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

PETITIONER: M.C. Mehta

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 16/02/2006

BENCH: Y.K. Sabharwal, B.N.Srikrishna & R.V. Raveendran

JUDGMENT: J U D G M E N T INTERLOCUTORY APPLICATION NO. 22 IN WRIT PETITION (CIVIL) NO.4677 OF 1985 [With IA Nos.1816 & 1860 in WP (C) No.4677/1985,  C.A.Nos.5413 & 8694 of 2002, SLP(C) Nos.23145, 23220,  23896, 23934 of 2002, 7128/2004, 23139/2002 &  C.A.Nos.608-611/2003]

Y.K. Sabharwal, CJI.

       In respect of large number of immoveable properties  throughout Delhi, flagrant violations of various laws including  Municipal Laws, Master Plan and other plans besides  Environmental Laws have been engaging the attention of this  Court for number of years.  With a view to secure the  implementation of laws and protect fundamental rights of the  citizens, various orders were passed from time to time.         This Court has a constitutional duty to protect the  fundamental rights of Indian citizens.  What happens when  violators and/or abettors of the violations are those, who have  been entrusted by law with a duty to protect these rights?  The  task becomes difficult and also requires urgent intervention by  court so that the rule of law is preserved and people may not  lose faith in it finding violations at the hands of supposed  implementers.  The problem is not of the absence of law, but of  its implementation.         Considering such large-scale flagrant violations, this  Court had to prioritize as to which violations may be taken up  first and then issue appropriate directions.  In this view, at  first instance, directions were issued in respect of shifting of  hazardous and noxious industries out of Delhi.  Directions  were also issued for shifting of heavy and large industries as  also some extensive industries.  For shifting polluting  industries had to be given top most priority.  Later, directions  were issued for shifting of other extensive industries  considering the continued unauthorized use contrary to  Master Plan and Zonal Plan, by those industries as well as  some other industries continuing in residential/non- conforming areas.         On one hand repeated orders were made to seek  implementation of the laws and, on the other hand,  simultaneously, more and more violations were taking place.   Detailed reference to earlier orders made from time to time, the  shifting stand of the authorities, various laws being violated,  requirements of Town Planning and the constitutional  obligations of the authorities, has been made by this Court in  the judgment dated 7th May, 2004 while dealing with  unauthorized industrial activity and issuing time bound

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directions for compliance and appointing a Monitoring  Committee with directions for filing of periodical progress  reports (M.C. Mehta v. Union of India [(2004) 6 SCC 588].   The order dated 19th August, 2003 sets out various issues  involved including the issue of misuse but, at that stage, the  issue of unauthorized industries was given priority and the  directions in respect of shifting of industries were issued.  In a  way, this judgment is in continuation of the judgment dated  7th May, 2004 with the difference that now we have taken up  the issue of large scale misuse of residential premises for  commercial use. 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 : "The MCD will also inform this Court in  the affidavit to be filed as to why no  requisite action has been taken for  stopping the gross misuse of buildings in  the residential areas for commercial  purposes and in the construction of  commercial buildings in residential areas  where only residential usage is  permitted."

       Again on 20th February, 2002, the Order dated 31st July  was reiterated in the following terms : "MCD is also directed to file within four  weeks from today an affidavit indicating  as to what it intends to do for stopping  the misuse of the buildings in the  residential areas which are being used for  commercial purposes as has been  directed by this Court’s order dated 31st  July, 2001.  If no affidavit is filed, the  explanation in respect thereof should be  given to the Court by the Municipal  Commissioner."

       The learned Amicus Curiae filed IA No.1860/04 referring  to aforesaid orders dated 31st July, 2001, 20th February 2002,  30th September, 2002 and 19th August, 2003 and bringing to  the notice of this Court a press release dated 22nd July, 2004  issued by Municipal Corporation of Delhi (’MCD’ for short)  declaring a scheme to facilitate registration of shops,  establishments, commercial establishments etc. in the non- conforming/residential areas by granting ad hoc licences in  respect of premises existing till 31st March, 2003.  This shows  the apathy of a municipal body, which is constituted, amongst  others, to ensure compliance of the laws.  In this application,  learned Amicus Curiae sought stay of the press release and  the scheme.  By order dated 2nd August, 2004, the press  release and the ad hoc Trade Registration Scheme were stayed  by this Court.         The question under consideration also is about the power  of MCD and Delhi Development Authority (DDA) to direct  demolition and/or sealing of the properties being misused.   Few residents of a residential colony by the name of  Green Park Extension, making averments about large scale

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unauthorized constructions and stating that various letters  written to the MCD complaining about the illegal and  unauthorized constructions and misuser and consequent  violation of Master Plan etc. resulted in no action, filed in  about October 1994, a writ petition in Delhi High Court  alleging how misuse of residential premises for commercial  purposes was taking place, citing specific instances and  complaining about total inaction on the part of the authorities  in stopping such misuse.  According to them, the officers were,  in fact, encouraging or conniving with persons who were  indulging in such misuse.  The officers failed to carryout their  statutory duties in stopping such misuse.  A writ of  mandamus was sought against the authorities directing them  not to allow illegal commercial user.  Petitioners therein  alleged that such misuser and acts of omission and  commission by the authorities was resulting in the  environment in the residential colony being totally polluted  and civic amenities jeopardised.           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.           By impugned judgment dated 31st May, 2002, disposing  of the aforenoted writ petition and other connected matters, a  Full Bench of the High Court came to the conclusion that  neither under the DMC Act nor under the Delhi Development  Act, there was any power to seal property for its misuse, inter  alia, holding that the power of sealing of premises is drastic as  by reason of such sealing, a person could become homeless,  thus, affecting his human or fundamental rights and that the  power of sealing in relation to misuse has been intentionally  excluded  from the provisions of two Acts.  Later, some other  matters were also decided by the High Court following the Full  Bench decision.  Those judgments are also under challenge.         The judgment of the Full Bench is under challenge in  Civil Appeal No.5413 of 2002 filed by the original writ  petitioners/residents of Green Park colony and Civil Appeal  No.8694 of 2002 filed by the MCD.   The questions to be determined are : A.      Whether MCD under the DMC Act has power to seal the  premises in case of its misuser? B.      Whether DDA, under the Delhi Development Act, has  also similar power of sealing or not? C.      Directions to be issued in respect of residential properties  used illegally for commercial purposes.         In these matters, we are considering only the issue of  misuser.  We are not considering the issue of unauthorized  constructions. Re :    Question A \026 Whether MCD under the DMC Act  has power to seal premises in case of its misuser

