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$~7, 8 & 9 (Common Orders) * IN THE HIGH COURT OF DELHI AT NEW DELHI +
W.P.(C) 1393/2013 & CM Nos.2621/2013, 1674/2014, 27513, 30107/2017 PANKAJ SHARMA Through:
..... Petitioner Mr. Rajeev Kumar Yadav, Adv.
versus SOUTH DELHI MUNICIPAL CORPORATION AND ORS ..... Respondent Through: Mr. Ajjay Arorra, Standing Counsel with Mr. Kapil Dutta, Adv. for SDMC. Mr. Anuj Aggarwal, Adv. for R-2 & 18. Ms. Anju Lal with Ms. Shalu Lal, Advs. for R-6. Ms. Sima Gulati, Adv. for R-3, 23, 37. Mr. Siddharth Arora, Adv. R-14, 34 & 39. Ms. Megha Sharma, Adv. for R-8. Mr. Ajay Digpaul, CGSC for R-17. Mr. Lalit Bhasin with Ms. Ratna Dhingra, Ms. Bhavna Dhami, Mr. Arush Khanna and Mr. Ajay Pratap Singh, Advs. for National Restaurant Association of India. Mr. Siddharth Arora, Adv. for R-14, 37 & 39. Mr.Sumeet Pushkarna, Standng Counsel with Mr. Sahil Ghei, Adv. for DJB. Insp. Rajesh Kumar with ASI Pradeep Kumar. +
W.P.(C) 258/2017 ANUJA KAPUR Through: Petitioner in person.
W.P.(C) Nos.1393/2013, 258/2017, 11268/2016
..... Petitioner
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versus UNION OF INDIA & ORS ..... Respondent Through: Ms. Suparna Srivastava, Standing Counsel with Mr. Tushan Mathew, Advs. for UOI. Mr. Mukesh Gupta, Standing Counsel for SDMC. Mr. Vivek Singhal with Mr. Abhimanue Dhingra, Advs. for R-2, 4 & 5. Mr.Sumeet Pushkarna, Standng Counsel with Mr. Sahil Ghei, Adv. for DJB. +
W.P.(C) 11268/2016 IQBAL CHAUHAN Through:
..... Petitioner Mr. M.K. Upadhayay, Adv. Advs.
versus SOCIAL & TINUR RESTAURANT THR SATYAJIT DHINGRA & ORS ..... Respondent Through: Mr. Ms. Shyel Trehan, Mr. Nikhil Ratti Kapoor and Ms. Sugandha Batra, Advs. for R-1 & 2. Mr. Mukesh Gupta, Standing Counsel for SDMC. Mr.Sumeet Pushkarna, Standng Counsel with Mr. Sahil Ghei, Adv. for DJB. CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE C.HARI SHANKAR % 1.
ORDER 11.09.2017 These writ petitions make a complaint that the private
respondents, in connivance with the officers of the official
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respondents,
which
include
the
South
Delhi
Municipal
Corporation, the Delhi Fire Services as well as the Delhi Police are illegally running restaurants, pubs, bars, cafes, etc. in the Hauz Khas village, in not only gross violation of the provisions of the Delhi Municipal Corporation Act, 1957 and Building Bye-laws thereunder, the Master Plan of Delhi, 2021, the Delhi Fire Safety Act, 2007, the Delhi Police Act, 1978 but also in contravention of statutory provisions with regard to licensing of commercial activity, imperilling public safety, adversely impacting the environment and infringing upon the Constitutional rights of the citizens of Delhi inter alia under Article 21 of the Constitution of India. 2.
It is complained that, in addition, some of these restaurants
are being run in gross violation of the provisions of Ancient Monuments and Archaeological Sites and Remains Act, 1958 inasmuch as unauthorized constructions and commercial activities are being carried out by the restaurant owners on the very wall of the monument or in any case, within the statutorily prescribed prohibited area. There is a reference also to the running of the restaurants, bars, pubs and cafe within the prohibited distances from schools and temples in the area. 3.
In W.P.(C) No.258/2017, the petitioner makes a complaint
that sexual violence and other crimes take place because of the illegal running of the restaurants and cafes. 4.
Additionally, in these writ petitions, strong complaint of
public nuisance is being made on account of the overcrowding and
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congestion by people and traffic snarls in the area, which, resultantly, imperils public safety and public health. 5.
