon after expiry of 30 days). The MCD has been requested to furnish a list of such properties which have to be sealed in terms of this F order). Specific properties mentioned in the Report No.4 dated 14th September 2006 of the Monitoring Committee (commercial establishments on encroached public land meant for public utility services), as per directions of the Hon’ble Supreme Court in its order dated 29th September 2006.” G REPORT NO.34

56Copy pinpoint56. Report No.34 dated 9.4.2017 ‘CAPTION’ is as Report No.1. Non-availability of the police force was required to carry out sealing operation in the Report. H

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A REPORT NO.38

57Copy pinpoint57. In Report No.38 dated 21.7.2007, the ‘CAPTION’ is as Report No.1. The report is with respect to the “Mixed-Use Regulations” and “Special Area Regulations” as per the MPD-2021. Regulation No.16.2 of the MPD-2021 was referred to in the report. It was also pointed out B that there should be “one shop on one plot in the residential areas”. The detail of the registration was given for small shops, professionals, commercial and other activities in the residential areas. Concerning conversion charges for mixed land use, certain suggestions were made. The report also contains the detail of the encroachment made on the public land. The report also contains in detail the provisions of the MPD- C 2021 and regarding “regularization of unauthorized colonies” on “encroached public land” of “Gram Sabha”, acquired land, “DDA land”, “MCD land”, “Forest land”, etc. It was pointed out that total encroachments on public land is “26,830 Bigha 17 Biswas”. “Unauthorized colonies which have come up on the public land” were having D “commercial activities” also. REPORT NO.43

58Copy pinpoint58. Report No.43 dated 5.10.2007 ‘CAPTION’ is the same as in Report No.1. It is apparent from the entire Report No.43 that it was concerning payment of conversion charges for small shops, “mixed use” E and “commercial activities” registered. The report further states regarding go-downs in rural areas and “encroachment” of Raj Vidya Kender upon the “public land”. REPORT NO.46

59Copy pinpoint59. Report No.46 dated 12.11.2007 was filed concerning IAs regarding sealing of premises of the ICICI ‘Bank’ Limited at New Friends Colony, various “business schools and institutions, physiotherapy and wellness centers/hotels at the Kailash Colony” area where “residential premises have been used for the commercial activities”. REPORT NO.47 G

60Copy pinpoint60. Report No.47 dated 5.12.2007 was submitted concerning various IAs filed in this Court with respect to sealed premises of Small Shops Traders Welfare Association. The Monitoring Committee observed concerning Vidhata Estates Private Limited that it was running “commercial activities in building.” The Monitoring Committee observed as under:

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“In view of the foregoing, the Monitoring Committee submits that the applicant, who is running commercial activities in a building on a part of the plot abutting a non-notified road, with unauthorized constructions and having no legal access to the notified road, is not entitled to any relief in the matter.” (emphasis supplied) B

61Copy pinpoint61. Some hotels, guest houses, other commercial premises, business schools, etc. were also mentioned. “None of the items” is for “purely residential premises”. The Monitoring Committee further observed: “The MCD has already been informed by the Monitoring Committee that industrial units in residential areas do not fall under C its purview and the same may be sealed or de-sealed as per the directions of the Monitoring Committee constituted by the Hon’ble Supreme Court for the purpose.” REPORT NO.75 D

62Copy pinpoint62. Report No.75 dated 1.1.2020 is concerning the “commercial activities” and unauthorized construction by “Reebok Showroom”, “Hotel” West End Inn, Central Plaza, NH 8, and “Rangapuri” Extension.

63Copy pinpoint63. Concerning ensuring the implementation of the Master Plan of Delhi, 2021 (MPD-2021), in its true spirit, all “commercial activities in residential premises” are identified and removed. Following facets have been mentioned by the Monitoring Committee in its Report: “2. SPECIAL SUBMISSION OF THE MONITORING COMMITTEE The Monitoring Committee submits that the Committee has been appointed by the Hon’ble Supreme Court to ensure implementation of its orders in the matter after taking into consideration large scale commercialization of residential premises. By various orders, the Hon’ble Supreme Court laid down the guidelines and also ensured that the Government brought out the Master Plan of Delhi, 2021. The Monitoring Committee has tried to ensure the implementation of MPD-2021 in its true spirit by ensuring that all commercial activities in residential premises are identified and removed. Some important facets are:

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A 1. Admissibility of only one small shop on a plot in residential premises

2. Re-survey of classified roads. Many roads which do not qualify to be notified either as MLU/ Commercial Road even as per the MCD survey, have not been de-notified despite the B assurance given by the MCED to the Hon’ble Supreme Court and several reminders by the Monitoring Committee. In one case a single property in A & B Colony (A-4 Sarvodaya Enclave) has been clubbed with E&F Colony and notified as commercial road in blatant violation of the MPD-2021, by an amendment to the Notification dated 15th Sept 2006). C

3. Commercialization in Rural & Urban Villages.

4. Encroachment of public land by the traders.

5. Non sealing of commercial activities in non-permissible premises like D-1, D-1A & D-18, Green Park Min Market, Jahaz Mahal D (Mehrauli) Shiva Market in a DDA Pak in Rohini Zone etc.

6. Parking & free circulation on commercial roads.

7. Breaking of seals in more than 70 reported cases in just two Zones of MCD, in which action has not been initiated for contempt of court proceedings.” E REPORT NO.85

64Copy pinpoint64. In Report No.85 dated 4.4.2011, ‘CAPTION’ is the same as in Report No.1. A complaint was made by the Monitoring Committee as to the order of the Lt. Governor of Delhi for “de-sealing” some of the F establishments under “commercial/ mixed land use” in violation of orders of this Court. The details of “construction on public land” by Dr. Lal Path Labs, 54, Hanuman Road, and encroachment on public land, unauthorized construction, and misuse of “shops/flats in Khan Market” area was concerned. G REPORT NO.103

65Copy pinpoint65. In Report No.103 dated 12.4.2016, it was pointed out that pursuant to remitting the cases by this Court to the Delhi High Court, various difficulties in the implementation of the order were pointed out. The details were given with respect to the hearing of the cases by the H Delhi High Court and progress on disposal of appeals before the Tribunals.

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The details of de-sealing of properties in the unauthorized colony, village A & abadi area (including urban villages constructed on public land) were given. The details were given about the refusal of the Standing Committee of the erstwhile MCD to de-notify 140 Roads in Shahdara North, Rohini, Central, South, and West Zones resurveyed. Violations of the orders dated 3.1.2012 and 30.4.2013 by various commercial establishments were pointed out and other facts regarding interference of Lt. Governor of Delhi in the sealing matter of Dr. Lal Path Labs Pvt. Ltd. etc. and unauthorized construction on Government and public land were given thus: “The Monitoring Committee would submit to the Hon’ble Court that the Municipal Authorities, NDMC and DDA are lax in the performance of their duty with respect to unauthorised construction and encroachment on public/ govt. land. The public at large is violating the laid down orders i.e. Building Bye Laws and Master Plan etc. The fear factor with respect to the punitive action by the Authorities is totally missing from the public mind thereby creating a chaotic situation on the ground in whole of Delhi. The officers concerned are not performing there assigned duties. The DDA has not been able to safe guard/ protect its land and there is rampant encroachment. The DDA must as a policy make a boundary wall to protect the land from any type of encroachment and also carry out regular inspection of their land holdings.” E

REPORT NO.104

66Copy pinpoint66. Report No.104 dated 30.10.2017 deals with the “conversion charges” regarding “mixed use land”, de-notification of 140 roads, “unauthorized construction” on “public and Government land” and F “unauthorized colonies were being constructed by way of encroachments in the Government land”. The Report further states regarding violations by commercial establishments like Delhi Cloth Mills and other institutions where “commercial shops” were built and regarding Ambassador “Hotel” etc. G REPORT NO.106

67Copy pinpoint67. In Report No.106 dated 10.1.2018 submitted by the Monitoring Committee, public land use was acquired where unauthorized structures were raised. The Monitoring Committee has mentioned the following facts: H

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A “The Monitoring Committee has finalized its plan to carry out the assigned task of sealing the unauthorized structures, eradicate misuse and remove encroachment on DDA/ Government land and making the public aware of the seriousness of their crime for any illegal act in this process. Retrieval of DDA land and Forest land is the priority task set by the Monitoring Committee.” B REPORT NO.111

68Copy pinpoint68. In Report No.111 dated 7.2.2018 concerning E-5A, Hauz Khaz Market, New Delhi, it was submitted that the same falls under Shops- cum-Residential use, not as a Local Shopping Centre. The Report was C regarding “use of basement for professional activities in residential premises”. It further dealt with the “encroachments on the public land” and submits that the “commercial activities are not permitted in the converted shops cum residence”. REPORT NO.112

69Copy pinpoint69. Report No.112 dated 9.2.2018 of the Monitoring Committee is concerning large scale “commercial activities in the residential premises” at Shahdara, South Zone. REPORT NO.114

70Copy pinpoint70. Report No.114 dated 3.4.2018 is concerning the construction E of unauthorized colonies on Gram Sabha land, acquired land, DDA land, and MCD land. It was submitted that no regularization could be done in respect of residential premises used for non-residential purposes. REPORT NO.118

71Copy pinpoint71. Report No.118 dated 7.5.2018 concerns the “Khan Market” where “verandahs were encroached and amalgamated in the shops” causing hardship to the visitors in the market. The report further states regarding encroachment of DDA land at Sanjay Market, Mangolpur Kalan in Rohini Zone and misuse of premises for commercial activities G REPORT NO.119

72Copy pinpoint72. Report No.119 dated 24.5.2018 is regarding the slow progress of the “sealing operations” in Lajpat Nagar-IV and Amar Colony- Refugee Colony, where large scale “encroachments” were made by owners/ occupants on the “Government land”. H

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REPORT NO.120 A

73Copy pinpoint73. Report No.120 dated 11.6.2018, again referred to this Court’s order dated 29.9.2006 regarding “conversion of residential user into commercial” user except with the leave of this Court. It was observed that the Government’s obligation was to ensure compliance of the order of this Court, and the Special Task Force and B the Monitoring Committee were directed to continue with its duties and responsibilities. REPORT NO.121

74Copy pinpoint74. Report No.121 dated 13.6.2018 was concerning “non- C cooperation” of the local bodies with the Sealing Officer, where after inspection, it was found that certain “rooftops” were being used as “pubs” and “dance floors” after clubbing the plots illegally. REPORT NO.124

75Copy pinpoint75. In Report No.124 dated 4.7.2018 again, a complaint was made D relating to “non-cooperation” of authorities in the sealing process as the Master Plan (MPD-2021) was under consideration. REPORT NO.125

76Copy pinpoint76. Report No.125 dated 31.7.2018 is concerning the constitution of the Special Task Force. It was pointed out that there was “non- E cooperation” by the “Special Task Force”. Details were mentioned about sealing action at Amar Colony, Lajpat Nagar, where the “tenements” built by the Government for residential purposes only were allotted to refugees in various colonies in Delhi on a lease basis. Most of them were used for “commercial activities by raising unauthorized construction” F on the Government and common land. Details about the roads were also given. REPORT NO.127

77Copy pinpoint77. Report No.127 dated 20.8.2018 was again concerning illegal/ unauthorized construction. With respect to “Burari Area” (North MCD) G the report was submitted that the area was vandalized and huge unauthorized construction has come up. Concerning “Vishwas Nagar” (EDMC), report was relating to “residential premises being used as Go- downs” and storing places for “prohibited industries,”. In Kishangarh area at South Zone, large scale unauthorized construction was reported H

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A on DDA land by way of encroachment. Similarly, the encroachment on DDA land at Karkardooma Metro Station was pointed out. At Bhatti Mines area of SDMC, “encroachment of Revenue/Forest land” was pointed out. REPORT NO.128

78Copy pinpoint78. In Report No.128 dated 5.9.2018 suggestions were made regarding permanent de-sealing norms. Dubious deviations regarding misuse of unauthorized constructions were pointed out. “Unauthorized constructions” were being raised in unauthorized colonies on the “public land”. Details were given about “encroachment on the DDA land”. C REPORT NO.129

79Copy pinpoint79. In Report No.129 dated 18.9.2018 report was furnished regarding illegal dairy running at Gokulpur, which was sealed but the seal was tampered.

