TaxTMI 
TaxTMI 
2020 (8) TMI 942
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....ocate, Mr. Sanjay Kumar Visen, AOR, Ms. Garima Prashad, Adv., Ms. Anil Katiyar, Adv., Mr. D.N. Goburdhun, Adv., Mr. Alok Gupta, Adv., Mr. Vijay Panjwani, Adv., Mr. Siddharth Luthra, Senior Advocate, Mr. Ejaz Maqbool, Advocate on Record, Mr. Abhimanyu Bhandari, Advocate, Ms. Roohina Dua, Advocate, Mr. Cheitanya Madan, Advocate, Mr. Siddharth Luthra, Sr. Adv., Mr. Abhimanyu Bhandari, Adv., Ms. Roohe Hina Dua, Adv., Mr. Cheitanya Madan, Adv., Mr. Naveen Kumar, AOR, Mr. Dhruv Mehta, Senior Advocate, Mr. Yashraj Singh Deora, AOR, Mr. Rahul Narayan, Adv., Mr. Nishit Agrawal, Adv., Mr. Harsh Mishra, Adv., Mr. Chirag M. Shroff, Advocate, Ms. Sanjana Nangia, Adv., Ms. Abhilasha Bharti, Adv., Ms. Prerna Mehta, Adv., Mr. Tileshwar Prasad, Adv., Mr. Naresh Aditya Madhav, Adv., Ms. Rachana Joshi Issar, Adv., Mr. Rahul Narayan, AOR, Mr. Jasbir Singh Malik, Adv., Ms. Usha Nandini V., Adv., M/s Saharya & Co., Ms. Prerna Mehta,Adv., Mr. Tileshwar Prasad,Adv., Mr. Naresh Aditya Madhav,Adv., Mr. Jatinder Kumar Bhatia , Adv., Mr. Ashutosh Kumar Sharma Adv., Ms. Bina Gupta, AOR Petitioner(s)-in-Person, Mr. B.V. Balram Das, Advocate, Ms. Anil Katiyar, Advocate, Mr. Praveen Swarup, Advocate, Ms. Garima P....
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...., AOR, Ms. Manju Jetley, AOR, Mr. Harish Pandey, AOR, Mr. Shekhar Kumar, AOR, Mr. Abhinav Mukerji, AOR, Mr. Annam D. N. Rao, AOR, Mr. Satish Aggarwal, AOR, Mrs. Rekha Pandey, AOR, Mr. Senthil Jagadeesan, AOR, Ms. Prasanthi Prasad, AOR, Mrs. Rachana Joshi Issar, AOR, Mr. Ajit Sharma, AOR, Ms. Prerna Mehta, AOR, Ms. Anu Gupta, AOR, Ms. Rukhsana Choudhury, AOR, M/S. Saharya & Co., AOR, Mr. Harsh V. Surana, AOR, Mr. Raj Kamal, AOR, Mr. Himinder Lal, AOR, Mr. Prashant Bhushan, AOR, Mr. M. P. Shorawala, AOR, Mr. Arvind Gupta, AOR, Mr. Abhas Kumar, AOR, Mr. Vivek Narayan Sharma, AOR, Mr. Milind Kumar, AOR, Ms. Kaveeta Wadia, AOR, Mr. Ajay Kumar Singh, AOR, Mr. Gagan Gupta, AOR, Mr. Yoginder Handoo, AOR, Mr. Jasmeet Singh, AOR, Mr. Gaurav Sharma, AOR, Ms. Akriti Chaubey , AOR, Mr. Prakash Ranjan Nayak, AOR, Mr. T. Mahipal, AOR, Ms. Garima Prashad, AOR, M/S. Karanjawala & Co., AOR, Mr. Rahul Narayan, AOR, Mr. Alok Gupta, AOR, Mr. Arvind Kumar Sharma, AOR, Mr. Rajat Joseph, AOR, Mr. Ravinder Kumar Yadav, AOR, Mr. Shekhar Prit Jha, AOR, Dr. Monika Gusain, AOR, Mr. S. S. Shroff, AOR, Mr. O. P. Bhadani, AOR, Mr. Amarjit Singh Bedi, AOR, Mr. Ejaz Maqbool, AOR, Mr. Rameshwar Prasad Goyal, AOR, Mr....
