SUPREME COURT OF INDIA
M.C. Mehta
Vs
Union of India and Others
Writ Petition (Civil) 4677 of 1985 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) and C. K. Thakker, JJ)
29.09.2006
Y. K. SABHARWAL, (CJI) J.
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 . 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
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 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 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 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, 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 cafe/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
(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 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.