D REPORT NO.131

80Copy pinpoint80. Report No.131 dated 8.10.2018 is related to the “contempt notice” issued by this Court to one of the Members of Parliament. REPORT NO.134

81Copy pinpoint81. Report No.134 was submitted concerning the “Motels/ Farm E Houses” who have constructed “pandals, shamianas, sheds,” etc. in their plots. Order dated 12.10.2018 of this Court was also stated which is extracted hereunder: “…….As an interim measure, we direct that the basement of the premises in question shall remain sealed until further orders. F Mr. Mukul Rohatgi, learned senior counsel appearing on behalf of the applicant says that no pandal will be constructed on the premises in question. In view of this undertaking, the seal on the premises may be opened. The Monitoring Committee as well as the South Delhi Municipal Corporation should give their report within ten G days. The applicant may respond to these reports within four days thereafter.”

82Copy pinpoint82. Certain violations of MPD-2021 were also pointed out to be complied with by the concerned authorities. H

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REPORT NO.144 A

83Copy pinpoint83. Report No.144 dated 11.12.2018 is in respect of the “cases pending” before the “High Court of Delhi” regarding property situated at 22A, Janpath. The report was submitted regarding “change of the land” used for “residential purposes as commercial” and the residential premises were used to run a chemist shop. Similarly, other cases were also pointed out. Regarding the 20 Point Programme (TPP) certain “allotments” of plots were made for the “residential purpose” but they were being used for the “commercial activities”. Showrooms, Restaurants, Gyms, etc. were reported to be in operation on those plots. The report further states with respect to Singla Sweets (commercial) at Madhu Vihar and Vanasthali Public School, which were constructed on public and acquired land.

84Copy pinpoint84. The order dated 7.5.2019 was pointed out time and again by the learned counsel for the parties. On 7.5.219 this Court directed the Monitoring Committee as under: D “Heard Mr. Ranjit Kumar, learned senior counsel and Amicus Curiae, and the learned senior counsel appearing on both the sides. I.A.No. 61593/2019 and 61594/2019 A question has been raised whether the Committee has the jurisdiction to decide about the premises which have been erected for residential purposes only and are not being used for commercial purposes and the buildings have not been erected and used for industrial purposes. Question is also raised whether the Committee has been empowered to take care of unauthorised construction, when they are purely for residential purpose. We request the Committee to send its opinion whether in the past, it has exercised its power and jurisdiction where the premises are only constructed and are used as residential one and there is an allegation of raising unauthorised construction or some deviation has been made in the existing structure. We request the Committee to furnish its considered opinion in this regard before this Court. *** *** *** H

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A It was also submitted that as per the provisions contained in Delhi Municipal Corporation Act, 1957 and Delhi Development Act, 1957, notification was issued by the DDA on 22.03.2016. Chapter 1 contains the provision of regularisation. Paragraph 2.27 is extracted hereunder :- B “2.27 Any building or part thereof constructed unauthorisedly with or without obtaining the Sanction/ Completion Certificate communicated thereof by a written intimation/undertaking can be regularised, if the same is within the ambit of BBL and MPD provisions by paying requisite fees and charges as per Annexure IV.” C It was also submitted that the construction is in accordance with the Master Plan and is in low density residential area. Whether it is a case of deviation or wholly unauthorised construction in view of the report of measurement, may also be gone into by the Committee and thereafter, the matter may be decided in an D objective manner, whether it can be compounded or not in accordance with the aforesaid provisions. Let the Committee decide the matter afresh within 15 days of the receipt of the report after hearing the concerned parties. Factual position from SDM may also be ascertained as he has written letter dated 03.04.2019. E As prayed for by Mr. Abhimanyu Bhandari, learned counsel, it is open to the applicants to maintain the horticulture and watering of the plants etc. For taking out the essential items etc., it is open to the applicant to apply to the Committee.” F This Court directed the Monitoring Committee to give its considered opinion specifically as to whether at any point in time in the past, it sealed any residential premises, which were not misused for commercial purposes. The Monitoring Committee kept silent on this aspect and did not cite even a single such instance. Four orders referred G to by the Monitoring Committee neither deal with the question of the power of the Monitoring Committee, nor they are relevant to the point in question.

