In pursuance of a case, Delhi Lokayukta Manmohan Sarin has noted that public functionaries should avoid acquisition and purchase of properties that involve violation of municipal by-laws or where adherence to municipal by-laws is not feasible on account of them being located in unauthorised colonies.
The Lokayukta has also recommended to Lieutenant-Governor Tejendra Khanna that under Section 16 of the Lokayukta and Upalokayukta Act-1995 an advisory be issued to public functionaries to abide by the norms of integrity and conduct, which place upon them a burden higher than on an ordinary citizen, of compliance with the requirements of law.
In this case, councillor Preeti Behn had provided information regarding unauthorised constructions and violations of municipal by-laws in the properties owned by or in occupation of 68 public functionaries. She had on being issued notice regarding her unauthorised construction in Jhilmil Colony, Shahdara, complained of being singled out and held that 68 public functionaries continued to enjoy the benefit of unauthorised constructions in violation of municipal by-laws and, in some cases, even encroachment on public land.
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In one of these complaints, a notice was issued by the Lokayukta to Okhla MLA Asif Mohammad Khan for unauthorised construction on the first floor of a property in Paschimi Zakir Nagar, Okhla. The respondent said there were different owners for all the three floors and that he had purchased the property in the same conditions, including projections on government land.
The Lokayukta said this colony had been granted regularisation and thus had the status of unauthorised regularised colony. In the event, he said, owners of different floors of the premises in question applied to the MCD for regularisation, but these applications of individual floor owners could not be considered. Therefore, all the owners moved a joint application for regularisation on May 10, 2011.
Referring to how regularisation remains a ticklish issue, he said the Municipal Corporation of Delhi pointed out that applicants seeking sanction of building plans were required to file affidavits in respect of ownership of plot/property based on registered Sale Deed. However, in these cases they were claiming ownership only on the basis of General Power of Attorney and Agreement to Sell.
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The regularisation application could not be processed further as the respondent/public functionary and the respective owners also failed to furnish a plan indicating the portion to be demolished to bring the structure within the permissible floor-area ratio (FAR) and the public functionary and the owners could not specifically indicate the excess area that could be demolished.
Additionally, the applicants were also required to show the ownership documents which, as per the current policy, insist on the registered Sale Deed, whereas they were only in possession of GPA and Agreement to Sell. This also did not meet the MCD requirement of ownership.
Thus, the Lokayukta said, in cases where there is a single owner, he can choose the area to be demolished or removed to bring the structure within the compoundable limits. However, where there are different owners, unless they entirely agree on pro-rata removal of unauthorised construction and the areas thereof, it is difficult to resolve the matter.
“At this stage it would be appropriate to notice the applicability of the provisions of The National Capital Territory of Delhi Laws (Special Provisions) Act, 2011. It is common ground that the constructions in question, being prior to year 2006, in an unauthorised regularised colony, are protected till year 2014,” he said.
The Lokayukta also observed that no action for demolition in enforcement of the provisions of the municipal by-laws can be taken especially in this case where the respondent verily claims that there have been no additions, alterations made by him to the property.
However, Mr. Justice Sarin held that “a public functionary who is an elected representative of his constituency is required to set a higher standard of conduct than an ordinary citizen. He has to be a role model for others to follow. It is his duty, rather, an obligation as a public functionary to inculcate law abiding tendencies and practices among his constituents. This can be achieved only if the public functionary himself strictly abides by law and does not enjoy the benefits of acts which are not authorised by law”.