Full Judgment Text
42
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 651/2011 & CM No.1381/2011 (for interim directions)
M/S UNIQUE INNOVATION PVT. LTD. ..... Petitioner
Through: Mr. Harish Malhotra, Sr. Adv. with
Mr. Neeraj Malhotra, Adv.
Versus
MCD ..... Respondent
Through: Mr. Ajay Arora & Mr. Kapil Dutta,
Advocates.
CORAM:
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
O R D E R
% 03.02.2011
nd
1. This order is in continuation of yesterday’s order i.e. of 2 February,
2011. In reply to the queries posed yesterday, the counsel for the
respondent MCD states that neither any second inspection was carried out
nor any order of sealing passed or served on the petitioner. He however
states that the action of sealing against the petitioner was in pursuance to the
th
inspection of 14 December, 2010 by the Members of the Monitoring
Committee appointed by the Supreme Court. He has in Court handed over a
copy of the file noting recording that the basement of the motel of the
WP(C) No.651/2011 Page 1 of 10
petitioner was found being used in contravention of MPD-2021/Building
Bye-Laws, 1983 and in view thereof notice under Section 345-A of the
DMC Act was approved to be issued to the petitioner. It is however
th
admitted that in the evening of 27 December, 2010 an unattested affidavit,
as appearing at pages 36 & 37 of the paper book was submitted by the
petitioner to the MCD.
2. It is further informed that since in the said affidavit the petitioner had
undertaken to use the basement for storage purposes only and which storage
purpose is also not permitted, the action of sealing as already scheduled for
th
28 December, 2010 was carried out. In this regard a copy of the
th
Notification dated 16 June, 1995 of the DDA is handed over prescribing
the use of basement sanctioned free from FAR, for purposes only of
airconditioning plant, filtration plant, electric sub-station, parking and other
essential services. On the basis thereof it is contended that the use to which
the petitioner undertook to put the basement i.e. of storage was also not
permitted use and hence no need was felt to carry out any other inspection
or pass an order and the basement was sealed.
3. The counsel for the respondent MCD has also contended that the
sealing action being in accordance with the directions of the Monitoring
WP(C) No.651/2011 Page 2 of 10
Committee appointed by the Supreme Court, this Court in accordance with
th
the judgment dated 11 October, 2007 of Division Bench of this Court in
W.P.(C) No.7109/2007 titled T.S.I. Displays P. Ltd. Vs. MCD ought to
refrain itself from entertaining this writ petition and the remedy of the
petitioner is either before the Monitoring Committee or before the Supreme
Court.
4. Though Section 345-A of the DMC Act does not prescribe issuance
of show cause notice but the Division Bench of this Court in Ahuja
Property Developers (P) Ltd. Vs. MCD 42 (1990) DLT 474 (DB) followed
also in Shrimati Shamim Bano Vs. MCD 2007 VIII AD (Delhi) 304 held
that Rules of natural justice have to be followed and a notice to show cause
required to be given before the sealing action under Section 345-A. The
th
notice dated 24 December, 2010 in the present case was given in
compliance of the said judgment. The relevant part of the said notice for
convenience is reproduced below:-
“WHEREAS, during the course of inspection along with
Members, Monitoring Committee (Apex Court) it has been
found that basement of motel known as Lutyens situated at
M.G. Road, Sultanpur, New Delhi is being used in total
violation of permission/sanctioned use of the said property and
also against the Master Plan-2021/Zonal Plan/Sanctioned
Plan/Modified Plan approved by DUAC & accepted by MCD
which amounts to misuse of premises.
WP(C) No.651/2011 Page 3 of 10
Now, therefore, I S.K. Midha, Deputy Commissioner,
Municipal Corporation of Delhi, South Zone, Green Park, New
Delhi in exercise of the power vested in me under Section 345-
A, of the Delhi Municipal Corporation Act, read with Section
491 of the Act and rules made thereunder, after considering the
reports placed before, me, hereby direct you to stop the misuse
and bring the premises within permitted use as per Master Plan-
2021 within 48 hours and also file an affidavit in the prescribed
format, failing which the premises under reference will be
sealed without further notice.”
th
5. In response thereto the petitioner submitted a reply dated 27
December, 2010 stating inter alia as under:-
“We have not built any extra construction in the
basement we have Storage & Services, however, we are given
to understand that a small portion of basement usage is not as
per the sanctioned which we have stopped with immediate
effect also to mention that we have adequate parking space
which exceed more than 350 cars and area approximate 1.5
acres.
We request your good self to condone our basement
sealing since we are submitting this affidavit as required and
stand committed to operate as per MCD Guide Lines.
I will abide by all the rules and regulation given by the
Hon’ble Supreme Court of India.
I will use the said premises only for permitted/sanctioned
use as storage purpose only.”
6. The petitioner also submitted an affidavit, the relevant extracts
whereof are as under:-
WP(C) No.651/2011 Page 4 of 10
“3. That pursuance to the said Notice. The deponent has
stopped/vacated the misuse of a small portion in the
aforesaid basement of the aforesaid property within
the 48 Hrs. and the deponent hereby undertake to use
the said basement as per sanctioned/permitted or in
accordance with the provision of Master Plan for
Delhi-2021.
4. That the deponent undertakes to use the said
premises only to permitted/sanctioned use as storage
purpose only.
5. That the deponent undertakes to abide by all orders
given by Hon’ble Supreme Court of India.
6. That the deponent also undertakes that he will above
by all the guidelines norms issued time to time
regarding above mentioned property/areas.”
7. A perusal of the aforesaid shows that in the show cause notice, it was
not specified that to what use the basement was being put and which was
found objectionable or to what use it should be put. No date also of
th
carrying out sealing on 28 December, 2010 as now argued, was intimated
or could be intimated inasmuch as the date of sealing could not possibly be
fixed while issuing a show cause notice inasmuch as that would defeat the
purpose of giving show cause notice and show a pre-determination on the
part of the respondent MCD to seal the basement.
8. As far as the argument of the counsel for the respondent MCD of the
petitioner having shown defiance by undertaking to use the basement for
WP(C) No.651/2011 Page 5 of 10
storage purposes and which is not permitted, is concerned, the reply and the
affidavit submitted by the petitioner have to be read in entirety. The
petitioner had clearly undertaken to bring the use of the basement in
conformity with the Master Plan and permitted user. Merely because the
petitioner while stating so also stated that the sanctioned use was storage,
did not entitle the respondent MCD to pick up that line only and on the basis
thereof seal the basement. Even if the respondent MCD was of the view
that the storage was not permitted, opportunity ought to have been given.
The petitioner ought to have been intimated of the same and if the petitioner
had failed to comply with the direction, then the respondent MCD would
have been entitled to seal the basement.
9. I am also unable to understand as to how the sealing action could
have been taken without passing an order. The law has provided for the
remedy of an appeal against the order of sealing. The said appeal has to be
filed against the order to be passed by the respondent MCD. The office
noting sheet handed over as aforesaid by the counsel for the respondent
th
MCD shows a noting of 28 December, 2010 to the effect that no reply had
been received from any of the motel owners. The said noting itself is
incorrect inasmuch as admittedly reply/affidavit had been received from the
petitioner. On the basis that no reply had been received, sealing action was
WP(C) No.651/2011 Page 6 of 10
approved. No order is shown to have been passed. The file notings cannot
take place of the order required to be made.
10. The aforesaid shows a total non application of mind on the part of the
respondent MCD in taking the sealing action. Once the Division Bench of
this Court has held that the Rules of natural justice apply and a hearing has
to be given, the respondent MCD could not without considering the reply or
passing any order thereon have sealed the basement of the petitioner.
11. It is also the contention of the petitioner in the present writ petition
that though at the time of sanction of construction, basement was not taken
into consideration for the purposes of FAR but under the revised norms, the
FAR has been increased and the basement is permitted to be used for all
purposes as allowed in a hotel and the basement is within the enhanced FAR
norms. The counsel for the respondent MCD of course controverts the said
plea. However the fact remains that the respondent MCD is not shown to
have applied its mind to the aforesaid matter, having not passed an order
and having sealed the basement merely on the premise that reply has not
been received.
12. Insofar as the argument of the counsel for the respondent MCD of the
remedy of the petitioner being before Monitoring Committee or the
WP(C) No.651/2011 Page 7 of 10
Supreme Court is concerned, the controversy in T.S.I. Displays (supra) is
also the subject matter of a Full Bench of this Court and which is still
pending. Even otherwise, the petitioner having been deprived of the hearing
which it is entitled to in law, I am of the opinion that the procedure
preceding sealing having not been followed, this Court is entitled to exercise
its power of judicial review under Article 226 of the Constitution of India.
The office noting sheet handed over does not show that the matter was put
up before or considered by the Monitoring Committee after the issuance of
the show cause notice.
13. The counsel for the respondent MCD has further contended that the
MCD is powerless in this regard and the pleas of the petitioner have to be
considered either by the Monitoring Committee or by the Supreme Court. It
is up to the MCD to place the representation and the matter before
appropriate authorities.
14. In the circumstances, the writ petition is disposed of with the
following directions:-
(i) The respondent MCD to immediately within 24 hours de-seal
the basement of the petitioner.
WP(C) No.651/2011 Page 8 of 10
(ii) The petitioner is however bound with its reply and the affidavit
and directed to use basement till the decision below mentioned for
permitted purposes only and to not use the same for any other
purposes.
(iii) The petitioner is also restrained from till then, parting with
possession or encumbering the said basement in any manner
whatsoever.
(iv) The MCD to treat the present writ petition also as part of the
reply of the petitioner to the show cause notice and to hear the
nd
petitioner on 22 February, 2011 at 1100 hours and on such further
dates as may be necessary and to pass a reasoned order thereon.
(v) In the event of the MCD after hearing the petitioner, finding a
case for sealing to have been made out, the petitioner shall be served
with a copy of the said order and unless there is stay from any Fora in
remedy if any availed by the petitioner thereagainst, the petitioner
shall not obstruct the sealing carried out after seven days of the
service of the said order on the petitioner.
WP(C) No.651/2011 Page 9 of 10
No order as to costs.
Copy of this order be given Dasti under the signature of the Court
Master.
RAJIV SAHAI ENDLAW, J
FEBRUARY 03, 2011/ bs
WP(C) No.651/2011 Page 10 of 10
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 651/2011 & CM No.1381/2011 (for interim directions)
M/S UNIQUE INNOVATION PVT. LTD. ..... Petitioner
Through: Mr. Harish Malhotra, Sr. Adv. with
Mr. Neeraj Malhotra, Adv.
Versus
MCD ..... Respondent
Through: Mr. Ajay Arora & Mr. Kapil Dutta,
Advocates.
CORAM:
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
O R D E R
% 03.02.2011
nd
1. This order is in continuation of yesterday’s order i.e. of 2 February,
2011. In reply to the queries posed yesterday, the counsel for the
respondent MCD states that neither any second inspection was carried out
nor any order of sealing passed or served on the petitioner. He however
states that the action of sealing against the petitioner was in pursuance to the
th
inspection of 14 December, 2010 by the Members of the Monitoring
Committee appointed by the Supreme Court. He has in Court handed over a
copy of the file noting recording that the basement of the motel of the
WP(C) No.651/2011 Page 1 of 10
petitioner was found being used in contravention of MPD-2021/Building
Bye-Laws, 1983 and in view thereof notice under Section 345-A of the
DMC Act was approved to be issued to the petitioner. It is however
th
admitted that in the evening of 27 December, 2010 an unattested affidavit,
as appearing at pages 36 & 37 of the paper book was submitted by the
petitioner to the MCD.
2. It is further informed that since in the said affidavit the petitioner had
undertaken to use the basement for storage purposes only and which storage
purpose is also not permitted, the action of sealing as already scheduled for
th
28 December, 2010 was carried out. In this regard a copy of the
th
Notification dated 16 June, 1995 of the DDA is handed over prescribing
the use of basement sanctioned free from FAR, for purposes only of
airconditioning plant, filtration plant, electric sub-station, parking and other
essential services. On the basis thereof it is contended that the use to which
the petitioner undertook to put the basement i.e. of storage was also not
permitted use and hence no need was felt to carry out any other inspection
or pass an order and the basement was sealed.
3. The counsel for the respondent MCD has also contended that the
sealing action being in accordance with the directions of the Monitoring
WP(C) No.651/2011 Page 2 of 10
Committee appointed by the Supreme Court, this Court in accordance with
th
the judgment dated 11 October, 2007 of Division Bench of this Court in
W.P.(C) No.7109/2007 titled T.S.I. Displays P. Ltd. Vs. MCD ought to
refrain itself from entertaining this writ petition and the remedy of the
petitioner is either before the Monitoring Committee or before the Supreme
Court.
4. Though Section 345-A of the DMC Act does not prescribe issuance
of show cause notice but the Division Bench of this Court in Ahuja
Property Developers (P) Ltd. Vs. MCD 42 (1990) DLT 474 (DB) followed
also in Shrimati Shamim Bano Vs. MCD 2007 VIII AD (Delhi) 304 held
that Rules of natural justice have to be followed and a notice to show cause
required to be given before the sealing action under Section 345-A. The
th
notice dated 24 December, 2010 in the present case was given in
compliance of the said judgment. The relevant part of the said notice for
convenience is reproduced below:-
“WHEREAS, during the course of inspection along with
Members, Monitoring Committee (Apex Court) it has been
found that basement of motel known as Lutyens situated at
M.G. Road, Sultanpur, New Delhi is being used in total
violation of permission/sanctioned use of the said property and
also against the Master Plan-2021/Zonal Plan/Sanctioned
Plan/Modified Plan approved by DUAC & accepted by MCD
which amounts to misuse of premises.
WP(C) No.651/2011 Page 3 of 10
Now, therefore, I S.K. Midha, Deputy Commissioner,
Municipal Corporation of Delhi, South Zone, Green Park, New
Delhi in exercise of the power vested in me under Section 345-
A, of the Delhi Municipal Corporation Act, read with Section
491 of the Act and rules made thereunder, after considering the
reports placed before, me, hereby direct you to stop the misuse
and bring the premises within permitted use as per Master Plan-
2021 within 48 hours and also file an affidavit in the prescribed
format, failing which the premises under reference will be
sealed without further notice.”
th
5. In response thereto the petitioner submitted a reply dated 27
December, 2010 stating inter alia as under:-
“We have not built any extra construction in the
basement we have Storage & Services, however, we are given
to understand that a small portion of basement usage is not as
per the sanctioned which we have stopped with immediate
effect also to mention that we have adequate parking space
which exceed more than 350 cars and area approximate 1.5
acres.
We request your good self to condone our basement
sealing since we are submitting this affidavit as required and
stand committed to operate as per MCD Guide Lines.
I will abide by all the rules and regulation given by the
Hon’ble Supreme Court of India.
I will use the said premises only for permitted/sanctioned
use as storage purpose only.”
6. The petitioner also submitted an affidavit, the relevant extracts
whereof are as under:-
WP(C) No.651/2011 Page 4 of 10
“3. That pursuance to the said Notice. The deponent has
stopped/vacated the misuse of a small portion in the
aforesaid basement of the aforesaid property within
the 48 Hrs. and the deponent hereby undertake to use
the said basement as per sanctioned/permitted or in
accordance with the provision of Master Plan for
Delhi-2021.
4. That the deponent undertakes to use the said
premises only to permitted/sanctioned use as storage
purpose only.
5. That the deponent undertakes to abide by all orders
given by Hon’ble Supreme Court of India.
6. That the deponent also undertakes that he will above
by all the guidelines norms issued time to time
regarding above mentioned property/areas.”
7. A perusal of the aforesaid shows that in the show cause notice, it was
not specified that to what use the basement was being put and which was
found objectionable or to what use it should be put. No date also of
th
carrying out sealing on 28 December, 2010 as now argued, was intimated
or could be intimated inasmuch as the date of sealing could not possibly be
fixed while issuing a show cause notice inasmuch as that would defeat the
purpose of giving show cause notice and show a pre-determination on the
part of the respondent MCD to seal the basement.
8. As far as the argument of the counsel for the respondent MCD of the
petitioner having shown defiance by undertaking to use the basement for
WP(C) No.651/2011 Page 5 of 10
storage purposes and which is not permitted, is concerned, the reply and the
affidavit submitted by the petitioner have to be read in entirety. The
petitioner had clearly undertaken to bring the use of the basement in
conformity with the Master Plan and permitted user. Merely because the
petitioner while stating so also stated that the sanctioned use was storage,
did not entitle the respondent MCD to pick up that line only and on the basis
thereof seal the basement. Even if the respondent MCD was of the view
that the storage was not permitted, opportunity ought to have been given.
The petitioner ought to have been intimated of the same and if the petitioner
had failed to comply with the direction, then the respondent MCD would
have been entitled to seal the basement.
9. I am also unable to understand as to how the sealing action could
have been taken without passing an order. The law has provided for the
remedy of an appeal against the order of sealing. The said appeal has to be
filed against the order to be passed by the respondent MCD. The office
noting sheet handed over as aforesaid by the counsel for the respondent
th
MCD shows a noting of 28 December, 2010 to the effect that no reply had
been received from any of the motel owners. The said noting itself is
incorrect inasmuch as admittedly reply/affidavit had been received from the
petitioner. On the basis that no reply had been received, sealing action was
WP(C) No.651/2011 Page 6 of 10
approved. No order is shown to have been passed. The file notings cannot
take place of the order required to be made.
10. The aforesaid shows a total non application of mind on the part of the
respondent MCD in taking the sealing action. Once the Division Bench of
this Court has held that the Rules of natural justice apply and a hearing has
to be given, the respondent MCD could not without considering the reply or
passing any order thereon have sealed the basement of the petitioner.
11. It is also the contention of the petitioner in the present writ petition
that though at the time of sanction of construction, basement was not taken
into consideration for the purposes of FAR but under the revised norms, the
FAR has been increased and the basement is permitted to be used for all
purposes as allowed in a hotel and the basement is within the enhanced FAR
norms. The counsel for the respondent MCD of course controverts the said
plea. However the fact remains that the respondent MCD is not shown to
have applied its mind to the aforesaid matter, having not passed an order
and having sealed the basement merely on the premise that reply has not
been received.
12. Insofar as the argument of the counsel for the respondent MCD of the
remedy of the petitioner being before Monitoring Committee or the
WP(C) No.651/2011 Page 7 of 10
Supreme Court is concerned, the controversy in T.S.I. Displays (supra) is
also the subject matter of a Full Bench of this Court and which is still
pending. Even otherwise, the petitioner having been deprived of the hearing
which it is entitled to in law, I am of the opinion that the procedure
preceding sealing having not been followed, this Court is entitled to exercise
its power of judicial review under Article 226 of the Constitution of India.
The office noting sheet handed over does not show that the matter was put
up before or considered by the Monitoring Committee after the issuance of
the show cause notice.
13. The counsel for the respondent MCD has further contended that the
MCD is powerless in this regard and the pleas of the petitioner have to be
considered either by the Monitoring Committee or by the Supreme Court. It
is up to the MCD to place the representation and the matter before
appropriate authorities.
14. In the circumstances, the writ petition is disposed of with the
following directions:-
(i) The respondent MCD to immediately within 24 hours de-seal
the basement of the petitioner.
WP(C) No.651/2011 Page 8 of 10
(ii) The petitioner is however bound with its reply and the affidavit
and directed to use basement till the decision below mentioned for
permitted purposes only and to not use the same for any other
purposes.
(iii) The petitioner is also restrained from till then, parting with
possession or encumbering the said basement in any manner
whatsoever.
(iv) The MCD to treat the present writ petition also as part of the
reply of the petitioner to the show cause notice and to hear the
nd
petitioner on 22 February, 2011 at 1100 hours and on such further
dates as may be necessary and to pass a reasoned order thereon.
(v) In the event of the MCD after hearing the petitioner, finding a
case for sealing to have been made out, the petitioner shall be served
with a copy of the said order and unless there is stay from any Fora in
remedy if any availed by the petitioner thereagainst, the petitioner
shall not obstruct the sealing carried out after seven days of the
service of the said order on the petitioner.
WP(C) No.651/2011 Page 9 of 10
No order as to costs.
Copy of this order be given Dasti under the signature of the Court
Master.
RAJIV SAHAI ENDLAW, J
FEBRUARY 03, 2011/ bs
WP(C) No.651/2011 Page 10 of 10