# M.C. MEHTA "' v. UNION OF INDIA AND ORS

- **Citation:** [2006] 2 S.C.R. 264
- **Court:** Supreme Court of India
- **Decided:** 2006-02-16
- **Bench:** Y.K. Sabharwal, B.N. Srikrishna, R.V. Ra Veendran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-c-mehta-v-union-of-india-and-ors-21025
- **Pages:** 40

## Headnote

• .
Constitution of India-Articles 21 and 32-Blatant and large-scale misuse
c of residential premises for commercial use in Delhi-lack of enforcement of
building and land use laws and orders of Courts for their implementation--
Held, rule of law is the essence of democracy-It has to be preserved-Laws
have to be enforced-Supreme Court cannot remain a mute spectator when
misuse affects the environment and healthy living of the citizensImplementation of the law to stop blatant misuse of land cannot be delayed
D further--lt has to be stopped in a phased manner beginning with major
violators-- Beginning has to be made to stop misuse on main roads of 80 feet
width or more-Detailed directions issued-Rule of law-Role of Judiciary.
Constitution of lndia--Articles 32 and 21-Town planning-Misuse of
E
residential premises--Right of non-violator to compensation-Polluter pays
principle-Blatant and large-scale misuse of residential premises for
commercial purposes in Delhi with the connivance of Government OfficialsHeld, misuse has to be stopped-Violators and Government officers are
accountable for the hardship, inconvenience and suffering caused to residents
of the locality-It is necessary to identifY and take appropriate action against
F officers responsible for violation of building and land use laws-Appropriate
directions for payment of compensation by violators and such officers and
exact manner of applicability of polluter pays principle would be issued after
-.
the misuse is stopped.
Constitution of India-Part IX A-Delhi Municipal Corporation Act
G 1957-Section 349A-Power of Central Government to enact bye-laws for
building regulations--held, Town planning is now part of Constitutional
obligation and section 349A was inserted to give effect to that obligation--
Town planning.
~ .
Delhi Municipal Corporation Act-Section 312, 313, 336(2) and 347H
264
j
M.C. MEHTA v. U.O. I.
265
Land use-Planning laws laying down specific use of land-Held, use of land A
cannot be changed-Even Municipal Corporation of Delhi cannot accord
sanctio~ of erection of a commercial building if the notified land use is
residential-Provision for user may be regulatory but they are mandatory and
binding-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 one B
authorized-Town planning-Delhi Master Plans 1962 and 2001.
Delhi Municipal Corporation Act-Section 345A, 343 and 344-Misuse
of premises-Power of Municipal Corporation of Delhi to seal-Held, MCD
is empowered uls 345.A to exercise power of sealing in case of misuse of any
premise-sealing can be resorted to at any time before or after making an
order of demolition uls 343 or 344-View of Delhi High Court reversed on C
this point.
Delhi Municipal Corporation Act-Section 331 and 345A-Building byelaws for the Union Territory of Delhi 1983-Bye-law nos. 2.17 and 2.85Held, conversion of user of premises come within the purview of "to erect a D
building" so as to attract sealing provision of s. 345A.
Delhi Development Act 1957-Section 12, 31A and 36-Misuse of
residential premises for commercial purposes-Power of DDA to seal-Held,
the DDA has power to seal the premises for unauthorized development uls
31A-lt has no power of sealing in case of misuse-Misuse does not come E
within the ambit of development.
Large scale flagrant violation of various laws including municipal
laws, master plan and other plans besides environmental laws throughout
Delhi have been engaging the attention of this court for a no. of years.
With a view to secure the implementation of laws and protect fundamental
rights of the citizens, repeated orders were passed from time to time. The
court had to prioritize as to which violations were to be taken up first and
F
~·-\
then issue appropriate directions. Directions were issued in respect of
shifting of hazardous and extensive industries out of Delhi. Despite all these
orders, more and more violations were taking place

## Text

_Characters 0–39,690 of 91,277. This is a partial read: ask again with offset=39690 for what follows._

A
M.C. MEHTA
"'
v.
