M.C. Mehta v. Union of India

In respect of large number of immoveable properties throughout Delhi, flagrant violations of various laws including Municipal Laws, Master Plan and other plans besides Environmental Laws have been engaging the attention of this Court for number of years. With a view to secure the implementation of laws and protect fundamental rights of the citizens, various orders were passed from time to time.

This Court has a constitutional duty to protect the fundamental rights of Indian citizens. What happens when violators and/or abettors of the violations are those, who have been entrusted by law with a duty to protect these rights? The task becomes difficult and also requires urgent intervention by court so that the rule of law is preserved and people may not lose faith in it finding violations at the hands of supposed implementers. The problem is not of the absence of law, but of its implementation.

Considering such large-scale flagrant violations, this Court had to prioritize as to which violations may be taken up first and then issue appropriate directions. In this view, at first instance, directions were issued in respect of shifting of hazardous and noxious industries out of Delhi. Directions were also issued for shifting of heavy and large industries as also some extensive industries. For shifting polluting industries had to be given top most priority. Later, directions were issued for shifting of other extensive industries considering the continued unauthorized use contrary to Master Plan and Zonal Plan, by those industries as well as some other industries continuing in residential/non-conforming areas.

On one hand repeated orders were made to seek implementation of the laws and, on the other hand, simultaneously, more and more violations were taking place. Detailed reference to earlier orders made from time to time, the shifting stand of the authorities, various laws being violated, requirements of Town Planning and the constitutional obligations of the authorities, has been made by this Court in the judgment dated 7^th 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 588]. The order dated 19^th 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 7^th May, 2004 with the difference that now we have taken up the issue of large scale misuse of residential premises for commercial use.

With regard to commercial use of premises in residential areas, it has been more than three years, i.e., 30^th September, 2002 when the order was made directing respondents to file reply. In fact, the question of misuse of residential premises for commercial purposes was taken up even earlier as is apparent from the orders dated 31^st July, 2001 and 20^th February, 2002. By order dated 31^st July, 2001 passed in Writ Petition No.725 of 1994 titled News Item AQFMY v. Central Pollution Control Board, the Court directed that : "The MCD will also inform this Court in the affidavit to be filed as to why no requisite action has been taken for stopping the gross misuse of buildings in the residential areas for commercial purposes and in the construction of commercial buildings in residential areas where only residential usage is permitted."

Again on 20^th February, 2002, the Order dated 31^st July was reiterated in the following terms :

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

The learned Amicus Curiae filed IA No.1860/04 referring to aforesaid orders dated 31^st July, 2001, 20^th February 2002, 30^th September, 2002 and 19^th August, 2003 and bringing to the notice of this Court a press release dated 22^nd 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 31^st March, 2003. This shows the apathy of a municipal body, which is constituted, amongst others, to ensure compliance of the laws. In this application, learned Amicus Curiae sought stay of the press release and the scheme. By order dated 2^nd August, 2004, the press release and the ad hoc Trade Registration Scheme were stayed by this Court.

The question under consideration also is about the power of MCD and Delhi Development Authority (DDA) to direct demolition and/or sealing of the properties being misused. Few residents of a residential colony by the name of Green Park Extension, making averments about large scale unauthorized constructions and stating that various letters written to the MCD complaining about the illegal and unauthorized constructions and misuser and consequent violation of Master Plan etc. resulted in no action, filed in about October 1994, a writ petition in Delhi High Court alleging how misuse of residential premises for commercial purposes was taking place, citing specific instances and complaining about total inaction on the part of the authorities in stopping such misuse. According to them, the officers were, in fact, encouraging or conniving with persons who were indulging in such misuse. The officers failed to carryout their statutory duties in stopping such misuse. A writ of mandamus was sought against the authorities directing them not to allow illegal commercial user. Petitioners therein alleged that such misuser and acts of omission and commission by the authorities was resulting in the environment in the residential colony being totally polluted and civic amenities jeopardised.

MCD, in reply, filed in April 1995, i.e., more than 10 years ago, admitted the violations and said that show cause notices had been issued under the Delhi Municipal Corporation Act, 1957 (for short, 'the DMC Act') and the Corporation was doing its best in the matter. The same was the stand of DDA. All officers being directed to file affidavits reporting as to what action had been taken, filed affidavits with reference to the properties of which instances had been given, inter alia, stating that owners had been booked and action was being taken. Similar affidavits were filed by both MCD and DDA. In March 2000, MCD filed a status report giving particulars of approximately 663 properties in Green Park Main and 407 properties in Green Park Extension stating that many properties were being used as commercial and others partly commercial. When this was the position in a small colony, one can well imagine the plight in manifold other residential colonies and of residents living in those colonies in the capital city of Delhi.

