Amid Delhi Sealing Drive, Focus Stays on Relief for Traders, Not Curbing Unauthorised Construction 

The unlawful change in land use is not even being discussed by the political class.

Representative image of sealed shops in Delhi. Credit: PTI

Representative image of sealed shops in Delhi. Credit: PTI

New Delhi: Amid tremendous pressure from traders and businesses, as well as from the opposition Congress and the Bharatiya Janata Party, Delhi chief minister Arvind Kejriwal has declared that the state government will approach the Supreme Court within 2-3 days to get a stay on the ongoing sealing drive. The drive is being carried out by the three municipal corporations at the instance of the apex court-appointed monitoring committee.

But if past experience is anything to go by, this would, if at all, at the most only provide momentary relief as the larger issue of continuous unauthorised construction and unlawful change in land use is not even being discussed by the political class.

Kejriwal says Delhi government will move SC for relief

Kejriwal’s announcement that the Aam Aadmi Party (AAP) government would soon approach the apex court was clearly aimed at assuaging the feelings of the traders, who feel betrayed by the entire political class as their livelihoods have been snatched in the name of sealing.

Incidentally, the chief minister’s announcement came close on the heels of Delhi Congress president Ajay Maken urging both BJP, which rules the three municipal corporations, and AAP to stop their “fake fight” and provide relief to the traders by approaching the apex court. He made these remarks after a meeting between the leaders of the two parties at Kejriwal’s residence ended in chaos.

Three BJP MPs, three MLAs and two mayors had come to attend the meeting with AAP MLAs and Kejriwal. Credit: Twitter/AAP

Three BJP MPs, three MLAs and two mayors had come to attend the meeting with AAP MLAs and Kejriwal. Credit: Twitter/AAP

Maken’s efforts had provided relief in the past

The Delhi Congress president, as minister of state for urban development in the United Progressive Alliance-I government, had made serious efforts to get relief for traders during the sealing drive carried out in 2005-06. Maken had earlier – while speaking on “mixed land use reforms” at a discussion here on January 25 – noted that it was “very strange that private markets are going to courts whereas the AAP’s government and the BJP’s MCDs are observing strikes.”

He demanded that to provide relief to the 512,000 commercial units in Delhi, the BJP-led Centre and the AAP government should intervene immediately. “They should clarify the anomalies, de-seal the basements and other premises immediately, clarify or amend the MPD, status quo in special area till a re-development plan is made,” he suggested.

Maken said that the Delhi government should immediately notify the pending roads and the Centre should bring an ordinance and present the case of the traders in the apex court to provide relief to them and stop the sealing. He recalled how when in 2006 the sword of sealing was hanging over the traders, the then Congress-led central government had approached the court and enacted a law and made amendments in the Delhi Master Plan 2021.

Maken has since also sought an appointment with the monitoring committee to present the case of the traders. The Delhi AAP government has now decided to move the apex court, and the three BJP-led corporations passed a resolution on January 28 to appeal to the Supreme Court for a six-month stay on the ongoing sealing drive. None of the political parties have, however, sought to address the key problem – of unabated violation of the rules and laws.

Congress president Ajay Maken. Credit: PTI

Delhi Congress president Ajay Maken wants the centre to bring an ordinance and present the case of  traders in the apex court. Credit: PTI

Reasons for sealing in 2006 and 2017 remain similar

In fact, there is a marked similarity not only in the pain and fear caused by the first sealing drive in 2005-06 and the one taking place now, but also in the reasons that brought the sealing upon  traders and property owners of Delhi.

The laws itself have been framed to provide legitimacy to the illegalities instead of ensuring that Delhi develops in a planned and organised manner.

But the counter-argument is that in the absence of construction of adequate commercial establishments by the Delhi Development Authority (DDA) – the main land owning agency in Delhi – the trading community was left with no other option but to work out of residential areas. Also, with the emphasis of successive governments being more on self-employment and promotion of industries and small-scale units, the use of residential premises for commercial purposes was inevitable.