The writ petitions also raise issues of impediments to the
public amenities and sanitation in the nature of electricity supply, water sewage and solid waste disposals. 6.
By the several orders passed by us, we have been
constrained to call for reports from the concerned authorities in these matters. We have also permitted inspections to be conducted by the officers of the official respondents along with private parties to place the true position before us. 7.
In this regard, we extract from the inspection report dated
16.08.2017 submitted (at page 578 in W.P.(C) No.1393/2013) under the signatures of Sh. Ishwar Singh, Deputy Commissioner of Police, South District, New Delhi, upon random inspection of Hauz Khas Village in the late hours of the evening of 05.08.2017, which reads thus: “..... On average approximately 5000 patron/visitors visit the Hauz Khas Village daily during week-days. There is only one single entry/exit road in the Hauz Khas Village. During peak hours i.e. from 9.30 p.m. to 12.00 midnight, the movement of vehicular traffic into the area increases manifold and the same chokes the approach/exit route of Hauz Khas Village. The number of visitors in Hauz Khas Village increases to about 15000 during week-ends. The commercial area of the Hauz Khas Village is on a stretch of only approx. 100 meters and the Hauz Khas Village commercial area is just net to the protected monument of Archaeological Survey of India. In
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respect of the unauthorized construction in prohibited/regulated area of the protected monuments of Archaeological Survey of India, the CBI is conducting a P.E. Vide No.CBI/08/2014. The number of persons (Including large number of ladies) visiting the eateries on a daily basis is approx. 5000 which creates immense pressure on this tiny stretch of 100 meters, where all the eating houses/pubs etc. are located. The holding capacity of such a small area has been over exploited and we fear that there is every possibility that some untoward incident i.e. fire and stampede etc. may happen, if more restaurants are allowed in the said commercial area. Only one single entry/exit road to the village which is choked during peak hours means response of emergency service like Fire/Ambulance or Police would be adversely effected/delayed in case of Disaster. During inspection of the restaurants/bars, their names and license numbers have been re-verified. It has been established that total 45 restaurants/bars are being operated in the Hauz Khas Village, out of these 45 pubs/bars and restaurants, 26 have valid licenses issue by Licensing Branch of Delhi Police and other Civil Agencies, 08 have applied for renewal of their respective licenses in Licensing Branch, 04 have found applied for fresh Licenses which are still pending with the Licensing Branch and 07 have been found being run without licenses. Challans (Action u/s 112 DP Act) have already been issued against these 07 un-licensed restaurants. Total 23 challans (Action u/s 28/112 DP Act) have been issued against the restaurants in Hauz Khas village during the current calendar year. xxx
xxx
xxx
The parking along the access road is in the
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jurisdiction of MCD while the parking authorized to cater the visitors of the Hauz Khas Village Eateries/Bars etc. is under the jurisdiction of DDA. Since both the agencies have different parking contractors, who are always competing for higher revenues, most of the vehicles entering the main road are solicited by the MCD parking contractors for parking the vehicles along both sides of the road which creates a huge bottle-neck for the access and free movement of emergency vehicles while the DDA parking almost always remains partially vacant. On 14.06.2017, a Mock-Drill of terrorist attack in one Pub at Hauz Khas Village was organized and due to bottle-neck, the advance vehicle of NSG commando’s could not reach till the end/final destination. That the lighting on Hauz Khas Village road is not adequate and proper, due to poor lighting, the area between Jagannath Temple and Hauz Khas Village becomes very vulnerable from women security and safety point of view in the night hours. Despite repeated requests, the concerned authorities did not do the needful for proper lighting in the area. Written requests/letters had also been sent by Addl. DCP/South District to the Manger BSES, Executive Engg. SDMC and Commissioner (Land Disposal) DDA to increase the number of street lights and also to replace the existing street lights with high power halogen lights/LED lights with power back up facility to have proper lighting in the area to avoid any untoward incident. Copies of such letters addressed to the above agencies are also annexed as Annexure A-2 (Colly)” (Emphasis supplied) 8.
The above report is self speaking and the accompanying
photographs placed by the Police on record establish the stated
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position. 9.
So far as the affidavit dated 16.08.2017 filed by the
respondent No.18/Delhi Fire Services (at pg.607 of W.P.(C) No.1393/2013) is concerned, the hopelessness of the position which subsists in Hauz Khas Village is further set out in paras 1 & 2 of this report, which read as under: “1. That the Hauz Khas village was inspected by this department as directed by Hon’ble Court in the late hours of the evening on 01/08/2017 and found that the condition of vehicular movement/pedestrian movement is same as in the other such markets of South Delhi i.e. Sarojini Nagar, Khan Market, etc. The Hauz Khas Village have a single Entry/Exit road by which fire vehicles can go inside, however the vehicle cannot turn back/return to go for replenishment or other purposes as the road is not wide enough for turning. It is further submitted that this department neither controls nor regulates the vehicles/pedestrian movement on the roads. 2. That Restaurants/Eating Houses that have been granted with Fire Safety Certificate by Delhi Fire Services are tabulated as under: Sl. No. 1.
2.
3.
Name and Address of Restaurant Out of Box (A unit of YPA Hospitality Pvt. Ltd.), located at 3rd & 4th floor, 9A Hauz Khas Village, New Delhi-110016. Smoke House (A unit of Impresario Ent. & Hospitality Pvt. Ltd.), located at GF-9A, 12, T-12A, main Hauz Khas Village, New Delhi110048. Social & Tinur Restaurant (A nuit of
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4. 5.
10.
Epiphany Hospitality Pvt. Ltd.) located at 1st and 2nd floor of 9-A, 12 & T-12A, Hauz Khas Village, New Delhi-48. Park Balluchi Restaurant located at inside deer park, Hauz Khas Village, New Delhi-16. Sh. Vinod Kumar s/o Lt. Sh. Kartak Singh located at G-12, Hauz Khas Market, New Delhi. (Restaurant)-G+Mezzanine+ 1st + 2nd Floor.”
We may also extract herein the status report filed by the
Delhi Jal Board dated 08.09.2017 (at pg.136 in W.P.(C) No.11268/2016) which is based on an inspection conducted on 06.09.2017 and 07.09.2017. The relevant extracts read thus: “3. That an urgent inspection was accordingly done on 06.09.2017 and 07.09.2017 by the inspection team headed by the senior officer and the brief report on the same as also the general position of the network in the area, is reproduced below: a. That the sewerage system in the Hauz Khas Village was laid down by the DDA more than 30 years ago. b. The said sewerage system was designed for domestic use only. c. In the due course of time the area of Hauz Khas Village developed into a Commercial hub where a variety of shops opened up. These shops include Restaurants/Eateries. d. That such units have been allowed to operate in the area without obtaining N.O.C. from the Respondent No.4, the Delhi Jal Board, who now maintains the sewage network of the area. e. That due to the dense existence of a multitude of the eateries, a lot of kitchen/food waste is generated from these restaurants/eateries. The kitchen waste
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from these commercial eateries, most often contains ingredients of very greasy food, Heavy oils, food remains, etc., which flows in to the sewer lines and causes frequent blockages and problems of the sewer system in the area.......” (Emphasis supplied) 11.
The sewage system clearly does not have the capacity to
cope with the immense additional load from the kitchens and bathrooms of these restaurants. The adverse impact on the hygiene and environment so far as the citizenry is concerned thereby would be insurmountable and irreversible. So far as the SDMC is concerned, it has attempted to place a report with regard to width of the roads and the nature of the commercial activities thereon. There is, however, a dispute between the petitioners and what has been claimed by the SDMC, with regard to width of the roads. 12.
More worrying is that even if the road width is of 6 meters
as claimed by the SDMC, in order to turn around a fire engine, the Delhi Fire Services requires a road width of minimum 15 to 20 meters. We fail to understand as to how in an emergency a fire engine only needs to enter the village on the available road of 6 meters width (if at all) without any point of exit for it. How will it turn around and come out for replenishments or exiting in an emergency situation.
This is clearly stated by the Delhi Fire
Services in its affidavit dated 10.08.2017 (at pg.607 in W.P.(C) No.1393/2013). 13.
Before us a specific grievance has been made with regard to
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three properties, viz., ‘Smoke House’; ‘Social’ and ‘Yeti’ which are alleged to being run in violation of the Ancient Monuments and Archaeological Sites and Remains Act, 1958. 14.
