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CASE NO.: Writ Petition (civil)  4677 of 1985

PETITIONER: M.C. Mehta                                                       

RESPONDENT: Union of India & Ors.                                    

DATE OF JUDGMENT: 29/09/2006

BENCH: CJI Y.K. Sabharwal,C.K. Thakker & R.V. Raveendran

JUDGMENT: J U D G M E N T I.A. NO. 1970  IN  I.A. NO. 22

IN

WRIT PETITION (C) NO. 4677 OF 1985

[With W.P. (C) Nos. 263, 264, 266, 450, 464 & 470 of 2006,    I.A. Nos. 3-6, 8-12, 15-16, 18-22 in W.P. (C) No. 263 of  2006, I.A. No. 17 in I.A. Nos. 5-6 in W.P. (C) NO. 263 of  2006 AND I.A. Nos. 1926-27, 1928-29, 1948, 1949, 1961,  1969, 1971-72, 1974, 1975, 1976, 1977-78, & 1973 IN I.A.  22  IN W.P. (C) No. 4677 of 1985]

Y.K. Sabharwal, CJI.

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.         The issue of commercial use of residential premises was  decided by this Court by 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 judgment also noted certain individual  cases as also other residential properties being illegally used  for commercial purposes.  Besides noting orders passed by  this Court, from time to time, in the last so many years which  had no effect on the authorities, reference was also made to  some of the orders passed by the High Court in last about 15  years. There was, however, no implementation.  It was also  observed that such large scale misuser cannot take place  without the connivance of the officers who will have to show as  to what effective steps were taken to stop the misuser but the  issue of accountability of officers would be taken up after  misuser is stopped at least on main roads.  The misuser  activities included big furnishing stores, galleries, sale of  diamond and gold jewellery, sale of cars etc.  While issuing

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directions for implementation of laws, it was noted that if the  entire misuser cannot be stopped, at one point of time because  of its extensive nature, a beginning has to be made in a  phased manner by first taking sealing action against major  violators.  The cases of small shops opened in residential  houses for catering day-to-day basic needs were left out for the  present. Thus, the plea of M.C.D. that it has power to seal  premises in case of misuser having been accepted, various  directions were issued.  The directions included giving of wide  publicity for stoppage of misuser by the violators on their own  and the commencement of sealing process if the misuser is not  stopped.  The sealing process in a phased manner was to  commence on 29th March, 2006.   On 24th March, 2006, considering the prayer of the  traders, time to stop misuser was extended upto 30th June,  2006 subject to persons claiming benefit of extended time  filing affidavit stating that (i) on or before 30th June, 2006,  misuser shall be stopped and no further extension on any  ground whatsoever shall be asked for, and  (ii) giving an  undertaking to the effect that violation of condition of not  stopping the misuser by 30th June, 2006 would subject  him/her to offence of perjury and contempt of court for  violation of the order of the court.  It was further directed that  premises in respect of which affidavits are not filed the process  of sealing shall commence with effect from 29th March, 2006.   A Monitoring Committee was also appointed to oversee the  implementation of the law, namely, sealing of the offending  premises in letter and spirit of the court’s directions.  However,  on 28th March, 2006, a Notification was issued by Delhi  Development Authority (DDA) modifying Master Plan insofar  as the chapter on mixed use is concerned.   The Union of India filed I.A. No.1931, inter alia, praying  that the local bodies be directed to complete the exercise of  identification of mixed use of roads/streets in residential areas  within a period of six months.  An order was, therefore, passed  on 28th April, 2006 permitting the Government to place  detailed facts before the Monitoring Committee to find out if it  is possible to give some relief to the traders.  It was directed  that the Monitoring Committee will examine the facts broadly  from prima facie point of view to assist the Court and report if,  in its view, some relief in regard to the ongoing sealing can be  given in respect of some of the areas temporarily till the  exercise as contemplated in the application was complete.  The  Monitoring Committee heard all concerned including Secretary  of the Urban Development Ministry of Government of India  and examined the matter and filed its report on 4th May, 2006.   When the Application along with the report of the Monitoring  Committee came up for consideration before this Court, the  same was withdrawn by the Government of India on 11th May,  2006.   On 12th May, 2006, the Delhi Laws (Special Provision)  Bill, 2006 was passed by Lok Sabha; Rajya Sabha passed it on  15th May, 2006 and on receipt of assent of the President on  19th May, 2006, it was notified the same day.         On 20th May, 2006, the Government of India issued a  Notification placing a moratorium for a period of one year in  respect of all notices issued by local authorities in respect of  categories of unauthorized development.  In exercise of powers  conferred by Section 5 of the Delhi Laws (Special Provisions)  Act, 2006 (22 of 2006), the Central Government directed local  authorities to give effect to provisions of the said Act, namely,  1)      the premises sealed by any local authority in pursuance  of a judgment, order or decree of any court after the 1st  day of January, 2006, shall be eligible to be restored, for

