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Laws should be implemented: Sabharwal

Chief Justice rejects Centre?s plea to modify order on sealing saying it violates oath, reports Satya Prakash.
None | By Satya Prakash, New Delhi
PUBLISHED ON OCT 19, 2006 09:40 PM IST

“Rule of law is part of the basic structure of our Constitution. So long as laws are there, government and the authorities have see to it that they are implemented. If not implemented, it is for us to implement it otherwise we will be violating the oath.”

This is what the Chief Justice of India YK Sabharwal said on Wednesday while turning down Centre’s plea to substantively modify its September 29 order on sealing of commercial establishments running out of residential areas of the capital.

A three-judge bench headed by the CJI rejected most of the submissions of Solicitor General GE Vahanvati who wanted modification of the September 29 order.

The court refused to dispense with the requirement of filing undertakings by traders to avail the benefit of September 7 and 15 notifications, but extended the deadline for it by those covered under the said notifications. The notifications, which are already under challenge before the court, permit mixed land use/commercialisation of premises on 2183 roads/streets.

Vahanvati wanted the court to do away with the order restraining the government from issuing any further notification permitting mixed land use or commercialization of buildings in similarly placed areas.

Government had said that “apart from the 2183 streets declared eligible for mixed land use there were other similarly placed streets/areas and non-notification of the latter was likely to result into discrepancies on the ground and “a feeling of resentment”. But the court refused to change the order.

However, the bench said if the government wanted to do it, it should seek the court’s prior permission in terms of the September 29 order. But it clarified that the order related only to the 2001 Delhi Master Plan and would not come in the way of the finalisation of the 2021 Master Plan.

The court also turned down the plea of 44,000 odd traders who had filed affidavits earlier and now have been ordered to close down by October 31.“It is not a review. It is a closed chapter now,” the bench said.

When traders’ counsel Mukul Rohtagi said that those who did not file affidavit were better placed under the notifications and the traders who filed affidavits would lose lakhs of rupees, the bench observed “Rule of law is more important than lakhs of rupees". After the court’s refusal to give any kind of further relief to the traders, who took benefit of affidavits, they face closure of their commercial premises currently located in residential areas of the capital.

The bench made it clear that there was no question of any substantive change in its September 29 order. “We hope that the government wants at least now onwards that there should be enforcement of the law,” the CJI said when the solicitor general sought modification of the September 29 order.

The CJI, who retires in January next year, said, “my brother judges are not from Delhi. But I have grown up in this city and know its problems very well. I have my relative and friends here. Many of them, including lawyers are affected by my orders on sealing.

“Whether my decisions make them happy or not, I have to adhere to the oath I have taken as a judge of the Supreme Court,” the CJI observed while driving home the need to uphold the Rule of Law.

The court had asked the beneficiaries of the two notifications to file undertakings that misuse should stop as per the directions of the court if the Delhi Laws (Special Provisions) Act, 2006 was invalidated and/or the notification was quashed.

It required every such trader covered under the notifications to file a certificate issued by a registered Architect along with the undertaking. However, the Centre submitted that there were only about 6000 Architects registered in the capital and all of them may not be available at a time for undertaking the task of certifying the use of the premises for commercial/mixed use activity.

But Centre had enumerated the “administrative difficulties” likely to arise in the implementation of the September 29 order requiring the commercial premises covered under the notifications to file undertakings by November 10 and the enormity of the exercise involved in the process.

Stating that about lakhs of establishments on the 2183 streets covered under the notifications would be required to file such undertakings, it had that “it would be an extremely difficult and Herculean task for all such establishments to complete the process of tendering of undertakings within such a short period”. Amicus Curiae Ranjit Kumar said the Architect who sanctioned the building plan could issue the certificate.

The court sought to know why the government was coming to the court and not traders. The court termed it as “nothing except a flight of imagination”.

As the solicitor general talked of complete institutional failure leading to un-planned development of the city, the CJI said it was all the more important to have planned development now. The court said the city has grown; population is increasing and one has to consider all these points.

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