Targets set for commercial units in master plans were not met

In fact, it was the DDA – that had been tasked with acquiring and developing land in Delhi – which prepared the first master plan in 1962. The plan had provided for a city centre, at least 75 district centres, 300 community centres, 1,250 local shopping centres and 3,000 convenient shopping centres for meeting the city’s commercial needs.

But, over the years, numerous unauthorised colonies and slums have come up on agricultural and even government land and most of the commercial activity moved there due to the costs being low.

After 1962, the next master plan came up in 1986. The Master Plan Delhi 2001 came into effect in 1991.

In July 1996, the Supreme Court directed that 168 ‘polluting’ industries be ‘relocated’ outside Delhi. Subsequently, in November 2000, the scope of closing units was widened to cover all units in ‘non-conforming’ areas or those which had come up in residential areas.

Lessons not learnt from a similar past

In 2005, it had become evident that the apex court had hardened its stand against unauthorised commercial units operating out of residential areas. At a hearing on September 7, 2005, the Supreme Court had remarked that the political class lacked the will to check encroachments and unkept promises were choking civic facilities in Delhi.

Subsequently, on November 18, 2005, the apex court expressed its concern at the growth in commercial activities in residential areas in violation of the MPD 2001 and asked the Municipal Corporation of Delhi, which had not been trifurcated then, to list the areas where the violations were most prevalent.

After the list was submitted, the Supreme Court on February 16, 2006 ordered the MCD to publish the list of residential premises being used for commercial purposes and owners of these units were told to stop misuse of the properties within 30 days and file affidavits promising to do so.

Traders protest against a recent sealing drive in Delhi. Credit: PTI

Traders protest against a recent sealing drive in Delhi. Credit: PTI

On March 24, 2006 the apex court had set up a monitoring committee comprising K.J. Rao, former advisor to the Election Commission; Bhure Lal, chairman of Environment Pollution Control Authority (EPCA) and major general (Retd.) Som Jhingan, which was given the responsibility of overseeing the sealing of residential properties being used for commercial purposes.

When sealing brought Delhi to a standstill

On expiry of the deadline for filing affidavits, MCD started sealing premises on 189 roads, which had not been notified for mixed land use, on March 29, 2006. While 1,000 commercial properties were sealed in the first four days, the number grew to over 12,000 shops over the next two months.

But the then Congress government was quick to act and come to the rescue of the trading community. On April 25, 2006, the then Union urban development minister Jaipal Reddy announced that the government would draft a Bill for the regularisation of commercial establishments. Subsequently, the Delhi Special Provisions Bill was introduced in parliament and on May 20, the MCD ended the sealing drive.

The Bill provided a moratorium on demolition and sealing and allowed for making any establishment legal through payment of a “conversion fee”. The then President A.P.J. Abdul Kalam had given his assent to it on May 21 and two days later, the MCD had started de-sealing shops.

Peace was short-lived as residents protested

However, as resident groups submitted before the apex court that the new law was politically motivated, the Supreme Court on August 10, 2016 held it to be inefficient and directed the MCD to resume sealing. While the MCD re-started sealing from September 1, it was decided by the monitoring committee that shops selling essential commodities would be spared.

Subsequently, the Centre took a number of steps to amend the laws to benefit the traders. On September 7, DDA made several amendments to the Master Plan for Delhi 2021 and allowed professional use of basements of theirs establishments as offices. It also allowed commercial activity in 350 villages of Delhi.

As protests grew and four traders lost their lives, the then Prime Minister Manmohan Singh set up a group of ministers (GoM) to look into the matter and MCD suspended its sealing drive, citing security concerns. But the Supreme Court, while urging illegal shop owners to file affidavits, cautioned the government to not make any attempt to dilute its orders.

