M.C. Mehta vs Union Of India & Ors

With regard to commercial use of premises in residential areas, it has been more than three years, i.e., 30th September, 2002 when the order was made directing respondents to file reply. In fact, the question of misuse of residential premises for commercial purposes was taken up even earlier as is apparent from the orders dated 31st July, 2001 and 20th February, 2002. By order dated 31st July, 2001 passed in Writ Petition No.725 of 1994 titled News Item AQFMY v. Central Pollution Control Board, the Court directed that :

MCD, in reply, filed in April 1995, i.e., more than 10 years ago, admitted the violations and said that show cause notices had been issued under the Delhi Municipal Corporation Act, 1957 (for short, 'the DMC Act') and the Corporation was doing its best in the matter. The same was the stand of DDA. All officers being directed to file affidavits reporting as to what action had been taken, filed affidavits with reference to the properties of which instances had been given, inter alia, stating that owners had been booked and action was being taken. Similar affidavits were filed by both MCD and DDA. In March 2000, MCD filed a status report giving particulars of approximately 663 properties in Green Park Main and 407 properties in Green Park Extension stating that many properties were being used as commercial and others partly commercial. When this was the position in a small colony, one can well imagine the plight in manifold other residential colonies and of residents living in those colonies in the capital city of Delhi.

section (2) shall be disposed of by him in the manner specified in section 326.

condonable items are being issued separately.

(x) Field officers should be asked to maintain filed diaries and submit them to the Supervisory Officer regularly.

Yours faithfully, Sd/-

(Dr.Nivedita P.Haran) Joint Secretary to the Government of India Copy for information and necessary action to:

(N.L. Upadhyay)"

It seems that in view of the aforesaid judgment attaining finality, some formal or cosmetic demolition had taken place. What is the position of these properties now is evident from the affidavit dated 16th November, 2005 filed by Additional Commissioner, MCD placing on record the present status after conducting inspections in second week of November, 2005. A perusal of the status report in respect of properties referred in the aforesaid case shows large scale violations in the shape of show-rooms, commercial offices, shops, law institutes and gymnasiums. The report shows that even after a lapse of 10 years, commercial activity is in full swing. This also shows the urgent need to introduce stringent measures for fixing accountability.

Rule of law is the essence of Democracy. It has to be preserved. Laws have to be enforced. In the case in hand, the implementation and enforcement of law to stop blatant misuse cannot be delayed further so as to await the so called proposed survey by MCD. The suggestions would only result in further postponement of action against illegalities. It may be noted that the MCD has filed zonewise/wardwise abstract of violations in terms of commercialisation as in November, 2005. According to MCD, the major violation has been determined in respect of those roads where commercialisation of the buildings is more than 50%. According to it, the major violations in 12 zones are spread on 229 roads. Roads on which there are major violations are, thus, known. In respect of these, there is no need for any survey or individual notice. Beginning must be made to stop misuser on main roads of width of 80 ft. or more. The names of these roads can be published in newspapers and adequate publicity given, granting violators some time to bring the user of the property in conformity with the permissible user, namely, for residential use if the plans have been sanctioned for construction of a residential house. In case owner/user fails to do so, how, in which manner and from which date, MCD will commence sealing operation shall be placed on record in the form of an affidavit of its Commissioner to be filed within two weeks. On consideration of this affidavit, we will issue further directions including constitution of a Monitoring Committee, if necessary. The issue of accountability of officers and also the exact manner of applicability of Polluter Pay Principle to owners and officers would be further taken up after misuser is stopped at least on main roads. Civil Appeal Nos.608/2003 above referred relates to Ring Road, Lajpat Nagar-II. The other cases relate to areas like Green Park Extn., Green Park Main, Greater Kailash, New Friends Colony, Defence Colony, West Patel Nagar, etc. These areas are illustrative. The activities include Big Furnishing Stores, Galleries, Sale of Diamond and Gold Jewellary, sale of Car Parts etc. Having held that the Commissioner of MCD has power under the DMC Act to seal premises in case of its misuser, we issue the following directions for taking immediate steps to seal residential premises being used for commercial purpose :

4. Details of the Roads and the violations shall also be placed on the website by the MCD and copies also sent to Resident Welfare Associations of the area which should be involved in the process of sealing of misuser. The Commissioner of MCD shall file an affidavit, within two weeks, in terms of directions contained in this judgment, whereafter directions for constitution of the Monitoring Committee would be issued. The sealing would be effected by the officers authorised by the Commissioner of MCD in consultation with the Monitoring Committee.

5. The appropriate directions for action, if any, against the officers responsible for the misuse and for payment of compensation by them and by violators would be issued after the misuser is stopped.

6. None will tamper with the seals. Any tampering with seal will be sternly dealt with. Tampering with seal will include opening another entrance for use of premises.

7. It would be open to the owner/occupier to approach the Commissioner for removal of the seal on giving undertaking that the premises would be put to only authorised use.

8. Particulars of cases where violators may have obtained orders of stay will be filed in this Court by MCD.

9. MCD shall file monthly status report as to action taken by 15th of each month commencing from 10th April, 2006.

10. In case misuser is not stopped in the premises involved in the civil appeals and special leave petitions, subject to what is stated in this judgment, the MCD will take immediate steps to seal those premises soon after expiry of 30 days.

Civil Appeals, Interlocutory Applications (except I.A.22) and Special Leave Petitions are disposed of but MCD is granted liberty to seek further directions from this Court from time to time.