UNION OF INDIA AND ORS.
FEBRUARY 16, 2006
B
[Y.K. SABHARWAL, CJ. AND B.N. SRIKRISHNA AND
R.V. RA VEENDRAN, JJ.]
• .
Constitution of India-Articles 21 and 32-Blatant and large-scale misuse
c of residential premises for commercial use in Delhi-lack of enforcement of
building and land use laws and orders of Courts for their implementation--
Held, rule of law is the essence of democracy-It has to be preserved-Laws
have to be enforced-Supreme Court cannot remain a mute spectator when
misuse affects the environment and healthy living of the citizensImplementation of the law to stop blatant misuse of land cannot be delayed
D further--lt has to be stopped in a phased manner beginning with major
violators-- Beginning has to be made to stop misuse on main roads of 80 feet
width or more-Detailed directions issued-Rule of law-Role of Judiciary.
Constitution of lndia--Articles 32 and 21-Town planning-Misuse of
E
residential premises--Right of non-violator to compensation-Polluter pays
principle-Blatant and large-scale misuse of residential premises for
commercial purposes in Delhi with the connivance of Government OfficialsHeld, misuse has to be stopped-Violators and Government officers are
accountable for the hardship, inconvenience and suffering caused to residents
of the locality-It is necessary to identifY and take appropriate action against
F officers responsible for violation of building and land use laws-Appropriate
directions for payment of compensation by violators and such officers and
exact manner of applicability of polluter pays principle would be issued after
-.
the misuse is stopped.
Constitution of India-Part IX A-Delhi Municipal Corporation Act
G 1957-Section 349A-Power of Central Government to enact bye-laws for
building regulations--held, Town planning is now part of Constitutional
obligation and section 349A was inserted to give effect to that obligation--
Town planning.
~ .
Delhi Municipal Corporation Act-Section 312, 313, 336(2) and 347H
264
j
M.C. MEHTA v. U.O. I.
265
Land use-Planning laws laying down specific use of land-Held, use of land A
cannot be changed-Even Municipal Corporation of Delhi cannot accord
sanctio~ of erection of a commercial building if the notified land use is
residential-Provision for user may be regulatory but they are mandatory and
binding-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 one B
authorized-Town planning-Delhi Master Plans 1962 and 2001.
Delhi Municipal Corporation Act-Section 345A, 343 and 344-Misuse
of premises-Power of Municipal Corporation of Delhi to seal-Held, MCD
is empowered uls 345.A to exercise power of sealing in case of misuse of any
premise-sealing can be resorted to at any time before or after making an
order of demolition uls 343 or 344-View of Delhi High Court reversed on C
this point.
Delhi Municipal Corporation Act-Section 331 and 345A-Building byelaws for the Union Territory of Delhi 1983-Bye-law nos. 2.17 and 2.85Held, conversion of user of premises come within the purview of "to erect a D
building" so as to attract sealing provision of s. 345A.
Delhi Development Act 1957-Section 12, 31A and 36-Misuse of
residential premises for commercial purposes-Power of DDA to seal-Held,
the DDA has power to seal the premises for unauthorized development uls
31A-lt has no power of sealing in case of misuse-Misuse does not come E
within the ambit of development.
Large scale flagrant violation of various laws including municipal
laws, master plan and other plans besides environmental laws throughout
Delhi have been engaging the attention of this court for a no. of years.
With a view to secure the implementation of laws and protect fundamental
rights of the citizens, repeated orders were passed from time to time. The
court had to prioritize as to which violations were to be taken up first and
F
~·-\
then issue appropriate directions. Directions were issued in respect of
shifting of hazardous and extensive industries out of Delhi. Despite all these
orders, more and more violations were taking place. In the present
petition, the court has taken up the issue of large scale misuse of premises G
in residential areas for commercial use.
The question under consideration also is about the powers of MCD
and DDA to direct demolition and/or sealing of the properties being
misused.
Earlier a writ petition was filed by residents of a residential colony, H
266
SUPREME COURT REPORTS
[20061 2 S.C.R.
·A Gre~n Park Extension, in Delhi High Court, alleging misuse of residential
premises for commercial purposes and total inaction on the part of the
,...
authorities in stopping such misuse. A full bench of the High Court ca me
to the conclusion that neither under the Delhi Municipal Corporation Act
nor under the DDAct, there was any power to seal property for its misuse,
I
B 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 power of sealing in relation to
misuse has hen intentionally excluded from the provisions of the two Acts.
This judgment is also under challenge before the court.
C
Disposing of the petition, the court
HELD: 1.1. This court has a constitutional duty to protect the
fundamental rights of Indian citizens. When violators and/or abettors of
the violations are those, who have been entrusted by law with a duty of
protect these rights, the task becomes difficult and also requires urgent
D interven~ion 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.
[271-A-B]
2.1. It is not in dispute that large numbers of residential premises
E are being misused for commercial purpose. The question is - 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. (274-D-E)
F
2.2. Chapter XVI of the DMC Act deals with building regulations
and comprises Sections 330A to 349A. The definition of the words 'to erect
a building' is very pertinent for deciding the present question. Clauses (c),
(h) and U) of Section 331 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,
G 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 (2) of Section
336. Section 347 contains a specific prohibition for change of the use of
any land or building. A bare perusal of building bye - laws shows how
H relevant is the user, commercial or residential, and the large impact of
M.C. MEHTA v. U.O. I..
267
~1
occupation load on various facilities including water, sanitation and A
drainage. 1275-E-F; 277-A-B; 282-A; 283-Ci
2.3. 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
B
planning, take into account various aspects, such as, healthy living,
environment, lung space need, land use intensity, areas where the
'"'
j
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
into commercial shops. It only means permitting activities of household c
industry in a part of a residential property. 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
'titian residential. The provision of user may be regulatory but all the same,
they are mandatory and binding. In fact, almost all the planning provisions D
>
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
funda1flental, to violate the law with immunity and claim any right to use
a building for a purpose other than authorized. 1283-D-E; H; 284-A-q
E
2.4. The provision of sealing as contained in Section 345A of the
DMC Act was inserted by Act 42of1984 with effect from 10th December,
I 985. One of the objects for the amendments, as stated in the Statement
of Objects and Reasons, is to contain massive conversion of residential
constructions into commercial complexes. A plain reading of section 345A F
-~\
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. In view of the clear language of Section 345A,
This Court is unable to sustain the view of the High Court that action
G
under Section 345A can be taken only when there exists order of
demolition under Section 343 or an order under sub-section (I) of Section
).--~
344. 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 H
268
SUPREME COliRT REPORrs
120061 2 S.C.R.
A 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. 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 reB 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, it is held 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.
c
(278-C; 279-B; 284-D-G; 285-C-DJ
3. Section 31A of Delhi Development Act 1957 empowers ODA to
seal unauthorised development. If the misuser of the premises would come
within the ambit of unauthorised development, DOA would have pow<:!;
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
D lacking. The scheme under the DD Act clearly seems to be that during
development it is the responsibility of ODA to demolish and seal any
premises if there is contravention. After the handing over of the .u:ea 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
E cantonment or any other authority depending upon the developed area
falling in the local limits of one or the other. 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
F of misuse. Misuse does not come within the ambit of development.
(287-E-F; 288-D-G; 289-A-CJ
4.1. Now, reverting back 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
G 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 misuse 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.
H
1295-D-EJ
•
M.C. MEHTA v. U.O. l.
269
'
4.2. Despite passing of the laws and repeated orders of the High A
~,
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 identify
and take appropriate action against officers responsible for this state of B
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 c
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 sinte,primafacie, such large scale
misuse, in violation of laws, cannot take place without the active D
connivance of the officers. It would be for the officers to show what
effective steps were taken to stop the misuse. (298-F-H; 299-A-B)
;
+
4.3. Rule of law is the essence of Democracy. It has to be preserved.
Laws have to be inforced. In the case in hand, the implementation and
inforcement of law to stop blatant misuse cannot be delayed further. E
According to MCD, the major violation has ben determined in respect of
those roads where commercialization of the buildings is more than 50%.
According to it, the major 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 misuse on main road~ of width of 80 ft. or more. F
~-Ji
The names of these roads can be published in newspapers and adequate
publicity given, granting violators some time to bring the user of property
in conformity with the permissible user, namely, for residential use if the
plans have ben sanctioned for construction of a residential house. In case
owner/user fails to do so, how, in which manner and from which date, G
MCD will commence sealing operation shall be placed on record in the
form of a.n affidavit of its Commissioner to be filed within two weeks. On
,.. "
consideration of this affidavit, further directions would be issued including
constitution of a Monitoring Committee, if necessary. The issue of
accountability of officers and also the exact manner of applicability of
Polluter Pays Principle to owners and officers would be further taken up H
270
SUPREME COURT REPORTS
[2006] 2 S.C.R.
A after misuse is stopped at least on main roads. (300-H; 301-A-D]
t
MC. Mehta v. Union of India, (20041 6 SCC 588; News Item AQFMY
v. Central Pollution Control Board, Writ Petition No. 725 of 1994, Order
dated 31st July, 2001; Ahuja Property Developers (P) Ltd v. MC.D., (1990)
42 Delhi Law Times 474; DDA v. Rajinder Mittal, (1991) 20 DRJ 65; ANZ
B Grindlays Bank v. The Commissioner, MC.D. and Ors., (1995) 34 DRJ 492
and Anil Kumar Khurana v. MCD, (1996) 36 DRJ 558, referred to.
CIVIL ORIGINAL JURISDICTION : Interlocutory Application No. 22
' ..
IN
c
Writ Petition (Civil) No. 4677 of 1985.
(Under Article 32 of the Constitution of India)
WITH
D
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.
B. Dutta, A.S.G., Ranjit Kumar, (A.C.) Ashwani Kumar, V.P. Singh
T
Manmohan, M.C. Mehta-in-Persson, Ms. B. Vijaylakshmi Menon, Sanjiv Sen,
E
Praveen Swarup (N.P.), Sudhir Nand Raj Yog, Vishnu B. Saharya (for M/s.
V.B. Sharya & Co.)., Vijay Panjwami, Mrs. Sheel Sethi, Vikas Sharma, Mrs.
Anil Katiyar, D.N. Goburdhan, Ms. Sandhya Goswami, Ajay Siwach, Sandeep
Sharma, T.V. George, Ashok Bhan, Mrs. Kiran Bhardwaj, S. Wasim A. Qadri,
Manish Jha, Ms. Bina Gupta, Mrs. Rakhi Ray, Ms. Inklee Barooah, Kamlendra
Mishra, Raj iv Kumar Dubey, Ms. Rashmi Singh, Arun Sinha, Varinder Kumar
F Sharma, B.K. Prasad, B.V.B. Das, Suresh Chandra Triparthy, Ms. Indu
Malhotra Ms. Vibha Datta Makhija, Rajan Narain, R.P. Sharma and Ms.
~.
Madhu Sikri for the appearing parties.
The Judgment of the Court was delivered by
G
Y.K. SABHARWAL, CJ. 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 stcure the implementation of laws and protect fundamental rights of
H
the citizens, various orders were passed from time to time.
.
~
1.
M.C. MEHTA v. U.O. l. [SABHARWAL, CJ.]
271
---(
This Court has a constitutional duty to protect the fundamental rights A
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 Jose faith
in it finding violations at the hands of supposed implementers. The problem B
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 c
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 D
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 E
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 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 F
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
G
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 H
272
SUPREME COURT REPORTS
[2006] 2 S.C.R.
A apparent from the orders dated 31st July, 2001 and 20th February, 2002. By
order dated 3 lst July, 2001 passed in Writ Petition No.725 of 1994 titled
News Item AQFMY v. Central Pollution Control Board, the Court directed
that :
B
"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."
C
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
D
purposes as has been directed by this Court's order dated 3 lst July,
200 I. 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, 200 I, 20th February 2002, 30th September, 2002 and
E 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.
p 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.