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It is not in dispute that large numbers of residential  premises are being misused for commercial purposes.  The  question is \026 can the MCD stop such misuser by putting a seal  on misused property?  For dealing with the question of power  of MCD to seal the premises in case of misuser, it is necessary  to examine few provisions of the DMC Act.  The expression  ’building’ is defined in Section 2(3) of the DMC Act as a house,  out-house, stable, latrine, urinal, shed, hut, wall (other than a  boundary wall) or any other structure, whether of masonry,  bricks, wood, mud, metal or other material but does not  include any portable shelter.   The expression ’land’ as per Section 2(24) includes  benefits to arise out of land, things attached to the earth or  permanently fastened to anything attached to the earth and  rights created by law over any street.  Section 2(26) defines ’market’ as under: "Sec.2(26) -  "market" includes any place  where persons assemble for the sale of, or  for the purpose of exposing for sale, meat,  fish, fruits, vegetables, animals intended  for human food or any other articles of  human food whatsoever, with or without  the consent of the owner of such place  notwithstanding that there may be no  common regulation for the concourse of  buyers and sellers and whether or not  any control is exercised over the business  of, or the person frequenting, the market  by the owner of the place or by any other  person;"

Section 2(34) defines ’occupier’ as under: "Sec.2(34) "occupier" includes- (a) any person who for the time being is  paying or is liable to pay to the owner the  rent or any portion of the rent of the land  or building in respect of which such rent  is paid or is payable; (b) an owner in occupation of, or  otherwise using his land or building; (c) a rent-free tenant of any land or  building; (d) a licensee in occupation of any land or  building; and (e) any person who is liable to pay to the  owner damages for the use and  occupation of any land or building;"

Under Section 2(59)  ’trade premises’ means:  "2(59) -  "trade premises" means any  premises used or intended to be used for  carrying on any trade or industry;"

Chapter XVI of the DMC Act deals with building  regulations and comprises Sections 330A to 349A.   The definition of the expression ’building’ shows that it is  very wide and encompasses any structure only excluding  portable shelter with which we are not concerned.  We are  concerned with the building and its erection.   The definition of the words ’to erect a building’ is very  pertinent for deciding the present question.  The expression ’to  erect a building’ is defined in Section 331 as under: "Sec.331 Definition.-- In this Chapter, unless the context

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otherwise requires, the expression "to  erect a building" means-- (a) to erect a new building on any site  whether previously built upon or not; (b) to re-erect-- (i) any building of which more than  one-half of the cubical contents  above the level of the plinth have  been pulled down, burnt or  destroyed, or (ii) any building of which more than  one-half of the superficial area of  the external walls above the level of  the plinth has been pulled down, or (iii) any frame building of which  more than half of the number of the  posts or beams in the external walls  have been pulled down; (c) to convert into a dwelling house any  building or any part of a building not  originally constructed for human  habitation or, if originally so constructed,  subsequently appropriated for any other  purpose; (d) to convert into more than one dwelling  house a building originally constructed as  one dwelling house only; (e) to convert into a place of religious  worship or into a sacred building any  place or building not originally  constructed for such purpose; (f) to roof or cover an open space between  walls or buildings to the extent of the  structure which is formed by the roofing  or covering of such space; (g) to convert two or more tenements in a  building into a greater or lesser numbers;  (h) to convert into a stall, shop,  warehouse or godown, stable, factory or  garage any building not originally  constructed for use as such or which was  not so used before the change; (i) to convert a building which when  originally constructed was legally exempt  from the operations of any building  regulations contained in this Act or in  any bye laws made thereunder or in any  other law, into a building which had it  been originally erected in its converted  form, would have been subject to such  building regulations;  (j) to convert into or use as a dwelling  house any building which has been  discontinued as or appropriated for any  purpose other than, a dwelling house."

Clauses (c), (h) and (j) are very significant.  These clauses  bring in the concept of user of a building for the purpose of  definition of the expression ’to erect a building’.  Under clause  (h), if any building not originally constructed for use as a stall,  shop, warehouse etc. is converted for use as such, it would fall  within the expression ’to erect a building’.   In respect of an area where the notified/specified land  use is residential, sanction for erection of a commercial  building cannot be accorded, as is apparent from sub-section

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(2) of Section 336.   Section 336 reads as under: "Section 336. -  Sanction or refusal of  building or work.-- (1) The Commissioner shall sanction the  erection of a building or the execution of  a work unless such building or work  would contravene any of the provisions of  sub-section (2) of this section or the  provisions of section 340. (2) The grounds on which the sanction of  a building or work may be refused shall  be the following, namely:-- (a) that the building or work or the  use of the site for the building or  work or any of the particulars  comprised in the site plan, ground  plan, elevation, section or specifica- tion would contravene the  provisions of any bye-law made in  this behalf or of any other law or  rule, bye-law or order made under  such other law; (b) that the notice for sanction does  not contain the particulars or is not  prepared in the manner required  under the bye-laws made in this  behalf; (c) that any information or  documents required by the  Commissioner under this Act or any  bye-laws made thereunder has or  have not been duly furnished; (d) that in cases falling under  section 312, lay-out plans have not  been sanctioned in accordance with  section 313; (e) that the building or work would  be an encroachment on Government  land or land vested in the  Corporation; (f) that the site of the building or  work does not abut on a street or  projected street and that there is no  access to such building or work  from any such street by a passage  or pathway appertaining to such  site. (3) The commissioner shall communicate  the sanction to the person who has given  the notice; and where he refuses sanction  on any of the grounds specified in sub- section (2) or under section 340 he shall  record a brief statement of his reasons for  such refusal and communicate the  refusal along with the reasons therefor to  the person who has given the notice. (4) The sanction or refusal as aforesaid  shall be communicated in such manner  as may be specified in the bye-laws made  in this behalf."

