The Delhi Municipal Corporation (Amendment) Bill, 2005
The "Building byelaw reform" that Delhi Municipal Corporation has been carrying out since December 2003 was referred by Delhi Government to Union Ministry of Home Affairs on 27 October 2005, as "Regulatory Framework for Building Regulation in Delhi". This includes a USAID-sponsored Bill to amend the MCD Act. The Bill proposes drastic changes in the framework for urban development and the relation between government, citizens and professionals and is consonant with recent FDI decisions, revised offer for WTO-GATS, etc, and in conflict with provisions of other laws and the Constitution. This note is about this Bill, of which the "building byelaw reform" is both creature and instrumentality and for nearly two years has also been smoke screen.
In face of comprehensive consensus (that exists by fact of being publicly claimed and not having been publicly denied or decried) on "building byelaw reform" and USAID-sponsored legislation under that garb I am not inclined to defend my view that this scurrilous Bill not only needs to be scrapped but also calls for exemplary exercise of s.490 of MCD Act ("Dissolution of the Corporation: (1) If, in the opinion of the Central Government, the Corporation persistently makes default in the performance of the duties imposed on it by or under this Act or exceeds or abuses its powers, the Central Government may by an order published, together with a statement of reasons therefore, in the Official Gazette, dissolve the Corporation"). > I have sought information of procedure, if any, by which I might urge / inform Central Government opinion under s.490 <see>
This note only points out the changes proposed and a few related points of law and facts.
"building byelaw reform" in Delhi
The "building byelaw reform" underway in Delhi since December 2003 has been regularly reported in the press. The general impression is that this is intended to simplify building byelaws and make them "area-specific" (through "local area plans" for special needs also of urban villages, unauthorised colonies, etc) and to simplify building sanction procedures (by allowing architects to sanction buildings).
The exercise is credited to a team, under direction of Rakesh Mehta (MCD Commissioner till 14 November), consisting of four private firms (Kolkata based Times Research Foundation, Ahmedabad based Environmental Planning Collaborative, Mumbai based CRISIL Ltd and Delhi based Sudhir Vohra Consultants), three employees of USAID (Nabaroon Bhatacharjee, Lee Baker and Chetan Vaidya) and five consultants (Sudhir Vohra (Architect), EFN Ribiero (Director, Association of Urban Management and Development Authorities), Rekha T Deywani (General Manager (Planning and Architecture), Greater Noida Industrial Development Authority), SK Dheri (Former Chief Fire Officer, Delhi Fire Services) and Alpa Sheth (Structural Safety Expert)).
In his Foreword dated 28 July 2005, Rakesh Mehta also mentions others who participated. A Steering Committee comprising of officials of, besides Delhi Government and MCD, Ministry of Urban Development, New Delhi Municipal Council, Delhi Development Authority, Delhi Urban Art Commission and National Institute of Urban Affairs had ten meetings and its sub-committee met five times. Representatives of Council of Architecture, Indian Association of Structural Engineers and Association of Urban Management and Development Authorities played major roles in regard to the new approach of extensively involving representative professional bodies in the entire exercise. Two largely attended Consultative Workshops organized and hosted by MCD on 20 April 2004 and 17 May 2005 provided a platform also for other government organisations like Archaeological Survey of India, Central Public Works Department, Housing and Urban Development Corporation, Town and Country Planning Organisation, National Capital Region Planning Board, Delhi Jal Board and Delhi Fire Services to share their views. Due note was taken of representations received from other organisations, such as School of Planning and Architecture, Institute of Surveyors, Building Materials & Technology Promotion Council, National Centre for Promotion of Barrier-Free Environment for Disabled Persons, DLF Universal Limited and Infrastructure Development Finance Company Ltd. Academic institutions and Residents' Welfare Associations were also duly represented at the Workshops, where also media participation was ensured. (Later, on 08 October, the Northern Chapter of the Indian Institute of Architects also hosted a seminar / interactive session on "Building Byelaws - The Changing Scenario").
Wide participation and wide publicity notwithstanding, "building byelaw reform" is not open to MCD or Delhi Government to pursue, since s.349A of Delhi Municipal Corporation Act, 1957, vests powers to make building byelaws in Central Government.