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a period of one year, with effect from 19th day of May,  2006, to the position as was obtaining as on 1st day of  January, 2006. 2)       All commercial establishments which are required to  cease carrying out commercial activities at their premises  by the 30th day of June, 2006, may continue such  activities, as they were being carried out on the 1st day of  January, 2006 for a period of one year, with effect from  19th day of May, 2006.         By the aforesaid Act and the notice dated 20th May, 2006,  the Government purported to relieve the persons of the  undertaking though given to this Court and also purported to  issue directions for removal of seals though placed on the  premises under the order of this Court.         On writ petitions being filed to declare the aforesaid Act  unconstitutional, on 23rd May, 2006, notices returnable for  17th July, 2006 were directed to be issued to the respondents  in the writ petition as well as on the Applications for stay.  The  matters were, however, taken up on 1st August, 2006, when  the writ petitions were admitted and rule issued by the Court  noting that serious challenge had been made to the  constitutional validity of the Act.   The stay applications were considered on 10th August,  2001.  In support of plea for grant of stay, it was contended on  behalf of the petitioners that it is a unique statute which  overrules, annuls and sets aside the decision of this Court  dated 16th February, 2006 and other orders passed thereafter.   In terms of Order made on 10th August, 2006 while not  granting the complete stay of the impugned legislation, the  aforenoted two directions were stayed.  Considering, however,  that those who had given undertaking may have been misled  by directions contained in the notice dated 20th May, 2006,  time to comply the same was extended upto 15th September,  2006.  It was further directed that premises de-sealed  pursuant to notice dated 20th May, 2006 shall have to be again  sealed with effect from 16th September, 2006 in case misuser  is not stopped by 15th September, 2006.  Certain other  directions were also issued on 10th August, 2006.       After this  Order, the Government withdrew the public notice that had  been issued on 20th May, 2006 in respect of the undertakings  and the premises that were sealed by the Court.         We may further note that on 21st July, 2006, public  notices were issued by DDA in exercise of power under Section  11-A of Delhi Development Act stating that it proposed further  modifications in the Master Plan and inviting objections within  30 days from the date of publication of the notice, namely, 23rd  July, 2006.         The aforesaid public notice was in respect of mixed use  policy.  Another public notice was also issued on the same  date inviting objections to the proposal for regularization of  constructions carried out in excess of the norms laid down by  the notification dated 23rd July, 1998.  According to the  Government, public hearings on the aforesaid notice were  conducted between 23rd August, 2006 and 3rd September,  2006.  DDA recommended the amendment of the Master Plan  on 5th September, 2006.  The Master Plan was accordingly  amended.  On 7th September, 2006 and on 15th September,  2006 about 2002 patches/streets were notified for mixed use.         The constitutional validity of the Notification dated 7th  September, 2006 is under challenge on various grounds in  W.P.(C) Nos.450, 464 and 470/2006.  The challenge deserves  to be examined in depth and, therefore, in these writ petitions,  we issue Rule.  Counter affidavit shall be filed by respondents  within 4 weeks.  The respondents are further directed to place  before this Court material which was taken into consideration

