Giri, Anuj Shukla and Ashish Chaubey v. State of NCT of Delhi & Ors

13. He points out that there is lack of clarity regarding jurisdiction between MCD and DJB with respect to drains and sewer, exacerbated by common connection of drains and sewers. He states that the preamble of the Delhi Jal Board Act, 1998 states “to provide for the establishment of a board to discharge the functions of water supply, sewerage and sewage disposal and drainage within the National Capital Territory of Delhi…” and stipulates responsibility of DJB for wet waste. Furthermore, Section 31 provides that all public drains, including municipal drains, vest in the DJB. On the other hand, he emphasises that Section 42(a) of the Delhi Municipal Corporation Act, 1957 stipulates that “the construction, maintenance and cleansing of drains and drainage works and of public latrines, urinals and similar conveniences” shall be the responsibility of MCD.

14. Learned counsel for Delhi Fire Service states that inspection dated 1st July, 2024 was carried out not in pursuance to any complaint received by DFS but on account of the fact that the owner of the building had applied for a fire clearance/No Objection Certificate. He further states that the inspection was carried out specifically to check if appropriate fire fighting equipment had been installed.

15. Mr. Sanjay Jain, learned senior counsel representing Delhi Police states that Delhi Police has been carrying out investigation in a diligent manner. The DCP, who is personally present in Court, has explained to this Court the sequence of events that led to the unfortunate incident. He further states that the response received from DFS is „evasive‟.

16. However, in response to a pointed query, he admits that the relevant files of the MCD pertaining to sanction and drains have not been seized till date and only notices have been issued to MCD officials. He further admits that none of the MCD officials have been personally interrogated till date.

17. MCD Commissioner is personally present in Court. He candidly admits that the storm water drain on the side of the road where Rau‟s IAS Study Circle is located was dysfunctional. He states that de-silting of the drain in front of the coaching centre has not been done as it has been encroached and covered by ramps. He further states that the inter-connection of the smaller drains leading into the larger barrel drain is not proper which renders the small drains ineffective. He also states that the drains on Pusa Road maintained by PWD are dysfunctional. He points out that over the years, the emphasis has been on maintaining and augmenting the road capacity, and there has not been a commensurate focus on modernising the drainage system. He states that an expenditure of about rupees two crores is required to make the one side storm water drain in front of Rau‟s IAS Study Circle functional. He also states that the storm water drain has been encroached upon at a large number of places by residents and shopkeepers. He assures and undertakes to this Court that the unauthorised and illegal construction as well as encroachment in the area shall be removed forthwith and action shall be taken against officials of MCD who have been remiss in performing their duties.

DIRECTIONS AND FINDINGS OF THIS COURT

18. Having regard to the nature of the incident in issue as well as to ensure public confidence in investigation and the potential involvement of corruption or negligence/inaction by public servants which are in the nature of serious criminal offences under applicable laws and offences, including, Prevention of Corruption Act, 1988, this Court transfers the investigation to the Central Bureau of Investigation („CBI‟).

19. Since Central Vigilance Commission exercises supervisory powers over CBI, this Court directs the Chief Central Vigilance Commissioner to nominate a senior officer to oversee the progress of investigation being conducted by CBI on regular basis and to ensure that it is completed at the earliest.

20. This Court is further of the view that roads cannot function as „makeshift drains‟ during the rains. Consequently, the Commissioner, MCD is directed to ensure that the drains in the area are functional and their actual capacity is commensurate with the requirement of the area. The same should be done in a phased manner at the earliest. Encroachments, illegal and unauthorised constructions in the area including such construction on the storm water drain/sewage drain/barrel drain shall be removed forthwith. The statements/ undertakings given by the Commissioner, MCD are accepted by this Court and he is held bound by the same. The Commissioner, MCD shall ensure that administrative action is taken against officials who have been remiss in performing their duties including senior officials who have failed to exercise their supervisory power. After all, the public officials have to work and discharge their duties. Those who do not work have to be held accountable.