By impugned judgment dated 31^st May, 2002, disposing of the aforenoted writ petition and other connected matters, a Full Bench of the High Court came to the conclusion that neither under the DMC Act nor under the Delhi Development Act, there was any power to seal property for its misuse, inter alia, holding that the power of sealing of premises is drastic as by reason of such sealing, a person could become homeless, thus, affecting his human or fundamental rights and that the power of sealing in relation to misuse has been intentionally excluded from the provisions of two Acts. Later, some other matters were also decided by the High Court following the Full Bench decision. Those judgments are also under challenge.

The judgment of the Full Bench is under challenge in Civil Appeal No.5413 of 2002 filed by the original writ petitioners/residents of Green Park colony and Civil Appeal No.8694 of 2002 filed by the MCD.

The questions to be determined are :

A. Whether MCD under the DMC Act has power to seal the premises in case of its misuser?

B. Whether DDA, under the Delhi Development Act, has also similar power of sealing or not?

C. Directions to be issued in respect of residential properties used illegally for commercial purposes.

In these matters, we are considering only the issue of misuser. We are not considering the issue of unauthorized constructions.

Re : Question A – Whether MCD under the DMC Act has power to 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 examine few provisions of the DMC Act. The expression 'building' is defined in Section 2(3) of the DMC Act as a house, out-house, stable, latrine, urinal, shed, hut, wall (other than a boundary wall) or any other structure, whether of masonry, bricks, wood, mud, metal or other material but does not include any portable shelter.

The expression 'land' as per Section 2(24) includes benefits to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth and rights created by law over any street.

Section 2(26) defines 'market' as under:

"Sec.2(26) – "market" includes any place where persons assemble for the sale of, or for the purpose of exposing for sale, meat, fish, fruits, vegetables, animals intended for human food or any other articles of human food whatsoever, with or without the consent of the owner of such place notwithstanding that there may be no common regulation for the concourse of buyers and sellers and whether or not any control is exercised over the business of, or the person frequenting, the market by the owner of the place or by any other person;"

Section 2(34) defines 'occupier' as under:

"Sec.2(34) "occupier" includes-

(a) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable;

(b) an owner in occupation of, or otherwise using his land or building;

(c) a rent-free tenant of any land or building;

(d) a licensee in occupation of any land or building; and (e) any person who is liable to pay to the owner damages for the use and occupation of any land or building;"

Under Section 2(59) 'trade premises' means:

"2(59) – "trade premises" means any premises used or intended to be used for carrying on any trade or industry;"

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

In this Chapter, unless the context otherwise requires, the expression "to erect a building" means–

(a) to erect a new building on any site whether previously built upon or not;

(b) to re-erect–

(i) any building of which more than one-half of the cubical contents above the level of the plinth have been pulled down, burnt or destroyed, or (ii) any building of which more than one-half of the superficial area of the external walls above the level of the plinth has been pulled down, or (iii) any frame building of which more than half of the number of the posts or beams in the external walls have been pulled down;

(c) to convert into a dwelling house any building or any part of a building not originally constructed for human habitation or, if originally so constructed, subsequently appropriated for any other purpose;

(d) to convert into more than one dwelling house a building originally constructed as one dwelling house only;

(e) to convert into a place of religious worship or into a sacred building any place or building not originally constructed for such purpose;

(f) to roof or cover an open space between walls or buildings to the extent of the structure which is formed by the roofing or covering of such space;

(g) to convert two or more tenements in a building into a greater or lesser numbers;

(h) to convert into a stall, shop, warehouse or godown, stable, factory or garage any building not originally constructed for use as such or which was not so used before the change;

(i) to convert a building which when originally constructed was legally exempt from the operations of any building regulations contained in this Act or in any bye laws made thereunder or in any other law, into a building which had it been originally erected in its converted form, would have been subject to such building regulations;

(j) to convert into or use as a dwelling house any building which has been discontinued as or appropriated for any purpose other than, a dwelling house."