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for arriving at the decision leading to the amendment of the  Master Plan in terms of the Notification dated 7th September,  2006 and the consequential Notification dated 15th September,  2006.         Mr.Ranjit Kumar, senior advocate appearing as Amicus  Curiae and other learned counsel appearing for the petitioners  as also petitioners appearing in person seek stay of the  impugned Notification dated 7th September, 2006.  The  Government, on the other hand, seeks modification of Order  dated 10th August, 2006 in the light of the said Notification.  In the writ petition of Mr.Omesh Sehgal, a former Chief  Secretary of Delhi, one of the pleas raised is that inviting  objections and grant of hearing was a farce since decision had  already been made to amend Master Plan even before inviting  objections and the hearing was a mere formality and further  the modification of an already expired Master Plan is not  permissible.  It has been further submitted that if any interim  relief is to be granted, it should be confined only to small  shops. The small shops are presently protected as noted in the  M.C.Mehta (supra).  Further, the Monitoring Committee  classifying shops measuring 20 sq. meters as ’small shops’ has  recommended that the said shops be exempted from the  purview of sealing operation in the residential areas.   According to the Reports dated 14th September, 2006 and 27th  September, 2006 of the Monitoring Committee, the shops  falling in the category of small shops trading in the following  items may be allowed in residential areas : i.      Vegetables/fruits/flowers; ii.     Bakery items/confectionary items; iii.    Kirana/General stores; iv.     Dairy products; v.      Stationery/Books/Gifts/Book binding; vi.     Photostat/Fax/STD/PCO; vii.    Cyber cafi/Call phone booths; viii.   LPG Booking office/Show room without LPG cylinders; ix.     Atta chakki; x.      Meat/Poultry and Fish shop; xi.     Pan shop; xii.    Barber shop/Hair dressing saloon/Beauty Parlour; xiii.   Laundry/Dry cleaning/ironing; xiv.    Sweet shops/Tea stall without sitting arrangements; xv.     Chemist shops; xvi.    Optical shops; xvii.   Tailoring shops; xviii.  Electrical/Electronic repair shop; and xix.    Photo studio  xx.     Cable TV/DTH Operations xxi.    Hosiery/Readymade Garments/Cloth shops xxii.   ATM

       In the report dated 14th September, 2006, the Monitoring  Committee has also noted about the survey conducted by  MCD on 185 notified roads to find out nature of activities of  the commercial establishments on those roads.  Broadly the  activities of commercial establishments on these roads are of  automobile showrooms; automobile workshops; branded  showrooms; call centers; coaching institutes; business offices;  building materials; godowns; tent houses; guest houses;  jewellery shops; restaurants and iron & steel shops.           At this stage, the question to be considered is whether  pending the decision of the writ petitions, should this Court  modify Order dated 10th August, 2006 and decline prayer for  stay of the Notification dated 7th September, 2006 or decline

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modification of the Order and stay the Notification or pass any  other order having regard to the facts and circumstances of  the entire situation.  We have heard extensive submissions  made by learned counsel. Many of persons, who gave undertakings to remove the  misuser by 30th June, 2006 have filed separate applications in  view of the Notification dated 7th September, 2006 and in  substance sought to be relieved of the undertakings so that  they could continue commercial user.  Likewise, those whose  premises were sealed also seek issue of directions for the  opening of the seals.         The sealing was to commence on 29th March, 2006.   However, in view of the undertakings, misuser was allowed to  be continued upto 30th June, 2006.  Despite the undertakings,  the misuser has continued till date, as noted hereinbefore.   There cannot be any doubt that the Legislature would  lack competence to extend the time granted by this Court in  the purported exercise of law making power.  That would be  virtually exercising judicial functions.  Such functions do not  vest in the Legislature.  In fact, those who gave undertakings  are already in breach of the undertakings by not stopping  misuser by 30th June, 2006.  The dignity and authority of the  Court has to be protected not for any individual but for  maintenance of the rule of law.  The fact that those who gave  undertakings may have been misled in view of subsequent  developments can only be a mitigating factor while considering  the action to be taken for breach of the undertakings.   Further, there are no equities in favour of those who gave  undertakings to this Court and obtained the benefit of time  otherwise their premises could have been sealed on 29th  March, 2006 or soon thereafter.  The nature of trade  conducted by most of them who gave undertakings has been  noted above.  There is serious challenge to the validity of the  Act and the Notification.  Pending determination thereof, such  persons cannot be allowed to claim any benefit of the  Notification. In the background of the above facts and having  considered the submissions made, we issue the following  directions :

(i)     Re : Premises relating to which undertakings were given The commercial activities by those who gave undertakings  deserve to be stopped forthwith.  Having regard, however, to  the plea of forthcoming major festivals, we permit those who  gave undertakings to stop misuser on or before 31st October,  2006. (ii)    Re : Small Shops Small Shops, i.e., measuring not more than 20 sq. mts.  in residential areas are allowed trading in the following items : i.      Vegetables/fruits/flowers; ii.     Bakery items/confectionary items; iii.    Kirana/General stores; iv.     Dairy products; v.      Stationery/Books/Gifts/Book binding; vi.     Photostat/Fax/STD/PCO; vii.    Cyber cafi/Call phone booths; viii.   LPG Booking office/Show room without LPG cylinders; ix.     Atta chakki; x.      Meat/Poultry and Fish shop; xi.     Pan shop; xii.    Barber shop/Hair dressing saloon/Beauty Parlour; xiii.   Laundry/Dry cleaning/ironing; xiv.    Sweet shops/Tea stall without sitting arrangements; xv.     Chemist shops; xvi.    Optical shops;