As the sealing of the premises of 44,000 traders who had submitted affidavits continued, the Centre on November 1, moved the Supreme Court seeking relief for them. Two days later, the MCD also approached the apex court with a fresh petition but the apex court dismissed all these on November 6. The GoM decided to honour the court orders and the sealing drive resumed.

Then, on January 27, 2007, the Centre filed an affidavit in the Supreme Court saying the sealing and demolition drive should be stopped as the new Master Plan for Delhi 2021 would come into effect in February 2007 and would allow mixed land use.

New Master Plan for Delhi 2021 finally brought sealing to a halt

But, while the new Master Plan was advanced to January 31, 2007, and the norms for construction, commercial development, use of 50% of a house for office use, allowing shops on streets if they had parking space and making provisions for greater floor area ratio were relaxed, the monitoring committee insisted that the sealing should continue.

The new Master Plan was notified on February 8, 2007 and allowed mixed land use on over 2,000 roads. It also allowed regularisation of industries in residential areas where their concentration was 70% or more.

Once against, a citizen’s group challenged this before the Supreme Court, which held that it was designed to appease the traders. However, the apex court on February 13, stayed the sealing of commercial establishments in residential areas on 2,183 roads covered by MPD 2021. This time, the stay on sealing remained in place for a significant period of time.

Special Bill provided three-year relief from sealing

In the meantime, the National Capital Territory of Delhi Laws (Special Provisions) Amendment Bill, 2014 was introduced and passed by parliament. It provided relief for three years from sealing to slum dwellers, jhuggi-jhonpdi clusters, street vendors, unauthorised colonies to be regularised, village abadi and urbanised villages, apart from public spaces, such as dispensaries and schools.

However, this did not leave the concerned citizens impressed. While the entire case was the outcome of senior advocate M.C. Mehta’s appeal to take hazardous industries out of Delhi, many like senior lawyer Usha Ramanathan termed the government action as a regressive move. She maintained that “the Bill and the masterplan are attempts to regularise the illegalities and create scope for more illegalities.”

Rampant unauthorised construction, misuse of residential units irked SC

And that is precisely what has happened. On December 7, the Supreme Court once again expressed concern over illegal constructions in Delhi and said it could consider reviving its monitoring committee as the civic authorities had failed to stop rampant unauthorised construction and misuse of residential premises.

“We cannot let Delhi go the way other cities are going and let it flood when there are heavy rains. Unauthorised construction takes a toll on the environment and affects sewage, parking and waste management,” Justice M.B. Lokur, who headed a bench, had noted with concern.

The observation was significant because in January 2012 the apex court had stopped the monitoring committee from sealing premises with the “hope and expectation” that unauthorised usage of premises would stop. It was after advocate A.N.D. Rao pointed out to the court that “with no sealing powers this committee has become redundant,” that in 2013 all matters relating to such matters were referred to the Delhi high court. The apex court had also expressed its shock and dismay over the fact that a new unauthorised colony had come up in Mehrauli in south Delhi.

This revived the issue of sealing, a matter that was last heard by the Supreme Court in 2009, when the Centre and MCD had filed their affidavits on implementation of the MPD 2021.

It is pertinent to note that two reports by the monitoring committee on unauthorised construction and misuse of residential properties prompted the court to restore its powers on December 16, and led to the resumption of the current sealing drive.

‘There must be accountability of those violating the law, and also errant officers’

It is also important to note what the court observed while doing so. It said: “The blatant misuse of properties in Delhi for commercial purposes on such a large scale could not take place without the connivance of the officers. There must be accountability, not only of those violating the law, but also of those errant officers who turn a blind eye to the misuse of residential premises for commercial purposes.”

Clearly, the concerns that led to the sealing of commercial establishments in 2006 are still very much alive and a lasting solution to the crisis only lies in zero tolerance towards new violations of the MPD 2021. But be it 2006, when Congress and the BJP were the only key political players, or now, when AAP, which swears by its adherence to law, is in power in Delhi, the discourse still centres around providing relief to the traders, and not on checking the perpetuation of illegalities.

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