Property
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This article has been written by Varun Goel, currently pursuing LLB from Institute of Management Education (IME).

Background

There is a widespread misconception among the people of Delhi including officials of Civic Bodies (MCD/DDA/NDMC) that unauthorized constructions made prior to 1st January 2006, in violation of sanctioned building plans in authorized colonies, are universally protected from demolition or sealing because of the notification dated 20th May 2006 issued in pursuance of the Delhi Laws (Special Provisions) Act, 2006

As the subsequent discussion would show this widespread misunderstanding is absolutely baseless and is founded upon a total ignorance of the law laid down by the Hon’ble Supreme Court in a series of judgments largely reported as M.C. Mehta v. Union of India.  

This Notification of 20th May, 2006 had a very short-lived life of 80 days, as Supreme Court vide Order dated 10-8-2006, Delhi Pradesh Citizen Council Vs Union of India (2006) 6 SCC 305 ordered the Govt of India to withdraw the first 2 directions of this Notification, which were offensive to the orders of Supreme Court. The said 2 directions read as under:

“(1) The premises sealed by any local authority in pursuance of a judgement, order or decree of any court after 1-1-2006 shall be eligible to be restored, for a period of one year, with effect from 19-5-2006 to the position as was obtained as on 1-1-2006.

(2) All commercial establishments which are required to cease carrying out commercial activities at their premises by 30-6-2006, may continue such activities at such premises, as they were being carried out on 1-1-2006 for a period of one year with effect from 19-5-2006.” 

As a background, sometime in the year 2002, Supreme Court took up cudgels against the widespread violations of Sanction Plans and Buildings Bye-laws in Delhi apparently in connivance with the officials of civic authorities like Municipal Corporation of Delhi (MCD), Delhi Development Authority (DDA), New Delhi Municipal Corporation (NDMC), etc. This unholy nexus between violators/unscrupulous builders and civic officials poses a threat to the fundamental right of “Protection of life and personal liberty” of ordinary law-abiding citizens guaranteed under Article 21 of the Constitution of India. These unauthorized constructions/misusers also demonstrate that the State has abdicated its responsibility of providing a healthy environment to its citizens under Article 48A of the Constitution of India. The Hon’ble Supreme Court, being the Protector of the Constitution, has since continued this crusade relentlessly without a let-up.

Supreme Court orders in the year 2006 directing demolition of unauthorized constructions

In the year 2006, the Supreme Court passed an order dated 10th February 2006 [M.C. Mehta Vs Union of India (2006) 3 SCC 399] directing the above civic authorities to demolish all such unauthorized constructions made in violation of sanctioned building plans in authorized colonies and other violations.

The government of the day, looking at the vastness of the problem and the wholesale violations of the civic laws, sought time from the Supreme Court, so that they could tackle this problem, if necessary, by amending the building bye-laws, including amendment of Master Plan of Delhi. But the Supreme Court did not oblige.

The Delhi Laws (Special Provisions) Act, 2006 [“2006 Act”]

On 19th May, 2006, the government notified the 2006 Act seeking to undo the demolition orders passed by the Supreme Court.

On the very next day, that is, on 20th May, the government issued the alleged notification under the 2006 Act and attempted to put the clock back and sought to neutralize the orders of the Supreme Court (directing demolition/stoppage of misuser) by stating that all orders of demolitions/stoppage of misuser issued by Supreme Court will stand cancelled and will be of no consequence, thereby restoring all unauthorized constructions/ misusers to the position as obtaining on 1-1-2006. In other words, the 2006 Act and the Notification dated 20-5-2006 provided complete carte blanche to the violators and unscrupulous builders, that too under a law passed by Parliament!!!

Supreme Court order dated 10th August, 2006 [(2006) 6 SCC 305]

This notification dated 20-5-2006 was immediately challenged before the Supreme Court. Vide order dated 10th August, 2006, the Supreme Court stayed the first two directions of this notification, namely:

“(1)  The premises sealed by any local authority in pursuance of a judgement, order or decree of any court after 1-1-2006 shall be eligible to be restored, for a period of one year, with effect from 19-5-2006 to the position as was obtaining as on 1-1-2006.