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....ises used for residential purposes. It was permissible to raise the construction for the use of a residence as provided under Clause 4.4.3 G of MPD­2021. Reliance has also been placed on NDRA Policy. 5. We have heard Shri Ranjit Kumar, Ms. Anitha Shenoy and Shri A.D.N. Rao, learned Amicus Curiae, Shri Rakesh Khanna, Shri Siddharth Luthra, Shri Mukul Rohatgi, Shri R.C. Mishra, Shri Nalin Kohli, Shri Wasim A. Qadri, Shri Sanjiv Sen, learned senior counsel, Shri Tushar Mehta, learned Solicitor General, Ms. Aishwarya Bhati, learned Addl. Solicitor General, Shri D.N. Goburdhan, Shri Naveen Kumar, Ms. Karuna Nundy, learned counsel and other learned counsel appearing for the parties. 6. Shri Ranjit Kumar, learned Amicus Curiae with his usual vigour urged that Writ Petition (C) No.4677 of 1985 was filed in this Court regarding environment in Delhi, shifting of heavy industries, noxious industries, stopping of all mining in Aravali hills in and around Delhi including demolition of colonies built on forest land, misuse of premises (misuse includes unauthorized construction), i.e., construction without sanction, lack of civic amenities and the need for their upgradation, etc. This C....
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....ose". Despite the limited mandate to the Monitoring Committee, it illegally sealed other premises. A Special Task Force has been constituted as per order dated 24.4.2018 to remove the encroachments on public roads, public streets, and pedestrian street, and it was for the Monitoring Committee to suggest to the Special Task Force the areas where immediate action was required to be taken concerning aforesaid aspect. The Special Task Force was constituted under section 5(3) of the Delhi Development Act, 1957. Thus, it is a statutory body. It has the task of overseeing the implementation of the applicable laws regarding illegal constructions, encroachment on public land, public parks, parking places, roads, pavements, etc. Special Task Force is taking adequate action as and when a violation is reported. 10. Shri D.N. Goburdhan, learned counsel appearing on behalf of the Government of NCT of Delhi, has raised the following arguments: a. That the Delhi Municipal Corporation Act, 1957 (for short, "the DMC Act") is a complete code by itself. The Delhi Municipal Corporation is a statutory body which cannot be deprived of its functions. He has also attracted the attention of this....
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....Monitoring Committee has exercised power unauthorizedly. The orders were passed in order to stop the unauthorized commercial use of the land earmarked for residential purposes, as provided in the Zonal Plan. The Monitoring Committee without power sealed the premises, which were in the commercial area for commercial use. He has attracted our attention to certain provisions of the Master Plan. Concerning the aforesaid aspects, we do not propose to deal with it in the instant order. We propose to deal only with the limited question whether the Monitoring Committee is empowered by this Court to seal the residential premises. We leave the question of commercial plots raised by Shri Khanna to be dealt with separately. 12. Shri Khanna further argued that the Monitoring Committee had no power to seal purely residential premises. He has attracted our attention to this Court's order by which it was constituted, and various other judgments and orders passed in this regard. He has argued that the Monitoring Committee kept quiet, pursuant to the query made by this Court on 7.5.2019 as to whether in past, before Report No.149 was submitted, the Monitoring Committee sealed the residential prem....
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.... is provided under the DMC Act along with the Appellate Tribunal under sections 347A and 347B of the DMC Act. The Monitoring Committee, unless specifically authorized by this Court, could not violate the procedure under the DMC Act. Reliance has been placed by the learned counsel on the various decisions to be referred to later. (i) Particularly when the Monitoring Committee is not empowered to take any such action, no appeal lies against the action of the Monitoring Committee. Only it hears a representation. Not even the High Court can interfere in the functioning of the Monitoring Committee. (ii) Even with respect to the encroachment on public roads, public streets, and pedestrian streets, the Special Task Force is authorized to take action. Thus, the Monitoring Committee's power after the constitution of Special Task Force is further restricted, and it is for the Monitoring Committee to suggest to the Special Task Force with respect to the encroachment on the public land, roads, and public places. (iii) The range of remedies available to the owner of the property in the residential premises' occupation cannot be deprived of by the Monitoring Co....
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...." 19. (i) The Monitoring Committee was constituted by this Court vide judgment and order dated 16.2.2006 in M.C. Mehta v. Union of India & Ors, (2006) 3 SCC 399. Following is the relevant portion: "1. In respect of large number of immovable 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. 2. 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. 3. Considering such large-scale flagrant violations, this Cour....
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....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 the two Acts. Later, some other matters were also decided by the High Court following the Full Bench decision. Those judgments are also under challenge." (emphasis supplied) Following questions were framed by this Court for consideration: "13. 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. 14. In these matters, we are considering only the issue of misuser. We are not considering the issue of unauthorised constructions." (emphasis supplied) (ii) It is apparent that the only question for consideration of this Court was the misuse of the residential premises for illegal or commercial purposes. In paragraph 14 (quoted above), this Court made it clear that it did not consider ....