Clauses (c), (h) and (j) are very significant. These clauses bring in the concept of user of a building for the purpose of definition of the expression 'to erect a building'. Under clause (h), if any building not originally constructed for use as a stall, shop, warehouse etc. is converted for use as such, it would fall within the expression 'to erect a building'.

In respect of an area where the notified/specified land use is residential, sanction for erection of a commercial building cannot be accorded, as is apparent from sub-section (2) of Section 336.

Section 336 reads as under:

"Section 336. – Sanction or refusal of building or work.–

(1) The Commissioner shall sanction the erection of a building or the execution of a work unless such building or work would contravene any of the provisions of sub-section (2) of this section or the provisions of section 340.

(2) The grounds on which the sanction of a building or work may be refused shall be the following, namely:–

(a) that the building or work or the use of the site for the building or work or any of the particulars comprised in the site plan, ground plan, elevation, section or specifica-

tion would contravene the provisions of any bye-law made in this behalf or of any other law or rule, bye-law or order made under such other law;

(b) that the notice for sanction does not contain the particulars or is not prepared in the manner required under the bye-laws made in this behalf;

(c) that any information or documents required by the Commissioner under this Act or any bye-laws made thereunder has or have not been duly furnished;

(d) that in cases falling under section 312, lay-out plans have not been sanctioned in accordance with section 313;

(e) that the building or work would be an encroachment on Government land or land vested in the Corporation;

(f) that the site of the building or work does not abut on a street or projected street and that there is no access to such building or work from any such street by a passage or pathway appertaining to such site.

(3) The commissioner shall communicate the sanction to the person who has given the notice; and where he refuses sanction on any of the grounds specified in sub-

section (2) or under section 340 he shall record a brief statement of his reasons for such refusal and communicate the refusal along with the reasons therefor to the person who has given the notice.

(4) The sanction or refusal as aforesaid shall be communicated in such manner as may be specified in the bye-laws made in this behalf."

This takes us to the provision of sealing as contained in Section 345A of the DMC Act. That provision was inserted by Act 42 of 1984 with effect from 10^th 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 and Reasons, inter alia, states that 'in recent years, growth of unauthorized colonies, encroachment on public streets, unauthorized construction of public and private lands and conversion of residential constructions into commercial complexes have assumed alarming proportions'. Section 345A reads as under:

"Section 345A. Power to seal unauthorised constructions.–

(1) It shall be lawful for the Commissioner, at any time, before or after making an order of demolition under section 343 or of the stoppage of the erection of any building or execution of any work under section 343 or under section 344, to make an order directing the sealing of such erection or work or of the premises in which such erection or work is being carried on or has been completed in the manner prescribed by rules, for the purpose of carrying out the provisions of this Act, or for preventing any dispute as to the nature and extent of such erection or work.

(2) Where any erection or work or any premises in which any erection or work is being carried on, has or have been sealed, the Commissioner may, for the purpose of demolishing such erection or work in accordance with the provisions of this Act, order such seal to be removed.

(3) No person shall remove such seal except–

(a) under an order made by the Commissioner under sub-section (2); or (b) under an order of an Appellate Tribunal or the Administrator, made in an appeal under this Act."

A plain reading of the aforesaid provisions shows that sealing can be resorted to at any time, before or after making an order of demolition under Section 343 or under Section 344 in respect of such erection being carried on or completed, for the purpose of carrying out the provisions of the Act. Sections 343 and 344 read as under:

"Sec. 343–Order of demolition and stoppage of buildings and works in certain cases and appeal.–

(1) Where the erection of any building or execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 336 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any of the provisions of this Act or bye-laws made thereunder, the Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced or is being carried on or has been completed, within such period (not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reasons therefor has been delivered to that person), as may be, specified in the order of demolition:

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

Provided further that where the erection or work has not been completed, the Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct the person to stop the erection or work until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under sub-section (2).

(2) Any person aggrieved by an order of the Commissioner made under sub-

section (1) may prefer an appeal against the order to the Appellate Tribunal within the period specified in the order for the demolition of the erection or work to which it relates.

(3) Where an appeal is preferred under sub-section (2) against an order of demolition the Appellate Tribunal may, subject to the provisions of sub-section (3) of section 347C stay the enforcement of that order on such terms, if any, and for such period, as it may think fit:

Provided that where the erection of any building or execution of any work has not been completed at the time of the making of the order of demolition, no order staying the enforcement of the order of demolition shall be made by the Appellate Tribunal unless security, sufficient in the opinion of the said Tribunal has been given by the appellant for not proceeding, with such erection or work pending the disposal of the appeal.

(4) No court shall entertain any suit, application or order proceeding for injunction or other relief against the Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section.

(5) Subject to an order made by the Administrator on appeal under section 347D, every order made by the Appellate Tribunal on appeal under this section, and subject to the orders of the Administrator and the Appellate Tribunal on appeal, the order of demolition made by the Commissioner shall be final and conclusive.

(6) Where no appeal has been preferred against an order of demolition made by the Commissioner under sub-section (1)

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

Sec. 344– Order of stoppage of buildings or works in certain cases.–

(1) Where the erection of any building or execution of any work has been commenced or is being carried on (but has not been completed) without or contrary to the sanction referred to in section 336 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any provisions of this Act or bye-laws made thereunder, the Commissioner may in addition to any other action that may be taken under this Act, by order require the person at whose instance the building or the work has been commenced or is being carried on to stop the same forthwith.

(2) If an order made by the Commissioner under section 343 or under sub-section (1) of this section directing any person to stop the erection of any building or execution of any work is not complied with, the Commissioner may require any police officer to remove such person and all his assistants and workmen from the premises or to seize any construction material, tool, machinery, scaffolding or other things used in the erection of any building or execution of any work within such time as may be specified in the requisition and such police officer shall comply with the requisition accordingly.

(2A) Any of the things caused to be seized by the Commissioner under sub-

section (2) shall be disposed of by him in the manner specified in section 326.

(3) After the requisition under sub-section (2) has been complied with, the Commis-

sioner may, if he thinks fit, depute by a written order a police officer or a municipal officer or other municipal employee to watch the premises in order to ensure that the erection of the building or the execution of the work is not continued.

(4) Where a police officer or a municipal officer or other municipal employee has been deputed under sub-section (3) to watch the premises, the cost of such deputation shall be paid by the person at whose instance such erection or execution is being continued or to whom notice under sub-section (1) was given and shall be recoverable from such person as an arrear of tax under this Act."

Section 347 contains a specific prohibition for change of the use of any land or building. The said section reads as under:

"Sec. 347 Restrictions on uses of buildings.–

No person shall, without the written permission of the Commissioner, or otherwise than in conformity with the conditions, if any, of such permission–

(a) use or permit to be used for human habitation any part of a building not originally erected or authorised to be used for that purpose or not used for that purpose before any alteration has been made therein by any work executed in accordance with the provisions of this Act and the bye-laws made thereunder;

(b) change or allow the change of the use of any land or building;

(c) convert or allow the conversion of one kind of tenement into another kind."

Section 349A contains the power of the Central Government to make bye-laws for carrying out the provisions of Chapter XVI. Regulations may provide for various matters including the use of sites for buildings from different areas etc. as mentioned in Clauses (a) to (w) of sub-section (2) of Section 349A, having regard to the requirement of town planning by the municipalities. Town planning is now part of constitutional obligation on insertion of Part IX-A in the Constitution of India w.e.f. 1^st June, 1993. Section 349A was inserted soon thereafter on 1^st October, 1993.

Reference may also be made to Chapter XX of the DMC Act which deals with markets, slaughter houses, trades and occupations and maintenance and regulations thereof. Section 416 recognises the importance of the density of population, pressure on the services in case more number of persons use the facilities or services. The said section under the heading 'Trade and Occupations' reads as under:

"Sec. 416 Factory, etc., not to be established without permission of the Commissioner.— (1) No person shall, without the previous permission in writing of the Commissioner, establish in any premises, or materially alter, enlarge or extend, any factory, workshop or trade premises in which it is intended to employ steam, electricity, water or other mechanical power.

(2) The Commissioner may refuse to give such permission, if he is of the opinion that the establishment, alteration, enlargement or extension of such factory, workshop or trade premises, in the proposed position would be objectionable by reason of the density of the population in the neighbourhood thereof, or would be a nuisance to the inhabitants of the neighbourhood."

A bare perusal of building bye-laws shows how relevant is the user, commercial or residential, and the large impact of occupation load on various facilities including water, sanitation and drainage.