The restaurants, ‘Social’ and ‘Yeti’ are represented by
Ms.Shyel Trehan, Advocate. Ms. Trehan has drawn our attention to the proceedings in W.P.(C) No.4409/2015 to contend that there is no violation by this restaurant owner with regard to the Ancient Monuments and Archaeological Sites and Remains Act, 1958. Ms. Anuja Kapoor, who appears in person in W.P.(C) No. 258/2017, had drawn our attention to some photographs which suggest that the restaurants maybe either on the boundary wall or within the prohibited area. We will examine this objection as well. 15.
It has to be noted that Hauz Khas Village is in the heart of a
densely populated residential area.
Monuments notified by
Archaeological Survey of India of national importance are located in the Hauz Khas Village. The restaurant owners have asserted rights to maintain their restaurants primarily because of permissibility of such activity under Master Plan of Delhi, 2021 and are applying it retrospectively to an existing village. 16.
It is claimed before us by the SDMC and the restaurant
owners that they are running their commercial enterprises on what has been declared as a commercial street under Master Plan of Delhi, 2021 with valid licences and has complied with the law. 17.
There also appears to be misconception in the working of
the statutory authorities. We have been informed by Mr. Ajjay
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Aroraa, learned Standing Counsel for the SDMC and Mr. Anuj Aggarwal, learned Addl. Standing Counsel who appears for the Govt. of NCT of Delhi, Delhi Police and Delhi Fire Services that applications for license sanctions are obtained and processed online as well. It is appalling to note that the respondents are merely examining these applications from the aspect of technical compliance with regard to statutory provisions. No effort with regard to physical inspection for the purpose of grant of license is done. As a result, the authorities are processing these applications being completely oblivious of the impact of the activity or the construction which is authorized or sanctioned. 18.
These writ petitions entail the examination of the rights of
the restaurant owners against the rights of the members of the public. 19.
We may note that the South Delhi Municipal Corporation
has filed a report dated 21.08.2017 submitting that there are 63 restaurants/eating houses/ health trades in the Hauz Khas Village. In the same affidavit, the SDMC notes violations in 49 of those establishments. The Delhi Police points out that only 46 licences stand issued by it. It is also obvious from the above that only 5 restaurants have fire clearance. 20.
Furthermore, in case there is any emergency or need for a
medical emergency to reach the buildings inside the Hauz Khas Village, it would be impossible to do so. This position is also highlighted from the above affidavit of the Deputy Commissioner of Police pointing out that during a mock-drill for a terrorist attack,
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the NSG commandos could not reach the destination within the village. 21.
The above reports of the Delhi Police, Delhi Fire Service,
SDMC and the Delhi Jal Board illustrate that the Hauz Khas village is a ticking time bomb without essential civic and emergency services. Our repeated queries regarding quantum of solid waste (i.e., garbage) and sewage generated by these restaurants etc. evoked no response from either the authorities or the restaurant owners. 22.
It appears from the material place that no comprehensive
solid waste management and sewage disposal evaluation has even entered the minds of the concerned experts or the municipal authorities while permitting such activities or granting licence. In other writ petitions, before us, solid waste is one of largest problems facing Delhi. Sewage generation is directly related to pollution of the River Yamuna. Not one party has disclosed the statistics of the pressure created by such commercialisation on the existing roads and circulation. It prima facie appears that all central and relevant factors have been ignored by the authorities. 23.
The Delhi Jal Board has not submitted a report with regard
to water. The Delhi Jal Board shall inspect each premises in the Huaz Khas Village with regard to water supply (including whether it is commercial / residential) as well as bore-wells, which may have been dug in these properties within three days from today. The restaurant owners shall place before the Delhi Jal Board proof of sanctions of water connections / permissions for the borings
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undertaken by them. 24.
We find that the above reports by the parties have been filed
haphazardly in these three matters. For a holistic and effective consideration, it is necessary to have a common paper-book for the purpose of an effective hearing. We, therefore, appoint Mr. Rajiv Kumar Yadav, Advocate (learned counsel for the petitioner in W.P.(C) 1393/2013) as a Coordinator, who shall prepare a paper book which shall include all the necessary pleadings including those of the restaurant owners and the representative body, i.e. the National Restaurant Association of India; reports of the all the authorities, which would include the inspection reports conducted by the petitioners, SDMC, Delhi Jal Board, Delhi Police and Delhi Fire Services, as well as the parties. Such compilation shall positively be done within 10 days from today.