21. This Court is also of the view that one needs to „lift the level of the debate‟ and look at the „bigger picture‟. If one does that, one finds that there is a far more fundamental problem in the city of Delhi. The physical, financial and the administrative infrastructure of this city are not in accord with the present day needs.

22. With a population in excess of three crores, Delhi needs the most modern and robust physical and administrative infrastructure backed with huge financial outlays. It is pertinent to mention that Delhi‟s population in 1950 was fourteen lakhs, in 1980 fifty-six lakhs, in 2000 one crore fifty seven lakhs. Many experts believe that due to various subsidy schemes, the migration in Delhi is only increasing and its population is spiralling. Though it is the prerogative of the political party in power to give subsidies, yet if it does so it is duty bound to ensure that the physical infrastructure if the city keeps pace with the increasing population.

23. Major physical infrastructure in Delhi like drains was laid nearly seventy five (75) years ago. In the last twenty years, there has been no commensurate spending on the infrastructure in Delhi. This Court in Order dated 08th April, 2024 in W.P.(c) 7594/2018, Court on Its Own Motion vs. Union of India & Ors., has recorded that „no action has been taken on integrated drainage management systems since the year 1995, nor any major modeling / remodeling / extension of drains has been done post 1995, even as the population of the Capital trebled during this period‟. It is because of this mismatch that flooding/water logging has become a perennial problem.

24. The physical infrastructure, to say the least, is not only inadequate but poorly maintained. In a freebie culture, the State neither collects taxes nor spends adequate money on infrastructure.

25. Administratively, Delhi has multiplicity of authorities, who are only „passing the buck‟ and blaming each other. Instead of dealing with challenges unitedly, they seem to be inimical to each other. There is a public perception that civic authorities are inefficient and incapable of giving any relief to the citizens. This aspect was also highlighted by a Division Bench of this court in Vinod Kumar Bansal vs. Govt. Of NCT of Delhi &Ors., W.P.(C) 1977/2014

26. As recently as 8th April, 2024, this Court in W.P.(C) 7594/2018 titled as Court on its own motion vs. Union of India & Ors. had in an attempt to resolve the issue of multiplicity of authorities had directed that only one authority/agency should be placed in-charge of operation, maintenance and control of the storm water drains in the city so that problem could be resolved efficiently. This Court had also directed third party audits of a large number of tasks/works to be performed by all civic agencies prior to onset of monsoon. However, recent tragedies have shown that directions passed by this Court were not implemented in letter and spirit by the civic authorities and were treated like „water of a ducks back‟.

27. This Court had also highlighted in Jamia Arabia Nizamia Welfare Education Society vs. Delhi Development Authority Through Its Vice Chairman & Ors., W.P.(C) 638/2024 as to how ineffective the administrative apparatus had become in dealing with violations and breaches of law. In this case, while handing over investigation to the CBI, in a case of encroachment and illegal unauthorised construction, this Court had pointed out that despite sealing orders being in force, the property had been sold to a new purchaser and three more floors had been added without obtaining any permission/sanction from the MCD, and that too, within one hundred (100) meters of centrally protected monuments like “Nizamuddin Ki Baoli” and “Barakhamba Tomb”. This Court in the said case had also pointed out that due to multiplicity of authorities clear and cogent practice directions were required to be issued by the Commissioner, MCD and Vice-Chairman, DDA to resolve the issue of overlapping of jurisdictions. In the said order, this Court had observed as under:- “28. It is also strange that in today’s time MCD is continuing to use threads, tapes, strings and bandages to seal a property and is only normally puncturing the roofs partially in the name of demolition. No wonder, the sealing and demolition actions are having no deterrent effect. The Executive seems to be satisfied with the status quo and is unwilling to reform the system by using easily accessible technology like drones, satellite images, digital maps, etc. which would easily detect encroachment and unauthorized construction at such a massive scale.