Keeping future needs in view, experts prepare Master Plans. Perusal of the Delhi Master Plan, 1962 and 2001 shows what were plan projections. At the time of planning, the experts in the field of town planning, take into account various aspects, such as, healthy living, environment, lung space need, land use intensity, areas where the residential houses to be built and where the commercial buildings to be located, need of household industries etc. Provision for household industries in residential areas does not mean converting residential houses in the commercial shops. It only means permitting activities of household industry in a part of a residential property. It does not mean that residential properties can be used for commercial and trading activities and sale and purchase of goods. Master Plan contemplates shops in District Centres, Community Centres, Local Shopping Centres etc. and not in residential areas. Be that as it may, for the present, we are not considering the cases of small shops opened in residential houses for catering to day-to-day basic needs, but are considering large-scale conversion, in flagrant violation of laws, of residential premises for commercial use.

In respect of planning, reference can usefully be made to Section 313 of the DMC Act as well. The said section provides for the requirement of layout plan of the land. It, inter alia, provides that before utilizing, selling or otherwise dealing with any land under Section 312, the owner thereof shall send to the Commissioner a written application with a layout plan of the land showing various particulars including the purpose for which the building will be used. For breach of Section 313, action can be taken under Section 314. It has rightly not been disputed by any counsel that neither layout plan, nor the building plan, can be sanctioned by MCD except in the manner and for the purpose provided in the Master Plan. If in the master plan, the land use is residential, MCD cannot sanction the plan for any purpose other than residential. In the impugned judgment, while dealing with the provisions of the layout plan, it was observed that the provisions for user 'are only regulatory in nature'. While dealing with the user, the High Court observed that 'the power, whereby and whereunder the basic human rights or the fundamental rights conferred upon a person is taken away, must be specifically conferred by a statute'. The provision of user may be regulatory but all the same, they are mandatory and binding. In fact, almost all the planning provisions are regulatory. The violations of the regulatory provisions on massive scale can result in plans becoming merely scraps of papers. That is the ground reality in the capital of the country. None has any right, human or fundamental, to violate the law with immunity and claim any right to use a building for a purpose other than authorised. Further, the words 'unless the context otherwise requires' in Section 331 of the DMC Act are of no consequence for determining the point in issue as the context herein does not provide otherwise for the present purposes. It does not provide that the power of sealing under Section 345A cannot be exercised in case of misuser. In view of the clear language of Section 345A, we are also unable to sustain the view of the High Court that action under Section 345A can be taken only when there exists order of demolition under Section 343 or an order under sub-section (1) of Section 344. The conclusion of the High Court that action under Section 345A can be taken only when there exists an order of demolition under Section 343, or on passing of an order under sub-section (1) of Section 344, and in no other contingency cannot be accepted in view of the clear provision of Section 345A that action can be taken even before or after an order is made under those provisions. It is clear from a conjoint reading of the definition of the expression 'to erect a building' in Section 331 and Section 345A that conversion of user would come within the purview of the expression 'to erect a building'. In this respect useful reference can also be made to Building Bye-Laws for the Union Territory of Delhi, 1983, in particular Bye-Law Nos. 2.17 and 2.85, defining the expressions 'Conversion' and 'To Erect' respectively, which read as under:

"2.17 Conversion– The change of an occupancy to another occupancy or change in building structure or part thereof resulting into change of space or use requiring additional occupancy certificates.

2. 85 To Erect– To erect a building means:

(a) To erect a new building on any site whether previously built upon or not;

(b) To re-erect any building of which portions above the plinth level have been pulled down, burnt or destroyed; and (c) Conversion from one occupancy to another."

Having regard to these definitions if a Building/structure not originally constructed for use as a shop, is put to use as a shop, such conversion of use would come within the ambit of the expression 'to re-erect' and, consequently, within the ambit of the definition of the expression 'to erect a building'. In view of the aforesaid, reversing the impugned judgment of the High Court, we hold that under Section 345A of the DMC Act, the Commissioner of MCD is empowered to exercise power of sealing in case of misuser of any premises. Re : Question No.B – Whether under the Delhi Development Act, DDA has power to seal premises on account of its misuser?