This takes us to the provision of sealing as contained in  Section 345A of the DMC Act.  That provision was inserted by  Act 42 of 1984 with effect from 10th December, 1985.  One of

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the objects for the amendments, as stated in the Statement of  Objects & Reasons, is to contain massive conversion of  residential constructions into commercial complexes.  The  Statement of Objects and Reasons, inter alia, states that ’in  recent years, growth of unauthorized colonies, encroachment  on public streets, unauthorized construction of public and  private lands and conversion of residential constructions into  commercial complexes have assumed alarming proportions’.   Section 345A reads as under: "Section 345A. Power to seal  unauthorised constructions.-- (1) It shall be lawful for the  Commissioner, at any time, before or  after making an order of demolition under  section 343 or of the stoppage of the  erection of any building or execution of  any work under section 343 or under  section 344, to make an order directing  the sealing of such erection or work or of  the premises in which such erection or  work is being carried on or has been  completed in the manner prescribed by  rules, for the purpose of carrying out the  provisions of this Act, or for preventing  any dispute as to the nature and extent  of such erection or work. (2) Where any erection or work or any  premises in which any erection or work is  being carried on, has or have been  sealed, the Commissioner may, for the  purpose of demolishing such erection or  work in accordance with the provisions of  this Act, order such seal to be removed. (3) No person shall remove such seal  except-- (a) under an order made by the  Commissioner under sub-section  (2); or (b) under an order of an Appellate  Tribunal or the Administrator, made  in an appeal under this Act."

A plain reading of the aforesaid provisions shows that  sealing can be resorted to at any time, before or after making  an order of demolition under Section 343 or under Section 344  in respect of such erection being carried on or completed, for  the purpose of carrying out the provisions of the Act.   Sections 343 and 344 read as under: "Sec. 343\026Order of demolition and  stoppage of buildings and works in  certain cases and appeal.-- (1) Where the erection of any building or  execution of any work has been  commenced, or is being carried on, or has  been completed without or contrary to  the sanction referred to in section 336 or  in contravention of any condition subject  to which such sanction has been  accorded or in contravention of any of the  provisions of this Act or bye-laws made  thereunder, the Commissioner may, in  addition to any other action that may be  taken under this Act, make an order  directing that such erection or work shall  be demolished by the person at whose

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instance the erection or work has been  commenced or is being carried on or has  been completed, within such period (not  being less than five days and more than  fifteen days from the date on which a  copy of the order of demolition with a  brief statement of the reasons therefor  has been delivered to that person), as  may be, specified in the order of  demolition:

Provided that no order of demolition  shall be made unless the person has been  given by means of a notice served in such  manner as the Commissioner may think  fit, a reasonable opportunity of showing  cause why such order shall not be made:

Provided further that where the  erection or work has not been completed,  the Commissioner may by the same order  or by a separate order, whether made at  the time of the issue of the notice under  the first proviso or at any other time,  direct the person to stop the erection or  work until the expiry of the period within  which an appeal against the order of  demolition, if made, may be preferred  under sub-section (2). (2) Any person aggrieved by an order of  the Commissioner made under sub- section (1) may prefer an appeal against  the order to the Appellate Tribunal within  the period specified in the order for the  demolition of the erection or work to  which it relates. (3) Where an appeal is preferred under  sub-section (2) against an order of  demolition the Appellate Tribunal may,  subject to the provisions of sub-section  (3) of section 347C stay the enforcement  of that order on such terms, if any, and  for such period, as it may think fit: Provided that where the erection of  any building or execution of any work has  not been completed at the time of the  making of the order of demolition, no  order staying the enforcement of the  order of demolition shall be made by the  Appellate Tribunal unless security,  sufficient in the opinion of the said  Tribunal has been given by the appellant  for not proceeding, with such erection or  work pending the disposal of the appeal. (4) No court shall entertain any suit,  application or order proceeding for  injunction or other relief against the  Commissioner to restrain him from  taking any action or making any order in  pursuance of the provisions of this  section. (5) Subject to an order made by the  Administrator on appeal under section  347D, every order made by the Appellate  Tribunal on appeal under this section,

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and subject to the orders of the  Administrator and the Appellate Tribunal  on appeal, the order of demolition made  by the Commissioner shall be final and  conclusive. (6) Where no appeal has been preferred  against an order of demolition made by  the Commissioner under sub-section (1)  or where an order of demolition made by  the Commissioner under that sub-section  has been confirmed on appeal, whether  with or without variation, by the  Appellate Tribunal in a case where no  appeal has been preferred against the  order of the Appellate Tribunal, and by  the Administrator in a case where an  appeal has been preferred against the  order of the Appellate Tribunal the person  against whom the order has been made  shall comply with the order within the  period specified therein, or as the case  may be, within the period, if any fixed by  the Appellate Tribunal or the  Administrator on appeal and on the  failure of the person to comply with the  order within such period, the  Commissioner may himself cause the  erection or the work to which the order  relates to be demolished and the  expenses of such demolition shall be  recoverable from such person as an  arrear of tax under this Act."

Sec. 344\026 Order of stoppage of  buildings or works in certain cases.-- (1) Where the erection of any building or  execution of any work has been  commenced or is being carried on (but  has not been completed) without or  contrary to the sanction referred to in  section 336 or in contravention of any  condition subject to which such sanction  has been accorded or in contravention of  any provisions of this Act or bye-laws  made thereunder, the Commissioner may  in addition to any other action that may  be taken under this Act, by order require  the person at whose instance the building  or the work has been commenced or is  being carried on to stop the same  forthwith. (2) If an order made by the Commissioner  under section 343 or under sub-section  (1) of this section directing any person to  stop the erection of any building or  execution of any work is not complied  with, the Commissioner may require any  police officer to remove such person and  all his assistants and workmen from the  premises or to seize any construction  material, tool, machinery, scaffolding or  other things used in the erection of any  building or execution of any work within  such time as may be specified in the  requisition and such police officer shall

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comply with the requisition accordingly.  (2A) Any of the things caused to be  seized by the Commissioner under sub- section (2) shall be disposed of by him in  the manner specified in section 326. (3) After the requisition under sub-section  (2) has been complied with, the Commis- sioner may, if he thinks fit, depute by a  written order a police officer or a  municipal officer or other municipal  employee to watch the premises in order  to ensure that the erection of the building  or the execution of the work is not  continued. (4) Where a police officer or a municipal  officer or other municipal employee has  been deputed under sub-section (3) to  watch the premises, the cost of such  deputation shall be paid by the person at  whose instance such erection or  execution is being continued or to whom  notice under sub-section (1) was given  and shall be recoverable from such  person as an arrear of tax under this  Act."

