COMMERCIALISATION OF RESIDENTIAL PROPERTIES
OMMON CAUSE had filed an Intervention Application (No.1 of 2006) in W.P.(Civil) No.266 of 2006 challenging the validity of Delhi Laws (Special Provisions) Act' 2006 allowing mis-use of residential properties. The Hon'ble court has issued some interim orders (these have been published in the previous issue of our Journal). We have filed an Additional Affidavit.The Affidavit and subsequent judgement of the Apex court are produced below:
ADDITIONAL AFFIDAVIT ON BEHALF OF THE APPLICANT/INTERVENER IN PURSUANCE OF THE ORDER DATED 1.8.2006 PASSED BY THIS HON'BLE COURT.
I, P. K. Dave, aged about 83 years, having office at COMMON CAUSE HOUSE, 5, Institutional Area, Nelson Mandela Road, Vasant Kunj, New Delhi-110070, do hereby take oath and solemnly state as under:
1) That in compliance with the Order dated 1.8.06 of the Hon'ble Supreme Court, the Intervener, namely COMMON CAUSE, herewith submits pleadings further to its Intervention Application No. 1 of 2006 in Writ Petition (Civil) No. 266 of 2006.
2) That this Hon'ble Court has observed that the impugned Act is `unique' and unlawful and that such a law cannot be approved. However, the Hon'ble Court is not inclined to grant a complete stay of the impugned legislation, and that only a partial stay deserves to be granted.
3) That later in this submission, the Applicant will with due respect submit that without finally deciding on the vires of the impugned Act, the consideration selectively of the action taken by the Respondent Government under cover of that very Act, disregarding the directions of this Hon'ble Court, could lead to the premature dismantling of those very directions and cause confusion. The Learned Solicitor General has at present offered a list of activities that shall
- COMMERCIALISATON OF RESIDENTIAL PROPERTIES
- ADDITIONS/ALTERATIONS IN FLATS
- POLICE REFORMS
- NON-PERFORMING ASSETS
- AGM ANNUAL REPORT & AUDIT REPORT
not be permitted in residential areas. This Hon'ble Court has also added certain relaxations as well as prohibitions and stated that all these "interim directions" would operate till the decisions on the Writ Petitions.
4) That in reality, the Government, through the Learned Solicitor General is putting "his foot in the door" to ensure that after the period of sealing or re-sealing of activities that are in violation of the Bye-laws and Regulations, etc. a position may be reached of status quo ante and further that the Government may be able to proceed with the finalization of the Master Plan 2021 facilitating commercialization of the entire Delhi urban area. This would be apparent from the mixed land use proposal in the Public Notice dt. 21.07.06 which provides for application of the highly relaxed rules to the entire city and the statements made by Ministers and officials as reported in the media that the liberal mixed use regulations shall be changed before the re-sealing drive restarts in September.
5) That in the face of the orders dated 16.2.2006, and various other directions for demolition of unauthorized and illegal constructions, encroachments on public land, and widespread commercialization of residential areas, issued by this Hon'ble Court and the Hon'ble Delhi High Court, frenetic activity has been shown by the Government to prevent large-scale ongoing demolitions of unauthorized and illegal constructions, enact the impugned law in a great hurry preceded by the appointment of the so-called Expert Committee under Mr. Tejender Khanna, and also take action on the Report of that Committee without its proper publication or public debate, or even the submission of an Action Taken Report in Parliament.
6) That in the process, certain concessions given by the Court have been overtaken by notifications following one upon another in the name of complying with the recommendations of the Tejender Khanna Committee. The latest such substantive notification appears to be the Public Notice dated 21st July, 2006 proposing to bring about fairly drastic changes in the governing principles for mixed land use i.e. non-residential activity in residential premises, inviting objections and suggestions within 30 days of the issue of the Notice. It is characteristic of the series of steps taken by the Government of India that the abovesaid Notice has been issued under the provisions of Master Plan-2001 that was already declared as out-dated earlier by the Government.
