COPY OF ORDER OF DELHI HIGH COURT

WP ( C ) No.4582/2003 and CM No. 587/2006

Pursuant to our orders dated 30.11.2005, 6.12.2005 and 14.12.2005 demolition drive has been undertaken in Delhi but it has been far from satisfactory. Mr. Gopal Subramaniam, learned Additional Solicitor General, appearing for Municipal Corporation of Delhi at the outset has stated that this is not an adversarial litigation.

Delhi has to get rid of unauthorised constructions. Action has to be taken against erring officials, builders, influential and powerful people who have permitted or have indulged in unauthorised constructions. Message must go to the people, who construct their dwelling units that such constructions have to be in conformity with the laws.

We were told and accordingly we had observed in our order dated 6.12.2005 that while one building was demolished, another building on the same street or road was left untouched. Mr. Subramaniam has assured us that this will not happen any more and henceforth uniformity in action of demolition will be key word. In the order dated 6.12.2005 we had asked for list of properties which had been built by builders in flagrant violation of building bye-laws. We had also asked for the names of the builders and if the plans of such properties were sanctioned in the names of the original owners we had directed that the details as to who were the persons with whom they entered into collaboration agreement be obtained from the owners and be filed. This has not been done. Mr. Subramaniam says that the exercise will be done and the details will be submitted to this Court before the next date of hearing.

Unless and until the general public has information that there are properties where the plans have been obtained for residential purposes but the same have been put to commercial use or there is extra coverage either in terms of set backs or additional floors, there are always chances of tenants, flat buyers, lessors to go for these properties and when action for demolition takes place, the owners or builders of such properties leave the people in lurch. The aforesaid direction was, therefore, given so as to facilitate such unwary buyer or user of the property to seek compensation from such builders of the properties.

We also direct the Commissioner MCD to issue a public notice calling upon builders throughout Delhi to give complete details of the buildings which they have constructed after 31.12.2000 in Delhi. The intimation of such unauthorised constructions should be sent to the Registrar of Assurances, the Sub-registrars of all districts who shall place the same in the file of the property in question so that an intending buyer or user or occupier will have notice of unauthorized construction and if he even then deals with such property he does so at his peril.

In our order date 14.12.2005 we had categorically stated that where the plans of a building have been sanctioned for residential purposes and the property in question has been put to unauthorized commercial use, such an activity is impermissible. We had observed that the parameters for constructing commercial and residential properties are different in relation to façade of the building, the requirement of kitchen, toilet, height of the roof and so many other factors. Mr. Subramaniam, Learned Additional Solicitor General with all earnestness has stated at the Bar that the MCD will carry out its demolition drive of unauthorized construction in residential as well as commercial areas. It will ensure that all ongoing, fresh/new constructions which are in violation of the law are demolished forthwith. Mr. Subramaniam has further stated that immediate action will also be taken in respect of such unauthorized properties which are housing big show-rooms, retail shops, wholesale shops, restaurants, malls and are not in conforming areas or are in residential areas or are in Lal Dora without any sanction plan. Mr. Subramaniam has also stated that encroachment and unauthorized construction on public land shall not be permitted and any unauthorized existing encroachment and construction will be totally removed. As per him, prompt action will also be taken against unauthorisedly built houses or flats, having additional floors which are impermissible.

It is stated in para 7 of the affidavit filed by the MCD tht 70% to 80% buildings constructed in Delhi are unauthorized. Mr. Subramaniam has very fairly conceded that this figure of 70% to 80% is not based on any exact survey or specific details. Likewise, he has also conceded that the averment made to the effect that out of approximately 40 lakhs properties, 30 lakhs properties are in violation of law is also not based on any specific details. He has prayed that these averments made in the affidavit be deleted. Having regard to the fairness with which Mr. Subramaniam has conceded to the error, we do not want to say much on the kind of averments made in the affidavit although we do feel that to say that 70% to 80% constructions are unauthorized is an attempt to create fear psychosis in the mind of honest citizens.