Section 347 contains a specific prohibition for change of  the use of any land or building.  The said section reads as  under: "Sec. 347 Restrictions on uses of  buildings.-- No person shall, without the written  permission of the Commissioner, or  otherwise than in conformity with the  conditions, if any, of such permission-- (a) use or permit to be used for human  habitation any part of a building not  originally erected or authorised to be  used for that purpose or not used for that  purpose before any alteration has been  made therein by any work executed in  accordance with the provisions of this Act  and the bye-laws made thereunder; (b) change or allow the change of the use  of any land or building; (c) convert or allow the conversion of one  kind of tenement into another kind."

Section 349A contains the power of the Central  Government to make bye-laws for carrying out the provisions  of Chapter XVI.  Regulations may provide for various matters  including the use of sites for buildings from different areas etc.  as mentioned in Clauses (a) to (w) of sub-section (2) of Section  349A, having regard to the requirement of town planning by  the municipalities. Town planning is now part of constitutional  obligation on insertion of Part IX-A in the Constitution of India  w.e.f. 1st June, 1993.  Section 349A was inserted soon  thereafter on 1st October, 1993.  Reference may also be made to Chapter XX of the DMC  Act which deals with markets, slaughter houses, trades and  occupations and maintenance and regulations thereof. Section  416 recognises the importance of the density of population,  pressure on the services in case more number of persons use  the facilities or services.  The said section under the heading  ’Trade and Occupations’ reads as under:

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"Sec. 416 Factory, etc., not to be  established without permission of the  Commissioner.\027 (1) No person shall, without the previous  permission in writing of the  Commissioner, establish in any premises,  or materially alter, enlarge or extend, any  factory, workshop or trade premises in  which it is intended to employ steam,  electricity, water or other mechanical  power. (2) The Commissioner may refuse to give  such permission, if he is of the opinion  that the establishment, alteration,  enlargement or extension of such factory,  workshop or trade premises, in the  proposed position would be objectionable  by reason of the density of the population  in the neighbourhood thereof, or would  be a nuisance to the inhabitants of the  neighbourhood."

A bare perusal of building bye-laws shows how relevant  is the user, commercial or residential, and the large impact of  occupation load on various facilities including water,  sanitation and drainage.  Keeping future needs in view, experts prepare Master  Plans.  Perusal of the Delhi Master Plan, 1962 and 2001  shows what were plan projections.  At the time of planning,  the experts in the field of town planning, take into account  various aspects, such as, healthy living, environment, lung  space need, land use intensity, areas where the residential  houses to be built and where the commercial buildings to be  located, need of household industries etc. Provision for  household industries in residential areas does not mean  converting residential houses in the commercial shops. It only  means permitting activities of household industry in a part of  a residential property.  It does not mean that residential  properties can be used for commercial and trading activities  and sale and purchase of goods.  Master Plan contemplates  shops in District Centres, Community Centres, Local Shopping  Centres etc. and not in residential areas.  Be that as it may,  for the present, we are not considering the cases of small  shops opened in residential houses for catering to day-to-day  basic needs, but are considering large-scale conversion, in  flagrant violation of laws, of residential premises for  commercial use. In respect of planning, reference can usefully be made to  Section 313 of the DMC Act as well.  The said section provides  for the requirement of layout plan of the land.  It, inter alia,  provides that before utilizing, selling or otherwise dealing with  any land under Section 312, the owner thereof shall send to  the Commissioner a written application with a layout plan of  the land showing various particulars including the purpose for  which the building will be used.  For breach of Section 313,  action can be taken under Section 314.  It has rightly not been  disputed by any counsel that neither layout plan, nor the  building plan, can be sanctioned by MCD except in the  manner and for the purpose provided in the Master Plan. If in  the master plan, the land use is residential, MCD cannot  sanction the plan for any purpose other than residential.   In the impugned judgment, while dealing with the  provisions of the layout plan, it was observed that the  provisions for user ’are only regulatory in nature’.  While  dealing with the user, the High Court observed that ’the

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power, whereby and whereunder the basic human rights or  the fundamental rights conferred upon a person is taken  away, must be specifically conferred by a statute’.  The  provision of user may be regulatory but all the same, they are  mandatory and binding.  In fact, almost all the planning  provisions are regulatory.  The violations of the regulatory  provisions on massive scale can result in plans becoming  merely scraps of papers.  That is the ground reality in the  capital of the country.  None has any right, human or  fundamental, to violate the law with immunity and claim any  right to use a building for a purpose other than authorised.   Further, the words ’unless the context otherwise requires’ in  Section 331 of the DMC Act are of no consequence for  determining the point in issue as the context herein does not  provide otherwise for the present purposes.  It does not  provide that the power of sealing under Section 345A cannot  be exercised in case of misuser.  In view of the clear language  of Section 345A, we are also unable to sustain the view of the  High Court that action under Section 345A can be taken only  when there exists order of demolition under Section 343 or an  order under sub-section (1) of Section 344.  The conclusion of  the High Court that action under Section 345A can be taken  only when there exists an order of demolition under Section  343, or on passing of an order under sub-section (1) of Section  344, and in no other contingency cannot be accepted in view  of the clear provision of Section 345A that action can be taken  even before or after an order is made under those provisions.      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\026 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\026 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.     Re :    Question No.B \026 Whether under the Delhi  Development Act, DDA has power to seal  premises on account of its misuser?