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....ght, 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 345-A cannot be exercised in case of misuser. In view of the clear language of Section 345-A, we are also unable to sustain the view of the High Court that action under Section 345-A 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 345-A 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 345-A that action can be taken even before or after an order is made under those provisions." (emphasis supplied) (iv) The court eventually issued directions in respect of oth....
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....sioner, 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 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, the Delhi Development Act, the New Delhi M....
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.... (x) Field Officers should be asked to maintain field 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 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) Joint Secretary to the Government of India Copy for information and necessary action to: 1. Deputy CVO, Ministry of UD&PA, Nirman Bhawan, New Delhi. 2. L&DO, Ministry of UD&PA, Nirman Bhawan, New Delhi. 3. DG(W),....
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....mplied 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." (vi) Ultimately, the court has passed the following order while appointing the Monitoring Committee: "69. 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. ....
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.... of the residential premises for the unauthorized/commercial purpose. Pursuant to the order dated 16.2.2006, the Monitoring Committee was formed on 24.3.2006. 20. The court again emphasized that its order should be carried out in letter and spirit in the case of M.C. Mehta v. Union of India reported in (2006) 3 SCC 429 passed on 24.3.2006 thus: "4. In order to oversee the implementation of the law, namely, sealing of offending premises in terms of the letter and spirit of this Court's directions, it is necessary to appoint a Monitoring Committee instead of leaving any discretion with the officers of MCD. Accordingly, we appoint a Monitoring Committee comprising of Mr K.J. Rao, Former Advisor to the Election Commissioner, Mr Bhure Lal, Chairman, EPCA and Major General (Retd.) Som Jhingan. We direct that all necessary facilities shall be supplied by MCD to the members of the Monitoring Committee, including the facility of transport, secretarial services, honorarium, etc. 9. IAs Nos.1921, 1922 and 1923 have been filed by three associations whereas IAs Nos.1918-19 have been filed by an individual business house. The applicant of IA No.1919 has filed an affidavit gi....
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....instructions, states that the Government is not contemplating to allow small shops in colonies of category A & B. In this view of the stand, the aforequoted recommendation is not accepted. In respect of para 4 of the report relating to the sealing of liquor shops in convenient/local shopping centres located in residential areas, we find no ground to direct sealing of liquor shops. The convenient/local shopping centres are in the commercial areas earmarked in residential areas and there does not appear to be any legal impediment for the liquor trade to be conducted from the said commercial areas. However, the liquor trade cannot be permitted to be carried on in mixed land use since the first floor onwards are expected to be used for residential purposes only and thus liquor trade in such residential areas cannot be allowed to be continued. This part of recommendation in para 4 of the report is accepted. Regarding recommendations 5 and 6 regarding professional activities and the basement are concerned, learned Solicitor General states that since the matter is under consideration of the Government, for the present, the sealing in respect thereof may not be continued. Learned ....
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....he conditions stipulated in the said Direction No.3 would be applicable to such traders/ professionals. The present order is in continuation of the orders passed on 29th September, 2006, 18th October, 2006, 6th November, 2006 and 15th November, 2006. However, thirty four establishments mentioned in Annexure 'A' will not be entitled to above concession. The Monitoring Committee can verify ad if they have not ceased commercial activity, the premises shall be sealed and it be ensured that commercial activity is not carried on by them. *** *** *** In Paragraph (4), it has been noticed that, on a surprise check, some buildings were noticed on which certain sofas were put on each floor to give it a residential look even through no one appears to be living in it and the impression was that though building was sanctioned only for residential purposes and no commercial activity was going on but fresh commercial activity may commence. According to the Municipal Corporation of Delhi, as noted therein, where commercial activity has not yet commenced, building can be booked for violation of building plans. Directions are sought that Municipal Corporation of Delhi be a....
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....eds no reiteration that our order dated 12.2.2007 shall be carried out to its logical end. Needless to say all authorities concerned shall ensure compliance of our order." It is apparent from the order dated 9.3.2007 that the order is in consonance with the said report, and the report clarifies that it was for commercial activities and mixed land use. The Monitoring Committee itself sought permission for continuation of sealing of the portion of the commercial establishment in the residential areas, which were not covered by MPD­2021. Thus, the confusion sought to be created based on MPD2021 is absolutely unjustified. The order dated 10.4.2007 is an interim order stopping sealing by the Monitoring Committee. This Court did not authorize the Monitoring Committee to seal the residential properties being used for residential purposes. The order is of no relevance to decide the question of the authority of the Monitoring Committee. 26. On IA No.22, this Court in its order dated 10.4.2007 considered Report No.34, contents of which are placed by following orders: "We are shocked to find that in spite of our earlier orders, there has been a total sense of non-cooperatio....