85Copy pinpoint85. It is apparent from the various orders passed by this Court from time to time and from the various reports of the Monitoring H

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Committee that it was never authorized by this Court to take action against the residential premises that were not being used for commercial purposes. It was appointed only to check the misuser of the residential properties for commercial purposes. After that, this Court directed that the Monitoring Committee should also look into the matter of “encroachment on the public land” and “unauthorized colonies” that have come up on the public land and were wholly unauthorized without sanction. At no point in time, this Court had empowered the Monitoring Committee to act vis-à-vis to the purely residential premises.

86Copy pinpoint86. The power of sealing of property carries civil consequences. A person can be deprived of the property by following a procedure in accordance with law. The Monitoring Committee is not authorized to take action concerning the residential premises situated on the private land. If there is unauthorized construction or in case of deviation, the requisite provisions are under the DMC Act, such as sections 343, 345, 347(A), 347(B). The mode of action and adjudication under the Act is provided including appellate provisions and that of the Tribunal. It would not be appropriate to the Monitoring Committee to usurp statutory powers and act beyond authority conferred upon it by the Court. The Monitoring Committee could not have sealed the residential premises, which were not misused for the commercial purpose as done vide Report No.149, nor it could have directed the demolition of those residential properties. E

87Copy pinpoint87. Article 300A of the Constitution provides that nobody can be deprived of the property and right of residence otherwise in the manner prescribed by law. When the statute prescribes a mode, the property’s deprivation cannot be done in other modes since this Court did not authorize the Committee to take action in the matter. An action could have been taken in no other manner except in accordance with the F procedure prescribed by law as laid down in the decisions referred to at the Bar thus: (a) State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, wherein this Court observed: G “59. ….In absence of any substantive provisions contained in a parliamentary or legislative act, he cannot be refrained from dealing with his property in any manner he likes. Such statutory interdict would be opposed to one’s right of property as envisaged under Article 300-A of the Constitution.” H

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A (b) K.T. Plantation Pvt. Ltd v. State of Karnataka (2011) 9 SCC 1 in which it was opined: “168. Article 300-A proclaims that no person can be deprived of his property save by authority of law, meaning thereby that a person cannot be deprived of his property merely by an B executive fiat, without any specific legal authority or without the support of law made by a competent legislature. The expression “property” in Article 300-A confined not to land alone, it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognised by law.

C 169. This Court in State of W.B. v. Vishnunarayan and Associates (P) Ltd.6, while examining the provisions of the West Bengal Great Eastern Hotel (Acquisition of Undertaking) Act, 1980, held in the context of Article 300-A that the State or executive officers cannot interfere with the right of others unless they can point out the specific provisions of law which authorises D their rights.” (emphasis supplied) (c) In T. Vijayalakshmi v. Town Planning Member, (2006) 8 SCC 502, the Court observed: E “13. Town Planning legislations are regulatory in nature. The right to property of a person would include a right to construct a building. Such a right, however, can be restricted by reason of a legislation. In terms of the provisions of the Karnataka Town and Country Planning Act, a comprehensive development plan was prepared. F It indisputably is still in force. Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act. As noticed hereinbefore, the State has called for objection from the citizens. Ecological balance G no doubt is required to be maintained and the courts while interpreting a statute should bestow serious consideration in this behalf, but ecological aspects, it is trite, are ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the field, ecological aspects have not been taken into H 6 (2002) 4 SCC 134

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consideration keeping in view the future need, the State and the A Authority must take the blame therefor. We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the parties cannot be intermeddled with so long as an appropriate amendment in the legislation is not brought into force. B

15. The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute C but unless there exists a clear provision the same cannot be taken away. ….” (emphasis supplied) (d) In the matter of State of U.P. v. Manohar (2005) 2 SCC 126, D this Court observed: “7. Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution, E which reads as follows: “300-A. Persons not to be deprived of property save by authority of law.—No person shall be deprived of his property save by authority of law.”