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xvii.   Tailoring shops; xviii.  Electrical/Electronic repair shop; and xix.    Photo studio  xx.     Cable TV/DTH Operations xxi.    Hosiery/Readymade Garments/Cloth shops xxii.   ATM

(iii)   Re : Other premises for which protection is extended  by Notification dt. 7.9.2006

Regarding the remaining premises which may be covered  by the Notification dated 7th September, 2006 read with 15th  September, 2006, we direct that the said premises may not be  sealed pending decision of these petitions on undertakings  being filed before the Monitoring Committee on or before 10th  November, 2006 that misuser shall be stopped as per the  directions of this Court if the Act is invalidated and/or the  Notification is quashed.  Further, the undertakings shall state  that the trade is being conducted in respect of the permissible  items and only in that part of the premises in which  commercial activity is now permitted as per the impugned  Notification dated 7th September, 2006 read with Notification  dated 15th September, 2006, viz. if commercial activity has  been made permissible on the ground floor, the affidavit shall  state that it is being carried out only in the ground floor and  not on the other floors and in support a certificate of the  registered Architect shall be annexed.  Any Architect giving  wrong certificate would subject himself to appropriate action  including cancellation of certificate to carry on the profession  of Architect.   (iv)    Re :    Premises for which protection is not extended by  Notification dated 7.9.2006

In respect of the remaining premises not covered by the  Notifications dated 7th September, 2006 and 15th September,  2006, the sealing process will continue in terms of the Order  dated 16th February, 2006 and 10th August, 2006.  The  direction of sealing premises will also apply to specific  properties mentioned in the judgment dated 16th February,  2006 and in the Report of the Monitoring Committee dated  14th September, 2006.  The sealing would be done in a  systemic manner as per directions of Monitoring Committee  and not in a haphazard manner.  There shall be no misuser of  public land or public street.  The authorities shall ensure that  the Roads, Public Streets and pathways meant for public is  kept free for their use and the commercial activity is not  extended thereupon.  The commercial user in contravention of  judgment in M.C. Mehta’s case (supra), order dated 10th  August, 2006 and Notifications dated 7th September, 2006 and  15th September, 2006 subject to what is stated in this order  shall be liable to be sealed. (v)     General Directions : (a)     We direct that the owner/occupier of small shops and  also others who have been permitted to continue and not stop  commercial activity for the present, under this order shall get  themselves registered upto 31st December, 2006.   (b)     In respect of the premises which have been sealed under  the orders of this Court, we permit them to approach the  Monitoring Committee which will consider each case on its  merit and make appropriate report to this Court on  consideration whereof necessary directions may be issued. (c)     The respondents are restrained from issuing any other  Notification for conversion of residential user into commercial  user except with the leave of this Court. (d)     We also hope that without any further loss of time the

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Government and the concerned authorities, instead of ad hoc  measures like the present, would now undertake proper  planning keeping into consideration all relevant factors  including the interests of those residents which may not have  any voice. (e)     Before concluding, we may note the grievance placed  before us on behalf of professionals including Doctors,  Lawyers, Chartered Accountants and Architects in respect of  the Notification dated 7th September, 2006.  Relying upon  notifications dated 27th November, 1998 and 7th June, 2000  and Press Release dated 27th November, 1998, they say that  restrictions sought to put in the Notification dated 7th  September, 2006 were not there earlier and may be  restrictions have been put by inadvertence.  Mrs.Indira  Jaisingh, appearing for Government of India says that she will  have it examined by the Government and, if required,  necessary correction will be made.  The Common Cause Society is permitted to intervene in  the matter. The Interlocutory Application Nos. 5, 6, 8 to 12,  15-16, 18 to 22 in Writ Petition (C) No. 263 of 2006,  I.A. No.  17 in I.A. Nos. 5-6 in Writ Petition (C) No. 263 of 2006 and I.A.  Nos. 1970, 1926-27, 1928-29, 1948, 1949, 1961, 1969, 1971- 72, 1974, 1975, 1976, 1977-78 and 1973 in I.A. No. 22 in Writ  Petition (C) No. 4677 of 1985 are disposed of in terms of the  aforesaid order.   List the matters in the month of November  2006 for further directions.