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The High Court held that both under Section 345A of the  DMC Act and under Section 31-A of the Delhi Development  Act, there is no power to seal premises on account of ’its’  misuser.  We have held that MCD has such a power under the  DMC Act.  The position, however, is different when the  provisions of the Delhi Development Act are examined.    The Delhi Development Act defines in Section 2(e)  ’development area’ to mean any area declared to be a  development area under sub-section (1) of Section 12.  Section  12 reads as under: "Sec. 12\026 Declaration of development  areas and development of land in those  and other areas.--  (1) As soon as may be after the  commencement of this Act, the Central  Government may, by notification in the  Official Gazette, declare any area in Delhi  to be a development area for the purposes  of this Act : Provided that no such declaration  shall be made unless a proposal for such  declaration has been referred by the  Central Government to the Authority and  the Municipal Corporation of Delhi for  expressing their views thereon within  thirty days from the date of the receipt of  the reference or within such further  period as the Central Government may  allow and the period so specified or  allowed has expired. (2) Save as otherwise provided in this Act,  the Authority shall not undertake or  carry out any development of land in any  area which is not a development area. (3) After the commencement of this Act  no development of land shall be  undertaken or carried out in any area by  any person or body (including a  department of Government) unless,-- (i) where that area is a development  area, permission for such  development has been obtained in  writing from the Authority in  accordance with the provision of  this Act, (ii) where that area is an area other  than a development area, approval  of, or sanction for, such  development has been obtained in  writing from the local authority  concerned or any officer or authority  thereof empowered or authorised in  this behalf, in accordance with the  provisions made by or under the law  governing such authority or until  such provisions have been made, in  accordance with the provisions of  the regulations relating to the grant  of permission for development made  under the Delhi (Control of Building  Operations) Act, 1955, (53 of 1955),  and in force immediately before the  commencement of this Act: Provided that the local authority

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concerned may subject to the provisions  of section 53A amend those regulations  in their application to such area. (4) After the coming into operation of any  of the plans in any area no development  shall be undertaken or carried out in that  area unless such development is also in  accordance with such plans, (5) Notwithstanding anything contained  in sub-sections (3) and (4) development of  any land begun by any department of  Government or any local authority before  the commencement of this Act may be  completed by that department or local  authority without compliance with the  requirements of those sub-sections."

The power of DDA to develop land in non-development  area is provided in Section 22-A, which reads as under:  "Sec. 22-A Power of Authority to develop  land in non-development area.-- Notwithstanding anything contained in sub- section (2) of Section 12, the Authority may, if  it is of opinion that it is expedient to do so,  undertake or carry out any development of any  land which has been transferred to it or placed  as its disposal under Section 15 or Section 22  even if such land is situate in any area which  is not a development area."

Under Section 36, DDA has been empowered to require  the local authority, within whose local limits area developed by  it is situated, to assume responsibility for the maintenance of  the amenities provided in the area by DDA and other ancillary  matters.  Section 30 provides for power of DDA to make an  order of demolition of building where any development has  been commenced or is being carried on or has been completed  in contravention of the master plan or zonal development plan  or without the permission, approval or sanction referred to in  Section 12 or in contravention of any condition subject to  which such permission, approval or sanction has been  granted. Section 31 empowers DDA to stop development which  is in contravention of the plan, permission, approval or  sanction, mentioned therein or contravention of the conditions  stipulated in such permission, approval or sanction.         Section 31A empowers DDA to seal unauthorised  development.  If the misuser of the premises would come  within the ambit of unauthorised development, DDA would  have power to seal the premises.  On the other hand, if  misuser does not come within the ambit of ’unauthorised  development’, the power of sealing would be lacking.  Section  31-A of the Delhi Development Act reads as under: "Sec. 31-A Power to seal unauthorised  development.-- (1) It shall be lawful for the Authority or  the competent authority, as the case may  be, at any time, before or after making an  order for the removal or discontinuance  of any development under Section 30 or  Section 31, to make an order directing  the sealing of such development in the  manner prescribed by rules, for the  purpose of carrying out the provisions of  this Act, or for preventing any dispute as  to the nature and extent of such

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development. (2) Where any development has been  sealed, the Authority or the competent  authority, as the case may be, may, for  the purpose of removing or discontinuing  such development, order the seal to be  removed. (3) No person shall remove such seal  except-- (a) under an order made by the  Authority or the competent  authority under sub-section (2); or (b) under an order of the Appellate  Tribunal or the Lieutenant Governor  of the National Capital Territory of  Delhi, made in an appeal under this  Act."

The expression ’development’ is defined in Section 2(d) as  under: "Sec.2(d) "development" with its  grammatical variations means the  carrying out of building, engineering,  mining or other operations in, on, over or  under land or the making of any material  change in any building or land and  includes redevelopment;"

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 31-A as ’competent  authority’.  The power of ’Competent Authority’ to seal  premises would depend upon the statute governing it.  The  language of Section 31-A 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 31-A is to seal development under  Section 30 or Section 31.  The words ’such development’ in  Section 31-A refers to removal or discontinuance of  development under Section 30 or Sec. 31-A 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 31-A does not provide that sealing can be resorted to  also for the purpose of carrying out the provisions of the Act.  

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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. 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.

Re :    Individual cases and the Directions to be issued  in respect thereof and also in respect of other  residential properties used illegally for  commercial purposes.          In Special Leave Petitions and Civil Appeal Nos. 608- 611of 2003 challenge is to the judgments of High Court  disposing of writ petitions in terms of law laid down by Full  Bench.   In Civil Appeal No.610 of 2003, it is contended on behalf  of the private respondents that a factual error seems to have  occurred when the matter was disposed of by the High Court  along with batch matters.  It has been pointed out that the  Court has failed to note that the plot in question has been  leased out by DDA for commercial purposes; due licence has  been issued by the MCD to open a restaurant which is being  run in the name of Copper Chimney and, therefore, there is no  misuser.  Our attention has been drawn to the copy of the  lease deed and the licence.  If this is the factual scenario, the  authorities will examine it before taking action, if any, and the  same would be subject to such legal remedy as may be  available in law to the private respondents.  In Special Leave Petition No.23896 of 2002 on behalf of  respondent\026bank, it has been pointed out that as per scheme  of DDA, banks have been permitted in the residential  properties.  For DDA, it was submitted that the benefit of the  scheme is available subject to the fulfillment of various  conditions stipulated therein. In this view, the matter will have  to be examined by the authorities in the light of the scheme,  before proceeding to take action, if any, that may be available  in law and subject to legal remedies of the Bank.   In respect of C.A. No. 608 of 2003, MCD issued to the  respondents, a show cause notice dated 1st August, 2000  under Section 345A read with Sections 347, 343 and 344 of  the DMC Act stating that property No. 39 Ring Road, Lajpat  Nagar III was being misused in the name and style of "Jagdish  Store".  In reply dated 15th September, 2000, it was, inter alia,  stated that the MCD itself has been allowing non-residential  activities in residential areas under a special scheme, without,  however, giving any details or filing any document in support  thereof.   Further, we asked the learned counsel for the  respondents to place on record the plan for the construction of  the building which may have been sanctioned so as to  ascertain whether the sanction was for construction of the  residential property or commercial property.  The plan has not  been filed.  The reasons are not far to seek.  One of the simple  method for ascertaining that there is misuser or not, is to  examine the sanctioned plan. At this stage, it would be useful to notice letter dated 28th  August, 2000 sent by the Ministry of Urban Development to  the Commissioner, MCD, Vice-Chairman, DDA and other  authorities conveying the deep concern of Parliament  Consultative Committee over the rising menace of  unauthorized construction, suspected connivance of the staff