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.... Till the matter is heard by the Court, the Monitoring Committee shall not order further sealing of the premises which are under its scrutiny. We also direct that no construction, temporary or permanent, shall be made on the premises which have been subject matter of scrutiny of the Monitoring Committee and no order shall be passed by the Government or any authority regularising such construction or sanction the change of user. The Delhi Development Authority, New Delhi Municipal Corporation and Municipal Corporation of Delhi are directed to ensure that no encroachment is made on any public land, whether belonging to the Government or any public authority. They shall also ensure that no illegal construction is made on any of the properties which has been subject matter of scrutiny by the Monitoring Committee. The Monitoring Committee shall be entitled to inspect the premises in which any illegal construction may have been made after this order or any encroachment on public land or regularisation and if necessary, submit report to this Court. Any person desirous of getting a copy of any report of the Monitoring Committee may make an application....
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....tee and the purpose for which the Monitoring Committee was appointed thus: "8. (i) We had, as noticed above, by our order dated 24.3.2006, appointed the Monitoring Committee for looking into the aspect of sealing of premises, which were being put to the nonconforming user. The Monitoring Committee had ordered the sealing of those premises. Against which, a large number of the applicants have approached the Court (by filing writ petitions which were converted into IAs, or by filing IAs) praying for desealing. All the said IAs are still pending consideration before this Court. We propose to issue appropriate directions in the said IAs as well. ..." 29. On 6.12.2017, this Court reserved its orders on IA Nos.93010 and 93007 of 2017, which were decided on 15.12.2017. In the order dated 6.12.2007, this Court considered the matter with respect to unauthorized colonies, which came up as per reports dated 12.4.2016 and 30.10.2017. It was observed in the order that the power of the Monitoring Committee be restored. While the order was reserved on the aforesaid date on IA No.93010 and 93007 of 2017, the relevant portion is extracted: "1. Invaders have pillaged Delhi for h....
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....ves, 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." [Emphasis supplied by us]. 11. This Court observed that if the laws are not enforced and orders of the Courts to implement the laws are ignored, the result can only be total lawlessness. In the decision rendered on 16th February, 2006 this Court noted, quite explicitly and not in a veiled manner, that blatant misuse of properties in Delhi for ....
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....on or about 29th March, 2006. 13. Unfortunately, issuance of the public notices had no impact either on those violating the law or on those expected to implement the rule of law. Perhaps, as observed by this Court, the reason was connivance, corruption, nepotism and total apathy towards the rights of the citizens of Delhi - who are today facing the brunt of the decades of illegalities having been committed 14. Faced with this situation, in its decision of 24th March, 2006 in M.C. Mehta v. Union of India [W.P.(C) No.4677 of 1985] this Court observed that the MCD had issued appropriate notices but, to oversee the implementation of the law regarding residential premises used for commercial (nonindustrial) purposes, it would be appropriate to seal offending premises. Therefore, rather than leave any discretion to the officers of the MCD (for obvious reasons) a Monitoring Committee was appointed consisting of Mr. K.J. Rao, Former Advisor to the Election Commissioner, Mr. Bhure Lal, Chairman, EPCA and Major General (Retd.) Som Jhingan. All necessary facilities to the members of the Monitoring Committee were directed to be provided by the MCD including facility of transp....
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....on only for residential purposes and for no other purpose whatsoever. The applicants will identify the persons for whose residential use the premises in question are sought to be desealed. Any change will be notified to the Monitoring Committee. (2) The affidavit filed by the applicants will state the name, address and other particulars of the person who will be responsible for any misuse of the premises in question, that is, for use of the premises in question for any purpose other than residential. (3) The person identified as the person responsible in terms of condition No.2 above will also file an affidavit clearly stating therein that he or she will ensure that the premises in question are used only for residential purposes and that in the event the premises in question are used for any purpose other than residential, the deponent would be liable for contempt of this Court. (4) The applicants will file with the Monitoring Committee proof of payment of conversion charges to the statutory authority. (5) The affidavits will be filed before the Monitoring Committee who may impose such other further conditions as may be appropriate. 36. ....
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....rom a perusal of the website of the Delhi High Court that these petitions have not yet been heard, for one reason or another. We do not find any fault with the Delhi High Court. The intention of this Court in transferring the writ petitions to the Delhi High Court was for their expeditious disposal preferably within one year. Almost four years have gone by in this exercise but without any decision. Therefore, given the gravity of the situation as revealed from the Reports of the Monitoring Committee, we think it appropriate that this Court ought to hear the writ petitions on an expeditious basis and, accordingly, withdraw the writ petitions that were transferred to the Delhi High Court to this Court. The Registry will place these writ petitions on receipt from the Delhi High Court for directions on 12th January, 2018." The order clarifies that the Monitoring Committee was to look into the misuse of residential premises for commercial purposes (non­industrial) or any non­residential purpose. 30. There is yet another order dated 24.4.2018 passed by this Court, thus: "We have heard learned amicus curiae as well as learned Additional Solicitor General (Mr. Nadkar....
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....uld be done within a period of two weeks from today. We make it clear that the Monitoring Committee may suggest to the Task Force the areas where immediate action is required to be taken. It is stated by learned Additional Solicitor General (Mr. Maninder Singh) that about 27.02 acres of public land has been taken over by the Delhi Development Authority since 1st April, 2018. The details of this have not been mentioned. An affidavit should be filed giving full details of the 27.02 acres of public land that has been taken over by the Delhi Development Authority from unauthorized encroachments. List the matter on 15th May, 2018." (emphasis supplied) 31. In compliance with the directions issued by this Court on 24.4.2018 for the constitution of the Special Task Force, an Office Memorandum dated 25.4.2018 was issued, which was not with respect to the conferral of powers on the Monitoring Committee, but of the Special Task Force. The relevant portion is extracted hereunder: "In compliance of the directions of the Hon'ble Supreme Court dated 24.4.2018 given in the case of M.C. Mehta v. Union of India & Ors. (WP (Civil) 4677/1985), the follow....
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....DA Act 1957 was ordered to continue with their duties and responsibilities and action plan submitted by the Attorney General was to be implemented by the Special Task Force, not by the Monitoring Committee. 34. In the order dated 24.5.2018, this Court issued the directions to the statutory authorities to take appropriate action. With respect to illegal and unauthorized structures, no direction was issued to the Monitoring Committee. Following observations were made: "14. We may mention that it has been recorded that Delhi is being ravaged by unauthorized encroachments and illegal constructions with impunity and none of the civic authorities including the Delhi Development Authority was sincerely carrying out its statutory duties. It is painful to require the issuance of directions to statutory authorities to carry out their mandatory functions in accordance with the law enacted by Parliament. Unfortunately, the situation in Delhi warranted such a direction due to the apathy of the civic authorities." 35. This Court considered Report No.127 on 24.8.2018 related to the encroachment on the "public land" with respect to the construction at Burari, Vishwas Nagar (ED....
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.... should carry out its activities and responsibilities. The order is quoted hereunder: "The office report indicates that No Objection Certificate from Shri Ajay Kumar Singh has not yet been obtained. The alleged contemnor should file the No Objection Certificate in the Registry. The additional affidavit be filed in this regard before the next date of hearing. List the matter on 30th October, 2018. It is made clear that the pendency of these proceedings should not deter the Monitoring Committee or any other authority from carrying out its activities and responsibilities. The alleged contemnor should remain present in Court on the next date of hearing." (emphasis supplied) 38. In the order dated 5.12.2018, the court pointed out with respect to the large number of complaints received by the Special Task Force and removal of encroachments from the public land, thus: "1. Mr. Tarun Kapoor, the Vice Chairman of the DDA and the Chairman of the Special Task Force (STF) is present in the Court today. The learned ASG, on taking instructions from him, says that while it is correct that regular reports have not been filed....
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.... the area behind Sector 7 Dwarka Sub-city on 30.10.2018 and noticed major unauthorised constructions in the amalgamated plots wherein huge showrooms, restaurants, Gyms etc. were found to be in operation. The Deputy Commissioner, Nazafgarh Zone, SDMC, were immediately directed to issue show cause notice to all the violators in respect of unauthorised constructions and misuse. Let the SDMC explain as to why they have not taken any action under the provisions of DMC Act for unauthorised constructions and as to why the responsibility of taking action has to be fastened only to Revenue Department, District Magistrate and SDM. The needful be done within three weeks from today. Let the Revenue Department also explain its stand on the action taken on the unauthorised constructions pursuant to the observations made by the Committee and the directions issued in respect of the plots vested in Sector 7 at Dwarka Sub-city. ...." It is apparent that in the order dated 14.1.2019, this Court has noted that construction of showrooms, restaurants, gyms that was for the "commercial purpose" and notice was issued in respect of "unauthorized constructions and misuse of the resident....
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....n of industrial units non­confirming with the ecological balance considering the right of a hygienic, clean and safe environment. The decision is not relevant with respect to the power and authority of the Monitoring Committee to act. 42. It is pertinent to mention here that earlier this Court in the same matter passed an order reported in (2013) 16 SCC 336 whereby sent all the matters from Supreme Court to the High Court. Since in the High Court, the progress was slow, later on, vide order dated 15.12.2017, this Court called all the matters back to this Court. 43. No doubt about it that matter of encroachment is a matter of concern, but the Monitoring Committee can act within the four corners of powers conferred upon it and purpose for which the court appointed the Monitoring Committee. It cannot exceed its powers and take any action beyond its authorization by the court. 44. We have gone through the various reports referred to by the learned Amicus Curiae and other learned counsel concerning sealing. They reflect the following position: REPORT NO.1 45. Report No.1 dated 13.4.2006 submitted by the Monitoring Committee, is captioned under Para 1, which is extract....
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....bove. d. The Ministry of Urban Development - Govt. of India to approve and notify the draft Zonal Plans already prepared and pending with the DDA in respect of the remaining nine zones wherein mixed land use roads have already been identified for which not more than 15 days time is required. Simultaneously the work regarding the survey and preparation of Draft Zonal Plans in accordance with the Master Plan 221 may continue. e. The Ministry of Urban Development - Govt. of India to modify its Notification dated 28th March 2006 based on the suggestions given by the Committee in paras 17, 18 & 19 above. f. Govt. of NCT of Delhi and all the local bodies to ensure the implementation of the parking policy." REPORT NO.3 47. Report No.3 dated 23.5.2006 is again for sealing the "commercial establishments in the residential premises". It has the reference with respect to the commercial establishments carrying out commercial activities at their premises. It also has a reference to the Delhi Laws (Special Provisions) Act, 2006. Some explanations are also in the report concerning the de­sealing of commercial establishments. REPORT NO.4 48. Report No.4 d....
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....ities going on for conversion of those places as residential houses. The entire commercial area has again been photographed. The photographs now taken on 19th September 2006 are enclosed. Development Notification, dated 7th September, 2006, the Government of NCT of Delhi had notified such streets/stretches (Number not Indicated) by way of a Notification No.149, dated 15th September, 2006. It had further been stated that the Government of India and the Government of NCT of Delhi have enacted the notifications under the powers conferred to them under the DDA Act and that they are valid and constitutional. The Commissioner MCD concluded that "what amounted to mis-user prior to the above Notifications cannot be termed as mis-user at the present point of time to the extent provided for in the Notifications. The Hon'ble Supreme court of India has directed the MCD to take sealing action ln case of mis-user. Thus, to the extent mis-user continues after the above Notifications, the same will be sealed as per the directions of the Hon'ble Supreme Court". A copy of the Note of the Commissioner, MCD is enclosed herewith and marked as Annexure 'C'. 6. As the Notification No.149....
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....se violations on encroached public land. In view of the foregoing, the Monitoring committee reiterates its recommendations to the Hon'ble Supreme Court to direct the DDA to take immediate action, in a phased manner, to demolish all such buildings having commercial activities on encroached public land in all colonies in Delhi." REPORT NO.6 51. In Report No.6 dated 22.9.2006 by the Monitoring Committee, the following facts have been mentioned: "3. The Monitoring Committee, in addition, would like to bring it to the kind notice of the Hon'ble Court that despite clear instructions from the Monitoring Committee to carry out the sealings colony-wise instead of road-to-road basis, in respect of prohibited activities in residential areas, the MCD had issued contrary orders to the Sealing Teams of various zones to carry out the sealings in parts in various colonies in the zone without completing the work in a particular colony at a time. The reasons and the rationale for this changed action not in consonance with the directions of the Monitoring Committee are not known." REPORT NO.7 52. In Report No.7 dated 27.9.2006 the CAPTION remains the same as Report No.1, the foll....
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....ime has been provided in the Master Plan-2021 for survey and to notify additional roads further to 2183 roads); (f) Specific Commercial establishments / properties mentioned in the judgment dated 16th February 2006 of the Hon'ble Supreme Court (While disposing of the Civil Appeals, Interlocutory Applications (other than IA 22) and Special Leave Petitions in the matter, the Hon'ble Supreme Court has, in its Judgement dated 16th February, 2006, directed that in case misuser is not stopped in the premises involved in the Civil Appeals and Special Leave Petitions, subject to what had been stated in the Judgement, the MCD would take immediate steps to seal those premises soon after expiry of 30 days). The MCD has been requested to furnish a list of such properties which have to be sealed in terms of this order). Specific properties mentioned in the Report No.4 dated 14th September 2006 of the Monitoring Committee (commercial establishments on encroached public land meant for public utility services), as per directions of the Hon'ble Supreme Court in its order dated 29th September 2006." REPORT NO.34 56. Report No.34 dated 9.4.2017 'CAPTION' is as Report No.1. Nonavailabil....
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.... on a part of the plot abutting a non-notified road, with unauthorized constructions and having no legal access to the notified road, is not entitled to any relief in the matter." (emphasis supplied) 61. Some hotels, guest houses, other commercial premises, business schools, etc. were also mentioned. "None of the items" is for "purely residential premises". The Monitoring Committee further observed: "The MCD has already been informed by the Monitoring Committee that industrial units in residential areas do not fall under its purview and the same may be sealed or de-sealed as per the directions of the Monitoring Committee constituted by the Hon'ble Supreme Court for the purpose." REPORT NO.75 62. Report No.75 dated 1.1.2020 is concerning the "commercial activities" and unauthorized construction by "Reebok Showroom", "Hotel" West End Inn, Central Plaza, NH 8, and "Rangapuri" Extension. 63. Concerning ensuring the implementation of the Master Plan of Delhi, 2021 (MPD­2021), in its true spirit, all "commercial activities in residential premises" are identified and removed. Following facets have been mentioned by the Monitoring Committee in its Report: ....
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.... that pursuant to remitting the cases by this Court to the Delhi High Court, various difficulties in the implementation of the order were pointed out. The details were given with respect to the hearing of the cases by the Delhi High Court and progress on disposal of appeals before the Tribunals. The details of desealing of properties in the unauthorized colony, village & abadi area (including urban villages constructed on public land) were given. The details were given about the refusal of the Standing Committee of the erstwhile MCD to de­notify 140 Roads in Shahdara North, Rohini, Central, South, and West Zones resurveyed. Violations of the orders dated 3.1.2012 and 30.4.2013 by various commercial establishments were pointed out and other facts regarding interference of Lt. Governor of Delhi in the sealing matter of Dr. Lal Path Labs Pvt. Ltd. etc. and unauthorized construction on Government and public land were given thus: "The Monitoring Committee would submit to the Hon'ble Court that the Municipal Authorities, NDMC and DDA are lax in the performance of their duty with respect to unauthorised construction and encroachment on public/ govt. land. The public at large ....
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....018 is concerning the construction of unauthorized colonies on Gram Sabha land, acquired land, DDA land, and MCD land. It was submitted that no regularization could be done in respect of residential premises used for non­residential purposes. REPORT NO.118 71. Report No.118 dated 7.5.2018 concerns the "Khan Market" where "verandahs were encroached and amalgamated in the shops" causing hardship to the visitors in the market. The report further states regarding encroachment of DDA land at Sanjay Market, Mangolpur Kalan in Rohini Zone and misuse of premises for commercial activities REPORT NO.119 72. Report No.119 dated 24.5.2018 is regarding the slow progress of the "sealing operations" in Lajpat Nagar­IV and Amar Colony­Refugee Colony, where large scale "encroachments" were made by owners/ occupants on the "Government land". REPORT NO.120 73. Report No.120 dated 11.6.2018, again referred to this Court's order dated 29.9.2006 regarding "conversion of residential user into commercial" user except with the leave of this Court. It was observed that the Government's obligation was to ensure compliance of the order of this Court, and the Special Task F....
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..... REPORT NO.131 80. Report No.131 dated 8.10.2018 is related to the "contempt notice" issued by this Court to one of the Members of Parliament. REPORT NO.134 81. Report No.134 was submitted concerning the "Motels/ Farm Houses" who have constructed "pandals, shamianas, sheds," etc. in their plots. Order dated 12.10.2018 of this Court was also stated which is extracted hereunder: ".......As an interim measure, we direct that the basement of the premises in question shall remain sealed until further orders. Mr. Mukul Rohatgi, learned senior counsel appearing on behalf of the applicant says that no pandal will be constructed on the premises in question. In view of this undertaking, the seal on the premises may be opened. The Monitoring Committee as well as the South Delhi Municipal Corporation should give their report within ten days. The applicant may respond to these reports within four days thereafter." 82. Certain violations of MPD­2021 were also pointed out to be complied with by the concerned authorities. REPORT NO.144 83. Report No.144 dated 11.12.2018 is in respect of the "cases pending" before the "High Court of Delhi" regarding prope....