"Regulatory Framework for Building Regulation in Delhi"
Through several letters to MCD Commissioner in 2004-2005 I had sought, to no avail, clarification of the basis, in particular, of "Local Area Plan" (not embedded in the hierarchy of plans stipulated under Delhi Development Act, 1957), building permits by architects (which seemed to me inconsistent with the Architects Act, 1972), and "area-specific byelaws" (since area-specific parameters fall in purview of planning regulation / Delhi Development Act and policy thinking on building-level regulation clearly favours, since Delhi's unified building byelaws of 1983 and through subsequent court matters and committees, common building byelaws for all of Delhi).
The output that was posted on MCD's website on 01 August 2005 confirmed that the exercise had no basis in law and is premised on presumption of law proposed as part of it. Titled "Regulatory Framework for Building Regulation in Delhi", this consists of:
- Amending Legislation and Building Byelaws (sponsored by INDO-USAID FIRE(D) PROJECT and commissioned to Times Research Foundation and Environmental Planning Collaborative), and
- Implementing Plan for Professional and Service Provider Rating Agency (sponsored by MCD and commissioned to CRISIL Limited and Sudhir Vohra Consultants).
The Building Byelaws and Implementation Plan portions are premature - the former prepared under a proposed s.349P (empowering Delhi Government to make byelaws) and the latter being for an agency that MCD may constitute under a proposed s.349I. (Local Area Plans that MCD has commissioned to private parties are also premature, arising from proposed s.435(3)(iii) curiously enabling MCD to prepare Local Area Plans to prepare area specific regulatory parameters for Local Area Plan areas).
The proposed enabling provisions for the exercise underway since December 2003 are in the USAID-sponsored Amending Legislation portion, which is the Delhi Municipal Corporation (Amendment) Bill, 2005.
The Delhi Municipal Corporation (Amendment) Bill, 2005
This Bill proposes substitution of two chapters and amendments of nine other sections in the MCD Act.
Since the changes are purportedly to improve the existing framework for building regulation, which is Chapter XVI in MCD Act (one of the two chapters proposed to be substituted), it is necessary to clarify the constitutional validity of Chapter XVI, which was substantively modified by the Delhi Municipal Corporation (Amendment) Act, 1993, pursuant to formation of Delhi Government by the Constitution (69th Amendment) Act, 1991, as well as to the Constitution (74th Amendment) Act, 1992.
The Amendments of 1993 included insertion in the section on definitions a clause to define "Government" to mean Government of the National Capital Territory of Delhi, thereby bringing MCD under control of Delhi Government in many respects. At the same time, in chapter XVI was inserted at the beginning s.330A (specifying general superintendence, etc, of Central Government over powers and functions of the Commissioner) and at the end (with matching omission of Paragraph F pertaining to building byelaws from s.481 that sets out MCD's Powers to make byelaws for various provisions of the Act) was inserted s.349A (powers of central government to make byelaws).
This is in line with the special provisions for Delhi in Article 239AA of the Constitution, which takes land out of the purview of legislative powers of Delhi government. It, in effect, clarified amidst exuberance about the 74th Amendment that powers and authority that the State Legislature may, subject to the provisions of the Constitution, endow municipalities with for purposes of Article 243W do not extend to powers and authority that it is itself not endowed with by the Constitution.
This is also in line with the extent of devolution contemplated by Article 243W. Building regulation in particular and area-level spatio-physical planning in general fall in the purview not of Article 243W(a)(i) (preparation of plans for economic development and social justice) but of Article 243W(a)(ii) (performance of functions and implementation of schemes in relation to the matters listed in the Twelfth Schedule, which lists urban planning at the very top). In general the 74th Amendment contemplates Plan implementation rather than planning role for municipalities and urban planning responsibilities of State or Central Government cannot be abdicated in its name. In Delhi urban planning is Central Government responsibility and insertion of s.330A and s.349A in Chapter XVI of MCD Act, in effect, cast upon central government specific responsibilities to give effect to Article 243W(a)(ii).