7) That the Applicant submits that in considering the various writ petitions challenging the constitutional validity of the impugned Act, only certain interim directions may be issued by this Hon'ble Court to give relief to the extent considered feasible on the recommendations of the Monitoring Committee within the existing parameters and not give any consideration to the mixed land use Notice referred to above and the various other recommendations of the Tejender Khanna Committee. The latter, it is submitted, deserve a full public debate and consultation with experts of repute before the parameters of land-use and construction bye-laws can be prescribed by the Government so as to secure the much touted "no tolerance" regime. In the interim orders envisaged in this Hon'ble Court's order dated 01.08.2006, the applicant submits that the following steps already underway according to the orders of this Hon'ble Court and the Hon'ble Delhi High Court and supervised by the Commissioners appointed for the purpose of ensuring compliance, may be maintained in the interest of the laws, bye-laws, regulations etc of the MCD, DDA, the Ministry of Urban Development and other authorities:
a) Encroachments on government/public land as well as unauthorized and illegal constructions etc. should be demolished, i.e. razed to the ground, in a well-conducted continuing process, in accordance with the orders of the Hon'ble Delhi High Court and under supervision of the Commissioners appointed by it. If the MCD/DDA find their resources for complying with this requirement in reasonable time insufficient, they may consider engaging competent private engineering entities to supplement these activities, so that the tempo of demolitions can be maintained. Clearly there is no rationale or reason whatsoever for holding back on action against encroachments on government/public land or against illegal constructions etc. that have continued for this day in defiance of the Hon'ble Courts' Orders issued from time to time.
b) The applicant respectfully submits that in cases where misuse of land for commercial and other impermissible activities was established and affidavits furnished that the infractions shall be removed by 30 th June 2006, such removal be enforced by MCD, DDA etc. under the supervision of the Court Commissioners. In such admitted cases of default, the violations need not await any changes to the Master Plan or Bye-laws. It may be appreciated that at the relevant time the persons who filed the affidavits of undertaking, did so to avail protection for immediate coercive action against their admitted misuse of property. Accordingly, such persons got reprieve which was conditional upon their abiding by such affidavits of undertaking furnished to the Hon'ble Supreme Court/the Monitoring Committee. It would be bad precedent and anathema to all recognized principles of justice, apart from being unjust and unfair, if such persons were now permitted to take advantage of the newly notified mixed land use norms and dispensations, in blatant violation of their own solemn undertakings given to this Hon'ble Court.
c) The large-scale investigation and prosecution programme initiated by the CBI on the orders of the Hon'ble Superior Courts, to bring lawbreakers including builders and politicians to book, may not be allowed to be slowed down under the misapprehension that all violations and illegal constructions etc. shall be given a reprieve by the actions of the Government. The CBI campaign for discovering and prosecuting defaulters regardless of personalities involved, must be continued and status reports submitted to the Hon'ble Delhi High Court. A direction to ensure compliance may be considered for issue to the Central Vigilance Commissioner.
8) That the Government of India may be asked to give due regard to the note of caution sounded by the Parliamentary Standing Committee on Urban Development submitted to Parliament in August, 2006.
9) In the meanwhile and during the ongoing proceedings on the same subject DDA has issued Public Notice dated 21 st July, 2006 on the Mixed Land Use Policy.
10) That the Notice is issued under the provisions of Master Plan 2001 which is not only outdated, but the use of which in the context of often declared intention of Government that Master Plan 2021 shall be promulgated soon, is blatant interference with the judicial process and, therefore, unlawful and unconstitutional.