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....PD provisions by paying requisite fees and charges as per Annexure IV." It was also submitted that the construction is in accordance with the Master Plan and is in low density residential area. Whether it is a case of deviation or wholly unauthorised construction in view of the report of measurement, may also be gone into by the Committee and thereafter, the matter may be decided in an objective manner, whether it can be compounded or not in accordance with the aforesaid provisions. Let the Committee decide the matter afresh within 15 days of the receipt of the report after hearing the concerned parties. Factual position from SDM may also be ascertained as he has written letter dated 03.04.2019. As prayed for by Mr. Abhimanyu Bhandari, learned counsel, it is open to the applicants to maintain the horticulture and watering of the plants etc. For taking out the essential items etc., it is open to the applicant to apply to the Committee." This Court directed the Monitoring Committee to give its considered opinion specifically as to whether at any point in time in the past, it sealed any residential premises, which were not misused for commercial purposes.....
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....as laid down in the decisions referred to at the Bar thus: (a) State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, wherein this Court observed: "59. ....In absence of any substantive provisions contained in a parliamentary or legislative act, he cannot be refrained from dealing with his property in any manner he likes. Such statutory interdict would be opposed to one's right of property as envisaged under Article 300-A of the Constitution." (b) K.T. Plantation Pvt. Ltd v. State of Karnataka (2011) 9 SCC 1 in which it was opined: "168. Article 300-A proclaims that no person can be deprived of his property save by authority of law, meaning thereby that a person cannot be deprived of his property merely by an executive fiat, without any specific legal authority or without the support of law made by a competent legislature. The expression "property" in Article 300-A confined not to land alone, it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognised by law. 169. This Court in State of W.B. v. Vishnunarayan and Associates (P) Ltd. [(2002) 4 SCC 134] , while examining the provis....
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....e 19(1)(f) was deleted by the Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution, which reads as follows: "300-A. Persons not to be deprived of property save by authority of law.-No person shall be deprived of his property save by authority of law." 8. This is a case where we find utter lack of legal authority for deprivation of the respondent's property by the appellants who are State authorities. ..." (e) In Delhi Airtech Services (P) Ltd. & Anr. v. State of U.P. & Anr. (2011) 9 SCC 354, this Court held: "83. The expression "law" which figures both in Article 21 and Article 300-A must be given the same meaning. In both the cases the law would mean a validly enacted law. In order to be valid law it must be just, fair and reasonable having regard to the requirement of Articles 14 and 21 as explained in Maneka Gandhi. This is especially so, as "law" in both the Articles 21 and 300-A is meant to prevent deprivation of rights. Insofar as Article 21 is concerned, it is a fundamental right whereas in Article 300-A it is a constitutional right which has been given a status of a basic human right." (f)....
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....le ones. (See Balram Kumawat v. Union of India [(2003) 7 SCC 628]; Krishi Utpadan Mandi Samiti v. Pilibhit Pantnagar Beej Ltd. [(2004) 1 SCC 391] and Union of India v. West Coast Paper Mills Ltd. [(2004) 2 SCC 747]) The statutory scheme contemplates that a person and owner of land should not ordinarily be deprived from the user thereof by way of reservation or designation. 58. Expropriatory legislation, as is well-known, must be given a strict construction." (i) In State of Gujarat v. Shantilal Mangaldas & Ors., (1969) 1 SCC 509, it was held: "55. ...... Once the draft town-planning scheme is sanctioned, the land becomes subject to the provisions of the Town Planning Act, and on the final town-planning scheme being sanctioned, by statutory operation the title of the various owners is readjusted and the lands needed for a public purpose vest in the local authority. Land required for any of the purposes of a town planning scheme cannot be acquired otherwise than under the Act, for it is a settled rule of interpretation of statutes that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all....
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....s, situated on the private land nor it could have ordered demolition. The 'caption' of the various reports of Monitoring Committee i.e. "PRELIMINARY REPORT OF THE MONITORING COMMITTEE FOR SEALING OF COMMERCIAL ESTABLISHMENTS IN RESIDENTIAL PREMISES" makes it absolutely clear that Monitoring Committee did not entertain any doubt about the purpose for which it was constituted. Apart from that, it was authorized by subsequent orders to act with respect to unauthorized construction on the public land and roads that too, which violated the MPD2021. 90. Learned Amicus Curiae raised the alternative submission that the Monitoring Committee acted bonafidely at the instance of the letter written by the Sub Divisional Magistrate. We are of the opinion that the Monitoring Committee could not have acted based on any such letter. It was not permissible for the Monitoring Committee to act in the matter. May be that it acted under some confusion created by the letter. Be that as it may. We do not want to go further into the matter of bona fide. However, it is apparent that its action was beyond the purpose for which it had been appointed. 91. We are not going into the merits of the other sub....