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The Delhi Laws Act, 1912

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Delhi High Court
Harjeet Dua vs M.C.D. And Ors. on 31 May, 2002
Author: A Sikri
Bench: S Sinha, A Sikri

JUDGMENT

A.K. Sikri, J.

1. The petitioner claims himself to be a public spirited person. He states that he is an accredited Journalist by profession and Editor of weekly newspaper 'Yuva Pukar' as well as Editor and Publisher of Hindi fortnightly 'Sher-E-Yamunapar'. The petitioner states that he has been publishing the above said newspaper for the last more than 26 years. He also states that he is an honest and law abiding citizen of the country and has through his writings un-earthed and exposed corruption in high places, builder mafia, land grabbers, corrupt public servants and anti social elements especially in the area of East Delhi where his publication have high circulation. He is himself a resident of House No. H-18, Chander Nagar, Krishna Nagar, Delhi - 110 051.

2. He filed the instant petition which is in the nature of public interest litigation highlighting the problems of illegal and unauthorised mass scale haphazard construction activities that have been going on in the area of Krishna Nagar, Gandhi Nagar and Preet Vihar in East Delhi. He points out that there have been unauthorised construction activities and encroachment of government land with the connivance of corrupt officials of the Government Departments, namely, the Municipal Corporation of Delhi (hereinafter referred to as MCD, for short); Delhi Development Authority (hereinafter referred to as DDA, for short) and the police authorities - the respondents herein. He states that he has brought to the notice of the respondents such illegal construction activities and sought intervention and remedial action from them vide registered post notice sent to them on 28th September, 2000. But the respondents have failed to take any action.

3. In para 5 of the Writ Petition he has given specific instances of such unauthorised constructions by stating that such unauthorised and illegal constructions are glaring and have been or are being erected in connivance with the concerned officials of the respondents in Krishna Nagar area. These properties are bearing Nos. A-3/26, A-4/26, A-5/24-25-26, A-7/49-50, B-1/15, B-2/5, B-2/2, B-2/10 B-13/2, B-13/3, B-4/10, B-2/15, D-2/25, E-4/8, E-4/14, E-5/20-21, E-7-A/4-5, E-3/10, E-6/4-5, E-16/8, E-17/7, F-1/1, F-3/9, F-7/26, F-22/8, F-9/3, F-9/12, F-12/10, F-3/12, F-3/28, F-13/16, F-22/8, K-11, K-8, K-65 one Post Office block-A (Roopa Ice Cream). Apart from that in the area of Indira Park Extension the property No. 31-A belonging to Shah Namkeen and property No. 212, Azad Nagar West (5 storeyed) 383/8A, 46/1A, 47-48 East Azad Nagar and also in the property No. C-42, 43 in the area of Kanti Nagar falling in the jurisdiction of Krishna Nagar, Delhi. Similarly, the properties with respect to Preet Vihar area are bearing Nos. 23-24-28, Gagan Vihar, 1, Gagan Vihar Extension (Bal Bhavan School) and 51, Chawla Park (opp. MCD Store) and the properties against which necessary action under law should have been taken by the respondents situated in area of Gandhi Nagar area bearing Nos. 19, 21, 23, 28 and 41 Mahila Colony and IX/1631, IX/6172, IX/6173, IX/6360.

4. The petitioner also alleges that property which was Bal Bhavan School in 1, Gagan Vihar Extension and property bearing No. 23-24-28, Gagan Vihar has been now converted into a commercial complex and number of flats and apartments have been built thereon. Another property falling in Preet Vihar area is 51, Chawla Park, Opposite MCD Store where a commercial complex has been raised. All the above mentioned properties are sources of continuous pollution and have caused lot of inconvenience to the residents of the area. All the properties are 3-5 storeys and have been built with more than 100% coverage. No provisions have been made for any kind of safety or protection from any mishap or untoward incident which may happen due to the negligent approach of the builders. All this endangers human life and property. This has led to problems like traffic congestion and continuous threat of fire hazards to all. The properties are all built up by builder mafia against whom the petitioner had reported in his writings in his fortnightly and weekly news papers also.