8. This is a case where we find utter lack of legal authority for F deprivation of the respondent’s property by the appellants who are State authorities. …” (e) In Delhi Airtech Services (P) Ltd. & Anr. v. State of U.P. & Anr. (2011) 9 SCC 354, this Court held: “83. The expression “law” which figures both in Article 21 and G Article 300-A must be given the same meaning. In both the cases the law would mean a validly enacted law. In order to be valid law it must be just, fair and reasonable having regard to the requirement of Articles 14 and 21 as explained in Maneka Gandhi. This is especially so, as “law” in both the Articles 21 and 300-A is H

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A meant to prevent deprivation of rights. Insofar as Article 21 is concerned, it is a fundamental right whereas in Article 300-A it is a constitutional right which has been given a status of a basic human right.” (f) It was further argued that planning laws are expropriatory and should be strictly construed, and any ambiguity is to be construed in favour of the property owner as laid down in Delhi Airtech Services (P) Ltd.v. & Anr. v. State of U.P. & Anr. (supra) thus: “129. Statutes which encroach upon rights, whether as regards person or property, are subject to strict construction in the same way as penal Acts. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights and if there is any ambiguity, the construction which is in favour of the freedom of the individual should be adopted. (See Maxwell on The Interpretation of Statutes, 12th Edn. by P. St. J. Langan.)

D 130. This Court in Devinder Singh7 held that the Land Acquisition Act is an expropriatory legislation and followed the case of Hindustan Petroleum Corpn. v. Darius Shapur Chenai8. Therefore, it should be construed strictly. The Court has also taken the view that even in cases of directory requirements, substantial compliance with such provision would be necessary.” E (emphasis supplied) (g) In Ramchandra Ravindra Waghmare v. Indore Municipal Corporation, (2017) 1 SCC 667, it was opined: “67. It was also submitted that town planning and municipal F institutes are regulating and restricting the use of private property under the aforesaid Acts. They are “expropriatory legislation”. Thus they are liable to be construed strictly as laid down in Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd.9" (h) In Chairman, Indore Vikas Pradhikaran v. Pure Industrial G Coke & Chemicals Ltd. & Ors., (2007) 8 SCC 705, it was held:

7 (2008) 1 SCC 728 8 (2005) 7 SCC 627 9 Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. & Ors.(2007) 8 SCC 705. H

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“57. The Act being regulatory in nature as by reason thereof the right of an owner of property to use and develop stands restricted, requires strict construction. An owner of land ordinarily would be entitled to use or develop the same for any purpose unless there exists certain regulation in a statute or statutory rules. Regulations contained in such statute must be interpreted in such a manner so as to least interfere with the right to property of the owner of such land. Restrictions are made in larger public interest. Such restrictions, indisputably must be reasonable ones. (See Balram Kumawat v. Union of India10; Krishi Utpadan Mandi Samiti v. Pilibhit Pantnagar Beej Ltd.11 and Union of India v. West Coast Paper Mills Ltd.12) The statutory scheme contemplates that a person and owner of land should not ordinarily be deprived from the user thereof by way of reservation or designation.

58. Expropriatory legislation, as is well-known, must be given a strict construction.” (i) In State of Gujarat v. Shantilal Mangaldas & Ors., (1969) D 1 SCC 509, it was held: “55. …… Once the draft town-planning scheme is sanctioned, the land becomes subject to the provisions of the Town Planning Act, and on the final town-planning scheme being sanctioned, by statutory operation the title of the various owners is readjusted and the lands needed for a public purpose vest in the local authority. Land required for any of the purposes of a town planning scheme cannot be acquired otherwise than under the Act, for it is a settled rule of interpretation of statutes that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all:” (emphasis supplied) (j) In Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111, it was opined: G “40. The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same 10 (2003) 7 SCC 628 11 (2004) 1 SCC 391 12 (2004) 2 SCC 747 H

