Court: Hon’ble Supreme Court of India
Citation: (2006) 3 SCC 399, MANU/SC/8028/2006
Coram: Y.K. Sabharwal, C.J., B.N. Srikrishna and R.V. Raveendran, JJ.
The issue of commercial use of residential premises was decided by the Court in judgment dated 16th February, 2006 in M.C. Mehta v. Union of India and Ors. reported in (2006) 3 SCC 399. While reversing a Full Bench decision of Delhi High Court, the stand of Municipal Corporation of Delhi (MCD) was accepted and it was held that the Commissioner of MCD is empowered to exercise power of sealing in case of misuse of any premises.
The city of Delhi is an example of a classical case, which, for the last number of years, has been a witness of flagrant violations of municipal laws, town planning laws and norms, master plan and environmental laws. It is borne out from various orders and judgments passed by this court and Delhi High Court, whether in a case of shifting of hazardous and polluting industries or providing cleaner fuel (CNG) or encroachment of public land and streets or massive unauthorized construction and misuser of properties. It is a common knowledge that these illegal activities are also one of the main sources of corruption.
This judgment noted certain individual cases as also other residential properties being illegally used for commercial purposes. The misuser activities included big furnishing stores, galleries, sale of diamond and gold jewellery, sale of cars etc.
1) Whether MCD under the DMC Act has power to seal premises in case of its misuser?
2) Whether under the Delhi Development Act, DDA has power to seal premises on account of its misuser?
JUDGEMENT ALONG WITH REASONING FOR THE FIRST ISSUE
It is clear from a conjoint reading of the definition of the expression ‘to erect a building’ in Section 331 and Section 345A that conversion of user would come within the purview of the expression ‘to erect a building’. In this respect useful reference can also be made to Building Bye-Laws for the Union Territory of Delhi, 1983, in particular Bye-Law Nos. 2.17 and 2.85, defining the expressions ‘Conversion’ and ‘To Erect’ respectively, which read as under:
2.17 Conversion- The change of an occupancy to another occupancy or change in building structure or part thereof resulting into change of space or use requiring additional occupancy certificates.
2.85 To Erect- To erect a building means:
(a) To erect a new building on any site whether previously built upon or not;
(b) To re-erect any building of which portions above the plinth level have been pulled down, burnt or destroyed; and
(c) Conversion from one occupancy to another.
Having regard to these definitions if a Building/structure not originally constructed for use as a shop, is put to use as a shop, such conversion of use would come within the ambit of the expression ‘to re-erect’ and, consequently, within the ambit of the definition of the expression ‘to erect a building’. In view of the aforesaid, reversing the impugned judgment of the High Court, we hold that under Section 345A of the DMC Act, the Commissioner of MCD is empowered to exercise power of sealing in case of misuser of any premises.
PRINCIPLE LAID DOWN FOR THE FIRST ISSUE
In view of the aforesaid, reversing the impugned judgment of the High Court, we hold that under Section 345A of the DMC Act, the Commissioner of MCD is empowered to exercise power of sealing in case of misuser of any premises.
JUDGEMENT ALONG WITH REASONING FOR THE SECOND ISSUE
Power of sealing under the DDA Act. Section 31A empowers DDA to seal unauthorized development. If misuser of premises would come within ambit of unauthorized development, DDA would have power to seal premises but if misuser does not come within ambit of unauthorized development, power would be lacking. Section 31A does not provide that sealing can be resorted to also for purpose of carrying out provisions of Act. It can be resorted to for dealing of development under Section 30 or Section 31 for purpose of carrying out provisions of Act.
