OBJECTIONS/SUGGESTIONS SUBMITTED REGARDNG.MIXED LAND USE AND BUILDING BYE-LAWS.
August 18, 2006
Shri V. M. Bansal,
Delhi Development Authority (DDA),
Vikas Sadan, I.N.A.,
New Delhi 110023
Sub:Objections/suggestions on Notices re. Mixed land use and Building Bye-laws.
Kindly refer to the above cited Notice which were published in the newspapers on 23rd July, 2006 and 22nd July, 2006 respectively inviting objections/suggestions from public within 30 days from the date of publication thereof.
We in COMMON CAUSE consider that the notice re: mixed land use and building bye-laws issued by the DDA is unlawful, unconstitutional and highly inappropriate. That a legislation or a subordinate legislation or new rules and regulations cannot be issued when the subject matter of the same is under Constitutional Review of the Superior Courts, in this case of the Apex Court. This view has already been expressed by the Supreme Court during the on-going challenge to the Delhi Laws (Special Provision) Act, 2006. In this view of the matter the government and all its autonomous or other agencies are estopped from changing the existing rules.
It is clear on the face of it that the notice re: mixed land use has been issued in a hurry so as to protect the law breakers and to remove them from the jurisdiction of the Supreme Court. This is very clear from the repeated declarations by the government's ministers that the said law breakers may rest assured that the legal position will be changed in their favour before the fifteenth / sixteenth September 2006, when according to the directions of the Supreme Court the commercial establishments found to be transgressing the existing mixed land use regulations and MCD / DDA Bye-Laws, would be stopped.
In light of the above, it is strongly urged that the DDA and government may consult the Solicitor General who is handling the case in the Supreme Court as to the legality and / or appropriateness of attempting to change the existing legal position by the extensive amendments suggested in the above-said Notices.
Mixed Land Use:
At the outset we wish to convey that it appears inappropriate to amend a subordinate legislation (MPD-2001) and its subsequent incorporation in another subordinate legislation (MPD-2021)., particularly when the matter is subjudice in the Supreme Court of India, Already some of the proposals contained in the Notice have been withdrawn by the Government by way of submission of "middle-path" suggestions to the apex court through the Solicitor General. Inversely, the other proposals have got legal sanctity by default. The Government is viewing it as vindication of its stand.
The Government of India may give due regard to the note of caution sounded by the Parliamentary Standing Committee on Urban Development submitted to Parliament in August, 2006 (photocopy of extract from the Report of the Standing Committee annexed).
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.
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 the Supreme Court and High Court have been dealing with.
In consequence of 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.
We will appreciate if these proposals are kept pending till final disposal of the case by the Hon'ble Supreme Court of India. However, we suggest that, in general, the following criteria may be kept in view while allowing mixed use of land:
1. First of all it may be absolutely necessary to define mixed land use as different from commercialization. Whereas mixed land use by way of setting up retail shops by the resident owners in the ground floor for the benefit of residents of the area/locality may be permitted, blatant commercialization by outsiders should not be permitted in any case.
2. Whatever activity is permitted under the scope of mixed land use, it should be subject to assessment of its impact on environment, civic amenities, parking and other parameters set up by any other agency. For example, for setting up of banks, the Reserve Bank of India has perhaps laid down guidelines about the distance between two banks which means that two banks may not be allowed in adjoining houses.
3. The Notice prescribes certain registration charges and penalties. However, it is not clear as to who will ensure recovery of these charges. It will be relevant to mention that the Government of NCT of Delhi and the Union Urban Development Ministry have not so far been able to finalise the methodology of recovering development charges from unauthorized colonies which are proposed to be regularized, and the regularization continues to pend. It should be incumbent on a particular agency/officer to ensure compliance failing which it/he shall be held responsible and penalized as per provisions to be specified. The present chaos in the city is the result of non-implementation of existing rules and regulations.
4. Professional activities should be limited only to Study Offices/Clinics within the prescribed area but not for regular offices/Nursing Homes.. Regular offices of Advocates may invite visitors of various types, including criminal clients and create parking and other problems for the residents. Similarly, Nursing Homes also entail visits by other doctors, patients and attendants leading to choking of the parking area.
5. The notice provides that mixed land use, especially commercialization, will be allowed after consultation with the Residents Welfare Associations. The first objection to this provision is that apart from the Societies Act which establishes no control mechanism as such, there is no specific provision for such associations in the DDA Act and Rules. The RWAs have mushroomed with diverse objectives, some for and some against the regulation of commercialization, densification, etc. The second objection is that in matters under consideration large amounts of money will be involved and "requests" and "recommendations" could be purchased and thus the corruption so far confined to controlling agencies of government will spread into the residential areas. This would be a very unfortunate development. Consultation by issue of public notice from the residents of the affected area may be in order but the provision as it stands is considered inappropriate.
As regards the other Notice published on 22.7.2006 for revising the develop0ment control norms in respect of residential plot/plotted development regarding permissible ground coverage, FAR, number of dwelling units and height, we apprehend grave problems in regard to adequate provision of civic amenities as a consequence of the proposed amendments/modifications leading to increased density of population. Though it is mentioned that these will be subject to augmentation of municipal services such as water, power, sewerage, road widening, circulation, parking, parks etc", there is no indication as to how these are proposed to be augmented. The citizens are already suffering due to inadequacy of all these facilities and the government has failed to provide any relief during all these years. The Govt. of NCT of Delhi itself has reportedly filed an affidavit in the Supreme Court on 17.8.2006 that "Generation/availability within Delhi could not be increased to keep pace with the demand due to various constraints————"
Further, in the already congested localities where additional FAR and dwelling units are proposed to be increased, it may be impossible to provide any space for circulation, parking, road widening etc. These can be achieved only on paper. These will certainly lead to insurmountable problems of scarcity of electricity, water, parking, circulation space, choked sewers etc.
Delhi falls in the high risk earthquake prone zone. Any increase in height of buildings on small plots will only add to the risk of disasters. This may also lead to additional scope of corruption and fake certificates regarding structural strength of the buildings may be used and accepted while seeking sanction of revised plans.
Instead of increasing the already over burdened density in the city, the government may prepare plans in consonance with NCR plan and target decongesting the city. The population is already bursting at its seams and no proposal should be considered which will add to the population density and creation of slums or slum-like dwelling units. Construction on small plots should not be permitted beyond third floor, and basement should also be a taboo for such plots.
These are general observations which may be kept in view for any decision in this regard.
EXCERPTS FROM THE 16TH REPORT OF STANDING COMMITTEE OF URBAN DEVELOPMENT (2005-2006) PLACED IN THE LOK SABHA ON 2ND AUG.2006:
"The Committee note that MPD-2021 proposes certain provisions for mixed land use in residential areas subject to public need, environmental impact and provision for safe and easy traffic circulation and adequate parking. While keeping in view the needs of residents and their safety and convenience, they are of the view that mixed land use should be judiciously permitted with great caution. Otherwise, the quality living of residents of Delhi may be adversely affected. The Committee reiterate their earlier recommendation and desire that the provision/limits of permissible and non-permissible mixed land use must be reviewed in a wholesome manner so as to clearly demarcate commercial and non-commercial areas of a given land and the permissible limit of commercial or non-commercial or other use of the land in residential areas. The Committee also desire that appropriate action should be taken against those, who do not abide by set limits of use of the urban land. In this regard, the Committee feel that the feasibility of providing suitable power to DDA and other Urban Local Bodies to `seal' a given premises may be explored in cases of infringement of the limits in `Mixed Land Use '."