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A must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.” (emphasis supplied) (k) In Shrirampur Municipal Council v. Satyabhamabai B Bhimaji Dawkher (2013) 5 SCC 627 it was held: “43. …… This is the reason why time-limit of ten years has been prescribed in Section 31(5) and also under Sections 126 and 127 of the 1966 Act for the acquisition of land, with a stipulation that if the land is not acquired within six months of the service of notice under Section 127 or steps are not commenced for acquisition, reservation of the land will be deemed to have lapsed. Shri Naphade’s interpretation of the scheme of Sections 126 and 127, if accepted, will lead to absurd results and the landowners will be deprived of their right to use the property for an indefinite period without being paid compensation. That would tantamount to depriving the citizens of their property without the sanction of law and would result in violation of Article 300-A of the Constitution.” (emphasis supplied)

88Copy pinpoint88. It is quite apparent that particularly when the Monitoring E Committee is not empowered to take action, the incumbents could not have been deprived of the due process of protection in accordance with law. As against the action of the Monitoring Committee, no appeal lies elsewhere. Even High Court is not authorized to entertain any matter and scrutinize its action, such is the drastic step taken by this Court by way of an exceptional measure in public interest, and it is confined to the misuse of residential property for commercial purpose and encroachments and unauthorized construction on the public land, roads.

89Copy pinpoint89. After going through the report of the Monitoring Committee and other reports which have been relied upon by the Amicus Curiae, there is no scintilla of doubt that the Monitoring Committee in the past at any point of time did not seal any residential premises being used for residential purposes, situated on the private land nor it could have ordered demolition. The ‘caption’ of the various reports of Monitoring Committee i.e. “PRELIMINARY REPORT OF THE MONITORING COMMITTEE FOR SEALING OF COMMERCIAL H

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ESTABLISHMENTS IN RESIDENTIAL PREMISES” makes it A absolutely clear that Monitoring Committee did not entertain any doubt about the purpose for which it was constituted. Apart from that, it was authorized by subsequent orders to act with respect to unauthorized construction on the public land and roads that too, which violated the MPD-2021. B

90Copy pinpoint90. Learned Amicus Curiae raised the alternative submission that the Monitoring Committee acted bonafidely at the instance of the letter written by the Sub Divisional Magistrate. We are of the opinion that the Monitoring Committee could not have acted based on any such letter. It was not permissible for the Monitoring Committee to act in the matter. May be that it acted under some confusion created by the letter. Be that as it may. We do not want to go further into the matter of bona fide. However, it is apparent that its action was beyond the purpose for which it had been appointed.

91Copy pinpoint91. We are not going into the merits of the other submissions, whether the premises are authorized or unauthorized, can be regularized or not, compounding can be done, or whether there is any deviation made. The report of the Monitoring Committee and findings recorded by it are of no use as it had no such authority to go into the various questions. This Court did not appoint the Monitoring Committee concerning each and every residential building on private land not misused for commercial purposes and to deal with the same. In the present matter, this Court itself is monitoring the matter for a limited public purpose. It has not taken away the powers of statutory authorities under the Act concerning other matters except specified in the order.

92Copy pinpoint92. Since we have considered only the ambit of powers of the F Monitoring Committee, we have not touched with the submissions which were not relevant to decide, as raised by Mr. Govardhan.

93Copy pinpoint93. We quash Report No.149 and other reports submitted subsequently in connection with Report No.149 and entire action of sealing pursuant thereto. We also quash notices issued directing demolition where G the matter was being heard by this Court and the Monitoring Committee had no power to look into the matter and to take any action. Let the property sealed as per Report No.149 be de-sealed, and possession be restored to the owners forthwith. Let this order be complied with within three days. However, we clarify that this order does not at all mean to H

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A belittle the yeomen service done by the Monitoring Committee for protection of Delhi. We also place on record our deep appreciation for the selfless service done by Shri Ranjit Kumar, Amicus Curiae, for the last 24 years, with unflinching hard work and dedication along with his team of other Amicus in the matter. B Issue notice in IA No.64993 of 2020.

Divya Pandey Directions issued.