The monitoring committee went beyond its mandate, sealing even those residential premises which were being used for residential purposes on grounds that they were allegedly found flouting norms relating to unauthorised construction.

 

On 14 August, the eve of Independence Day, a Bench of the Supreme Court comprising Justice Arun Mishra, Justice B.R Gavai and Justice Krishna Murari  passed an important order de-sealing residential properties in Delhi’s Vasant Kunj and Rajokri areas, previously sealed by a Supreme Court appointed Monitoring Committee, allegedly on the grounds of being unauthorised constructions, within three days.

The court categorically held that it had not granted authority to the committee to seal residential premises on private land, particularly when they were not being used for commercial purposes. The SC directive will bring a lot of cheer to those residential owners whose properties were unlawfully sealed by the committee despite being residential buildings. While doing so, the Bench categorically observed that “It would not be appropriate to the Monitoring Committee to usurp statutory powers and act beyond authority conferred upon it by the Court. The Monitoring Committee could not have sealed the residential premises, which were not misused for the commercial purpose as done vide Report No.149, nor it could have directed the demolition of those residential properties…”

The court-appointed monitoring committee derives its power to seal properties from a 2006 SC order issued in connection with a PIL, M.C. Mehta v. Union of India & Ors, wherein noting large scale misuse of residential premises for unauthorised/commercial activities in Delhi, the Apex Court directed the committee to put a restraint on it. The committee was appointed on 23 April 2006.

With this order in hand, the committee was spearheading the capital’s crackdown against the misuse of residential properties, a move that saw the sealing of several illegal business establishments in some of Delhi’s prominent neighbourhoods.

However, the committee went beyond its mandate, sealing even those residential premises which were being used for residential purposes on grounds that they were allegedly found flouting norms relating to unauthorised construction.

Though the committee was initially appointed to check only misuse of the residential properties that were being used for commercial purposes, the Apex Court, through subsequent orders, directed the committee also to look into matters of “encroachment on the public land” and “unauthorised colonies” that have come up on public land. A Special Task Force was also constituted through an order dated 24 April, 2018 to remove encroachments from public roads and streets.

The Independence Day eve order is the first time the committee’s power has been questioned, since it was constituted 14 years ago. The decision came after the committee ordered the sealing of 11 properties in Pocket D-3, Vasant Kunj and some properties in Rajokri area on a letter from the sub-divisional magistrate (SDM), Mehrauli on 22 February 2019, complaining about unauthorised constructions.

Pertinently, the Report No.149 dated 02.04.2019 concerning unauthorised constructions, allegedly carried out in Vasant Kunj and Rajokri areas were submitted by the committee to the SC on 4 April 2019 for approval.

The Delhi government and the Centre were on the same page in this case; opposing the committee’s action.

It was argued on behalf of the residents that the committee was not empowered to seal residential premises that were made in consonance with the Master Plan (MPD­2021). It was further contended that farmhouses built in areas such as Mehrauli were notified as Low-density Residential Areas through notification No.S.O.1199 (E) dated 10.5.2013 and notification No.S.O.1744 (E) dated 18 June 2013 and that such premises were used only for residential purposes. Hence, they should be de-sealed.

An argument was also made that the SC constituted the committee with the limited purpose of addressing the misuse of “residential premises being used for commercial purposes”. Yet, despite its limited mandate, the committee illegally sealed other premises.

Meanwhile, the Amicus Curiae appointed by the court argued in favour of the committee, saying that it has the power to seal unauthorised constructions, and their regularisation thereof cannot be allowed.

The Court, after examining the different Orders passed by it since 2006, concurred with the aforesaid submissions that the committee indeed went beyond its delegated powers. Delivering a 70-page Order, Justice Mishra, who wrote the decision, observed:”No doubt about it that matter of encroachment is a matter of concern, but the Monitoring Committee can act within the four corners of powers conferred upon it and purpose for which the court appointed the Monitoring Committee. It cannot exceed its powers and take any action beyond its authorization by the court.”

Quashing report number 149 of the committee dated 2 April 2019 pertaining to the alleged unauthorised construction in Vasant Kunj and Rajokri, the court held that “The Monitoring Committee is not authorized to take action concerning the residential premises situated on the private land. If there is unauthorized construction or in case of deviation, the requisite provisions are under the DMC Act, such as sections 343, 345, 347(A), 347(B).”

The Court further noted that “We are not going into the merits of the other submissions, whether the premises are authorized or unauthorized, can be regularized or not, compounding can be done, or whether there is any deviation made…This Court did not appoint the Monitoring Committee concerning each and every residential building on private land not misused for commercial purposes and to deal with the same…”

The Court finally directed:”Let the property sealed as perReport No.149 be de-sealed, and possession be restored to the owners forthwith. Let this order be complied with within three days.”

While the SC verdict does mitigate the agony caused to residential owners whose properties were unlawfully sealed, the larger question that deserves to be asked and answered is that when the committee was asked vide order dated 7 May 2019 to give its opinion as to whether at any point in time in the past, it had sealed any residential premises, which were not being misused for commercial purposes, the Monitoring Committee did not cite even a single such instance.

Since Constitutional morality appears to be the flavour of the season and has been for quite a while, thankfully the present situation has been resolved in favour of the residents due to the SC order.

While the Supreme Court’s order has set the balance right by recognising that the authorities need to remain within the confines of their powers, however, there has never been a greater need to quickly address such larger and deeper issues whereby accountability of authorities and institutions is fixed so that citizens do not have to run from pillar to post to preserve their constitutionally guaranteed right of property and right of residence under Article 300A.It is hoped that this verdict sets the new normal rather than an exception.

Meghna Mishra is Partner and Sumit Jay Malhotra, an Advocate with Karanjawala & Co.