29. Consequently, this Court directs the Vice-Chairman, DDA and Commissioner, MCD to put in place structural reforms and devise new strategies to deal with the menace of encroachment as well as illegal and unauthorized construction. Let the minutes of meeting be placed on record within eight weeks.” (emphasis supplied)

28. However, till date, this Court has not been informed of any structural reform/strategy having been devised by the civic authorities to demarcate their areas and to deal with the menace of encroachment as well as illegal and unauthorised construction effectively rather than in a „farcical way‟.

29. Moreover, in MCD, no contract worth rupees five crores has been awarded for more than a year, as there is no Standing Committee in place and the Commissioner‟s power to award contracts is limited to rupees five crores. If the capacity of drains in the area in question has to be brought at par with the present day requirement, then an amount much in excess of rupees five crores would have to be spent.

30. This Court in Social Jurist, A Civil Rights Group vs.

GNCTD & Ors., WPC 888/2024 where grievance of non-supply of writing material, text book, stationery items, school bags, scholarship, etc. in MCD schools was raised due to non-availability of Standing Committee had observed as under:-

Rs. Five crores has either been brought before the MCD House or cleared till date. Though, the Standing counsel for GNCTD blames the Commissioner, MCD, yet the Commissioner, MCD‟s note dated 18th September, 2023 and the MCD‟s Resolution dated 15th January, 2024, prove, beyond doubt, that there is a complete lock jam in the decision making process in the MCD.

30. Further, the suggestion mooted by the GNCTD and the Mayor, prima facie, seem unpractical as it virtually amounts to directing that all day to day decisions (instead of policy decisions) shall be taken by Parliament and not by the Cabinet. This Court also takes judicial notice of the fact that the current MCD House has hardly transacted any business in the last one year.

31. If the party in power in GNCTD believed in the solution suggested in the minutes of the meeting dated 15th January, 2024, nothing prevented it from moving a suo moto resolution in the MCD House authorizing the Commissioner to make payment for text books, writing material and uniform. Consequently, the submission of learned counsel for the GNCTD blaming other institutions amounts to nothing but „shedding of crocodile tears‟.

32. Moreover, the argument that taking „Houses consent would ensure democratic control‟ is a red herring as it is not the case of the respondents that such an expenditure should not be incurred. Their only submission is that the Commissioner, MCD at his own initiative should not award the contracts for free text books, writing material and uniform as it is beyond Rs. Five crores. Consequently, the real issue is of „power‟, „control‟, „turf dominance‟ and „who takes the credit‟.

33. There is ring of truth in the statement made by the Hon‟ble Minister of Urban Development, Mr. Saurabh Bhardwaj that any increase in financial power of Commissioner, MCD shall require the Chief Minister‟s approval. It amounts to an admission that the Delhi Government, due to absence of the Chief Minister is at a standstill.

34. A Chief Minister‟s post in any State, leave alone a buzzing capital city like Delhi is not a ceremonial post. It is a post where the office holder (when in office) has to be virtually available 24 x 7 to deal with any crisis or natural disaster like flooding, fire, disease etc. National interest and public interest demands that no person who holds this post is incommunicado or absent for a long stretch of time or for an uncertain period time.

35. To say that no important decision can be taken during a model code of conduct is a misnomer. Undoubtedly, no new policy decision can be taken but holders of Constitutional posts have to everyday take important as well as urgent decisions. For instance, issuance of free text books, writing material and uniform as well as replacement of broken chairs and tables in accordance with the existing policies in the MCD schools is an urgent and immediate decision which brooks no delay and which is not prohibited during the model code of conduct.

36. The decision of the Chief Minister, despite having been arrested, and his petition being dismissed by a learned Single Judge of this Court to continue to hold the position is his personal decision. However, it does not mean that if the Chief Minister is not available, the Fundamental Rights of young children would be trampled upon and they would go through the first term (1st April to 10th May) without free text books, writing material and uniform.

