Illegal Construction Ongoing In Delhi At Unprecedented Scale, DDA And MCD Must Put Structural Reforms In Place: Delhi High Court

Observing that illegal and unauthorised construction is going in the national capital at an unprecedented scale which is unheard of, the Delhi High Court on Tuesday said that the Municipal Corporation of Delhi (MCD) and Delhi Development Authority (DDA) must put structural reforms in place to deal with the issue.

A division bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora said that in today's time, the MCD is continuing to use tapes and strings to seal a building which is why sealing and demolition action is not having a deterrent effect.

It added that the Executive seems to be satisfied by status quo and is unwilling to reform the system by having easy technologies like digital maps which would easily detect encroachments and illegal constructions done at a massive scale.

The bench passed the order while transferring to the Central Bureau of Investigation (CBI) the probe in an FIR registered by the Delhi Police concerning unauthorised construction of a guest house near centrally protected Nizamuddin Dargah and Baoli.

“Despite elaborate system of checks and balances, illegal construction is going on in Delhi at a scale which is unprecedented and unheard of and that too in the heart of Delhi,” the bench said.

The court said that the administrative responsibility needs to be fixed and the role of the parties in the illegal construction of the guest house also needs to be examined.

It directed the MCD Commissioner and DDA's Vice Chairman to ensure that enquiries are set up and responsibility of its officials is fixed. It further ordered:

“Since an FIR is already registered by the Police, this court directs transfer of investigation of the FIR to CBI which is directed to examine the facts and take the matter to its logical conclusion if any criminal offence is made out.”

The court was dealing with a public interest litigation moved by Jamia Arabia Nizamia Welfare Education Society seeking action against the officials of Delhi Development Authority (DDA), Archaeological Survey of India (ASI) and other authorities for failure to stop the unauthorised construction of the guest house.

The guest house in question was being constructed in the area falling within 50 metres of the centrally protected monument Barakhamba Tomb and Nizamuddin Baoli. The plea also sought demolition of the guest house.

It was the MCD's stand that the guest house is situated at the land belonging to the DDA and thus, it should have taken the steps to protect the property being the primary agency.

On the other hand, DDA contended that it was MCD's responsibility to regulate and enforce building byelaws in the area and for taking steps to remove illegal encroachments.

The bench observed that encroachment is a worst form of civil wrong which is like committing dacoity as the land owning agency loses its land in the process.

Furthermore, the court expressed displeasure over the fact that despite the matter was brought to the notice of various authorities, how was a 5-storey building constructed.

“How can it be that all the authorities failed to take action against illegal construction as big as a five storey building,” the court said.

The Deputy Commissioner of MCD, earlier this month, told court that the civic body had received the information about the illegal guest house from the Delhi Police in October last year. The court was also told that Junior Engineer to whom the file was marked did not take any action. The matter was then marked to another Junior Engineer after shuffling of roles.

“Admittedly, despite fresh intimation by the Delhi Police and ASI, the new JE and the Assistant Engineer did not take any action. It is apparent that there is a lack of supervision by senior officials of MCD over the junior officials. The robust mechanism of checks and balances in paper is not working on the ground level,” the court said.

The Delhi Waqf Board filed an impleadment application in the matter and relied upon various documents to contend that the land in question belonged to the Board. However, the application was opposed by DDA.

The bench said that it was not understood as to how the property changed hands, how its nature changed and how fresh construction was carried out.

“The property in question is a stone throw away from local police booth. From the documents on record, it is not clear as to how the property changed from graveyard to a single room godown became a two storey building to a five storey building. No permission or sanction has been placed on record,” the court said.

Last month, the bench had directed the authorities to ensure that no further construction is carried out in the unauthorised guest house.

Title: JAMIA ARABIA NIZAMIA WELFARE EDUCATION SOCIETY v. DELHI DEVELOPMENT AUTHORITY THROUGH ITS VICE CHAIRMAN & ORS.

Citation: 2024 LiveLaw (Del) 183