This is also in line with the manner of devolution contemplated by Article 243W. The law specifying conditions for devolution of powers and responsibilities contemplated by Article 243W(a) and Committees to enable the carrying out of those responsibilities, including in relation to matters listed in Twelfth Schedule, provided for by Article 243W(b) are in place in Delhi in form of Delhi Development Act, 1957 (which casts upon MCD responsibilities in respect of implementation of Delhi Master Plan, matched by provisions such as s.429 of MCD Act requiring its improvement and re-housing schemes to comply with the Master Plan) and the Authority of the DDA, its Advisory Council and the High Level Policy Committee for guiding area-level detail planning provided for by the Development Code (on all of which MCD is duly represented). The amendment of Chapter XVI in 1993, in effect, underscored to pre-empt problems of multiplicity due to formation of Delhi Government the fact that responsibility for Delhi Development Act, and thereby the instrumentalities for Articles 243W(a) and 243W(b), vests in central government.
The changes proposed by the USAID-sponsored Bill are discussed in this context.
Amendments of nine sections outside Chapter XVI and Chapter XXI
Amendment of s.2 (Definitions) omits definition of Appellate Tribunal (constituted by Central Government) and inserts that of Municipal Building Tribunal (to be constituted by Delhi Government) and expands definition of "building" to include its verb meaning and extend it to other construction by inserting "and includes the carrying out of any building, engineering or other operation in, over, or under, any land, or the making of any material change in any building or land" (despite unchanged definition of "land" connoting interpretation in context of buildings and public streets only).
Amendment of s.361 (Latrines and urinals, etc, in new building) complements the expansion of definition of "building" by substituting "to erect a building" with "to undertake a building" and omitting clause-4 containing cross-reference for the meaning of the expression "to erect a building" as defined in detail in Chapter XVI.
Amendments of s.452 (requiring reference to Appellate Tribunal in case of dispute over Commissioner's demand for payment of expenses for rectifying violations of specified sections) and s.456 (allowing appeal to Appellate Tribunal if an owner is prevented from compliance with notice, etc) omit references to sections from Chapter XVI. (It is noteworthy that Appellate Tribunal will survive in these sections in respect of s.317 (prohibition of projections upon streets) and s.325 (streets not to be opened or broken and building materials not to be deposited without permission) - although its definition in s.2 and provisions relating to it in Chapter XVI are to be omitted).
Amendment of Twelfth Schedule (Penalties) omits all entries pertaining to Chapter XVI (s.330A to s.349A) and Amendment of s.461 (punishment for certain offences, with reference to Twelfth Schedule) omits specific reference to s.339 (corner buildings). (These amendments, in effect, transfer offences relating to Chapter XVI to purview of s.465 for general penalty of up to Rs.100/- fine for offences for which penalties are not specified in Twelfth Schedule, whereas higher penalties inclusive of imprisonment exist. It is also pertinent that s.99(1)(f), requires all fines levied under MCD Act to be credited to Municipal Fund. Likewise, misuse penalties levied under DD Act are credited to the Fund of the DDA. It is also pertinent that, of late, MCD / Delhi Government have been inclined to pay-and-violate policies in which fees substitute fines).
Amendments of s.466A (Certain offences to be cognisable) and s.467 (Prosecutions) omit reference to s.339 (corner buildings) in their clauses in relation to public streets and include offences under - instead of existing s.332, (prohibiting building without sanction), s.333(1) and s.334(1) (requiring application for sanction), s.343, s.344 and s.345 (relating to violation of sanctions) and s.347 (requiring written permission for certain building-uses) - proposed s.337 (Building permit for listed buildings, etc, to be granted on advice of Heritage Conservation Committee), s.345 (Stoppage of building use on revocation of building use permit), s.347 (Power to give order to stop building or to seal plot or building or to demolish building or to take other action in case of violation of provisions relating to building) and s.348 (as s.347, in respect of provisions for building use). For s.467 (Prosecutions) this is done by substituting words, figures and brackets and for s.466A (cognisable offences) by omitting them and including in Chapter XVI itself s.349A for this. (It is pertinent that s.466A makes the specified offences cognisable for purposes of investigation and of matters other than arrest and referred to in s.42 of Code of Criminal Procedure, 1973, while proposed s.349A makes them cognisable in terms of all provisions of the Code of Criminal Procedure, 1973).
Amendment of s.479(2) (requiring specified rules, notifications and byelaws, including byelaws made by Central Government under s.349A, to "be laid as soon as may be after it is made or issued in both houses of Parliament, while it is in session for a total period of 30 days...") substitutes s.349A with s.349P (which empowers Delhi Government to make building byelaws).
Substitution of Chapter XXI
The title of the chapter - "Improvement" - is proposed to be changed to "Local Area Plan". The existing and proposed chapters are wholly unrelated
Chapter XXI (s.425 to s.429) only empowers the Commissioner to frame in accordance with byelaws in this behalf an Improvement Scheme for any area if he is satisfied "upon information in his possession" that buildings in it are "unfit for human habitation" or "dangerous or injurious to the health of the inhabitants of the area" and an Improvement Scheme is "the most satisfactory method of dealing with the conditions" (s.425). s.426 sets out the content of an Improvement Scheme and s.427 the procedure for its framing, submission, approval (by MCD) and sanction (by central Government). s.428 provides for rehousing scheme for persons displaced by an Improvement Scheme and s.429 requires compliance with Master Plan and Zonal Development Plan. Chapter XXIII s.481(K) empowers MCD to make byelaws relating to improvement in respect of provisions of s.426 to 428 and for local inquiries and other hearings that may be held before a scheme is framed, approved or sanctioned.
Proposed Chapter XXI (s.425 to s.429G) neither defines the term Local Area Plan nor clarifies its relation to either Improvement Scheme / Re-housing Scheme that it substitutes or to the hierarchy of Master Plan / Zonal Plan / Layout Plan / Use Premise Plan regime that is mentioned in the chapter that it substitutes. That LAP is not about Improvement or planning, but about land development and disposal schemes (in outright infringement of Delhi Development Act, unconstitutional in terms of Article 239AA and 243W) is clear from proposed s.425 itself, which empowers the Corporation to prepare "one or more Local Area Plans for Delhi", including "on the basis of any petition by the residents of any area" in respect of "any land" which is "vacant" or "in the course of development" or "already built upon", with objectives including, besides improvement, "development or re-development of land, and conservation of buildings, natural features or other physical features" and "preparation of area specific regulatory parameters" including FAR. To achieve these peculiar objectives LAPs may provide for preparation of "plans" for laying/re-laying out land and showing new streets, construction, etc, and "urban design plans" that "may include area specific regulatory parameters", for "reservation of land for sale by the Corporation" for various uses and for "allotment or reservation" of land for "public purpose of all kinds", with "public purpose" defined to mean "any purpose concerning or open to the people as a whole" (even as it is duly defined, including in purpose of land acquisition for half century as development according to Master Plan). Proposed s.429A sets out the content of LAP, which does not include from the content of Improvement Schemes substituted items pertaining to buildings and accommodation, and includes in addition area-specific layout parameters, proposed plot wise land use plan of new plots and financial statement. Just as proposed s.425 provides for LAP on petition of residents, proposed s.429G allows for withdrawal of LAP if more than two thirds of the owners request it (making planning, by confusing it with arbitrary schemes, optional / on public-demand, something that even the widest interpretation of even the 74th Amendment does not empower MCD to do).
Proposed s.426 allows the Corporation to make regulations providing for "detailed" procedure for these unconstitutional LAPs (with public consultation, as per proposed s.429). A prima-facie unconstitutional general procedure is then set out, starting with declaration of intention to LAP (proposed s.427) and bar on development by any person thereafter (enforceable by the Commissioner, including by demolition at the cost of the person, recoverable if needed as an arrear) save for "public purpose" (by special permission of the Commissioner), while the Corporation may carry out development "in conformity with the provisions of such Local Area Plan and the building bye-laws as are in force" (proposed s.428).
Proposed s.429 requires the Commissioner to prepare and publish a LAP within 9 months (extendable by 3 months) of declaration of intent. Subsequent proposed sections require him to present the Draft LAP at public meetings within 2 months to invite objections to consider and make modifications he deems fit and publish a revised Draft LAP (s.429B) and, simultaneously, appoint within 2 months a Panel of experts for hearing public grievances that will give opportunity to submit and be heard and submit its recommendations to the Commissioner to make modifications he deems fit (s.429C). The revised as deemed fit LAP is then to be submitted by the Commissioner for approval by MCD Standing Committee and notified by him after approval, ie, Central Government sanction is dispensed with. (It is noteworthy that Rakesh Mehta, as ex-officio member of the Authority of the DDA duly appointed to the Board of Enquiry and Hearing for Master Plan 2021 Public Notice under s.11A of DD Act, did not make time to sit on the hearings that started on 03 October 2005 even as quorum is not complete without him).
Proposed s.429D requires all rights and liabilities associated with original plots or buildings to be transferred to owners of new plots or buildings. s.429F requires the Corporation to recover LAP costs through instruments including betterment charges, charges on additional development rights and proceeds from the sale of land reserved for "public purposes" (all of which are accruals that have to be credited to the Fund of DDA).
Proposed s.429E requires the Corporation to repeat the procedures set out in proposed s.427 to s.429D, at interval of no more than 5 years, in name of review of LAP.
Perhaps by oversight, no amendment is proposed in s.481(K) the provides for making of byelaws relating to improvement and re-housing schemes. The substitution of Chapter XXI also creates another inconsistency within the Act – respect of its provisions for new layouts (which, and not improvement schemes, is what the proposed chapter provides for, including in built up areas, especially by omission of provisions for accommodation / re-housing) that are found in Chapter XV on Streets. These envisage limited powers, related to laying out new streets (with special provisions for appurtenant buildings also in Chapter XVI, that are proposed to be omitted), for layout planning and development and, in s.312 to 314, responsibilities for regulating private layouts (with s.313(4)(a) requiring in those, like s.429 does of MCD Improvement and Re-Housing Schemes, conformity with Master Plan and Zonal Plans). No amendments are proposed to these sections, perhaps by oversight.
Substitution of Chapter XVI
The title of the Chapter - "Building Regulation" - is proposed to be changed to "Regulation of Building and Building Use". (This is even as building use gives effect to land use provisions and is regulated by Delhi Development Act, 1957. MCD Act itself provides for building use regulation only to extent of making validity of applications for building permits subject to specifying building use (s.335) and restrictions on certain uses / changes in use or occupancy without written permission (s.347) or prohibition of certain uses without license (s.417) from the Commissioner. It is pertinent that these provisions complement the powers against misuse that DD Act vests in the MCD. However, as discussed later, the proposed building use regulation relates not to MCD's responsibilities in respect of securing land use according to Master Plan but to its powers in respect of issuing completion certificates for building occupancy).
Section 330A (General superintendence etc, of the Central Government) is proposed to be retained, as s.331, even though s.349A (power of Central Government to make byelaws) and s.347A to E (pertaining to Appellate Tribunals constituted by Central Government) are proposed to be substituted with, respectively, proposed s.349P and s. 349J empowering Delhi Government to make building byelaws and constitute Tribunals.
Section 331 (Definition) defines, in effect, the scope of Chapter XVI by defining the expression "to erect a building" to usually mean in it to erect a new building, to roof open space between walls, to re-erect an existing one or convert it to dwelling house from one not constructed for habitation, to dwelling from other or discontinued use, to shop / factory / etc, to place of worship, to more than one from one dwelling, to greater or lesser number two or more tenements, to on subject to building regulations from one that was exempt from them at time of construction (clauses a-j). The comparable proposed s.332 has 19 definitions, none of which limit the unlimited scope imbued in the term "building" by the proposed Amendment of its definition in s.2. Building permit is defined only to include deemed building permit. Building use is defined, to expand the scope of the Act from occupancy to use ("occupier" being presently duly defined in s.2(34)), to mean "with all its grammatical variations and cognate expressions" "the use of a building or part of a building or land appertaining to a building or the making of any change in the use of a building or land appertaining to a building" with explanation saying it "includes occupancy of a building". "Municipal Building Tribunal" is re-defined exactly as in Amendment of s.2. Of the remaining 16 definitions, 7 pertain to persons on record for purposes of deemed permits (viz, advocate, advocate on record, architect, architect on record, construction engineer on record, structural engineer on record, person on record) though the provisions of the substituted chapter refer only to architect on record among these, and 9 pertain to heritage items (conservation, preservation, reconstruction, restoration, heritage building, heritage natural feature, heritage precinct, Heritage Conservation Committee). Further, proposed s.333 (only) defines "owner" to mean for the purposes of the Chapter and notwithstanding the definition in s.2 "a person who has the right and title over a plot and shall include a lessee in respect of a plot.
Section 332 prohibits building without previous sanction and s.333 and s.334 require application for such sanction by giving the Commissioner notice of intention to erect a building or undertake additions / alterations / repairs. The comparable proposed sections are s.334(1) (which bars building without prior building permit "except in such cases as may be prescribed"), s.335 (providing for building permit in certain cases by Architect on Record), s.336 (providing for municipal building permit in cases other than, besides deemed permit under s.335, those deemed/declared to be unauthorized building or unauthorized use under s.334), s.337 (requiring building permit in case of heritage items in accordance with advice of a Heritage Conservation Committee), and s.349D (which includes obtaining a building permit, ensuring compliance with byelaws and appointing necessary persons on record among responsibilities of the owner).
Section 335 makes validity of applications for building permits subject to specifying building use. Proposed provisions for building use regulation are outlined later.
Section 336 (Sanction or refusal of building works) allows refusal only under provisions for buildings and works on either side of new streets (s.340) or if the intended building has no access from a street or would encroach government land or is in area for which layout plan has not been sanctioned or if the particulars in the notice of intention are incomplete or not compliant with byelaws. There is no comparable proposed section to make the Commissioner responsible for ensuring that permits are in accordance with byelaws and other provisions of the Act. Instead, proposed s.339 empowers the Commissioner to refuse to grant municipal building permit or revoke deemed building permit if any outstanding dues in respect of any land on which the building is proposed are not paid in full.
Section 337 (When building or work may be proceeded with) provides, inter alia, for deemed sanction if the Commissioner fails to communicate refusal in the prescribed time and, in all cases, for notice of commencement. The comparable proposed s.338 provides for deemed refusal if the Commissioner fails to dispose off application for municipal building permit in prescribed time and for appeal on that presumption to Municipal Building Tribunal.
Section 338 provides for cancellation of sanction in case of material misrepresentation or fraudulent statement in notice of intention. The comparable proposed s.341 provides for revocation of permit if any provision of the substituted Chapter XVI or the byelaws is violated. Proviso to proposed s.335 also provides for the same in case of deemed permit and that "provisions of section 342 shall apply" thereafter. Further, proposed s.339 empowers the Commissioner to revoke a deemed building permit also if any outstanding dues in respect of any land on which the building is proposed are not paid in full. Proposed s.342 is for stoppage of building on lapse or revocation of building permit and proposed s.349D includes among the responsibilities of the owner ensuring no building is undertaken after the building permit has lapsed or been revoked.
Sections 339 and 340 contain special restrictions for buildings at street corners and along new streets. No comparable special restrictions are proposed.
Section 341 requires the Commissioner to specify a reasonable time for completion and fresh sanctions for proceeding beyond that time. There is no comparable proposed provision in respect of completion time, not covered by proposed s.340 that provides for automatic lapse of building permit in certain cases, including if owner ceases to be owner and if person on record in respect of the building ceases to function as such.
Section 342 provides for prohibiting use of inflammable materials in building in specified areas. No comparable special restrictions are proposed.
Sections 343, 344, 345 and 345A provide for demolition, stoppage, alteration and sealing of work not in accordance with the sanction and set out specific procedures for the same, including provision for appeal to Appellate Tribunal in case of demolition or sealing. The comparable proposed s.347 empowers the Commissioner in respect of these actions "if there is any contravention of any provision of this Chapter relating to building" and without setting out specific procedures. As mentioned, offences under proposed s.347 are made cognisable under proposed s.349A in terms more general than existing s.466A and Appellate Tribunal is proposed to be substituted by Municipal Building Tribunal, discussed later.