11) That general objections or suggestions have been invited within a period of 30 days from the date of publication of the Notice. In this period the Supreme Court has already held two hearings, passed an Interim Order in connection with the Writ Petition filed before it questioning the legality, constitutional validity and the vires of the Delhi Laws (Special Provisions) Act 2006. In the submissions made by the Solicitor General and the interim Order passed by this Hon'ble Court the question of the existing violation of the Master Plan/Building Regulations and By-Laws have been discussed in some detail. This Hon'ble Court has already considered the questions of sealing, de-sealing, re-sealing and further action of commercialization and other misuse. Some assurances about suggested mixed use have been withdrawn by the Solicitor General and subject to further directions of this Hon'ble Court it is presumed that the prohibition for such mixed use shall be included in the Notice under question and in the MPD 2021. Any further prohibitions that may be included in the final order of this Hon'ble Court must likewise be prohibited under MPD 2021.
12) That the most serious objection to the proposed provisions for mixed land use in the abovesaid Notice is that it seeks to perpetuate not only the existing misuse, but it also gives a clear signal for the creation of mixed land use units in the existing C,D,E, F and G Categories in residential plots facing roads of ROW as low as 13.5 m, 9 m and 6m. The inevitable result of such a provision is the perpetuation of the magnet that Delhi has become for the influx of labour, mainly unskilled and entrepreneurs for industrial and commercial activity. This permissive situation that has continued over the last few decades in violation of the laws, bye-laws regulations etc., has caused the grave consequences that this Hon'ble Court and the learned High Court have been dealing with.
13) In consequence, such a development will only convert all the colonies falling in Categories C and D into "Bazaars" with the inevitable result of openly inviting into Delhi commercial entrepreneurs with their appurtenant labour in large numbers. Thus, on the one hand, there is need for decongesting Delhi, on
the other hand an open invitation to wholesale commercialization especially of the already congested areas would be the result.
14) Further, this Hon'ble Court has invited the Government of India to exercise powers under Section 3 (4) of the impugned Act to withdraw certain "reliefs" given under the Notification dated 20 May 2006; this might be misconstrued by the general public "approval" of a legislation otherwise considered unlawful.
15) That this is how the Government is viewing this Hon'ble Court's order dated 10.08.2006 is clear from the media reports
16) That in view of the above submissions, it can be conclusively stated that the Impugned Act is inter alia illegal on the following propositions:
a) The Central Government cannot frame a law with the specific object and purpose of negating a Judgement of this Hon'ble Court, which is what has been done in the present case ;
b) A law cannot be framed that suspends the operation of another duly enacted legislation or bye-laws framed under such duly enacted legislation;
c) A law that grants immunity from complying with the Orders passed by this Hon'ble Court is in clear and flagrant violation of the mandate inter alia of Article 14 of the Constitution of India;
d) Such a law violates and sullies the entire Constitutional scheme ;
e) In fact the Impugned Act not only negates the mandate of this Hon'ble Court as contained inter alia in the Judgement dated 16 th February 2006 for the future, but even goes so far as to restore status quo ante in regard to "unauthorized development" as of 01 st January 2006 thereby attempting to ensure that nothing done under Orders of this Hon'ble Court survives;
f) The Impugned Act operates so as to replace existing statute law and bye-laws with a legislation that is itself illegal with the stated purpose of providing "temporary relief" to the people of Delhi ;
g) The stated purpose of the Impugned Act is to provide "temporary relief to the people of Delhi against such action", the action being violation of the provisions of the Master Plan, 2001 and building bye-laws. The Intervenor submits that to provide relief against violation of law, bye-laws, rules or regulations (which have the force of law), cannot be a legitimate purpose of an enactment; and an enactment with an illegitimate purpose must be void ab initio;
h) It is unknown to any civilized framework of laws that a legislation is brought in to "suspend" or "stay" the operation of other laws and judgement of the highest court of the land. However, this is precisely what the Impugned Law is attempting to do.
For the reasons stated above, the Impugned Act is prima facie unconstitutional, unlawful and illegal, apart from being unfair and unjust and deserves to be quashed. The notice issued by DDA on 21.07.2006 on the subject of mixed-land use is similarly flawed and needs to be cancelled.
17) That this affidavit has been filed bona fide and in public interest.
18) That the annexure annexed to this additional Affidavit is true copy of its original