In this article, Nawlendu Bhushan of Campus Law Centre discusses Delhi sealing controversy.

Delhi Sealing Drive 

Delhi sealing controversy is once again in the news as the Supreme Court has revived the power of the Monitoring Committee by its order dated 15 December 2017. The Monitoring Committee was appointed by the Supreme Court to oversee the sealing of premises which are in violation of the norms of the DDA, the MCD, the Master Plan for Delhi and building bye-laws. The focus of the committee was to seal the premises where unauthorized use of residential land is being carried out and which stand in violation of municipal laws.

What is unauthorized use of residential land

In order to understand the unauthorized use of residential land, it is important to know the authorities who categorize land and regulate and control its use for a specific purpose. The Delhi Development Authority and the local Municipal bodies are two important statutory authority/body involved in this process.

The Delhi Development Authority

The Delhi Development Authority was established by the Delhi Development Act, 1957. As per section 7 of this Act, the DDA was entrusted to make a master plan for Delhi. Master plan lays down the planning guidelines, policies, development code and space requirements for various socio-economic activities supporting the city population during the plan period. It is also the basis for all infrastructure requirements.[1]

The first master plan came in 1962. This plan was to continue until 1981. After this, a new master plan was enacted. This was called the Master Plan for Delhi 2001. Currently, Master Plan 2021 is in force.

As per the 2021 plan, land use is divided into nine categories. These categories have a number of use zones which are further subdivided into use premises. Each use premises is permitted to have specific use activities out of the prescribed use activities with or without conditions.[2]

For example, a residential flat is a use activity which falls under use premises ‘Residential Plot-Group Housing’. The relevant use zone is RD i.e. ‘residential area’ and use category is ‘residential’.

For the purpose of development, the DDA marks an area as a development area.

Mixed use

The provisions for non-residential use activity in a residential premise is known as mixed use. Mixed use of residential land was first incorporated in the Master Plan 2001. In this plan, the mixed use was restricted up to 25% of the area or 50 sq meter whichever was less for certain commercial and professional activities.[3] This was amended in 2006 and the mixed use with respect to retail shops was allowed up to maximum permissible ground floor coverage.[4]

The 2021 plan regulates the mixed use activity by making a differentiated approach to it.[5] Different parts of Delhi have different norms for mixed use depending upon their socio-economic needs. Apart from prescribing what kind of commercial activities can be carried out in a residential area, the plan also regulates the percentage of the area of a residential plot which can be used for commercial activities.

Floor Area Ratio

FAR or floor area ratio is the quotient obtained by dividing the total covered area (plinth area) on all floors multiplied by 100 & divided by the area of the plot.[6] A ceiling for this ratio is set by the DDA for different land use. In 2021 plan it varies for residential plots from 350 to 200.

The Municipal Corporation of Delhi

The MCD is established as per the Delhi Municipal Corporation Act, 1957. As per section 332 of this Act, no person shall erect or commence to erect any building, or execute any of the works except with the previous sanction of the Commissioner in accordance with the provisions of the Delhi Municipal Corporation Act and of the bye-laws made under this Act in relation to the erection of buildings or execution of works.

Sanction for construction work or building activity

Sanction for construction of a building in Delhi is given by the DDA and by the MCD. In certain cases, approvals from the DMRC (Delhi Metro Rail Corporation) and the Delhi Urban Arts Commission are also needed. As per section 12 of the Delhi Development Act, in case the area is marked as development area sanction from the DDA is necessary. For an area other than a development area sanction for construction can be obtained from the local body that is MCD. Such sanction is provided only in accordance with the Building by-laws, the master plan and the Delhi Development Act and MCD Act.

Unauthorised use of residential land covers following situations:-

• Where sanction has not been obtained from the appropriate authority.
• Where sanction has been obtained but the building constructed is not as per sanctioned layout.
• Where sanction has been obtained but the commercial activities being carried out is either not permitted or covers more area than prescribed.

Root Cause of the sealing controversy

The root cause of the sealing controversy is the flagrant violation of the building bye-laws and master plan by the residents of Delhi. Commercial activities have been being carried out in residential area violating all the norms of mixed use policy and FAR. The DDA and the MCD officials responsible for enforcing these norms not only failed in their job but also connived with the violators.

In 1985, the environmentalist M.C. Mehta filed a petition in the Supreme Court that a variety of illegal activities were being carried on in Delhi with reference to industries established in residential or nonconforming areas as well as misuse of residential premises for other commercial purposes. [7]

Though the Court set up a Monitoring Committee to resolve the first issue in 2004. The second issue was heard in 2006. Considering the flagrant violation of norms regarding misuse of residential premises, the Supreme Court directed the Delhi Municipal Corporation to give wide publicity in leading newspapers of the requirement that those misusing their residential premises for commercial purposes should cease the misuse on their own. It was also directed that 30 days after the issuance of the public notices, and if the misuse is not stopped, the process of sealing the premises would start.[8]

Appointment of Monitoring Committee by the Supreme Court

Unfortunately, the public notice had no impact on the violators and the officials. Faced with this situation the Supreme Court ordered the sealing of offending premises and appointed a Monitoring Committee to oversee this. [9]

Who is empowered to seal premises

The DDA and the Commissioner of the MCD are authorized to seal premises where unauthorized construction has taken or been taking place.