With regard to the action taken against erring engineers and the officers of the MCD, it is stated in the Action Taken Report that 94 officials of the level of Junior Engineers and Assistant Engineers have been identified for major penalty proceedings. Since the MCD itself has booked over 18,000 properties as unauthorized and illegal, the same could not have come up without the active or passive connivance of the Junior Engineers, Assistant Engineers and Executive Engineers of all the Zones. We are not inclined to accept that only 94 officials were involved in coming up of such unauthorized and illegal constructions. We direct the Commissioner of MCD to identify all such engineers and other officials who were involved or abetted in the coming up of such constructions and initiate major penalty proceedings against them as well. Such an exercise would send message to all concerned that it is not the buildings alone which are being targeted but even the delinquent officials who were involved, connived or abetted in coming up of such buildings are being dealt with severely.

These penalty proceedings should be time bound. WE direct that the action for major penalty be taken against all delinquent officials within a period of two months from today.

We may also observe that the Parliament in its wisdom has enacted the Delhi Municipal Corporation Act delineating various municipal authorities to carry out the mandate of the Act and the Commissioner of MCD is one such municipal authority. The power of sanctioning or non-sanctioning of the building plan, power to initiate action for demolition, power to bring the properties within the parameters of sanction plan, all vest in the Commissioner of MCD. In this regard Commissioner of MCD exercises independent and exclusive power as an authority under the Act passed by Parliament. Therefore, he has to execute his authority freely without succumbing to any pressure from any other authority for carrying out the mandate of the Act and the directions of this Court.

A direction is also issued to Divisional Commissioner to call a meeting of all the Sub-registrars of Assurances in his office and apprise them of the order passed today so that action is taken by the Sub-registrars forthwith on the information supplied by the MCD.

Mr. Subramaniam has supported the proposed suggestion on behalf of the petitioners that the list of properties proposed to be demolished or against whom any action is proposed to be taken should be displayed on the internet so that the affected persons who want to correct the error may do the same before the implementation of the action proposed. He has also stated that no pick and choose policy will be adopted and it will be ensured when the demolition drive is taken up in a particular area it will not be withdrawn till the proposed action against all the erring properties of the area is complete. We direct the MCD to take action against the properties which are in process of construction or have been constructed after 31.12.2000 pertaining not only to common people but also to any influential person whether member or non-member of any House or local authority and that while demolishing such properties which do not conform to the sanction plan, the demolition should not be cosmetic. The MCD shall ensure that it demolishes the properties in such a manner that they cannot be used for the same purpose again. If any occupier, builder, owner is found to have again started construction, said person shall be dealt with severely by launching prosecution against him.

We would like to emphasise that if action is taken against big fish an impression will gather ground that it is not the common man alone who is being targeted and that the law is being applied to all concerned uniformly. An impression will also get created that it is the rule of law which will prevail and not the rule of jungle. We are not only hopeful, rather sure, that if such an atmosphere exists most of the citizens will themselves come forward to demolish their unauthorized or illegal structures. Of course, it goes without saying that if they do not do so , the MCD has to take action against them.

The MCD will send information to the Delhi Jal Board, NDPL and BSES regarding unauthorized properties so that basic facilities are not provided to such properties. The directions issued by us shall also apply to development areas under the DDA and the DDA shall take action likewise.

We appreciate the desire of all learned counsel appearing for the petitioners as well as Mr. Gopal Subramaniam, learned Additional Solicitor General appearing for MCD that a permanent mechanism for monitoring as well as checking unauthorized construction had to be put in place so as to assist this Court as well as the Municipal Corporation of Delhi in carrying out this task.

Let the report by MCD be filed within four weeks in terms of our aforesaid order. Mr. M.M. Kutty, Additional Commissioner, Mr. Pradeep Srivastav, Chief Vigilance Officer and Mr. A. K. Sharma, Chief Law Officer of MCD will carry out the directions of this Court and if there is any impediment or any authority tries to influence these officers in carrying out the directions of this Court, the same shall be reported to the Court forthwith.

Renotify on 16.2.2006.

The order passed today in this writ petition be placed in all the connected writ petitions pertaining to unauthorized constructions. Let the order passed today be displayed within two days on the web site of Delhi High Court.

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Jan. 18, 2006

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