(2)   All commercial establishments which are required to cease carrying out commercial activities at their premises by 30-6-2006, may continue such activities at such premises, as they were being carried out on 1-1-2006 for a period of one year with effect from 19-5-2006.” 

The Supreme Court quashed both these directions of the ill-fated notification dated 20th May 2006 and directed the government to withdraw these 2 directions of notification dated 20th May 2006 and withdraw protection given to such constructions in terms of Section  3(4) of the 2006 Act. 

In the meantime, the Supreme Court directed MCD, DDA, NDMC to continue with demolitions/ sealing of unauthorized constructions covered above.

In compliance with Supreme Court’s directions, the Central Government withdrew notification dated 20th May, 2006 and issued Notification dated 07.09.2006 and subsequent Notification dated 15.09.2006. 

Both of these notifications did not contain any reference to the unauthorized constructions/ misuser in legally sanctioned colonies pre-1-1-2006. They dealt with only commercial misuse of residential properties, for which mixed-use streets were notified. The issue dealt with herein has nothing to do with the subject-matter of Notification dated 7-9-2006 and Notification dated 15-9-2006.

Supreme Court’s Order Dated 29th September 2006 [M.C. Mehta Vs Union of India (2006) 7 SCC 456]

Subsequently, in the order dated 29.09.2006, Supreme Court gave certain directions with regard to mixed-use streets, namely, residential buildings where some part of the residential building can be used for commercial purposes subject to payment of relevant charges and in accordance with the modified Master Plan of Delhi. 

In this order dated 29.09.2006 also, the Supreme Court reiterated its direction to continue with demolitions/ sealings of unauthorized constructions pre 1-1-2006 in violation of sanctioned building plans in legally sanctioned colonies.

Legislative Action After 2006 Act

Subsequently also, the Supreme Court has continued with these directions. This Act of 2006 was only for one year. Accordingly, the government came out with the 2007 Act, which repealed the 2006 Act. 

This 2007 Act did not even mention the subject of pre 1-1-2006 unauthorized constructions/ misusers in violation of sanctioned building plans in authorized colonies. 

Subsequently, this Act has been extended from time to time by one year initially. 

In 2011, it was extended for 3 years until 2014. In 2014, it was again extended for 3 years upto 2017 and likewise.

Supreme Court judgment dated 30th April,2013 [M.C. Mehta v. Union of India (2013) 16 SCC 336] 

Here again in the case, Supreme Court continued with the directions issued vide earlier orders including that the properties already sealed will continue to be sealed. The violators/unscrupulous persons whose properties were sealed could file appeal against such an order before respective statutory Tribunals. In the event of Tribunals granting any relief to the violators, MCD/DDA/NDMC were at liberty to file writ petitions before High Court challenging Tribunal order granting relief to violators. In one case, Delhi High Court had stayed the sealing action by DDA. The Supreme Court stayed the order of Delhi High Court and allowed the sealings to continue!!! 

Unauthorized use of Basements

As per various versions of Master Plan of Delhi issued from time to time, Basements can be used only for any of the following authorized uses:

i. As Godown for Storage purposes

ii. As the office of professional [Doctor/Lawyer/Chartered Accountant] provided the concerned professional resides on any floor of the same building [other than Basement].

There is no protection from sealing of basement if it is used for any purpose other than the above 2 permitted uses. As an example, the Basement used for residence has to be straightaway sealed, no argument of pre 1-1-2006 construction is available. 

Supreme Court’s judgment dated 14th August 2020 [M.C. Mehta v. Union of India 2020 SCC OnLine SC 648]

In a comprehensive judgment dated 14.08.2020, the Supreme Court extensively covered the history of this issue right from 2002 and referred to all the orders passed by the Supreme Court and High Court also and came to the following conclusions:

  1. The Monitoring Committee of the Supreme Court would have jurisdiction to take care of commercial use of residential property.
  2. In all other cases of violations of municipal laws, MCD, DDA, NDMC had to take action as per their respective statutes, namely MCD Act, DDA Act, and NDMC Act. 

Conclusion

The above discussion would show that this notification dated 20th May, 2006 was withdrawn in terms of directions of the Supreme Court in order dated 10.08.2006. In all subsequent notifications and laws, the subject of unauthorized construction in violation of sanctioned building plans in legally sanctioned colonies is conspicuous by its absence. Rather, the Supreme Court has repeatedly re-emphasized the sealings/ demolitions in authorized colonies which were unceremoniously sought to be stayed by that short-lived Notification of 20th May 2006.  In other words, that Notification dated 20-5-2006 does not exist at all!!! 

Therefore, as on date or, shall we say, right from 1-1-2006, whether prior to this date or after this date; MCD is under a legal duty to demolish/seal, suo moto, any unauthorized construction/ misuser in violation of sanctioned buildings in legally authorized colonies in accordance with the MCD Act, 1957. Performance of that legal duty becomes all the more inescapable, as and when specific instances of such violations/misusers are pointedly brought to the notice of MCD authorities. At this stage, MCD is under legal duty and obligation to go about the task of ensuring the demolitions/sealing of misusers by following the usual procedural requirements of giving show cause notice to the violators/unscrupulous persons, hearing their objections, and pass a speaking order aimed at enforcing the law. If the violators/unscrupulous builders are still aggrieved by such punitive orders passed by MCD authorities the violators are at liberty to prefer statutory appeal before the MCD Tribunal.

This requirement is plainly in compliance with Article 300A of the Constitution of India which says that nobody will be deprived of his or her property save with the authority of law. Those laws are DDA Act, MCD Act, and NDMC Act, as clarified by the Supreme Court. 

Meaning of Supreme Court’s judgment  dated 14th August 2020 [M.C. Mehta v. Union of India 2020 SCC OnLine SC 648 [as understood by MCD]

The Supreme Court has only clarified that the only area under the jurisdiction of the Monitoring Committee is a misuse of Residential properties for commercial purposes, all other violations/misusers are within the domain of MCD. MCD has perhaps misconstrued this judgment as a much-awaited sigh of relief for conniving with the violators/misusers and not taking any punitive action against violators/misusers. The Damocles sword of Monitoring Committee no longer dangling over its head, the MCD is living in a cuckoo land of its own making that the hunter of Monitoring Committee away, it can treat non-protection of law to violators/misusers as protection of law to violators/misusers simply because it [MCD] will not be discharging its statutory duty of punishing the violators/misusers, because of its active connivance with the violators/misusers. This is exactly what the anguish of the Supreme Court was as expressed in the following words in M.C. Mehta v. Union of India, (2006) 3 SCC 399 dated 16-2-2006:

“61. Despite the passing of the laws and repeated orders of the High Court and this Court, the enforcement of the laws and the implementations of the orders are utterly lacking. If the laws 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, therefore, necessary to also identify and take appropriate action against officers responsible for this state of affairs. Such blatant misuse of properties at a large-scale cannot take place without the connivance of the officers concerned. It is also a source of corruption. Therefore, the action is also necessary to check corruption, nepotism, and total apathy towards the rights of the citizens. Those who own the properties that are misused have also implied responsibility towards the hardship, inconvenience, suffering caused to the residents of the locality, and injuries to third parties. It is, therefore, not only the question of stopping the misuser but also making the owners at default accountable for the injuries caused to others. Similar would also be the accountability of errant officers as well since, prima facie, such large-scale misuser, in violation of laws, cannot take place without the active connivance of the officers. It would be for the officers to show what effective steps were taken to stop the misuser.”

References

  1. Refer to the Delhi Laws (Special Provisions) Act, 2006 here.
  2. Refer to the National Capital Territory of Delhi Laws (Special Provisions) Ordinance, 2007 here.
  3. Refer to the Supreme Court judgment dated 10th August, 2006 here.
  4. Refer to the Supreme Court judgment dated 29th September 2006 here.
  5. Refer to the Supreme Court judgment dated 30th April, 2013 here.
  6. Refer to the Supreme Court judgment dated 14th August 2020 here.

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