5. Further specific instances are given in para 11 of the Writ Petition where illegal construction have been carried out without any sanctioned plans and in total violation of Sections 466-A, 332 and 461 of the Delhi Municipal Corporation Act, 1956 (hereinafter referred to as the Act, for short).

6. Section 343 deals with Order of demolition and stoppage of building and works in certain cases relating to unauthorised construction and also proceeds for appeal. Section 345-A of the Act gives power to the MCD to sell the premises where unauthorised constructions are going on. According to the petitioner even these provisions are not invoked by the respondents in the aforesaid cases.

7. The prayer in the Petition is to direct the respondents to discharge their statutory duties by taking action in accordance with law in respect of the properties mentioned above.

8. Show causes notices in this Petition was issued on 8th February, 2001 for 12th April, 2001. On 12th April, 2001 learned counsel for the MCD stated that it had identified the properties where deviations have taken place and assured the Court that requisite action shall be taken. When the matter was listed on the next date of hearing i.e. 23rd May, 2001 the following Order was passed:-

"Respondent Nos. 2, 3, 5, 6 and 7 have not filed their reply. Final opportunity is granted to them to file the same. It is pointed out by Mr. Mukherjee, learned counsel for the MCD that requisite affidavit was filed on 22nd May, 2001 giving details of the properties which have been booked under Section 343 and 344 of the DMC Act. As per the affidavit out of 22 properties, which have been booked, demolition action has been taken in respect of three properties. He also says that so far as other properties are concerned action is being taken in accordance with law. Let a fresh Status Report be filed by the MVCD on or before next date of hearing.

Petitioner has apprehensions about his safety. Mr. Ashok Kumar, SHO, Krishna Nagar is present, he says that the safety and security of the petitioner shall be ensured.

List the matter on 16th August, 2001.

9. Thereafter, as per the Orders of the Court, MCD has been filing the status report as regards properties located in the afore-said colonies and the action taken in respect thereof from time to time. However, on 21st September, 2001 after going through these reports this Court felt dissatisfied with the action taken by the MCD and afforded another opportunity to it to proceed in accordance with law against all such properties referred to in the Petition where unauthorised construction has taken place and such construction is prohibited in law. The MCD was directed to file status report of the action taken specifically dealing with each property mentioned by the petitioner in the Writ Petition. It was also directed that such status report would be accompanied by latest photographs of the action taken. The MCD filed status report in the form of affidavit dated 4th December, 2001 sworn by Superintending Engineer. In this affidavit it is, inter alia, mentioned that the properties in question, as per the Petition, are 56, which are divided into three categories namely, 'unauthorised constructions booked', 'old and unoccupied' and 'regularised'. The affidavit further deposed to the following effect in respect of each category:-

A. Unauthorised Constructions booked:-

It is submitted that out of 56

properties, the unauthorised construction has ben carried out in 22 properties and the same were booked by the answering respondent. It is also submitted that out of 22 properties in which

unauthorised construction has been booked, the owners of the 13 properties applied for regularisation which is under consideration. The chart showing the property nos. and booking file no. and extent of unauthorised construction found in the premises and also the action taken with date by the MCD is annexed as annexure 'A'.

B. Old and occupied:-

It is submitted that an affidavit in regard to old and occupied properties has already been filed by Shri Naresh Gupta, the then Executive Engineer

(Bldg.)/Shahdara (South) zone in which it is clearly mentioned that 31 properties are old and occupied. A chart showing the property nos. and present status is annexed as annexure 'B' for kind perusal of this Hon'ble Court.

C. Regularised:-

It is also submitted that the

construction of three properties have already been regularised by the answering respondent under the scheme launched by the MCD for regularisation. A chart showing the properties which are

regularised is annexed as annexure 'C' for kind perusal of this Hon'ble Court.