It shall be the responsibility of the parties/
counsels to collect the paperbook / soft copy of paperbook from Mr.Rajiv Kumar Yadav, Advocate. Needless to say, the parties shall be given copies against payment of the cost thereof. 25.
The present case highlights a very important aspect. Does
the Constitution and the law mandate compliances only by the statutory and public authorities? Is there no duty or responsibility of the public or the property owners to ensure the rights of the other citizens especially, regarding concerns of the environment, public safety and public amenities? Does not the very concept of having to take permission encapsulate in itself recognition of what may be called a necessary sacrifice by the licensee in the larger
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interest of the public at large. 26.
In the present case, the restaurant owners are represented by
their associations. They have been put to full notice of the dangers involved in the activities which are being run and also of the fact that in case of any unfortunate eventuality, emergency vehicles would not be able to reach the place of the incident.
In the
circumstances and the reports placed before us, whatever be the final decision, we have no manner of doubt that in case there is a mishap or any loss of life or limb in the present case, the restaurant owners will not be permitted or allowed to escape the liability, civil and criminal for the same. 27.
Several issues and questions of public importance have
arisen in the course of these petitions which, for the purpose of clarity need to be summed. We do so hereafter. (i)
Whether notional or technical compliance with statutory provisions would be sufficient for issuance of a license or is it essential for license issuing authorities to take a broader view taking into consideration the rights of the public at large and its impact on the environment?
(ii)
Whether issuance of a license creates an absolute right in the licensee to carry on the licensed activity?
(iii)
Is it not incumbent upon a municipal corporation of Police, Fire Services Authorities, the Jal Board, Sewage Disposal Authority, Pollution Control Authority and other public authorities while granting the licenses, to consider the effect thereof on the public as well as the area at large, especially
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regarding
the
environmental
impact
and
issues
of
congestion, crowding and public safety? (iv)
Would declaration of permissibility of commercial activity at any place in the Master Plan of Delhi, 2021 ipso facto enable or permit a property owner to convert an existing residential premises into a commercial property merely on payment of conversion charges, irrespective of the nature of its construction without satisfying the requirements of Building Bye-laws for such commercial usage? OR When the land use of a street is changed from residential to commercial, whether it confers a right to the occupants of the buildings to use the same buildings (earlier used for residential purposes) as commercial buildings without complying with the strict mandate of the Building Bye-laws or the MPD governing commercial / assembly buildings?
(v)
Whether the receipt of an on-line application for sanction or permission for construction/modification or commercial usage,
obviates/exempts
the
public
authorities
from
discharge of its statutory duties and responsibilities as well as the public law obligation to conduct the physical inspections thereof and to satisfy itself that the same is in consonance with public interest? (vi)
Whether any person has an absolute right to use his or her property in a manner, which may have the authorization of law, but be opposed to the interest of public at large,
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irrespective of its danger to public safety as well as contribution
to
public
nuisance
and
environmental
deterioration? (vii) Whether the Master Plan of Delhi, 2021 can be amended with retrospective effect to the prejudice of rights of bona fides residents of the area and the city? (viii) While allowing the commercial activity in a given area, whether it is not incumbent on the authorities to take into consideration the limited resources in terms of emergency services, policing, sewerage disposal systems; garbage disposal system; limited water and electricity supply; limitations of parking space; limitations on the existing circulation and road systems of the city as well as increase the noise/air/water pollution? (ix)
Whether there is no public duty or responsibility on the owner of a commercial enterprise / property to ensure that his/her actions do not adversely impact or endanger the life and limb of others; that the activities do not lead to degradation
of
the
environment
or
tantamount
to
misuse/abuse of public/civic services and amenities. 28.
The above narration would show that all the authorities as
well are aware of the above position. To our mind, the situation and the issues are of serious nature and need immediate action. List, therefore, on 26th September, 2017 for consideration and examination of the above issues.
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A copy of the order be given dasti to the parties under the signatures of the Court Master.
ACTING CHIEF JUSTICE
C.HARI SHANKAR, J SEPTEMBER 11, 2017/pmc
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