Where any development in any area has been commenced in contravention of the master plan or without the permission, approval or sanction the DDA may make an order directing the sealing of such development.[10]

The Commissioner of the MCD may make an order directing the sealing of unauthorized erection or work or of the premises in which such erection or work is being carried on or has been completed.[11]

Sealing drive of 2006 and the Government’s approach

After the decision of the Supreme Court, the sealing drive was started on 28 March 2006. Traders across Delhi protested against the decision of the Court. In one of the protests, four people died of police firing.[12] The volatile situation of law and order forced the government to subterfuge the Court’s order.

To get over the orders passed by this Court, the Delhi Development Authority (DDA) modified the Master Plan for Delhi 2001 on 28th March 2006 insofar as the chapter on mixed land use is concerned. As per this notification:-

Mixed use streets were to be identified based on traffic and parking studies.

On the basis of identification mixed use may be allowed on the ground floor in residential plots.

mixed use with respect to retail shops was allowed up to maximum permissible ground floor coverage.

Professional activity was allowed up to 25% of floor area and up to one floor in case of plotted development. [13]

The Government also notified the Delhi Laws (Special Provisions) Bill, 2006 on 19th May 2006. This Act was meant to restore status quo ante to following categories:-

1. Mixed land use not conforming to the Master Plan;
2. Construction beyond sanctioned plans; and
3. Encroachment by slum and Jhuggi-Jhompri dwellers and hawkers and street vendors.[14]

This Act provided relief to traders against the fear of sealing for one year (Jan 2006-Dec 2006). After further notifications, the Act has been made operative until 31 December 2017.

Can the Parliament set aside the Supreme Court’s order

The Parliament can make a law negating the effect of the Supreme Court’s judgment subject to the competency of the Parliament i.e. whether the entry in which the law is made belongs to the Parliament. The Supreme Court can review this new law whether it is constitutional or not. For example, the Parliament passed the Muslim Women (Protection of rights on divorce) Act, 1986 to negate the effect of the Supreme Court’s judgment in the Shah Bano case.

How the sealing came to a halt

A group of public-spirited citizens challenged the legality of the Delhi Laws (Special Provisions) Act, 2006 in the Supreme Court. This case is still pending.

On 30th April 2013, the Supreme Court passed a significant judgment and order in M.C. Mehta v. Union of India. The court transferred all the writ petitions challenging the Delhi Laws (Special Provisions) Act, 2006 to the Delhi High Court and upheld its order of 3rd January 2012 restraining the Monitoring Committee from the further sealing of the premises which were under its scrutiny.[15]

Current sealing drive

The Supreme Court by its judgment and order dated 15 December 2017 once again revived the power of the Monitoring Committee to seal the premises where non-residential activities are being carried out in residential areas.

The Court has directed that the person aggrieved by the sealing of his premises may directly approach the Monitoring Committee for de-sealing after depositing an amount of INR 100000 and making a declaration to stop the misuse. Any challenge to the decision of the Monitoring Committee lies directly to the Supreme Court. The court also withdrew the writ petitions transferred to the Delhi High Court before itself for expeditious disposal.[16]

Conclusion

Rule of law is the essence of Democracy. Laws should not only be enacted but also be enforced and implemented. The sealing controversy has arisen because of non-enforcement of laws by those who have been entrusted to enforce it. A situation has arisen where the right to clean environment of the residents of Delhi stands opposite to the right to livelihood of Delhi’s traders.The Supreme Court’s approach can be summarised by this observation in order dated 16th February 2006:-

“The enormity of the problem which, to a great extent, is the doing of the authorities themselves, does not mean that a beginning should not be made to set things right.”

References[1] https://dda.org.in/planning/master_plans.htm (Date of visit 14.02.2018, time of visit 14:05 IST)

[2] Clause 17.2, The Master Plan for Delhi 2021

[3] Clause 10.0, The Master Plan for Delhi 2001

[4] Notification dated 28 March 2006, Ministry of Urban Development (Delhi Division)

[5] Clause 15.2.1, The Master Plan for Delhi 2021

[6] Handbook on development controls for residential development https://dda.org.in/tendernotices_docs/march15/re%20Dev.%20control%20hand%20book(Resdl)020516(Draft%20III)090516%20.pdf

[7] Para 2, M.C. Mehta v. Union of India dated 15 December 2017 http://supremecourt.gov.in/supremecourt/1985/63996/63996_1985_Judgement_15-Dec-2017.pdf

[8] Para 8, 12, M.C. Mehta v. Union of India dated 15 December 2017

[9] Para 13, M.C. Mehta v. Union of India dated 15 December 2017

[10] Section 31A, The Delhi Development Act, 1957

[11] Section 345A, The Delhi Municipal Corporation Act, 1957

[12] https://en.wikipedia.org/wiki/2006_Delhi_sealing_drive (Date of visit 14.02.2018, time of visit 14:10 IST)

[13] Notification dated 28 March 2006, Ministry of Urban Development (Delhi Division)

[14] Para 17, M.C. Mehta v. Union of India dated 15 December 2017

[15] Para 29, M.C. Mehta v. Union of India dated 15 December 2017

[16] Para 39, M.C. Mehta v. Union of India dated 15 December 2017