Section 346 (Completion Certificates) requires "every person who employs a licensed architect or engineer or person approved by the Corporation to design or erect a building or execute any work" to send to the Commissioner within a month of completion "a notice in writing of such completion accompanied by a certificate in the form prescribed by bye-laws" and bars occupation or use till permission is granted by the Commissioner, with proviso of deemed permission in event of the Commissioner's failure to communicate refusal in 30 days. The comparable proposed s.349D includes obtaining a building-use permit prior to use among the responsibilities of the owner, but proposed s.343 provides for, instead of the triple-checked regime of his notice of completion, architect's completion certificate and Commissioner's occupancy permission, Architect on Record that gave deemed building permit to give also a building-use permit. Purportedly to give effect to this dispensation, s.349E to F empower the corporation to list against a fee and deposit and define minimum requirements of competence and responsibilities of persons on record, s.349H provides for imposition of penalties, de-listing and establishing responsibility in case of failure to discharge duties as persons on record, and s.349I provides for a professional and service provider rating agency for purpose of listing and rating of persons on record (Implementation Plan for which has already been prepared by CRISIL Ltd and Sudhir Vohra Consultants).
Section 347 (Restriction on uses of buildings), as mentioned, only prevent certain things without written permission of the Commissioner. MCD Act contains no powers to stop or penalise misuse and those powers obtain from DD Act (which does not envisage distribution of use permits by architects on record, etc, as their basis). From clever obfuscation of completion certificate, occupancy permission and restriction on certain uses without permission flows a curious proposed regime in which first responsibilities of the Commissioner in respect of building use regulation are surreptitiously transferred to Architects-on-Record and then the Commissioner is incredibly empowered to punish use violations, including those not related to the deemed building permit regime at all. Proposed s.344 empowers the Commissioner to revoke building-use permit for violation of any provision of proposed chapter / bye-laws governing building use, proposed s.345 requires stoppage of use on revocation of building-use permit and proposed s.349A makes offence under s.345 cognisable. Further, without making any connection to building permit, proposed s.334(2) bars "except in such cases as may be prescribed" occupation or use without prior building-use permit and provides for deemed "unauthorized use", proposed s.334(4) empowers the Commissioner to, "on receipt of any information or upon his knowledge" of violation of any provision, issue an order suspending building use, pending the determination of the violation", s.348 empowers the Commissioner to "if there is any contravention of any provision of this Chapter relating to the use of any building... direct the owner or the occupier... to stop use... or to vacate" or "cause... to stop use... or to vacate... or himself seal... and take such other actions as he deems fit" and recover cost from the owner or occupier, and s.349A makes offence under s.348 cognisable. Whereas existing s.346 requires only one who has given notice of completion to "give to the Commissioner all necessary facilities for the inspection" only for 30 days after which permission for occupancy and use is deemed to have been granted if not refused, proposed s.346 makes "all buildings including lands on which they are situated... subject to inspection by the Commissioner with a view to ensuring compliance with the provisions with respect to building and building use", empowers the Commissioner to make inspection "at any time without giving any prior notice of his intention to so do", requires the owner of the land "to allow any officer or other employee of the Corporation, duly authorized by the Commissioner in this behalf, to enter the land and to inspect any building with a view to ensuring compliance with the provisions of this chapter on building and building use", provides that this officer or other employee may "enter between sunrise and sunset any place of a building which is not used, or which he has reason to believe is not used, in accordance with the building permit", "make examination of the premises", "require the production of any document relating to the land and the building", "direct the occupier... to leave undisturbed (whether generally or in particular respects) such premises for so long as is necessary" for making examination, "take measurements and photographs and make such recordings as he may consider necessary... taking with him any necessary instrument or equipment", and "exercise such other powers as may be prescribed".
Sections 347A to 347E pertain to Appellate Tribunals (AT) constituted by Central Government. The comparable proposed sections are in s.349J to 349O for Municipal building Tribunal (MBT) constituted by Delhi Government. Procedures of AT (s.347C) and MBT (proposed s.349M) are identical (except for a proviso, mentioned later). Provisions for appeal against order of AT (s.347D) and MBT (proposed s.349N) are identical. Provision regarding bar of jurisdiction of courts in context of AT (s.347E) and MBT (proposed s.349O) are identical. Composition of AT (s.347A) and MBT (proposed s.349J) differs, with AT consisting of one person of at least 10 years judicial experience with provision for appointing persons with special knowledge / experience relating to matters involved with appeals to render non-binding advice and MBT consisting of a chairperson of at least 5 years judicial experience an Architect or Town Planner. Matters in which appeals may be made to AT are specifically enumerated (s.347B) while the scope of MBT is vaguely stated to cover all orders, notices, etc, issued under the Act (proposed s.349K). (However, even as s.347B specifically mentions sections outside Chapter XVI (viz, s.313, s.314, s.315(1) and s.317(2) from Chapter XV on Streets), proposed s.349K skirts these with the expedient of using the word Act rather than Chapter, although, as mentioned, AT survives in the amended s.452 and s.456, including in respect of s.317). Proposed s.349L has no comparable provision in MCD Act and provides for owner or occupier of a plot adjacent to or in the neighbourhood of a plot under unlawful building activity to report the same to the Commissioner and if the Commissioner fails to take action within 5 working days to appeal to MBT (ie, it also bars jurisdiction of courts in these matters). Significantly, by s.31-B of Development Act, the AT constituted under s.347A of MCD Act, is deemed to be Appellate Tribunal for appeals under s.31-C of DD Act. The change from AT to MBT is thus far from innocuous.
Sections 348 and 349 provide for repair/demolition and vacating of dangerous buildings. The comparable proposed s.334(3) empowers the Commissioner to declare the use of any building to be "unauthorized use" if the building is considered to be unsafe or to pose a danger to public health or safety and proposed s.349 empowers the Commissioner to "if any building... poses a danger to life and property... direct the owner or the occupier... to stop use... or to vacate" or "cause... to stop use... or to vacate... or himself seal... and take such other actions as he deems fit" and recover cost from the owner or occupier and proposed s.349A makes offence under proposed s.349 cognisable.
Section 349A (Power of Central Government to make bye-laws) transferred power to make byelaws from MCD to Central Government in 1993, with proviso for byelaws previously made by the Corporation under paragraph-F in s.481(1) to continue to have effect till amended, varied, rescinded or superseded under the provisions of s.349A. A list of 21 matters in respect of which byelaws may be made is illustrated. Central Government is required to forward the draft byelaws to the Commissioner for publication in the Gazette to invite objections and suggestions for 30 days and to forward the same with his recommendations to Central government within 3 months. The central Government is empowered to issue such directions to the Commissioner as it thinks fit for ensuring proper implementations of byelaws made under s.349A. The comparable proposed s.349P substitutes Central Government with Government (defined as Delhi Government), omits the list of 21 illustrative matters and adds a clause requiring review and revision of byelaws by once in every five years. The rest is identical, including the proviso referring to paragraph-F that was omitted in 1993.
The substitution of Chapter XVI involves addition of two substantive matters to its scope:
- Proposed s.349C requires Delhi Government to appoint a Heritage Conservation Committee, the Commissioner to prepare on the advice of this HCC a list of heritage buildings, heritage precincts, heritage and natural features and the HCC to prepare a list the same for which building permits shall be granted on its advice, advise the Commissioner on incentives / byelaw relaxations / guidelines for private parties and tender advice, after inviting and considering objections and suggestions, to the Commissioner under proposed s.377 (which requires for heritage items building permit in accordance with advice of HCC and, for "removal of doubt", declares that "listing... under s.349C shall not amount to prevention of demolition of or making changes to...", "sale and purchase... shall not require permission from Corporation..." and that "in exceptional cases" the Commissioner may also request HCC to reconsider its advice). Proposed s.349A makes an offence under s.377 cognisable. (It is pertinent that a Delhi Urban Heritage Foundation, duly constituted under s.5A of Delhi Development Act and with Regulations framed under s.57 duly approved by Central Government and notified in 1999 exists, with Lieutenant Governor as Chairman and Delhi Government Chief Secretary as one of the members).
- Proposed s.349B empowers GNCTD to constitute a Variance Committee under the chairmanship of the Commissioner to grant exemption from (area?) specific byelaws.
All in all, oft-repeated lies about Delhi Master Plan framework based on robust development planning law are poised to come true, by its substitution with a building regulation regulatory framework fabricated from a USAID-sponsored amending legislation.
Gita Dewan Verma | Planner | 16.11.05