Dr KS Sugathan
JS(UT) Ministry of Home Affairs, North Block, New Delhi 110001
Sub: Request for clarification regarding s.490 (Dissolution of the Corporation) of Delhi Municipal Corporation Act, 1957.
I infer from information posted on websites of MHA and MUD under s.4(1)(b) of RTI Act, specifically as under, that matters relating to Central Government in respect of MCD fall in purview of MHA, except land and building byelaws that fall in purview of MUD:
- Document at http://mha.nic.in/rtia05.pdf, says under Allocation of Business Rules, 1961, subjects dealt with by MHA's Department of States include "all powers and functions of the Central Government as per the provisions of the Municipal Corporation of Delhi Act, 1957 and New Delhi Municipal Council Act, 1994 except matters pertaining to Land and Building Bye Laws" (para 7(a)(ii), p.5) and its UT Division "deals with all legislative and Constitutional matters relating to Union Territories including Delhi" (no.18, p.12).
- Document at http://urbanindia.nic.in/moud/publicinfo/Work_Distribution.pdf lists, under details of work handled by various Sections/Divisions of MUD, Unified Building Bye-Laws at item no.3 under Desk I-B of Delhi Division (p.29) and says that subjects allotted to MUD under Allocation of Business Rules, 1961, include Delhi Development Authority (no.3, p.3) and Administration of the Delhi Development Act, 1957 (no.31, p.4) (which covers matters pertaining to land and land use (including building use) and planning) and "Local Government, that is to say, the constitution and powers of the Municipal Corporations (excluding the Municipal Corporation of Delhi)..." (no.19, p.3).
On 01.08.05 MCD posted on its website the Regulatory Framework for Building Regulations for Delhi, being prepared since December 2003. This is in two parts: Indo-USAID-FIRE(D)Project-sponsored Amending Legislation and Building Byelaws (by two private firms) and MCD-sponsored Implementation Plan for Professional and Service Provider Rating Agency (by two private firms). The USAID-sponsored Building Byelaws and the MCD-sponsored Implementation Plan (and also so called Local Area Plans that MCD has commissioned to other private firms) proceed not from MCD Act but from presumption of modifications in it by the USAID-sponsored Amending Legislation, ie, the Delhi Municipal Corporation (Amendment) Bill, 2005. On 27.10.05 Delhi Government reportedly referred this curious Framework to MHA and on 07.11.05 MCD reportedly presented it to MHA. Enquiries through phone numbers available on MHA and MUD websites reveal that neither UT Legal Cell of MHA (which will process clearance for introducing the Bill that Delhi Government has yet to seek) nor Delhi Division of MUD (concerned with the content of the Bill) were present. This seems to make Delhi Government reference and MCD presentation to MHA wholly extraneous and publicizing of the same in the press continuing mis-information by which wide approval has been consistently claimed (one hopes falsely) for patently unconstitutional pursuit of a USAID-sponsored legislation under the garb of building byelaw reform.
If required I can send a clause-by-clause list of description of changes proposed by this scurrilous Bill for a self-speaking account of the true import of its content. However, what I wish to raise is the larger question of impropriety and illegality in the working of MCD that this two-year long exercise has clearly exposed. This question is best appreciated with reference to amendments made by Delhi Municipal Corporation (Amendment) Act, 1993, pursuant to the Constitution (69th Amendment) Act, 1991 (to form Delhi Government) and Constitution (74th Amendment) Act, 1992 - notably inserting in section on definitions a clause to define "Government" to mean Delhi Government, thereby bringing MCD under its control in many respects, and inserting in chapter XVI (Building Regulation) at beginning s.330A (general superintendence, etc, of Central Government) and at the end s.349A (powers of central government to make byelaws) with matching omission of Paragraph F pertaining to building byelaws from s.481 that sets out MCD's Powers to make byelaws.
These amendments by Delhi Municipal Corporation (Amendment) Act, 1993, are consonant with Articles 239AA, extent and manner of devolution contemplated by Article 243W and the Delhi Development Act, 1957, regime for land use planning, development and regulation (including regulation of building use as part of land use and of building through unified building byelaws). The USAID-sponsored Delhi Municipal Corporation (Amendment) Bill, 2005, on the other hand, is in contravention of all of these:
- Delhi Government / MCD initiative on this Bill - that essentially seeks to dismantle Delhi Development Act framework for land development and finance by transferring to Delhi Government control of land use by expanding scope of MCD occupancy permission to Building Use Permit and substituting MCD responsibility of improvement and re-housing in derelict areas with powers for all manners of schemes in name of Local Area Plans - is violative of Article 239AA that keeps land out of the purview of legislative powers of Delhi Assembly.
- MCD collaboration with USAID on this Bill - to claim independent role in matters that fall in purview not of Article 243W(a)(i) (preparation of plans for economic development and social justice) but 243W(a)(ii) (performance of functions and implementation of schemes in relation to matters listed in the Twelfth Schedule, with urban planning at the top), ie, matters for which implementation (not planning) role is contemplated for municipalities, to give effect to which central government role is specifically provided for by s.330A and s.349A in MCD Act - amounts to attempt to exceed central government control.
- The USAID-sponsored Bill - marking Delhi Govt / MCD preoccupation with empowering themselves rather than performing within available instrumentalities to give effect to Article 243W (the law contemplated by Article 243W(a) and Committees provided for by Article 243W(b) are in place in form of Delhi Development Act (which casts upon MCD responsibilities in respect of Master Plan implementation, with matching provisions in MCD Act) and Authority of the DDA, its Advisory Council and High Level Policy Committee for area-level planning provided for by Development Code (on all of which MCD is duly represented)) - seeks to legislate the problem of multiplicity.
If required I could send a long list of recent schemes, etc, of MCD / Delhi Government that are unmindful of the statutory Delhi Master Plan framework for equitable and efficient planned development under Central law. The indifference is sufficiently captured by the single fact that MCD Commissioner who was actively pursuing this other framework in the last weeks of his tenure did not make time to sit on the Board for Enquiry and Hearing for public hearings for Master Plan 2021 although quorum was not complete without him.
I do believe that two-year long and continuing pursuit of a patently unconstitutional USAID-sponsored Bill is proof that governance in Delhi has slipped out of the framework of the Constitution. An intuitive sense of justice impels me to seek clarification of scope and procedure in respect of s.490 of MCD Act ("Dissolution of the Corporation: (1) If, in the opinion of the Central Government, the Corporation persistently makes default in the performance of the duties imposed on it by or under this Act or exceeds or abuses its powers, the Central Government may by an order published, together with a statement of reasons therefore, in the Official Gazette, dissolve the Corporation"). I believe the two lists I have offered above illustrate both exceeding / abuse of power and persistent default on duties. I request you to kindly let me know of procedure, if any, by which I might urge / inform Central Government opinion under s.490 of MCD Act.
Gita Dewan Verma, Planner
B.Arch (SPA, gold medalist); M.Planning (SPA, gold medalist); PG Dip-Research (IHS-Rotterdam, top rank); Dip-Training (DoPT)
Formerly: Senior Fellow (HUDCO-HSMI), Visiting Faculty (SPA, TVB SHS), Consultant (DfID, IHSP, Nuffic, UNICEF, etc)
Currently: Independent researcher / writer and consultant to citizens' groups on MPISG and enterprises on AZ-Plan synergy platforms
cc: for information
- Commissioner, MCD
- Chief Secretary, GNCTD
- Joint Secretary (D&L), MUD