37. Consequently, this Court is of the view that non-availability of Chief Minister or non-formation of a Standing Committee or disputes pertaining to appointment of an aldermen by the Hon’ble LG or non-delivery of judgment by a competent Court or non-compliance of certain provisions of Delhi Municipal Corporation Act cannot come in the way of the school-going children receiving their free text books, writing material and uniform forthwith. xxx xxx xxx

39. Consequently, as the students of MCD schools are entitled for free text books, writing material and uniform in accordance with their constitutional and statutory rights, and the schools are going to close for summer vacations shortly, this Court directs the Commissioner, MCD to incur the expenditure required for fulfilling the said obligations forthwith without being constrained by the expenditure limit of Rs. Five crores. However, the expenditure incurred by the Commissioner, MCD shall be subject to statutory audit.” (emphasis supplied)

31. Even in GNCTD, getting new projects sanctioned is not easy as no Cabinet meeting has been held for a few months and there is no certainty when the next cabinet meeting shall be held.

32. In Delhi, we also have a statute, The National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011 which states that if unauthorised construction was complete prior to 1st January, 2006, then the civic authorities will not take any action against the illegal and unauthorised construction.

33. The financial health of civic agencies like MCD, if not, precarious is certainly not healthy. As recently as February, 2024, this Court in a writ petition filed as far back as 2017 being All Municipal Corporations Sanitation Supervisor Union vs. Govt. of NCT of Delhi & Ors., W.P.(C) 9480/2017 had directed that if the MCD failed to discharge its liability to pay Seventh Central Pay Commission benefits to its serving and retired employees, this Court would have no other option but to dissolve the MCD under Section 490 of the Delhi Municipal Corporation Act, 1957. It was only after the said order and on the pain of contempt that the outstanding salaries and pensions to serving and retired employees of MCD were cleared.

34. Recently, this Court in W.P.(C) 7594/2018 titled as Court on its own motion vs. Union of India & Ors. was informed by the DUSIB counsel that it has no funds to carry out repair, renovation and remodeling of infrastructures like drains at Madanpur Khader.

35. Consequently, this Court would not be wrong in concluding that civic agencies in Delhi have no funds to carry out major infrastructure developments like laying of new sewer trunks and segregating storm water drain from sewage drains.

36. Keeping in view the aforesaid, it is no wonder that Delhi is moving from one crisis to another. One day, there is a problem of drought and the next day there is a problem of flood. If rain water during the monsoon is appropriately stored, there would be no issue of drought next year. This Court is of the view that people of the city want „ease of living‟ in Delhi.

37. Consequently, this Court is of the opinion that the administrative, physical and financial infrastructure of Delhi „needs a re-look‟ by an expert body.

38. Though this Court was inclined to appoint an expert committee headed by Home Secretary, Union of India, yet at the insistence of Mr. Santosh Kumar Tripathi, learned standing counsel for GNCTD, this Court for the time being directs constitution of a Committee comprising Chief Secretary, GNCTD as Chairman, Commissioner (MCD), Vice- Chairman (DDA), Commissioner (Delhi Police) and Chairman (NDMC) as members. The said Committee is directed to submit its report containing suggestions within eight weeks.

39. The personal presence of Commissioner MCD as well as DCP and IO is dispensed with till further orders. Registry is directed to forward a copy of this order to the Director, CBI and Commissioner, Central Vigilance Commission for initiating the process of taking over the investigations from the Delhi Police in respect of the incident surrounding and leading to the unfortunate death of three young students forthwith. The Delhi Police is directed to forthwith handover all the relevant material and the records pertaining to the said incident carried out till date including the evidence gathered and other ancillary and incidental materials. The Delhi Police is further directed to facilitate and extend all cooperation to the CBI. The CBI shall carry out a full fledged investigation regarding the aforesaid incident, including but not limited to the criminal negligence, dereliction of duties, corrupt practices indulged in by any person including the officials of the local authorities. We expect all the local authorities to cooperate with the aforesaid investigations as three young lives were snuffed out apparently due to greed and/or negligence and/or failure to discharge duty.

40. List on 7th October, 2024.

ACTING CHIEF JUSTICE TUSHAR RAO GEDELA, J AUGUST 02, 2024 TS/AS