G
The question under consideration also is about the power of MCD and
Delhi Development Authority (ODA) to direct demolition and/or sealing of
the properties being misused.
Few residents of a residential colony by the name of Green Park
H Extension, making averments about large scale unauthorized constructions
' ,.
--(
'
I
M.C. MEHTA v. U.O. I. [SABHARWAL, CJ.]
273
,/
and stating that various letters written to the MCD complaining about the A
. __,
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 B
such misuse. According to them, the officers were, in fact, encouraging or
conniving with persons who were indulging in such misuse. The officers
' ,;:
1"
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 c
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
Corpiiration was doing its best in the matter. The same was the stand of D
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 E
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.
F
.. -~
By impugned judgment dated 3 lst 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
G
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.
H
274
SUPREME COURT REPORTS
[2006] 2 S.C.R.
A
The judgment of the Full Bench is under challenge in Civil Appeal
No.5413 of2002 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 :
B
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
C
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 Whether MCD under the DMC Act has power to
D seal premises in case of its misuser
It is not in dispute that large numbers of residential premises are being
misused for commercial purposes. The question is 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
E 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 portabl_e shelter.
F
G
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
H
for the concourse of buyers and sellers and whether or not any control
...
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I
i/
'" ..l.
'f
)
+
M.C. MEHTA v. U.O. l. [SABHARWAL, CJ.]
275
is exercised over the business of, or the person frequeriting, 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 buil'ding;"
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.
A
B
c
D
E
The definition of the words 'to erect a building' is very pertinent for F
.,--1
deciding the present question. The expression 'to erect a building' is defined
in Section 3 31 as under:
"Sec.331 Definition.-
In this Chapter, :mless the context otherwise requires, the expression G
"to erect a building" means-
(a) to erect a new building on any site whether previously built upon
or not;
H
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SUPREME COURT REPORTS
[2006] 2 S.C.R.
A
(b) to re-erectB
c
(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 b~cn pulled
down;
( c) to convert into a dwdling house any hmlding or any part of a
building not originally constructed for human habitation or, if
originally so constructed, subsequently appropriated for ~ny other
purpose;
D
( d) to convert into more than one dwelling house a building originally
constructed as one dwelling housc only;
( e) to convert into a place ofreligious worship or into a sacred building
any place or building not originally constructed for such purpose;
..,.
E
(t) 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;
F
G
H
(g) to convert two or rr.Jre 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 origmally 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;
0) to convert into or use as a dwdling house any building which has
been discontinued as or appropriated for any purpose other than, a
. .
-~·
I
-r
M.C. MEHTA v. U.0.1. [SABHARWAL, CJ.)
277
dwelling house."
A
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'.
B
In respect of an area where the notified/specified land use is residential,
--. _:;.
-r
sanction for erection of a commercial building cannot be accorded, as is
apparent from sub-section (2) of Section 336. Section 336 reads as under:
"Section 336. - Sanction or refusal of building or work.-
c
(I) 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.
D
(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 E
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;
F
.-1
(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;
G
(e) that the building or work would be an encroachment on
~"'
Government land or land vested in the Corporation;
(t) 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 H
278
A
SUPRE~E COURT REPORTS
(2006] 2 S.C.R.
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
B
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.
c
( 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 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
D 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'.
E
F
G
Section 345A reads as under:
"Section 345A. Power to seal unauthorised constructions.--
( l) 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
H
removed.
1
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M.C. MEHTA v. U.0.1. [SABHARWAL, CJ.]
279
(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.,-0rder of demolition and stoppage of buildings and works
in certain cases and appeal.-
A
B
c
(!)Where the erection of any building or execution of any work has
been commenced, or is being carried on, or has been completed without D
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 E
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 F
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:
G
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 H
280
SUPREME COURT REPORTS
[2006] 2 S.C.R.
A
the order of demolition, if made, may be preferred under ~.uh-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
B
demolition of the erection or work to which it relates.
c
D
E
F
G
H
(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 34 7C 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 3470, every order made by the Appellate Tribunal on appeal
under this section, 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 (I) 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
'·
> •
M.C. MEHTA v. U.0.1.