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of the different authorities in the matter and requesting the  authorities to take strong and prompt action and suggesting  ten measures for strict enforcement.  The letter reads as  under: "Annexure-R-1 No.J-13036/3/96-DDIIB Government of India Ministry of Urban Development & Poverty  Alleviation *** Nirman Bhawan, New Delhi Dated: 28.08.2000

To

1.      Shri P.S.Bhatnagar,         Chief Secretary,  Government of National Capital  Territory of Delhi,         Delhi.

2.      Shri P.K.Ghosh,

       Vice-Chairman,         Delhi Development Authority,         Vikas Sadan, INA, New Delhi

3.      Shri S.P.Aggarwal,         Commissioner,         Municipal Corporation of Delhi,         Town Hall,         Delhi

4.      Shri B.P.Misra,         Chairperson         New Delhi Municipal Committee,         Palika Kendra,         New Delhi

5.      The Development Commissioner, Government of National Capital  Territory of Delhi,     Town Hall,         New Delhi

Subject:        Unauthorised Encroachment  and Illegal Constructions in  Delhi

Sir,

       I am directed to say that the menace  of illegal encroachment/unauthorised  construction in Delhi has been  considered by the Government of India at  its highest level and it has been decided  to eliminate this menace with a firm  hand.  You are, therefore, requested to  take strong and prompt action against all  illegal constructions/unauthorised  encroachments and also against misuses  of land in violation of the provisions of  the Master Plan of Delhi.  The following

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measures are particularly required to be  enforced strictly.

(i)     All illegal constructions should be  demolished, not cosmetically but in  toto.

(ii)    The cost of demolition should be  recovered from the illegal builders  within 15 days of demolition.  In  case of non-payment within 15  days, the amount due should be  recovered as arrears of land  revenue.

(iii)   In all cases of illegal constructions,  prosecution should invariably be  launched against builders under the  Delhi Municipal Corporation Act,  Delhi Development Authority Act,  New Delhi Municipal Council Act,  etc. and the cases followed  vigorously with the police  authorities/courts.

(iv)    Wherever the property is on lease,  action should be taken under the  terms and conditions of lease  agreement and re-entry effected  within the shortest permissible  period under such lease agreement.   After re-entry, physical possession  of the property should be taken by  invoking the provisions of Public  Premises Eviction Act and damages  collected immediately.  The rates of  damages/misuse charges should be  the same as per the formula  followed by the L&DO and approved  by the Ministry of Urban  Development.

(v)     In case of DDA flats, where  constructions have come up beyond  the condonable limits, cancellation  of allotment should be carried out in  addition to the demolition of the  additional construction.  Orders in  respect of condonable and non- condonable items are being issued  separately.

(vi)    In cases, where after demolition,  reconstruction is done, personal  responsibility of the officer in-charge  should be fixed and departmental  action taken against him.

(vii)   In cases where illegal construction  have taken place on rural  agricultural lands, action under the  Provisions of the Delhi Land  Reforms Act, 1954, should also be  taken and such lands should be  taken over as per provisions of the

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Delhi land Reforms Act.  Action in  this respect should be taken as soon  as the plots are cut by the  colonisers and construction done in  the shape of boundary walls, etc.  In  other words, construction should be  nipped in the bud.  If it comes up, it  should be demolished immediately.   Action in this respect should also be  taken by the concerned local  agencies/DDA as per the bye-laws  pertaining to lay out/service plans,  etc.

(viii)  In all cases where party obtains  stay/status quo orders, prompt  action to get the stay order vacated  should be taken and higher court  moved, wherever necessary.

(ix)    All Senior Field Officers should be  asked to carry out physical  inspection of the area under their  charge and the Supervising Officer  should also make surprise checks to  ensure that the subordinate staff  takes immediate action to  check/demolish unauthorised  construction.  Deterrent action  should also be taken against the  subordinate staff such as Building  Inspectors, Junior Engineers,  Assistant Engineers, etc. who do not  take prompt action.

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

2.      It is also requested that a monthly  report should be sent to the Ministry of  Urban Development by the 5th of each  succeeding month.

3.      In this connection, it may be noted  that both the Parliament and the  Parliament Consultative Committee have  expressed deep concern, through  questions and interpolations, over the  rising menace of unauthorised  constructions in Delhi and the suspected  connivance of the staff of the different  authorities in the matter.  A Flying Squad  has been constituted in the Ministry and  if, as a result of findings of this Squad, it  is found that the subordinate staff has  not done its duty or not carried out the  aforesaid instructions, strict action  against the Subordinate/Supervisory  Staff would be taken by the Government.

Yours faithfully, Sd/- (Dr.Nivedita P.Haran)

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Joint Secretary to the Government of India

Copy for information and necessary  action to: 1.  Deputy C.V.O., Ministry of UD&PA,  Nirman Bhawan, New Delhi. 2.  L&DO, Ministry of UD&PA, Nirman  Bhawan, New Delhi 3.  DG(W), CPWD, Nirman Bhawan, New  Delhi

Sd/- (N.L. Upadhyay)"

The aforesaid letter has been considered by this Court  while passing order dated 31st July, 2001, part whereof has  been quoted earlier.  Although the letter and also the  observations made in the order are in the context of  unauthorized constructions, the same would equally apply to  the misuser as well.  It would be useful to reproduce the entire  order which reads as under: "Order dated 31.7.2001 in W.P.(C)  No.725/1994\026

We have seen two affidavits, one of the  Chief Secretary as well as the affidavit on  behalf of the M.C.D.   We are sorry to  note that the affidavits do not specifically  deal with the points in issue.  Vide our  order dated 9th May, 2001 these  authorities along with Vice-Chairman,  D.D.A, Chairperson, N.D.M.C. and the  Development Commissioner were  required to file affidavit to indicate as to  what measures they have taken in the  implementation of the letter dated 28th  August, 2000.  At least ten measures  were required to be taken in terms of the  said letter dated 28th August, 2000.  The  affidavits in reply do not deal with them  specifically and general averments have  been made which are not satisfactory.

       The perusal of the affidavits further  shows that the parties concerned have  not even touched the tip of the iceberg as  far as demolition of unauthorised  constructions is concerned.  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 even as per the  affidavits 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

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highest quarters.

       We direct the Chief Secretary as well  as the Commissioner, M.C.D. to file  within four weeks specific affidavit  dealing with each of the clauses of the  letter dated 28th August, 2000.  They will  also indicate as to what is the total  encroached area in Delhi as well as the  number of unauthorised/illegal  constructions which have been raised.

       The affidavit of the Chief Secretary  seems to give some indication of action  taken for removing encroachment from  some of these areas in Delhi.  We would  require the Union of India/Ministry of  Urban Development to check and inform  the Court whether what is stated in the  annexures to the affidavit of the Chief  Secretary from pages 43 to 63 is correct.   The Central Government will be at liberty  to ask for information from the local  authority in order to enable it to comply  with the orders passed today.

       The M.C.D. will also inform this  Court in the affidavit to be filed as to why  no requisite action has been taken for  stopping the gross misuse of the  buildings in the residential areas for  commercial purposes and in the  construction of commercial buildings in  residential areas where only residential  houses are permitted.  To come up after  four weeks."

Now, we revert to the task of implementation.  Despite its  difficulty, this Court cannot remain a mute spectator when the  violations also affect the environment and healthy living of  law-abiders.  The enormity of the problem which, to a great  extent, is the doing of the authorities themselves, does not  mean that a beginning should not be made to set things right.   If the entire misuser cannot be stopped at one point of time  because of its extensive nature, then it has to be stopped in a  phased manner, beginning with major violators.  There has to  be a will to do it.  We have hereinbefore noted in brief, the  orders made in the last so many years but it seems, the same  has had no effect on the authorities.  The things cannot be  permitted to go on in this manner forever.  On one hand,  various laws are enacted, master plans are prepared by expert  planners, provision is made in the plans also to tackle the  problem of existing unauthorised constructions and misusers  and, on the other hand, such illegal activities go on unabated  openly under the gaze of everyone, without having any respect  and regard for law and other citizens.  We have noticed above  the complaints of some of the residents in respect of such  illegalities.  For last number of years even the High Court has  been expressing similar anguish in the orders made in large  number of cases.  We may briefly notice some of those orders. More than fifteen years ago, on 17th May, 1990, a  Division Bench of the Delhi High Court presided over by  Justice B.N. Kirpal (as the former Chief Justice of India then  was) in the case of Ahuja Property Developers (P) Ltd. v.  M.C.D. [1990 (42) Delhi Law Times 474], dealt with a writ

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petition in respect of a building in Kailash Colony, New Delhi  and noticed the extent of illegalities and the massive  construction made that could not be used for residential  purposes since there was no kitchen or kitchen facilities.   Dealing with the argument put forth on behalf of builder that  there is no power to seal any building under Section 345A,  dismissing the writ petition, it was observed that the petitioner  had admittedly violated the law and cannot now be permitted  to cry wolf.  The Court said that the petitioner had admittedly  constructed a building not only at variance with the  sanctioned plan but also at variance with the completion  certificate and completion drawings. Again on 22nd October, 1990, another Division Bench  dealt with a property in Greater Kailash II, New Delhi in the  case of DDA v. Rajinder Mittal, [1991(20) DRJ 65] and  observed that the residential buildings can only be used for  residential purposes. The use of premises for widespread  commercial activities is prohibited.  This was while dealing  with a criminal matter arising out of prosecution under  Section 29 of the Delhi Development Act. On May 18, 1995, Justice R.C. Lahoti (as the former  Chief Justice of India, then was) in the case of ANZ Grindlays  Bank v. The Commissioner, M.C.D. & Ors. [1995(34)DRJ  492]  echoed similar words and referred to decision of this  Court, observing that the word ’environment’ is of broad  spectrum which brings within its ambit hygienic atmosphere  and ecological balance.  It is, therefore, not only the duty of  the State but also the duty of every citizen to maintain  hygienic environment.  There is constitutional imperative on  the State Government and the municipalities, not only to  ensure and safeguard proper environment but also an  imperative duty to take adequate measures to promote, protect  and improve both the man-made and the natural  environment.  Dealing with the Municipal Laws providing for  power of demolition, it was observed that while interpreting  municipal legislation framed in public interest, a strict  constitutional approach must be adopted. A perusal of the  Master Plan shows that the public purpose behind it is based  on historic facts guided by expert opinion.   The injurious effects on the health and well being of  those living in the neighbourhood were also noticed.  Further,  notice was taken of the fact of the unscrupulous builders  building properties in deviation of laws, master plan with the  connivance or collusion of the authorities.          On 9th February, 1996 dealing with various properties at  Pusa Road in the case of Anil Kumar Khurana v. MCD [1996  (36) DRJ 558] writing separate opinion as a member of  Division Bench of Delhi High Court, one of us (Y.K.Sabharwal,  CJ) noticed that the unauthorised constructions and  unauthorised user of residential building for commercial  purposes in Delhi had gained alarming proportions and  crossed all limits.  It was said that these activities are against  the interests of the society at large and need to be dealt with  firmly and that the public interest demands that the court  should not come to the aid of those who break the law with  immunity and put up commercial complexes on the land  meant admittedly for residential use.  These complexes are put  up and spaces purchased for petty commercial consideration  without any regard to the hardship and inconvenience of other  citizens.  It was further said that in respect of blatant  unauthorised constructions and misuser, it cannot be said  that the Commissioner of MCD has a discretion to order  demolition or not and vesting of discretion in the  circumstances would itself be arbitrary and illegal.          In the concluding paragraph it was stated that:

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"In the end, I regret to notice that despite  warning and caution given by the Apex  Court and also this court, from time to  time, that stern action will be taken  against unauthorised constructions and  misuse, these activities have gone on  unabated, without any let or hindrance  and all the warnings have fallen on deaf  ears without any effect on the  unscruplous builders and purchasers of  these spaces. It is, therefore, necessary to  once again send a message, loudly,  clearly and firmly to all those who indulge  in such illegal activities that courts will  not come to the aid of persons who  indulge in such blatant unauthorised  constructions and misuser of the  properties. It is also the duty of the  courts to examine these matters carefully  before granting injunction restraining  demolition of such unauthorised  constructions. Ordinarily the courts  before issuing injunctions in such  matters should insist upon filing of the  sanctioned plans and details about the  existing structures to prima facie find out  whether the existing structures are in  accordance with the sanctioned plan and  building bye laws etc or not. The courts  may also consider appointment of  independent person to verify correctness  of representations made about existing  structures as in many cases  unauthorised constructions are raised  after issue of injunctions and in cover  and garb of orders of injunction. The  alarming nature of such illegal activities  can be controlled only by due cooperation  from all citizens including the Media and  the Press. It is the duty of all to expose  these law breakers. I hope the Media  would bring to the notice of public in  general that unauthorised constructions  and misuser have been severely dealt  with by this court and henceforth also no  leniency would be shown in such  matters. A copy of this judgment shall be  sent forthwith to Delhi Doordarshan and  All India Radio. Everyone has to be told  that such unauthorised activities are  against public interest. These activities  have to be stopped forthwith. If in spite of  this warning anyone indulges in such  unauthorised construction or misuse or  in purchase of these unauthorized  constructions he would be doing it at his  own risk and peril and would not be  heard to say that he has made large  investments. I hope that at least now this  message would be taken with all  seriousness.  

In view of the above, in my opinion,  all the petitions and appeals deserve  dismissal with costs quantified at

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Rs.10,000/- in each case. These costs  would be utilised by M.C.D. for creating  in a Special Cell which should be set up  to curb unauthorised construction and  misuser of the immoveable properties so  that at least a beginning is made now to  promptly check these illegal activities.  The officials and officers manning this  Cell will have to be informed that any  dereliction of duty would be severely dealt  with."

       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.           Despite passing of the laws and repeated orders of the  High Court and this Court, the enforcement of the laws and  the implementation 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 large  scale cannot take place without connivance of the concerned  officers.  It is also a source of corruption.  Therefore, 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.         We have perused the suggestions given by MCD.  It has  suggested four steps.  MCD requires six months to complete  the whole survey in 12 zones divided into 134 wards.  As a  second step, after initial survey of all the zones, notice of the  proposed action/sealing and/or stopping misuse to be given to  the concerned persons.  The third step is grant of opportunity  to them of being heard.  The fourth step is the operations for  sealing blatant and obvious cases of large scale misuse at the  first instance.  Further suggestion is that the major violations  would be sealed first and simultaneously action in all 12 zones  would be conducted after following the due process of law.  It  is stated that the success of operation would largely depend on  the availability of the Police force.  Recognising that the parties  later tamper the seal, it is suggested that necessary directions  be issued warning those who tamper the seal that they shall  be punished for contempt of court.   Regarding the Ad hoc Trade Registration Scheme, 2004,  the stand of the MCD is that, if allowed by the Court, it will be

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implemented in the same area as is permitted by the Master  Plan for category ’A’ household industry to the extent of 25% of  the floor space or 30 sq. mt., whichever is less, and this will be  the maximum space permissible.  The minimum space having  already been specified in the scheme as 30 sq. ft.  We may  note that the scheme for ad hoc registration itself provides  that it is applicable to the following areas : 1.      Walled city and other built up areas. 2.      Schemes executed by the Delhi Improvement Colonies. 3.      Schemes executed by the Ministry of Rehabilitation  Colonies. 4.      Resettlement Colonies. 5.      Urban Villages 6.      Unauthorised regularized colonies.         This scheme is not applicable to the following areas : 1.      NDMC and Delhi Cantonment area. 2.      Planned Colonies and housing schemes developed after  1957. 3.      Unauthorised colonies not regularized. 4.      J.J. Clusters. 5.      Staff Housing colonies. 6.      Rural Settlement (except household and rural industrial  units Group A & A1-Annexure-II) The areas and the colonies above-referred themselves  show that the so-called Registration Scheme, 2004 can have  no applicability to the nature of misuse under consideration.   It deserves to be noted that it is implicit in the scheme that a  person to get benefit of the scheme has himself to be resident  of such premises.   The introduction of the Ad hoc Registration Scheme  would not only regularize the illegalities but further encourage  more illegalities to take place by sending a wrong message  underlying the press release.  This ad hoc scheme has been  stayed by this Court.  A similar scheme was also sought to be  introduced by DDA as well  for grant of temporary permission  for commercial use in industrial plots and for condonation of  misuse of industrial premises for offices and other commercial  purposes on payment of requisite charges.  On learned Amicus  Curiae filing IA 1816 of 2002 seeking stay of the said scheme,  the scheme was given up and an affidavit filed that no action  is being taken by DDA upon the scheme or the notice, subject  matter of the application.  The introduction of such schemes  by MCD and DDA show the extent of the apathy and lack of  concern of these bodies.  Mr. Ashwini Kumar, learned senior Advocate appearing  for MCD, also contended that since there is a large scale  misuse of residential premises for commercial purposes, it is a  physical impossibility to remove the misuser.  The contention  deserves outright rejection.  We have already noted how the  misuser has attained such enormity.  Despite repeated orders  and directions, MCD took no action.  Such a contention is not  open to MCD.  It is not merely a case of only lack of will to  take action, it appears to be a case of predominance of  extraneous considerations.   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

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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 :  1.      MCD shall within 10 days give wide publicity in the  leading newspapers directing major violations on main  roads (some instances of such violators and roads have  been noted hereinbefore) to stop misuser on their own,  within the period of 30 days. 2.      It shall be the responsibility of the owner/occupier to file  within 30 days an affidavit with Commissioner of MCD  stating that the misuser has been stopped. 3.      In case misuser is not stopped, sealing of the premises  shall commence after 30 days, from the date of public  notice, first taking up the violations on roads which are  80 ft. wide and more.  All authorities are directed to  render full assistance and cooperation.  After expiry of 30  days from the date of public notice, electricity and water  supply shall be disconnected.   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.  

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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.