10. Along with this affidavit the MCD also filed action which was taken and/or under consideration in respect of each of the aforesaid properties. The photographers in respect of those properties where action was taken was annexed.

11. The petitioner was given opportunity to respond to the aforesaid affidavit. The petitioner's response is contained in affidavits dated 19th March, 2002 and 7th May, 2002. In these affidavits the petitioner has again reiterated that the report filed by the MCD does not contain correct information as demanded by this Court and an attempt has been made to mislead this Court. The petitioner has explained that Annexure-B annexed with the affidavit dated 4th December, 2001 of the MCD shows 31 number of properties as old and occupied which is quite misleading. The petitioner has filed photographers of various number of properties to show that every property has been rebuilt in the form of flats and commercial shops, showrooms, etc. although the MCD alleges these properties to be old and occupied. Thus according to the petitioner, there has been not only violation of municipal bye-laws, such construction have come up in total disregard of the Master Plan and most of the conversion of properties from residential to commercial user has taken place without any sanction from the competent authority. By way of example the petitioner has quoted the Mahila Colony which was meant for resettlement of women victims of country's partition in 1947 who had become widows and destitute during the riots in the said period. However, as on date a commercial market has sprung up in the area for which there was no provision at all and has changed the entire complexion of the said colony. Hence it is quite evident that the colonies like Krishna Nagar, Gandhi Nagar, Geeta Nagar and Preet Vihar have been subjected to large scale unauthorised constructions, public land encroachments and usurpation of Government plots by colluding parties by filing bogus litigation in the Courts and illegally acquiring title of the properties by hoodwinking the Land and Revenue Authorities. The respondents are still having a close nexus with such unlawful and criminal elements responsible for devastating the peaceful life of an ordinary law abiding citizen.

12. In the meantime, the MCD has filed another affidavit dated 20th May, 2002 pointing out further action taken in respect of certain properties of the area in question supported by photographs.

13. The aforesaid factual matrix reveals a sorry state of affair which is really shocking. The very fact that MCD is now taking action and has taken action by booking various properties is a pointer to the fact that there were illegal constructions. It is also not at all denied that in most of the properties pointed out by the petitioner, unauthorised structures/ constructions were made. There are large scale encroachment of public land also. There have been a misuser of the land on a large scale in a rampant manner whereby residential properties are converted into commercial properties. One fails to understand how such encroachment, misuse and illegal construction can take place without the connivance of the officials of the respondents. Even now half hearted steps are taken as is clear from the affidavits dated 19th March, 2002 and 7th May, 2002 filed by the petitioner which show that complete action as required is still not taken by the MCD authorities. There is no denying the fact the MCD has filed action taken reports from time to time as per which action has been taken in respect of various properties.

14. When the matter was argued on 21st May, 2001 the learned counsel for the MCD further assured that action would be taken in respect of other properties as well. He submitted that since the respondent-MCD would take action in respect of the properties pointed out by the petitioner, we do not deem it necessary to keep this Petition pending. We hope and trust that this is a solemn assurance given by the respondent-MCD. What we expect is that MCD shall take immediate and effective steps in removing the encroachment from public land and misuse of properties.

15. We accordingly dispose of this Petition with direction to the respondent-MCD take further action as are required under the law against such persons and in respect of such properties in accordance with law. It shall also file action taken report in this case regularly. The matter may be placed before the Registrar General of this Court for this purpose and Registrar General may call for further reports till such time the Registrar General is satisfied that the action is complete. It would be open to the petitioner to point out any such encroachment on public land or misuser and the MCD shall seriously consider such representations of the petitioner. The Registrar General or the petitioner may also approach this Court for necessary direction if occasion arises. The matter in the first instance is listed before the Registrar General on 19th August, 2002 for the purpose of filing action taken report by the MCD.