The Scheme under the Act clearly seems to be that during development it is the responsibility of DDA to demolish and seal any premises if there is contravention. After the handing over of the area to the local authority under Section 36, the power of demolition and/or sealing is conferred on that authority. That local authority may be MCD or cantonment or any other authority depending upon the developed area falling in the local limits of one or the other. The ‘development area’ is any area declared to be such under Sub-section (1) of Section 12. So long as an area is a development area, the power to deal with it remains with the ‘authority’ which means Delhi Development Authority in terms of Section 3(1) of the Act. After the responsibility of any area has been assumed by the local authority in the manner provided in Section 36, the power to deal with properties in that area for any contravention would be exercisable by such authority depending upon the statutory provisions governing the said local authority, referred to in Section 31A as ‘competent authority’. The power of ‘Competent Authority’ to seal premises would depend upon the statute governing it. The language of Section 31A when it states that ‘it shall be lawful for the authority, or the competent authority, as the case may be’ shows that either the authority or the competent authority would have the power therein. The Act does not contemplate that both DDA and the competent authority would have concurrent power even after the local authority has assumed responsibility as provided in Section 36. Unlike Section 331, there is no provision in the Delhi Development Act to confer on the authority the power of sealing in case of misuse. The power under Section 31A is to seal development under Section 30 or Section 31. The words ‘such development’ in Section 31A refers to removal or discontinuance of development under Section 30 or Section 31A and not for any development for the purpose of carrying out the provisions of the Act, as was sought to be contended by Mr. Ranjit Kumar.
Section 31A does not provide that sealing can be resorted to also for the purpose of carrying out the provisions of the Act. It can be resorted to for sealing of development under Section 30 or Section 31 for the purpose of carrying out the provisions of the Act. Misuse does not come within the ambit of development.
PRINCIPLE LAID DOWN FOR THE SECOND ISSUE
In view of the aforesaid, the High Court has rightly held that under the Delhi Development Act, there is no power of sealing in case of misuser.
PRESENT STATUS OF THE JUDGMENT
The judgement is still applicable in its jurisdiction and has not been overruled yet. In fact, it has been majorly referred in cases like News Item AQFMY v. Central Pollution Control Board Writ Petition No. 725 of 1994; Ahuja Property Developers (P) Ltd. v. M.C.D. among others.
CRITIQUE & CONCLUSION OF THE CASE
“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 Zone wise /ward wise abstract of violations in terms of commercialisation as in November, 2005.”, the quoted lines were the directions of the court while delivering the judgement but still in November 2018, a bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar made the observation that people, using residential properties for commercial purposes, have become “selfish” as they were earning profits without even thinking of the inconvenience they are causing to their neighbours while expressing concern over the large number of coaching institutes coming up in the residential areas of the city causing “parking woes” and other inconvenience to the local residents. “It is a very impossible situation. The people living in the city have become selfish for earning profit out of their business. They don’t even think about their neighbours,” the bench said. It said that it had made it clear that the law has to be strictly complied with. “Merely because the master plan permits the private usage or commercial usage in a particular area, does not by any means permit the existing residential properties to be converted by such users. “No waiver of the Building Bye Laws is allowed. There can be no exception to the mandatory requirements of the Building Bye Laws mandated under the Master Plan. “Furthermore, while permitting conversion, the authorities are required to take all relevant factors into consideration including nuisance to the neighbours and cannot rest the permission on the sole ground that the Master Plan has permitted such usage,” it said.
The court’s observation came during the hearing of pleas by Delhi residents Sanjay Singhal and Kanchan Gupta, who have alleged that over 100 coaching centres were permitted to be run by the MCD in residential properties. They have also said that these centres were allowed to come up without conforming to the requirements of the master plan for buildings where such user is permitted. Contending that this was completely illegal and ought not to have been permitted, they alleged that it was resulting in overcrowding in the areas and causing “grave nuisance to the bonafide residents.” “The main roads in front of the building being converted into parking space for the students and the employees of the coaching centres, creating bottleneck for the traffic apart from the nuisance due to noise and lack of water and electricity,” the petitioners have claimed.
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 quite 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 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 highest quarters.
Contributed by: Shivam Krishnam (Symbiosis Law School, Noida)