The High Court held that both under Section 345A of the DMC Act and under Section 31-A of the Delhi Development Act, there is no power to seal premises on account of 'its' misuser. We have held that MCD has such a power under the DMC Act. The position, however, is different when the provisions of the Delhi Development Act are examined. The Delhi Development Act defines in Section 2(e) 'development area' to mean any area declared to be a development area under sub-section (1) of Section 12. Section 12 reads as under:

"Sec. 12– Declaration of development areas and development of land in those and other areas.–

(1) As soon as may be after the commencement of this Act, the Central Government may, by notification in the Official Gazette, declare any area in Delhi to be a development area for the purposes of this Act :

Provided that no such declaration shall be made unless a proposal for such declaration has been referred by the Central Government to the Authority and the Municipal Corporation of Delhi for expressing their views thereon within thirty days from the date of the receipt of the reference or within such further period as the Central Government may allow and the period so specified or allowed has expired.

(2) Save as otherwise provided in this Act, the Authority shall not undertake or carry out any development of land in any area which is not a development area.

(3) After the commencement of this Act no development of land shall be undertaken or carried out in any area by any person or body (including a department of Government) unless,–

(i) where that area is a development area, permission for such development has been obtained in writing from the Authority in accordance with the provision of this Act, (ii) where that area is an area other than a development area, approval of, or sanction for, such development has been obtained in writing from the local authority concerned or any officer or authority thereof empowered or authorised in this behalf, in accordance with the provisions made by or under the law governing such authority or until such provisions have been made, in accordance with the provisions of the regulations relating to the grant of permission for development made under the Delhi (Control of Building Operations) Act, 1955, (53 of 1955), and in force immediately before the commencement of this Act:

Provided that the local authority concerned may subject to the provisions of section 53A amend those regulations in their application to such area.

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

The power of DDA to develop land in non-development area is provided in Section 22-A, which reads as under: "Sec. 22-A Power of Authority to develop land in non-development area.–

Notwithstanding anything contained in sub-

section (2) of Section 12, the Authority may, if it is of opinion that it is expedient to do so, undertake or carry out any development of any land which has been transferred to it or placed as its disposal under Section 15 or Section 22 even if such land is situate in any area which is not a development area."

Under Section 36, DDA has been empowered to require the local authority, within whose local limits area developed by it is situated, to assume responsibility for the maintenance of the amenities provided in the area by DDA and other ancillary matters. Section 30 provides for power of DDA to make an order of demolition of building where any development has been commenced or is being carried on or has been completed in contravention of the master plan or zonal development plan or without the permission, approval or sanction referred to in Section 12 or in contravention of any condition subject to which such permission, approval or sanction has been granted. Section 31 empowers DDA to stop development which is in contravention of the plan, permission, approval or sanction, mentioned therein or contravention of the conditions stipulated in such permission, approval or sanction.

Section 31A empowers DDA to seal unauthorised development. If the misuser of the premises would come within the ambit of unauthorised development, DDA would have power to seal the premises. On the other hand, if misuser does not come within the ambit of 'unauthorised development', the power of sealing would be lacking. Section 31-A of the Delhi Development Act reads as under: "Sec. 31-A Power to seal unauthorised development.–

(1) It shall be lawful for the Authority or the competent authority, as the case may be, at any time, before or after making an order for the removal or discontinuance of any development under Section 30 or Section 31, to make an order directing the sealing of such development in the manner prescribed by rules, for the purpose of carrying out the provisions of this Act, or for preventing any dispute as to the nature and extent of such development.

(2) Where any development has been sealed, the Authority or the competent authority, as the case may be, may, for the purpose of removing or discontinuing such development, order the seal to be removed.

(3) No person shall remove such seal except–

(a) under an order made by the Authority or the competent authority under sub-section (2); or (b) under an order of the Appellate Tribunal or the Lieutenant Governor of the National Capital Territory of Delhi, made in an appeal under this Act."

The expression 'development' is defined in Section 2(d) as under:

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

The Scheme under the Act clearly seems to be that during development it is the responsibility of DDA to demolish and seal any premises if there is contravention. After the handing over of the area to the local authority under Section 36, the power of demolition and/or sealing is conferred on that authority. That local authority may be MCD or cantonment or any other authority depending upon the developed area falling in the local limits of one or the other. The 'development area' is any area declared to be such under sub-section (1) of Section 12. So long as an area is a development area, the power to deal with it remains with the 'authority' which means Delhi Development Authority in terms of Section 3(1) of the Act. After the responsibility of any area has been assumed by the local authority in the manner provided in Section 36, the power to deal with properties in that area for any contravention would be exercisable by such authority depending upon the statutory provisions governing the said local authority, referred to in Section 31-A as 'competent authority'. The power of 'Competent Authority' to seal premises would depend upon the statute governing it. The language of Section 31-A when it states that 'it shall be lawful for the authority, or the competent authority, as the case may be' shows that either the authority or the competent authority would have the power therein. The Act does not contemplate that both DDA and the competent authority would have concurrent power even after the local authority has assumed responsibility as provided in Section 36. Unlike Section 331, there is no provision in the Delhi Development Act to confer on the authority the power of sealing in case of misuse. The power under Section 31-A is to seal development under Section 30 or Section 31. The words 'such development' in Section 31-A refers to removal or discontinuance of development under Section 30 or Sec. 31-A and not for any development for the purpose of carrying out the provisions of the Act, as was sought to be contended by Mr. Ranjit Kumar. Section 31-A does not provide that sealing can be resorted to also for the purpose of carrying out the provisions of the Act. It can be resorted to for sealing of development under Section 30 or Section 31 for the purpose of carrying out the provisions of the Act. Misuse does not come within the ambit of development.

In view of the aforesaid, the High Court has rightly held that under the Delhi Development Act, there is no power of sealing in case of misuser.

Re : Individual cases and the Directions to be issued in respect thereof and also in respect of other residential properties used illegally for commercial purposes.

In Special Leave Petitions and Civil Appeal Nos. 608- 611of 2003 challenge is to the judgments of High Court disposing of writ petitions in terms of law laid down by Full Bench.

In Civil Appeal No.610 of 2003, it is contended on behalf of the private respondents that a factual error seems to have occurred when the matter was disposed of by the High Court along with batch matters. It has been pointed out that the Court has failed to note that the plot in question has been leased out by DDA for commercial purposes; due licence has been issued by the MCD to open a restaurant which is being run in the name of Copper Chimney and, therefore, there is no misuser. Our attention has been drawn to the copy of the lease deed and the licence. If this is the factual scenario, the authorities will examine it before taking action, if any, and the same would be subject to such legal remedy as may be available in law to the private respondents.

In Special Leave Petition No.23896 of 2002 on behalf of respondent–bank, it has been pointed out that as per scheme of DDA, banks have been permitted in the residential properties. For DDA, it was submitted that the benefit of the scheme is available subject to the fulfillment of various conditions stipulated therein. In this view, the matter will have to be examined by the authorities in the light of the scheme, before proceeding to take action, if any, that may be available in law and subject to legal remedies of the Bank. In respect of C.A. No. 608 of 2003, MCD issued to the respondents, a show cause notice dated 1^st August, 2000 under Section 345A read with Sections 347, 343 and 344 of the DMC Act stating that property No. 39 Ring Road, Lajpat Nagar III was being misused in the name and style of "Jagdish Store". In reply dated 15^th September, 2000, it was, inter alia, stated that the MCD itself has been allowing non-residential activities in residential areas under a special scheme, without, however, giving any details or filing any document in support thereof. Further, we asked the learned counsel for the respondents to place on record the plan for the construction of the building which may have been sanctioned so as to ascertain whether the sanction was for construction of the residential property or commercial property. The plan has not been filed. The reasons are not far to seek. One of the simple method for ascertaining that there is misuser or not, is to examine the sanctioned plan.

At this stage, it would be useful to notice letter dated 28^th August, 2000 sent by the Ministry of Urban Development to the Commissioner, MCD, Vice-Chairman, DDA and other authorities conveying the deep concern of Parliament Consultative Committee over the rising menace of unauthorized construction, suspected connivance of the staff of the different authorities in the matter and requesting the authorities to take strong and prompt action and suggesting ten measures for strict enforcement. The letter reads as under:

"Annexure-R-1 No.J-13036/3/96-DDIIB Government of India Ministry of Urban Development & Poverty Alleviation *** Nirman Bhawan, New Delhi Dated: 28.08.2000 To

1. Shri P.S.Bhatnagar,

Chief Secretary, Government of National Capital Territory of Delhi,

Delhi.

2. Shri P.K.Ghosh,

Vice-Chairman,

Delhi Development Authority,

Vikas Sadan, INA, New Delhi

3. Shri S.P.Aggarwal,

Commissioner,

Municipal Corporation of Delhi,

Town Hall,

Delhi

4. Shri B.P.Misra,

Chairperson

New Delhi Municipal Committee,

Palika Kendra,