By IANS,
New Delhi : The Delhi High Court Wednesday ordered to dissolve court commissioners and a monitoring committee appointed by it to check unauthorised constructions in the capital.
A division bench of Justices Mukul Mudgal and Manmohan in its 21-page order said, “Appointment of court commissioners was for a time period and should not be considered permanently. So we are of the view that their appointment can be dissolved”.
The Municipal Corporation of Delhi (MCD) had challenged the court order for setting up the monitoring committee and appointment of court commissioners, stating that it was an encroachment into its executive powers. The Supreme Court held that it violated the basic structure of the constitution, which no constitutional authorities could do.
“The court commissioners have been appointed to give information to the courts and should not exercise its powers on the MCD,” the bench said.
The court directed the MCD to submit an action taken report within six months after which the court will decide whether the proposal given by the civic agency fulfills the requirement of checking mushrooming illegal construction in the capital.
The court asked the MCD to constitute a complaint cell, on the lines of one set up by Delhi Police, where people can file their complaints and the same should be transferred to the concerned officer within 24 hours.
The MCD in its affidavit before the court had suggested it would constitute a nodal committee for checking illegal constructions, which will have two units – one will book the property and the other will take action against it.
The court had reserved its order Aug 4 after hearing the arguments from court commissioners and the MCD.
“The monitoring committee, set up by the court, was an illegitimate body and delegation of powers to court commissioners for issuance of directions to demolish the illegal structure was against the law,” submitted MCD counsel and former law minister Ravi Shankar Prasad.
Hinting at the Supreme Court’s Dec 6 verdict, in which the Delhi High Court hearing on the MCD’s demolition drive was listed as one of the instances of “judicial overreach”, Prasad said the apex court had been long advocating a “healthy respect for each organ of the government”.
On March 23, 2006, the high court had appointed the monitoring committee with nine advocates as its members to oversee the demolition drive carried out by MCD. They were also empowered to issue directions to MCD officers for removal of illegal constructions.
Seeking modification of its earlier order, the MCD lawyer told the court that separation of powers is one of the basic structures of the constitution and setting up the monitoring committee was violative of the constitution.
“Can any court under the garb of judicial order violate the basic structure of the constitution?” Prasad asked.
“There is a clear demarcation of powers between the executive and the judiciary. This separation of powers has to be respected,” he told the bench.
He submitted that if parliament itself cannot interfere in judiciary’s turf, how can the courts “whittle down the concept of separation of powers in the guise of a judicial order”?
“The creation of a parallel power with the monitoring committee and the commissioners cannot be justified even if, admittedly, the MCD is not functioning properly.”
To drive his point home, the senior advocate argued: “If AIIMS (All India Institute of Medical Sciences) is not functioning properly due to a tiff between the director and the health minister, should a monitoring panel be formed to check on the running of the hospital?”
“If planes are not flying on time, should a monitoring panel be brought in…. Or if (the) eastern part of the country remains poor, should a committee be formed to monitor the annual budget?”
Concluding his argument, he said the court had empowered lawyers to issue directions to MCD officers for removal of illegal structure, which amounted to stepping into the executive’s domain.
During the last hearing, the lawyers had claimed that their appointment as court commissioners was well within the law.
Appearing before the division bench, counsel Kirti Uppal and Rakesh Khanna countered the MCD argument and said the appointment of nine advocates as court commissioners was legal.
They said the court was empowered to appoint commissioners and monitoring committee members for better implementation of the provisions of law.
The direction of the high court was not to substitute officers of the statutory authority (MCD) but to observe that the MCD officers strictly comply with the court’s order, they submitted.