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We are not satisfied with the way the MCD has dealt with the problem. We make it very clear that if MCD fails to carry out its statutory obligations under the Act, we will have to go for other options as prescribed under the MCD Act with regard to dealing with these delinquent officials. We also make it clear that if the MCD is not serious in taking actions and showing the door to these corrupt and delinquent officers, we will use other machinery for probe.

5. The facts projected in the Application reveal that the applicant has 21 years of unblemished service record. He is stated to have always stood for sincerity and hard work with full devotion and dedication and delivered results to the utmost satisfaction of his senior officers. His service record is outstanding and no memo was ever issued to him. During the tenure of the applicant as Executive Engineer (Building), total 1698 cases are stated to have been booked for unauthorized construction. It is the case of the applicant that properties are booked for unauthorized construction by the field staff as and when the unauthorized construction is either detected by them or on the basis of any complaints/reference or court case, and that booking is a first information report to be prepared by the Junior Engineer concerned at the site of unauthorized construction in a printed book duly numbered. The registration of FIR (booking) is stated to be the first step towards taking action against the unauthorized construction. As per provisions of the DMC Act, the Commissioner, MCD has to exercise his powers and discharge his functions as prescribed under Chapter XVI of the Act, which deals with the building regulations, under general superintendence, directions and control of the Central Government. It is pleaded that powers of Commissioner, MCD for taking action against the unauthorized construction can be invoked only after the unauthorized construction has been commenced, or is being carried out or has been completed, and that no action can be taken in anticipation of unauthorized construction. Under building bye laws for minor deviations, it is then pleaded, even no permission is required to be taken from MCD and the owner/builder is at liberty to deviate from the sanctioned building plan to the extent of permissible/compoundable limits. The validity of the sanctioned building plan was earlier two years, which has been stated to have been increased to five years. It is the case of the applicant that it is very difficult to take action against deviations during the period of validity of sanctioned building plan since often the argument is raised that the building is in the process of construction and the owner/builder is at liberty to make deviations during the validity period and the deviations, if any being carried out, are within the compoundable limits, and would be got compounded after the construction is over. It is further the case of the applicant that MCD is not having police powers to stop the unauthorized construction, and that for stopping the unauthorized construction, powers have been vested with the police under Section 344 of the DMC Act, and further that for taking any action against the unauthorized construction, assistance from local police is must, which on most of occasions is denied; furthermore, the MCD cannot take demolition or any other action as per its wish and desire, but being a statutory authority, has to follow the procedure prescribed under the Act for taking action against the unauthorized construction and utmost care is taken to ensure that the prescribed procedure is followed to avoid any undesirable litigation against the MCD and its officials for damages etc. The procedure for taking action against the unauthorized construction, as has been prescribed under the Act or rules framed thereunder, or by departmental instructions is stated to be as follows:

5. Prosecution actions initiated u/s 347/461 for misuse of the properties 196

6. No. of demolition/sealing action planned and fixed 882

7. No. of occasions on which police force was not made available 523 (60%)

8. No. of occasions on which police force was made available 359 (40% only) From the facts as stated above, it is pleaded that during the tenure of the applicant requisite follow up actions were taken after unauthorized construction was detected and properties were booked for unauthorized construction, and that a relative comparison of actions taken by the applicant during his tenure with the period of six months prior to his joining and six months after his relieving as Executive Engineer (Building), Central Zone, would clearly show how efficiently he performed his duties and had taken massive demolition/sealing and other actions. It is further pleaded that during his tenure, 882 demolition/sealing actions were planned and fixed, but requisite police force was made available only on 359 occasions; on these 359 occasions, 628 demolition actions and 230 sealing actions were taken, which would show optimum utilization of the available police force; because of these actions, many owners/occupiers/builders of offending properties came forward to get their deviations compounded and bring their properties within compoundable limits; during his tenure as Executive Engineer of Central Zone, as many as 569 letters under Section 344(2) and (3) of the DMC Act involving several properties were written to the concerned police authorities for immediately stopping further unauthorized construction in such properties; and on many occasions, in one letter the information regarding several such properties was also given to the police authorities. Adequate police force, it is pleaded, is pre-requisite for taking demolition/sealing action against any unauthorized construction, and the requirement of police force for taking demolition/sealing action is for the reason that the owners/ occupiers/builders are always hostile to these actions and most of the time unruly and rowdy crowds gather which can be aggressive and violent to the municipal staff. In the past, it is then pleaded, MCD officials have suffered serious injuries on number of occasions while executing demolition/sealing action, and in one such incident an Assistant Engineer was pushed down from the roof of a building when he went there for taking demolition action, and on account of injuries sustained by him, he died. On number of occasions the MCD staff had to be hospitalized because of injuries caused to them by mobs/residents during implementation of action of demolition and sealing. It is further pleaded that during the tenure of the applicant, as many as 882 demolition/sealing actions, which included special programs fixed in pursuance of court directions, VIP references were planned and fixed and timely requisition for adequate police force was sent to concerned Deputy Commissioner of Police. Sample copies of letters aforesaid have been placed on records as Annexure A-2 (colly.). Deputy Commissioner of Police (HQ) vide letter dated 6.9.2002 addressed to Commissioner, MCD had highlighted difficulties in providing force for removal of encroachment/unauthorized construction on Friday and requested that no major demolition program be fixed on Fridays. Despite the applicants best efforts and timely requisitions, it is pleaded, the availability of requisite police force remained a major impediment in demolition/sealing of unauthorized construction, which would be evident from the fact that only on 367 occasions, requisite police force was provided against as many as 882 demolition programs fixed, and that time and again, the applicant brought this fact to notice of Deputy Commissioner of Central Zone for taking up the matter at appropriate level, and further that as a matter of fact, it is the applicant who apprised the High Court in the matter of New Friends House Building Society vs. DDA & Others regarding hammering of demolition/sealing action, owing to non-availability of requisite police force. Taking note of the prevailing circumstances, the Honble High Court called for discussion the heads of all law enforcing agencies in the court and accordingly a policy was framed for requisition of police force. As per the said policy circulated vide letter dated 27.3.2003, requisition for police force was to be sent to the concerned Deputy Commissioner of Police two months in advance. Therefore, requisitions were being sent by MCD to the concerned Deputy Commissioner of Police two months in advance by planning demolition/sealing actions. In case of emergency, the requisition could have been made seven days in advance, and under special circumstances, requisition of three days was to be sent. It is the case of the applicant that during his tenure, the Central Zone had strictly followed this policy and timely requisitions were sent, but situation remained the same and non-availability of requisite police force remained a major impediment in taking demolition/sealing action resulting in accumulation of backlog. The factum of non-availability of requisite police force was time and again brought to the notice of Commissioner, MCD through the concerned Deputy Commissioner. Non-availability of police force and concern of the applicant, it is stated, can be understood from letters dated 22.4.2003, 11.12.2003 and 18.1.2005 written by Deputy Commissioner, MCD at the instance of the applicant to Deputy Commissioner of Police, wherein it was mentioned that despite sending timely requisitions, availability of police force was very poor. Besides frequent non-availability of requisite police force, it is further stated, numerous other problems were being faced by the zone in taking demolition/sealing actions. It is stated that demolition/sealing actions are carried out with the help of demolition squad, which comprises of highly inadequate number of workforce and that too are unskilled and poorly equipped only with manual tools; available infrastructure comprised only one demolition squad, which could take action only at one place at a time; at the Central Zone level, the applicant was provided with very limited and out-dated machinery to carry out effective demolition, which aspect also, time and again, was brought to the notice of higher authorities and requests were made to strengthen and upgrade the demolition squad; considering the infrastructure inadequacy, it was often felt that proper infrastructure should be provided, as it was not feasible to accomplish the gigantic task of demolition of unauthorized construction without suitable and adequate tools and implements; even though, over the years construction activities considerably increased, requisite infrastructure has not kept pace enabling the department to keep required level of surveillance on construction activities. In addition to the difficulties as mentioned above, another difficulty was being faced at the time of taking demolition action. The applicant points out that the unauthorized construction against which demolition actions were to be taken was in the shape of deviations from sanctioned building plans beyond compoundable limits, which warranted action only against the unauthorized portions, without causing any damage to the authorized portions and the adjoining properties. Since such type of demolition actions could be taken only with the help of manual labour without involving bulldozers or JCBs, this process makes the demolition action very slow, and for taking action against one property, sufficiently long time is consumed, resulting in accumulation of backlog of properties booked under various provisions of the DMC Act for demolition actions. Commissioner, MCD vide office order dated 22.11.2000 prescribed various priorities for taking demolition action. As per the said office order, cases of unauthorized construction which have been dismissed/remanded from courts have been placed at the first priority. Furthermore, out of the same category in which demolition orders have been passed, last is to be demolished first, and with passage of time more and more court orders or VIP references are received which warrant time bound demolition action against properties, which otherwise do not fall within the priority list. In the meantime, new unauthorized construction is also detected, which warrants action earlier as per the priority fixed by Commissioner, MCD. Thus the routine action gets constrained and the property which at one point of time was high-up in priority for demolition, goes to a much lower position giving an impression that no action was ever planned to be taken against unauthorized construction against such property. The applicant has then detailed the monitoring mechanism being followed by various authorities regarding unauthorized construction, as follows: