NORTH DELHI MUNICIPAL CORPORATION vs. DCM LIMITED & ANR.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 07.09.2017

% Judgment delivered on: 30.08.2018

+ LPA 487/2017 and C.M. No. 25528/2017
NORTH DELHI MUNICIPAL CORPORATION ..... Appellant
Through: Mr. Ajjay Aroraa, Mr. Kapil Dutta &
Ms. Diksha Lal, Advocates.

versus

DCM LIMITED & ANR ..... Respondents
Through: Mr. Arvind Nigam, Senior Advocate
along with Mr. Pratik Malik,
Mr.Vaibhav Mishra & Ms. Akriti
Tyagi, Advocates for respondent
No.1/ DCM Ltd.

Mr. Dhanesh Relan, Standing
Counsel and Mr. Harshit Maniktala,
Ms. Isha Garg & Ms.Gauri
Chaturvedi, Advocates for respondent
No.2/ DDA.

Mr. P.C. Sharma, Advocate along
with Mr. Ramesh Nag, Coordinator,
of respondent No. 2 Monitoring
Committee of Supreme Court of
India.

CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE REKHA PALLI

JUDGMENT
LPA 487/2017 Page 1 of 46





VIPIN SANGHI, J.

1. The North Delhi Municipal Corporation (NDMC) has preferred the
present Letters Patent Appeal to assail the order dated 26.05.2017 passed by
the learned Single Judge in WP(C) No. 4764/2017. By the impugned order,
the writ petition preferred by the respondent – DCM Ltd. (DCM) has been
allowed. The background in which the present appeal has been preferred by
the NDMC may now be narrated.

2. The respondent-DCM was running a textile mill on its land situated at
Bara Hindu Rao, Kishan Ganj area, which is a parcel of approximately 63
acres. The said textile mill was constructed in the year 1889 in an area of
approximately 24.55 acres. The said property also had a residential colony
covering areas of 26.90 and 11.78 acres respectively.
3. After the Delhi Development Authority (DDA) was set up under the
Delhi Development Act, 1957 - with the objective of carrying out planned
development of Delhi, the first Master Plan as prepared by the DDA was
enforced in 1962. Under the said Master Plan of 1962, the respondents‟ use
of its said property as a Mill became non-conforming land use.
Consequently, the respondent-DCM submitted a detailed proposal for
shifting of the Mill and re-development of the Mill area for group housing
and Flatted Factory Complex in the year 1982, which was in conformity
with the Master Plan of 1962. The DDA granted its approval to the proposal
of DCM for re-development of the land into group housing complex and
flatted factories vide resolution No. 26 dated 01.02.1983.
LPA 487/2017 Page 2 of 46




4. The respondent DCM submitted its layout plan for setting up of
Flatted Factory Complex i.e. DCM Techno Plaza (in an area of approx 24.55
acres) at Bara Hindu Rao, Delhi, and a group of residential housing complex
known as DCM Green Acres (in an area of approx. 26.90 and 11.78 acres) at
Kishan Ganj, Delhi. However, the efforts of respondent-DCM to close the
textile factory met with resistance from different quarters. Eventually, DCM
was able to finally shut down the Mill. However, the DDA withdrew its „No
Objection‟ for re-development of the said land by DCM vide resolution
dated 01.08.1986.
5. DCM assailed the said withdrawal of „No Objection‟ by preferring
Writ Petition (C) No. 2687/1986 before this Court. Vide judgment dated
22.05.1987, the said resolution dated 01.08.1986 of the DDA was quashed
by this Court. The right of DCM to re-develop the land at Bara Hindu Rao
and Kishan Ganj, in terms of the „No Objection‟ granted in the year 1983
was upheld. The decision of this Court in WP(C) No. 2687/1987 was
assailed by the DDA, as well as by the Union of India, before the Supreme
Court by preferring SLPs. In those proceedings, the Municipal Corporation
of Delhi (MCD) was impleaded as a party respondent by the Supreme Court.
6. During pendency of the said SLPs, on 24.11.1989 the MCD vide
resolutions Nos. 1136 and 1137 approved the lay out plan proposed by the
respondent DCM qua the Bara Hindu Rao and Kishan Ganj areas. As per
the lay out plans, Bara Hindu Rao area was to be developed into a Flatted
Factory Complex, and Kishan Ganj area was to be developed into a Group
Housing Complex.
LPA 487/2017 Page 3 of 46




7. Before the Supreme Court, the DDA raised several objections to grant
its approval to the development of its land by the respondent DCM. The
Supreme Court, while dismissing the SLP/Civil Appeals vide judgment
dated 13.03.1990 [reported as (1990) 2 SCC 371], took note of the said
objections and, inter alia, observed as follows:
“The DDA thus requires the aforesaid objections to be first met
before it could give its final approval. It is worthy of record
that under interim directions of this Court, afore referred to, its
approval shall proceed after the disposal of these appeals. And
we feel that time for that purpose has arrived.
Having heard learned counsel for the parties and having
taken note of the objections above referred to, we take the view
that the appeals be dismissed conveying a direction that the
DDA shall grant to the DCM conditional approval subject to
removal of the above enumerated objections raised or such of
them as are valid and tenable in law after DCM is heard by
the Municipal Corporation of Delhi which the DDA has
adopted and the matter be formalized forthwith by the DDA
and other authorities connected therewith within eight weeks
from today so that the settlement between the workers and the
DCM and other matters connected do not stagnate and rather
move further to the benefit of all concerned. It appears that to
the 6000 workmen the grant of such approval even though
conditional, would be beneficial; so are the terms of the
settlement.
Saddling the order appealed against with the above
direction we dismiss these appeals. No costs.” (emphasis
supplied)
8. One of the objections raised by the DDA during the course of
implementation of the judgment dated 13.03.1990, was that the DCM should
file an amended or modified plan so as to conform to the Master Plan of the
LPA 487/2017 Page 4 of 46




year 2001. The Supreme Court rejected the said objections of the DDA vide
its judgment dated 01.05.1991 [reported as DDA Vs. DCM Ltd & Others ,
(1991) 2 SCR 590] by observing as follows:
“At the outset, we put it beyond any doubt and re-affirm that
the DDA stands directed by this Court to grant to the DCM
approval, even though conditional, and the DCM stands
impliedly directed and is duty bound to remove the objections
as were valid and tenable in law as raised by the DDA within
its domain. Having gone thus far there is no retreat of it
contemplated. It is further to be understood that this Court had
endorsed by means of this directive the already known views of
the Delhi High Court towards restoring resolution of the DDA
dated February 1, 1983, whereby the scheme as given by the
Delhi Cloth Mills was approved in terms thereof. And
obviously the approval came from the DDA at a time when the
Master Plan of the year 1962 was operative and the one of the
year 2001 was not existant, and if at all existant in an
embryonic stage. The law governing the object and the rules
and regulations then in vogue and applicable were deemingly
kept in view and applied by the DDA in the approval of the
scheme. To whittle down the effect of that resolution on the
emergence of the new Master Plan of the year 2001, made
applicable after the orders of this Court would, at the present
stage, if insisted upon be spelled out as a step to undermine
the orders of this Court. Such an objection by the DDA when
raised before March 13, 1990, the day when we passed
judgment, was untenable in law and the DDA should have
known it before putting such an objection to use. For this
reason, we repel the first objection of the DDA and require of
it to stick to the position as per Master Plan as existing on
February 1, 1983. This objection is thus surmounted.”
(emphasis supplied)
9. It appears that the endeavour of the respondent DCM to raise
construction ran into litigation with the builders. The construction was,
LPA 487/2017 Page 5 of 46




however, completed and completion certificates were obtained in respect of
Complex A, B and D of Flatted Factory Complex at Bara Hindu Rao. Sale
deeds and possession letters were also issued to the buyers of the units.
10. The DDA enforced the new Master Plan-2021 (MPD-2021) w.e.f.
07.02.2007. The MPD-2021 permitted the change of use of Industrial
units/plots to commercial use. Note (vi) to Table 7.3 of Development
Control Norms was amended on 12.08.2008. Post amendment, the same
reads:
“Industrial units/plots abutting road of 24m ROW and above
shall be eligible for conversion to commercial use within the
existing development control norms, subject to payment of
conversion charges as prescribed by government from time to
time. The activities permissible in local shopping centres will
be permitted in such plots. In addition, multilevel parking shall
be permissible activity. However, this shall not be permitted
on non-conforming/regularized industrial cluster. The above
provision shall not affect the Supreme Court orders in any
way.” (emphasis supplied)
11. The NDMC came out with an Office Order dated 07.06.2010
prescribing the conversion charges for conversion from industrial to
commercial/banquet halls use.
12. The respondent-DCM then approached the NDMC vide letter dated
26.04.2011 to seek conversion of Flatted Factory Complex to
commercial/banquet halls. The said request was rejected on 02.09.2011.
Yet another representation was made by DCM to NDMC on 27.02.2013.
The said request of DCM was taken up in a meeting chaired by the Vice
Chairman of the DDA on 21.10.2013. In the said meeting, the Monitoring
LPA 487/2017 Page 6 of 46




Committee (MC) appointed by the Supreme Court raised certain issues. The
DDA sought the opinion of the Solicitor General of India who, vide his
opinion dated 01.05.2014, opined that the Flatted Factory Complex of DCM
would be eligible for change of user to „commercial‟ under MPD-2021. The
Solicitor General of India also examined the judgment of the Supreme Court
dated 01.05.1991, and re-affirmed his opinion as aforesaid.
13. Since the application of DCM for conversion of user from “Flatted
Factory Complex” to “Commercial” was not being actioned, DCM
preferred Writ Petition (C) No.10104/2016 to seek a direction to the
authorities to grant them the benefit of MPD-2021, and to allow the change
of user from “Flatted Factory Complex” to “Commercial”. The said writ
petition was disposed of on 06.01.2017, with a direction to the NDMC to
decide the representation of DCM in accordance with law.
14. The NDMC, after some amount of delay, and after DCM preferred a
contempt petition, passed the detailed order dated 20.04.2017 wherein it
conveyed the following decision/ conclusions:
“CONCLUSION:-
The Committee, after considering all the records placed before
it and after detailed discussions and deliberations, has arrived
at the opinion, on the basis of the advice rendered by DDA
(which is competent and final authority for interpretation of
Master Plan) vide its note dated 01.09.2014, read with opinion
of Solicitor General dated 02.05.2014 and 06.05.2014 that the
provisions of MPD 2021 would have been extended to the
instant case of conversion of DCM flatted factory complex
into the Commercial Complex; but no orders to this effect are
being passed as the above said case of DCM Flatted Factory
LPA 487/2017 Page 7 of 46




Complex has been under the consideration of Monitoring
Committee constituted by Hon’ble Supreme Court of India in
W.P.(C) no. 4677/1985 titled M.C.Mehta Vs. UOI & Ors., and
in terms of Hon’ble Supreme Court orders dated 03.01.2012
in the said case, no orders to this effect can be passed .”
(emphasis supplied)
15. Thus, while the DDA and the NDMC were both of the view that
DCM was entitled to seek conversion of the user from “Flatted Factory
Complex” to “Commercial” in terms of MPD-2021, but no orders to that
effect were passed by them, on the premise that the case of DCM Flatted
Factory Complex was under the consideration of MC constituted by
Supreme Court of India, and in terms of Supreme Court orders dated
03.01.2012 (reported as (2012) 11 SCC 759 ) in the said case, no orders to
this effect could be passed.
16. Aggrieved by the rider contained in the order dated 20.04.2017,
passed by the NDMC – taken note of hereinabove, the respondent DCM
preferred the writ petition wherein the impugned judgment came to be
passed. Along with the writ petition, the respondent placed on record a
notice dated 12.05.2017 issued to the owner/ occupier by the NDMC
alleging violation of the provisions of MPD-2021 Clause 15.9 for misuse.
This clause, inter alia, makes it obligatory for owner/ allotee/ resident of the
dwelling unit to pay the mixed use charges. The said notice was issued by
the Deputy Commissioner, Sadar Paharganj Zone, NDMC, wherein it was
alleged:
“that the portion of the Flatted Factory Complex at Bara Hindu
Rao is used for commercial purpose against the sanctioned use
of Flatted Factory (Industrial Activity). The Ground Floor &
LPA 487/2017 Page 8 of 46




First Floor/ Part of the said Building in Block B is being used
at the instance of the owner/occupier Sh./Smt. Sumat Kumar for
Commercial purposes thereby running a trade in the name &
style of Pure Earth (Office).”
17. Before the learned Single Judge, the respondent DCM, firstly,
questioned the jurisdiction and powers of the MC in the matter of raising
objections to the conversion of the user of the respondent‟s aforesaid
property in conformity with MPD-2021. In this regard, respondent DCM
placed reliance on the decision of the Supreme Court in M.C.Mehta Vs.
Union of India 2013(16) SCC 336, whereby the powers of the M.C. were
confined to making a recommendation to the authorities concerned to prefer
writ petitions before the High Court to assail orders passed in respect of
desealing of premises. The respondent DCM contended that the MC had no
jurisdiction to object to the conversion of the “Flatted Factory Complex” to
“Commercial” use. It was contended that the MC had a limited role i.e. to
point out cases where there was any non-conforming user.
18. The learned Single Judge, while accepting the said submission of the
writ petitioner DCM, concluded that the Supreme Court has confined the
power of the said MC only to recommend to the authorities concerned to
have recourse to law against desealing orders, and if any non-conforming
use is found, then to recommend to the authorities concerned to take
recourse to law, as available.
19. In support of the said conclusion, the learned Single Judge relied upon
a co-ordinate Bench decision rendered in Babu Ram Singla Vs. East Delhi
Municipal Corporation & Ors (WP(C) No. 4345/2015 decided on
13.01.2017), wherein, while dealing with the powers of the M.C. in a case of
LPA 487/2017 Page 9 of 46




sealing of premises, the learned Single Judge observed that the Supreme
Court had granted only recommendatory powers to the M.C. i.e. to
recommend to the Corporation to file a petition in the High Court against the
order of de-sealing, and the M.C. did not have any power to issue any
mandatory directions. The learned Single Judge also observed that the
directions contained in the rider aforesaid – as contained in the order dated
20.4.2017, being in mandatory terms-to prohibit the conversion of the
“Flatted Factory Complex” to “Commercial Complex”, was unwarranted
since the respondent‟s case was neither of sealing, nor of de-sealing, nor of
non-conforming use of the said property.
20. Consequently, the aforesaid rider contained in the order dated
20.04.2017 passed by the NDMC was rendered inoperative. The learned
Single Judge declared that the order dated 20.04.2017 was operative to grant
permission for change the user of the respondent‟s “Flatted Factory
Complex” to “Commercial complex”.
21. In the present appeal preferred by the NDMC, the appellant states that
it received request from the MC dated 09.06.2017, to challenge the
impugned order passed by the learned Single Judge. The appellant also
states that, “ being aggrieved by the order passed by the learned Single
Judge and in consonance with the request of the Monitoring Committee, the
present appeal is being preferred for setting aside the orders of the learned
Single Judge………. ”
22. When the appeal was taken up for hearing on 21.07.2017, this Court
was of the view that the MC should be put to notice and heard in the matter,
LPA 487/2017 Page 10 of 46




since the appeal had been preferred in pursuance of their communication
dated 09.06.2017 to the NDMC. Moreover, the issue of the powers/
jurisdiction of the MC to issue directions in matters related to conversion of
user – in terms of MPD-2021, also arose for consideration. Accordingly,
MC was directed to be served for 26.07.2017. The matter was further
adjourned to 28.07.2017 when the counsel for the MC put in appearance.
On 28.07.2017, counsel representing the MC was called upon to address the
Court on the scope of its authority and jurisdiction in relation to conversion
of land use from “industrial” to “commercial”. The matter was adjourned
and, eventually, came up before this Bench on 29.08.2017. The MC filed its
reply/ status report on record. Mr. Ajay Arora, representing the NDMC
stated that the stand of the appellant is contained in the speaking order dated
20.04.2017 and, therefore, he did not wish to file any further response.
Thereafter, the matter was heard at length on 07.09.2017 and judgment
reserved.
23. While the judgment was under preparation, the premises of DCM was
sealed on the instructions of the MC. Consequently, DCM moved C.M. No.
1273/2018, which was allowed vide order dated 27.02.2018, after notice to,
and hearing the MC and the NDMC.
24. Mr. Nigam, learned senior counsel for the respondent DCM has raised
a preliminary objection, that the MC has no jurisdiction to interdict, by
issuing mandatory orders, in matters relating to conversion of land use in
terms of MPD-2021. Mr. Nigam submits that the MC is a creature of the
orders passed by the Supreme Court and its jurisdiction was confined by the
Supreme Court while passing its orders dated 03.01.2012 (reported as
LPA 487/2017 Page 11 of 46




(2012) 11 SCC 759 ) and dated 30.04.2013 [reported as (2013) 16 SCC 336 ].
He submits that the powers of the MC are recommendatory in nature and do
not envisage issuance of mandatory directions to the NDMC to decline the
Conversion application of this respondent. He submits that the Supreme
Court has further clarified that the actions of the MC are also liable to be
suitably changed/ altered/ modifiable by this Court, and the sealing actions
undertaken by the Corporations consequent upon recommendations of the
MC, have been remitted to the Tribunals. The MC has a right of audience
before the Tribunals. Should the MC be aggrieved by the decision of the
Tribunals, they can also recommend the filing of Appeal / Writ. Mr. Nigam
submits that the MC is seeking to usurp the powers of both - the DDA and
the NDMC by obstructing the valid and legal conversion of the user of the
Flatted Factory Complex from “Industrial” to “Commercial” in terms of the
MPD-2021.
25. Mr. Nigam also places reliance on the judgment of this Court in Babu
Ram Singla (supra), wherein the scope of powers of the MC was ruled
upon, by observing that the said powers were only recommendatory. That
order has attained finality.
26. The threshold issue that arises for consideration of this Court is with
regard to the jurisdiction and authority of the MC to object to, or to issue
directions in relation to conversion of user of a premises under the Master
Plan. We, thus, proceed to consider the issue whether the MC appointed by
the Supreme Court had the authority and jurisdiction to raise an objection to
conversion of land use from “Industrial” to “Commercial”, when an
LPA 487/2017 Page 12 of 46




application for such conversion was made to the Municipal Corporation on
the basis of the provisions contained in the MPD-2021.
26.1 The present MC is the creation of the Supreme Court vide its decision
rendered on 24.03.2006 reported as M.C. Mehta v. Union of India &Ors. ,
(2006) 3 SCC 429 . The background in which the MC was constituted was
that, earlier, the Supreme Court issued directions on 07.05.2004 ( M.C.
Mehta v. Union of India & Ors . , (2004) 6 SCC 588) with regard to
stoppage of industrial activity in residential/ non-conforming areas in Delhi.
The Supreme Court also constituted a Monitoring Committee- different
from the one presently empowered, comprising of: (i) Chief Secretary of
Delhi, (ii) Commissioner of Police, Delhi (iii) Commissioner MCD, and (iv)
Vice Chairman, DDA. The committee was made responsible to stop illegal
industrial activity in Delhi.
26.2 Despite issuance of public notices, the misuse did not stop. On
16.02.2006 (vide judgment reported as M.C. Mehta v. Union of India &
Ors. , (2006) 3 SCC 399), the Supreme Court addressed the issue of blatant
and large scale misuse of residential premises for commercial purposes. The
Supreme Court held that the MCD, under the DMC Act, has the power to
seal the premises in case of its misuser - under Section 345A of the DMC
Act. It further held the power to seal the premises - on account of misuse,
did not vest in the DDA. The Supreme Court, inter alia, directed that the
MCD shall, within ten days, give wide publicity in leading newspapers
directing major violators on main roads to stop misuse of their own, within
thirty days. It further directed that in case misuser is not stopped, sealing of
the premises shall commence after thirty days from the date of the public
LPA 487/2017 Page 13 of 46




notice, first taking up the violations on roads which are 80 feet wide and
more.
26.3 Since the issuance of the public notices had no impact either on the
user of the premises, or on the concerned authorities, the Supreme Court
vide its decision dated 24.03.2006 (reported as M.C. Mehta v. Union of
India & Ors. , (2006) 3 SCC 429) appointed the present MC consisting of
three learned members, namely, Mr K.J. Rao, Former Advisor to the
Election Commissioner, Mr Bhure Lal, Chairman, EPCA and Major General
(Retd.) Som Jhingan. A careful scrutiny of this order passed by the Supreme
Court provides insight about the mandate of the MC appointed by the
Supreme Court. The relevant extract from the decision dated 24.03.2006 in
respect of the constitution of the MC reads as follows:
“ 4. In order to oversee the implementation of the law,
namely, sealing of offending premises in terms of the letter
and spirit of this Court's directions, it is necessary to appoint
a Monitoring Committee instead of leaving any discretion
with the officers of MCD . Accordingly, we appoint a
Monitoring Committee comprising of Mr K.J. Rao, Former
Advisor to the Election Commissioner, Mr Bhure Lal,
Chairman, EPCA and Major General (Retd.) Som Jhingan. We
direct that all necessary facilities shall be supplied by MCD to
the members of the Monitoring Committee, including the
facility of transport, secretarial services, honorarium, etc. ”.
(emphasis supplied)

26.4 It was pointed out to the Supreme Court that in respect of some roads
in some areas, partial commercial user is allowed under the laws. The
Supreme Court directed the MCD to point out and file details of such roads-
where partial commercial user was allowed before the MC, which may
LPA 487/2017 Page 14 of 46




permit the MCD not to seal the premises in such areas, for the present,
subject to further orders that may be passed by the Court.
26.5 The Supreme Court was also informed by the learned amicus curiae
that there would be few cases where commercial user may have commenced
prior to September 1962 - when the DD Act came into force, and such user
may be protected by proviso to Section 14 of the DD Act. The MCD was
directed to place before the MC the affidavits filed by occupants of
properties, who claim benefit of proviso to Section 14 of the DD Act. Upon
the affidavit being filed as per the direction of the Supreme Court, the MC
was entitled to direct the MCD not to seal such premises (in respect whereof
the benefit of proviso to Section 14 of the DD Act was claimed) on the basis
of the affidavit.
26.6 The Supreme Court granted time to all to stop misuser up to
30.06.2006, subject to the concerned person filing the affidavit of
undertaking to stop the misuser by the said date, and undertaking that no
further extension on any ground whatsoever, shall be asked for. The benefit
of extension of time was only available to those who filed the affidavit on or
before 28.03.2006. In respect of the premises for which affidavits were not
filed, it was directed that the process of sealing shall commence from
29.03.2006 in the first phase. The sealing was to continue, notwithstanding
any order passed by any Court. The affidavits filed in terms of the order of
the Supreme Court were directed to be forwarded by the MCD to the MC.
26.7 What emerges from the order dated 24.03.2006 is that, firstly, the MC
was formed to oversee the implementation of the law, namely, sealing of
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offending premises in terms of the letter and spirit of the earlier directions
issued by the Supreme Court. While the initial orders dealt with the use of
non-industrial premises for industrial user, the subsequent orders
emphasised the need to stop the misuser of residential premises which were
used for commercial/ non-conforming purposes. The MC was appointed to
act in the matter of sealing of offending premises, instead of leaving it to the
discretion of the officers of the MCD. Secondly, the MC was expected to
act in terms of the information provided by the MCD in relation to roads/
areas/ buildings wherein partial commercial user was permitted under the
law. The Supreme Court did not bring it within the scope of the authority of
the MC to undertake the exercise of examining, for itself, whether on a
reading of the relevant bye laws/laws, the premises situated on certain roads,
and in certain areas, were entitled to mixed land use. Thirdly, even in
respect of premises - user whereof was protected by proviso to Section 14 of
the DD Act, the MC was not mandated to undertake the exercise of
conducting an inquiry, or adjudication, whether the claim made by the
owner/ occupier of such premises was justified, or not. Fourthly, it was
made obligatory for the MCD to forward to the MC the affidavits that may
be filed by the owners/ occupiers in terms of the said order, so that the MC
is able to identify the premises which require to be sealed immediately i.e.
from 29.03.2006 onwards. The issue, whether in respect of a particular
property, conversion of land-use-in terms of the Master Plan, could be
sought, or not, did not even remotely arise for consideration, and thus, there
was no occasion to even consider the aspect of empowering the MC to
consider the said aspect.
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27.1 The next significant development which took place in relation to the
powers and working of the MC took place with the passing of the order
dated 03.01.2012 by the Supreme Court (reported as M.C. Mehta v. Union
of India , (2012) 11 SCC 759). By this order, while dealing with report
No.85, furnished by the MC, the Supreme Court directed that:
“3. Till the matter is heard by the Court, the
Monitoring Committee shall not order further sealing
of the premises which are under its scrutiny. We also
direct that no construction, temporary or permanent,
shall be made on the premises which have been the
subject– matter of scrutiny of the Monitoring
Committee and no order shall be passed by the
Government or any authority regularising such
construction or sanction the change of user .
4. The Delhi Development Authority, New Delhi
Municipal Corporation and Municipal Corporation of
Delhi are directed to ensure that no encroachment is
made on any public land, whether belonging to the
Government or any public authority. They shall also
ensure that no illegal construction is made on any of the
properties which has been the subject– matter of scrutiny
by the Monitoring Committee.
5. The Monitoring Committee shall be entitled to
inspect the premise in which any illegal construction
may have been made after this order or any
encroachment on public land or regularisation and if
necessary submit report to this Court .
6. Any person desirous of getting a copy of any
report of the Monitoring Committee may make an
application to the Monitoring Committee and the
required report be furnished to the applicant within a
period of ten days on payment of usual charges. It is also
made clear that any party shall be free to file an
LPA 487/2017 Page 17 of 46




appropriate application before the Monitoring
Committee for its consideration and appropriate order.”
(emphasis supplied)
27.2 Thus, the authority of the MC to order further sealing of premises
which were under its scrutiny was withdrawn by the Supreme Court. In
respect of premises which were subject matter of scrutiny of the MC, no
order could be passed by the Government, inter alia, to sanction the change
of user. The DDA, the New Delhi Municipal Committee, and the MCD
were directed to ensure that no illegal construction is made in any property
which has been the subject matter of scrutiny by the MC. The MC was
empowered to inspect the premises in which illegal construction may have
been made; in which encroachment of public land may have taken places,
and; in respect of which regularisation may have been granted, after the
passing of the said order dated 03.01.2012. Thus, apart from directing that
the MC shall not order further sealing of premises which were under its
scrutiny, the order dated 03.01.2012 centered around those properties which
were the subject matter of scrutiny of the MC as on the date of the passing
of the said order.
28.1 On 30.04.2013, the Supreme Court vide the order reported as M.C.
Mehta v. Union of India & Ors. , (2013) 16 SCC 336 remitted to this Court
for its consideration the challenge raised to parliamentary enactments,
namely, the Delhi laws (Special Provision Act), 2006 and subsequent laws
which virtually extended the provisions of the Act, and the connected
interim applications - with a request, that the matter be heard on an early
date, preferably within 1 year from the date of receipt of entire record and
papers. The order dated 03.01.2012 (reported as (2012) 11 SCC 759) , was
LPA 487/2017 Page 18 of 46




declared to be of continuing nature. It was directed that the same should be
perceived accordingly. The Supreme Court also held that the reports filed by
the MC after the order dated 03.01.2012 may also be separately considered
by the High Court.
28.2 Pertinently, the Supreme Court observed in this order that it had
appointed the MC for looking into the aspect of sealing of the premises
which were being put to non- confirming user. Thus, the scope of mandate
of the MC was reiterated by the Supreme Court once again i.e. to look into
the aspect of sealing of premises which were being put to non-confirming
user.
28.3 Against the sealing of premises ordered by the MC, a large number of
applicants had approached the Supreme Court, praying for de-sealing of
their premises. The Supreme Court directed that the orders for sealing
passed by the MC, and sealing undertaken thereunder, shall be deemed to
have been passed by the statutory authorities concerned, in exercise
conferred under Section 345 A of the MCD Act, or under Section 250 of the
NDMC Act, or in terms of Section 31A of the Delhi Development Act. The
interim applications pending before the Supreme Court for de-sealing of
premises were directed to be treated as appeals under the respective Acts
before the respective Tribunal constituted under those Acts. The Registry
was directed to transmit the pending applications to the respective Tribunals
of the MCD, New Delhi Municipal Committee and DDA, and the respective
Tribunals were directed to hear and decide the applications, as appeals,
preferred against orders of sealing on their own merits in accordance with
law.
LPA 487/2017 Page 19 of 46




28.4 The reports prepared by the MC as regards all such interim
applications (seeking de-sealing of the premises), were directed to be placed
before the concerned Appellate Tribunal and the MC was given a right of
representation through a panel lawyer before the Tribunal concerned. The
Supreme Court further directed that, in case the Tribunals decide in favour
of the applicants, it would be open to the MC to recommend to the MCD/
NDMC/ DDA to prefer writ petitions before the High Court for assailing the
orders passed in favour of the applicants.
28.5 Thus, it would be seemed that when the issue with regard to the
conversion of the Flatted Factory Complex to commercial use was being
considered in 2013, even the primary mandate of the MC to order sealing of
any premises on account of misuser had been withdrawn. Its mandate was
limited to inspect the premises in which any illegal construction may have
been made, or any encroachment on public land may have been undertaken,
or regularization may have been made by the concerned authority, and to
submit a report in that regard to the Supreme Court. The decisions/ orders
passed by the Supreme Court from time to time - right from the inception
when the present MC was appointed, till the time when the MC raised its
objections to DCM‟s proposed conversion of the user from Flatted Factory
Complex to commercial, at no stage, gave the mandate to the MC to delve
into the aspect of conversion of the user in terms of the Master Plan in force.
Primarily, the mandate of the MC was to look into the misuse of premises-
including misuse of residential premises for commercial or other non-
conforming uses.
LPA 487/2017 Page 20 of 46




29. Thus, we find merit in the submission of Mr. Nigam that the MC had
no jurisdiction to interdict the process of conversion of the land use of the
Flatted Factory Complex by the respondent- DCM in terms of MPD-2021.
In our view, the aspect– whether the proposed conversion of land use was in
accordance with the MPD-2021, or not, involved issues of interpretation of
the Master Plan relating to conversion of user, and the MC was not
constituted to look into those aspects. On the basis of its own interpretation
and understanding, the MC could not issue directions to the statutory
authorities viz. the MCD; the New Delhi Municipal Committee, or; the
DDA not to allow the conversion of user. It had no authority or mandate to
take affirmative action/ executive decision in that respect. At the highest,
the MC could have filed a report before the Supreme Court, or before this
Court, depending upon whether the report were to be filed before or after
30.04.2013.
30.1 The aforesaid position becomes even more clear from the subsequent
order dated 15.12.2017 passed by the Supreme Court in I.A. Nos. 93010 and
93007/2017, in M.C. Mehta v. Union of India & Ors., reported as (2018) 2
SCC 144 . The Supreme Court, inter alia, took notice of the earlier orders
issued from time to time with regard to the constitution and working of the
MC. The said I.A.‟s had been preferred by the applicants seeking liberty to
prefer their appeals before the Appellate Tribunal against the orders of
sealing passed by the MC in terms of the order dated 30.04.2013 (reported
as (2013) 16 SCC 336 ). The Supreme Court observed that the said
applicants were keen to utilize their premises for residential purposes. There
was no apparent intention to utilize the premises for commercial purpose, or
LPA 487/2017 Page 21 of 46




for any purpose not permitted by law. The Supreme Court observed that in
this situation, it would hardly serve any purpose if the applicants were
required to prefer appeals before the Appellate Tribunal. Consequently, the
Supreme Court issued the following directions:
“35. In our opinion, as far as Infinity Knowledge Systems
is concerned the following conditions would meet the
ends of justice and also provide a safeguard against
possible misuse of residential premises for commercial
(non-industrial) purposes:
(1) The applicants will file an affidavit before the
Monitoring Committee stating that they will use the
premises in question only for residential purposes and
for no other purpose whatsoever . The applicants will
identify the persons for whose residential use the
premises in question are sought to be desealed. Any
change will be notified to the Monitoring Committee .
(2) The affidavit filed by the applicants will state the
name, address and other particulars of the person who
will be responsible for any misuse of the premises in
question, that is, for use of the premises in question for
any purpose other than residential.
(3) The person identified as the person responsible in
terms of condition No.2 above will also file an affidavit
clearly stating therein that he or she will ensure that the
premises in question are used only for residential
purposes and that in the event the premises in question
are used for any purpose other than residential, the
deponent would be liable for contempt of this Court.
(4) The applicants will file with the Monitoring
Committee proof of payment of conversion charges to
the statutory authority .
LPA 487/2017 Page 22 of 46




(5) The affidavits will be filed before the Monitoring
Committee who may impose such other further conditions
as may be appropriate.
36. In the event the Monitoring Committee is satisfied
that the premises in question ought to be de-sealed, it
may require the concerned statutory authority to de-seal
the premises in question. If the Monitoring Committee
is not satisfied that the premises in question ought to be
desealed, the applicants will be at liberty to approach
this Court for appropriate orders . We make it clear that
in view of Report No. 46 dated 12th November, 2007 this
Order will not be applicable to all other commercial
activities that have been sealed in the premises in
question.
37. We make it clear that henceforth it will not be
necessary for any person whose residential premises
have been sealed for misuse for any commercial (other
than industrial) purposes at the instance of the
Monitoring Committee to file an appeal before the
appropriate statutory Appellate Tribunal. Instead, that
person can directly approach the Monitoring Committee
for relief after depositing an amount of Rs. 1,00,000/-
with the Monitoring Committee which will keep an
account of the amounts received by it. Any person who
has already filed an appeal before the appropriate
statutory Appellate Tribunal but would prefer
approaching the Monitoring Committee may withdraw
the appeal and approach the Monitoring Committee for
relief on the above terms and conditions and on deposit
of Rs. 1,00,000/- as costs with the Monitoring Committee,
provided that the premises were sealed at the instance of
the Monitoring Committee. Any challenge to the decision
of the Monitoring Committee will lie to this Court only.
We are constrained and compelled to make this order
given the history of the case and the more than serious
observations of this Court of an apparent nexus between
LPA 487/2017 Page 23 of 46




some entities and the observations regarding corruption
and nepotism.
38. We make it clear that this order will inure to the
benefit of only those who are using residential premises
for commercial purposes (nonindustrial) or for any other
non-residential purpose and whose premises were sealed
at the instance of the Monitoring Committee. This order
will not at all inure for the benefit of anybody using
residential premises for any industrial activity of any sort
or nature whatsoever.” (emphasis supplied)
30.2 The directions contained in paragraph 35, clause (4), extracted above
shows that the only aspect that the MC was required to look at– in respect of
conversion cases, was that proof of payment of conversion charges to the
statutory authority was submitted. The thrust of the order dated 15.12.2017
was on the aspect of desealing of the sealed premises.
30.3 The Supreme Court did not, even remotely, contemplate that the MC
would become the administrator of the MCD Act, the New Delhi Municipal
Council Act, or the Delhi Development Act. The MC was not appointed as
the arbiter of the issue - whether the conversion sought was in accordance
with the Master Plan-2021, much less was it empowered to interdict the
process of conversion. The MC was not constituted as a super authority in
respect of all matters with which the Municipal Corporation or the DDA are
statutorily concerned. The primary authority and responsibility to operate
and work the DMC Act; the DD Act; the New Delhi Municipal Council Act,
and; the Master Plan (referred to collectively as: the said enactments)
continued to vest in the authorities appointed under and functioning under
the said enactments. The officers appointed under the said enactments were
answerable for their actions taken under the purported exercise of their
LPA 487/2017 Page 24 of 46




statutory powers and obligations. They were also liable to be proceeded with
in disciplinary proceedings in respect of their functioning, if a case were to
be made out for such action. The MC was not constituted as an overarching
authority – either to sit in judgment over the actions of the statutory
authorities, or to scrutinize their actions taken in purported exercise of their
authority, except - may be, in respect of sealing or de-sealing of premises
wherein misuser was alleged, or there was encroachment on public land. The
MC, as noticed above, had a focused mandate. The MC was brought into
existence, since action for sealing was not being taken and implemented,
even in cases where the same was clearly made out. Only to that limited
extent, the power and authority vested in the statutory functionaries under
the said enactments stood vested in the MC. At the same time, there is
nothing to show that the statutory authorities were denuded of any of their
executive functions and authority.
31. As rightly pointed out by the learned Single Judge, the MC issued a
mandatory direction to the NDMC not to permit the conversion of the user
of the Flatted Factory Complex for commercial use– something that it was
not entitled to do. In our view, the MC, with the passage of time,
somewhere down the line forgot the purpose for which it was constituted
and suo moto expanded the mandate given to it by the Supreme Court.
32. Thus, in our view, the MC has gone well beyond its authority as
vested in it by the Supreme Court. Being a creature of the orders of the
Supreme Court, the MC was bound to function within its mandate vested by
the Supreme Court.
LPA 487/2017 Page 25 of 46




33. In any event, since the MC has sought to raise certain objections to
the proposed conversion of user from Flatted Factory Complex to
“Commercial” in respect of the property of the respondent- DCM, we now
proceed to deal with the said objections.
34. Firstly, we may observe that the objections raised by the MC were
considered by a committee consisting of senior officers of the NDMC,
consisting of Additional Commissioner ((Engg)/ North DMC- as Chairman,
and the Chief Law Officer, Chief Town Planner, S.E.(B)/ HQ and E.E.
(Bldg./ SPZ)), as its members. The said committee considered, inter alia, the
representation of the respondent– DCM, as well as the observations made by
the MC. The opinions of the Solicitor General of India dated 01.05.2014 and
06.05.2014 were also taken into consideration. Despite finding that the
application made by the respondent- DCM for conversion was in order, and
despite finding no force in the observations made by the MC, vide the order
dated 20.04.2017 the NDMC refrained from passing orders for conversion
of the user of the Flatted Factory Complex of the respondent DCM on the
premise that the case of the said Flatted Factory Complex has been under
consideration of the MC, and in terms of the order of the Supreme Court
dated 03.01.2012, no orders for conversion of user could be passed.
35. The submission of Mr. Sharma, learned counsel for the MC is that the
MC had, in its report No.97 dated 23.04.2013, submitted before the Supreme
Court that the matter of DCM is under consideration. Mr. Sharma submits
that this Report No.97 was later on submitted to this Court for consideration
on its own merit, in accordance with the order dated 30.04.2013, passed by
the Supreme Court [( 2013) 16 SCC 336 ]. The submission of Mr. Sharma is
LPA 487/2017 Page 26 of 46




that the case of the DCM came under the jurisdiction of the Division Bench
of this Court in view of the following observations made in the order dated
30.04.2013:
“The reports filed by the Monitoring Committee (after our
above order dated 03.01.2012) may also be separately
considered by the High Court. This would result in a holistic
examination of the matters”
36. On the other hand, Mr. Nigam submits that the said report No.97 was
made after 03.01.2012. Thus, the said report could not have been, and was
not the subject matter of the order dated 03.01.2012 which directed that,
inter alia, no change of user be sanctioned by the Government or any
authority in respect of premises “ which have been the subject matter of
scrutiny of the Monitoring Committee.” Secondly, it is pointed out that
Report No.97, dated 23.04.2013 made only a general statement that in areas
of Delhi Cloth Mills in MCD and Kishangarh and in many areas in East
Delhi on DDA land, there was unauthorized/ illegal construction and
encroachments. The said report stated “there are a large number of cases of
unauthorized/ illegal constructions and encroachments in Connaught Place
area in NDMC, Delhi Cloth Mills (DCM) in MCD and Kishangarh and
many areas in East Delhi on DDA land for which correspondence is on
with these agencies. The Monitoring Committee requests that it may be
permitted to file a report in respect of these areas before the Hon’ble
Court.” ( emphasis supplied)

37. However, there was no specific instance of unauthorized construction
or encroachment on public land pointed out by the MC in the premises of
the respondent DCM and, even now, none has been pointed out. The MC in
LPA 487/2017 Page 27 of 46




its Report No.97 had sought the permission of the Supreme Court to file a
report in respect of areas where a large number of unauthorized/ illegal
constructions and encroachments existed. Mr. Nigam submits that no such
permission was granted by the Supreme Court.
38. In our view, the submission of Mr. Sharma has no merit. As pointed
out by Mr. Nigam, firstly, the Report No.97, dated 23.04.2013, was made
much after passing of the order dated 03.01.2012 and, thus, the restraint
imposed by the Supreme Court on the Government or any other authority,
inter alia, against sanction of change of user, was not applicable to the
application for conversion of user of the Flatted Factory Complex of DCM,
as it was not the subject matter of scrutiny of the MC on the said date. When
the Supreme Court passed the order dated 03.01.2012, inter alia, restraining
the conversion of user by the Government and the concerned authorities, it
was aware of the specific cases/ instances dealt with by the MC in its reports
filed before the Supreme Court till that date. Being fully aware of the same,
the Supreme Court passed the order of restraint on 03.01.2012. The
Supreme Court did not direct that the said restraint would cover all such
properties, which may be mentioned in future reports that the MC may file.
No such carte blanche was given to the MC by the Supreme Court.
Moreover, even the Report No.97 dated 23.04.2013, merely spoke-in very
general and vague terms, with regard to the alleged encroachment and
unauthorized construction in the area of DCM in MCD and Kishangarh,
apart from many areas in East Delhi on DDA land. There were no details or
particulars disclosed in the said report. In fact, the MC sought permission to
file a report from the Supreme Court, which was never granted.
LPA 487/2017 Page 28 of 46




39. We may also note that while passing our detailed order dated
27.02.2018, dealing with the application moved by DCM ltd. vide C.M. No.
1273/2018 to seek stay of the sealing of the Flatted Factory Complex of
DCM at Bara Hindu Rao, Delhi-110006, we took notice of the fact that the
completion certificate in respect of blocks A & B of the Flatted Factory
Complex had been revoked by the orders of the Deputy Commissioner, SP
Zone on 08.09.2011 and the said premises had been sealed on an earlier
occasion on 30.10.2011. The DCM had then preferred an appeal before the
Appellate Tribunal, MCD and vide letters dated 21.10.2011 and 20.12.2011,
they had requested that their premises be de-sealed so that they can carry out
the necessary rectification as per the observations made by the technical
committee– on the basis of whose report the premises had been sealed, in
the first place. Consequently, under the orders of the Additional
Commissioner, Headquarters, the premises were de-sealed for a period of 15
days to carry out the necessary rectification. The DCM had then carried out
the rectification in terms of the sanctioned building plans. Consequently,
Blocks A & D were permanently de-sealed and the completion certificate
earlier issued was restored. The appeal preferred by DCM in respect of
sealing of Block A of the Flatted Factory Complex was disposed of on
30.05.2012. Similarly, since the completion certificate in respect of Block
D was also restored, vide order dated 04.04.2012, the Appellate Tribunal
MCD disposed of the appeal preferred by the DCM.
40. Thus, it is clear to us that the stand taken by the MC in Report No.97,
dated 23.04.2013, with regard to the alleged unauthorized construction and
encroachment in the Flatted Factory Complex of DCM had no legs to stand
LPA 487/2017 Page 29 of 46




on. It appears that the said report qua the Flatted Factory Complex of the
DCM was made without full and complete knowledge of the aforesaid
history. The said report, in any event, did not come in the way of
consideration of the application of DCM for conversion of user of the
Flatted Factory Complex to „Commercial‟.
41. The next submission of Mr. Sharma is that the MC was not issued any
notice by the learned Single Judge while deciding the writ petition preferred
by the respondent– being W.P.(C.) No. 10104/2013.

42. Mr. Nigam submits that there was no question of the learned Single
Judge issuing notice to the MC and hearing the MC before passing the
impugned order, since the respondent DCM had assailed the rider put by the
NDMC in its order dated 20.04.2017. Moreover, the challenge was to an
order refusing conversion of user in terms of MPD-2021, and it did not
concern sealing/ de-sealing of premises of the respondent DCM.
43. This submission of Mr. Sharma is also meritless. There was no
obligation cast on this Court to issue notice to the MC, since the case did not
pertain to the aspect of sealing or de-sealing of sealed premises. As noticed
hereinabove, the mandate of the MC was primarily to look into the aspect of
sealing/ de-sealing of premises. It certainly did not extend to aspects
concerning change of user in accordance with the Master Plan. Thus, there
was no obligation on the part of the DCM/ petitioner to implead the MC as a
party respondent, or on the Court to issue notice to the MC.
44. Mr. Sharma has contended that the writ petition preferred by the
respondent DCM – could only have been decided by the Division Bench of
LPA 487/2017 Page 30 of 46




this Court and not by the learned Single Judge. This submission is premised
on the order dated 30.04.2013, whereby the matters pending before the
Supreme Court were transferred to the Division Bench of this Court.
45. In our view, reliance placed by Mr. Sharma on the order dated
30.04.2013 passed by the Supreme Court– whereby the proceedings before
the Supreme Court stood transferred to the Division Bench, is misplaced for
the reason, that the subject matter of the present writ petition did not touch
upon the aspects of sealing/ de-sealing of premises. The matters considered
by the Supreme Court, and which were transferred to the Division Bench of
this Court were concerning sealing/ de-sealing of premises put to misuse/
non-conforming commercial/ industrial use. They were concerned with the
legality of the laws enacted in the wake of the orders passed by the Supreme
Court. The aspect of conversion of user in accordance with the Master Plan
was not the subject matter of the transferred cases. The rejection of the
application made by the respondent– DCM, to seek conversion of user of the
Flatted Factory Complex to “commercial” under MPD-2021, gave a
separate/ new cause of action to DCM and they were entitled to prefer their
writ petition, which came to be listed as per the roster fixed by Hon‟ble the
Chief Justice. Thus, we do not agree with the submission of Mr. Sharma that
there has been any misreading or misrepresentation of the order of the
Supreme Court dated 03.01.2012 and 30.04.2013 by the learned Single
Judge while passing the impugned order.
46. We may now turn to the primary objection raised by the Monitoring
Committee to the conversion of the Flatted Factory Complex for commercial
use. The submission of Mr. Sharma, learned counsel for the MC, is that the
LPA 487/2017 Page 31 of 46




conclusion drawn in the speaking order dated 20.04.2017, passed by the
Committee of the North DMC, is not in consonance with the directions
issued by the Supreme Court in the decisions dated 13.03.1990 (reported as
Union of India v. DCM Ltd. and Ors. 1990 2 SCC 371 ) and 01.05.1991
(reported as DDA v. DCM Ltd and Ors. 1991 2 SCR 590 ). He submits that
the speaking order dated 20.04.2017 shows a favourable inclination of the
officers of the NDMC towards the DCM. Mr. Sharma places reliance on the
Footnote (vi) below Table 7.3 of MPD-2021, which has been reproduced
hereinabove. The submission of Mr. Sharma is that the said footnote
prescribes that the orders passed by the Supreme Court should not be
affected in any way. He submits that while issuing the speaking order dated
20.04.2017 - for conversion of the Flatted Factory Complex into commercial
use, the Committee ignored the stipulation that such conversion shall not be
permitted on non-confirming/ regularized industrial cluster and the same
shall not affect the Supreme Court orders in any way. The submission is
that the orders dated 13.03.1990 [reported as (1990) 2 SCC 371 ] and
01.05.1991 [reported as (1991) 2 SCR 590 ] have been affected/ breached by
the speaking order dated 20.04.2017. The MC states in its report/ reply that:
“The DCM has very cleverly taken advantage of both MPD-
1962 and MPD-2021 to cherry pick provisions from these
plans, which are favourable to them. They have opted for the
MPD-1962 for flatted factories since the development control
norms in case of flatted factories complex are more beneficial
than the Master Plan Delhi-2021. However, they have revised
the layout plan of Group Housing Residential Complex on the
basis of MPD-2021, as the same is more attuned to their
interests, with respect to the Residential Complex. It is
unfortunate that the North DMC has failed in its duties to bring
out these points before the Hon’ble Single Judge of the Hon’ble
LPA 487/2017 Page 32 of 46




High Court in which there were two advocates representing it
in this case.”
The Monitoring Committee in its report/ reply further states as follows:
“Further the last para of foot note highlighted above, it is clear
that the Hon’ble Supreme Court orders shall not effect in any
way whereas the said committee has ignored the Hon’ble
Supreme Court orders dated 13.03.1990 & 01.05.1991 before
passing speaking orders dated 20.04.2017 and also failed to
place complete facts of the case before the Hon’ble High Court.
It goes to prove that the North DMC wanted to grant undue
favour to DCM. Apart from above, the North DMC should
have ensured that the ROW of 24 mtr abutting the premises as
specified in above foot note before passing the speaking orders;
whether the same have been taken care or not.”
47. The submission of Mr. Sharma is that while passing the judgment
dated 01.05.1991, the Supreme Court rejected the objection of the DDA that
the plans of DCM should be in accordance with the Master Plan of the year
2001. The Supreme Court held that the plans/ scheme of DCM had been
granted approval, keeping in view the law, rules and regulations governing
the subject under the Master Plan of 1962. He submits that the DCM was
not required to comply with the new Master Plan of the year 2001. Thus,
according to Mr. Sharma, DCM is now bound by the stipulations contained
in the Master Plan of 1962, and cannot take advantage of the new MPD-
2021, which came into force on 07.02.2007, and the amendment to Note
(vi)– to Table 7.3, which was enforced on 12.08.2008. By permitting change
of user from industrial to commercial in respect of the Flatted Factory
Complex, the Supreme Court orders - particularly the order dated
01.05.1991 (1991 2 SCR 590), shall be affected, since the said order
permitted the DCM to use the Flatted Factory Complex for industrial use.
LPA 487/2017 Page 33 of 46




48. In response, Mr. Nigam submits that reliance placed by the MC on the
judgment dated 13.03.1990 [reported as (1990) 2 SCC 371 ] and 01.05.1991
[reported as (1991) 2 SCR 590 ] is completely misplaced, inasmuch, as the
right of the DCM to use its property in terms of the prevalent Master Plan,
i.e. MPD-2021 cannot be denied, merely because at the time when the
sanction was initially obtained, the earlier Master Plan of 1962 was in
operation. Mr. Nigam submits that if the submission of the MC were to be
accepted, it would mean that the DCM, for all times to come, would be
bound to use its property as per the norms prescribed in MPD-1962, even
though the subsequent Master Plans have come into operation from time to
time. He submits that there is no restriction placed by the Supreme Court in
any judgment or order, that the respondent DCM would not be entitled to
avail of any future changes in the law that may be notified, such as by the
amended/new Master Plan.
49. We find this submission of the MC to be patently wrong, to say the
least. The decision dated 01.05.1991 ( 1991 2 SCR 590 ) - the relevant
portion whereof stands extracted hereinabove, shows that the plans/ scheme
of the DCM had been approved during currency of the 1962 Master Plan,
and DDA was insisting on plans/ scheme being in conformity with the
Master Plan of 2001, even though “ one of the year 2001 was not existant,
and if at all existant, in any embryonic stage . The law governing the object
and the rules and regulations then in vogue and applicable were deemingly
kept in view and applied by the DDA in the approval of the schemes”
(emphasis supplied). The reason why the Supreme Court did not allow the
objection of the DDA with regard to the applicability of MPD 2001 was that
LPA 487/2017 Page 34 of 46




“ To whittle down the effect of that resolution on the emergence of the new
Master Plan of the year 2001, made applicable after the orders of this
Court , would, at the present stage, if insisted upon be spelled out as a step
to undermine the orders of this Court. Such an objection by the D.D.A when
raised before March 13, 1990, the day when we passed judgment, was
untenable in law and the D.D.A. should have known it before putting such
an objection to use. For this reason, we repel the first objection of the
D.D.A. and require of it to stick to the position as per Master Plan as
existing on February 1, 1983. This objection is thus surmounted.” (emphasis
supplied)
50. The aforesaid decision of the Supreme Court dated 01.05.1991 ( 1991
2 SCR 590 ), cannot be read against the respondent- DCM to mean that the
Supreme Court held that, for all times to come, the DCM is bound by the
provisions/ scheme of MPD– 1962, even though with the passage of time,
new Master Plans for Delhi may be brought into force. The Supreme Court
did not rule that DCM cannot seek the benefit of the subsequent Master
Plans that may be enforced from time to time. The situation dealt with by
the Supreme Court in its decision dated 01.05.1991( 1991 2 SCR 590 ) was
not one, where DCM desired to amend their plans/ schemes under the MPD
2001, and it was not permitted to do so by the Supreme Court on the premise
that it is bound, for all times to come, by MPD-1962.
51. The proposition advanced by Mr. Sharma is that the owner of a
premises– which may have pre-existed the enactment of a new Master Plan,
is bound by the plans/ schemes as they existed earlier, and he cannot seek to
amend his plans/ schemes in accordance with the new Master Plan.
LPA 487/2017 Page 35 of 46




Acceptance of this submission of Mr. Sharma would lead to frustration of
the object with which a new or amended Master Plan may be enforced, to a
great extent. Pertinently, the mills of DCM had to be shut down on account
of the land use being changed. If the submission of Mr. Sharma were to be
accepted, the mills of DCM would never have been permitted to be shut
down.
52. In Howrah Municipal Corporation & Ors. v. Ganges Rope Co. Ltd.
& Ors. , (2004) 1 SCC 663 , the issue arose before the Supreme Court,
whether sanction to building plans had to be granted on the basis of the
building rules prevailing at the time of submission of the application for
sanction, or whether the grant of sanction had to be considered on the basis
of the building rules prevailing at the time of grant of sanction. The Supreme
Court referred to its earlier decision in Usman Gani J. Khatri v.
Cantonment Board, (1992) 3 SCC 455, wherein it had been observed:
“ In any case, the High Court is right in taking the view that
the building plans can only be sanctioned according to the
building regulations prevailing at the time of sanctioning
of such building plans . At present the statutory bye-laws
published on 30-4-1988 are in force and the fresh building
plans to be submitted by the petitioners, if any, shall now be
governed by these bye-laws and not by any other bye-laws
or schemes which are no longer in force now. If we
consider a reverse case where building regulations are
amended more favourably to the builders before
sanctioning of building plans already submitted, the
builders would certainly claim and get the advantage of
the regulations amended to their benefit .”(emphasis
supplied)
The Supreme Court observed in Howrah Municipal Corporation (supra):
LPA 487/2017 Page 36 of 46




“ 30. This Court, thus, has taken a view that the Building
Rules or Regulations prevailing at the time of sanction
would govern the subject of sanction and not the Rules
and Regulations existing on the date of application for
sanction. This Court has envisaged a reverse situation that
if subsequent to the making of the application for
sanction, the Building Rules, on the date of sanction, have
been amended more favourably in favour of the person or
party seeking sanction, would it then be possible for the
Corporation to say that because the more favourable Rules
containing conditions came into force subsequent to the
submission of application for sanction, it would not be
available to the person or party applying .

LPA 487/2017 Page 37 of 46

53. In State of Kerala & Anr. V. B. Six Holiday Resorts Pvt. Ltd. & Ors. ,
(2010) 5 SCC 186, while the application for grant of liquor license was
pending consideration, the policy for grant of such licenses underwent
amendment. By the amendment, grant of new licenses was prohibited.
Consequently, the application for issuance of liquor license was rejected.
The applicant challenged the said rejection. One of the two issues
considered by the Supreme Court was whether the application for grant of
license should be considered with reference to the rules as they existed when
the application was made, or in accordance with the rules in force on the
date of consideration. The Supreme Court ruled that the application could be
considered only in terms of the amended Rules. It observed:
LPA 487/2017 Page 38 of 46

18. We may in this context refer to some earlier decisions
laying down the principle that applications for licences
have to be considered with reference to the law prevailing
on the date of consideration.
19. In State of T.N. v. Hind Stone [(1981) 2 SCC 205] this
Court considered the validity of government action in
keeping applications pending for long and then rejecting
them by applying a rule subsequently made. This Court
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LPA 487/2017 Page 40 of 46




called upon to apply its mind to the prayer for
registration .” (emphasis supplied)

The Supreme Court relied on Howrah Municipal Corporation (supra)
and thereafter observed:
“ 22. Where the rules require grant of a licence subject to the
fulfilment of certain eligibility criteria either to safeguard
public interest or to maintain efficiency in administration, it
follows that the application for licence would require
consideration and examination as to whether the eligibility
conditions have been fulfilled or whether grant of further
licences is in public interest. Where the applicant for licence
does not have a vested interest for grant of licence and where
grant of licence depends on various factors or eligibility
criteria and public interest, the consideration should be with
reference to the law applicable on the date when the authority
considers applications for grant of licences and not with
reference to the date of application ”. (emphasis supplied)
54. The Master Plan for Delhi, framed under Section 7 of the DD Act, is
revised/modified from time to time in accordance with Section 11A of the
DD Act keeping in view the growth of the mega polis. Over decades, Delhi
has seen enormous growth in its population, which has put pressure on the
infrastructure such as roads, housing, and facilities like railway stations,
airports, bus stands, market areas, educational and recreational areas, and
public utilities such as water, electricity, drainage and sewage facilities. The
air pollution levels in Delhi have also shot up due to exponential increase in
the number of vehicles, traffic congestions and industrial and construction
related pollution. It is such like developments which necessitate amendment/
modification or complete overhaul of the Master Plan, so that the city is able
to provide acceptable living standards and conditions for its citizens and
LPA 487/2017 Page 41 of 46




residents. When amendments are brought about in the Master Plan,
including by bringing into force a new Master Plan altogether, the amended/
new Master Plan may permit, or prohibit, certain kinds of activities in
certain defined areas depending on the evolution of the city. It may provide
that certain kinds of activity/ users would no longer be permitted in certain
defined areas, and it may also give an option to the property owners/ users to
avail of the change of user upon compliance of the laid down conditions. If
the amended/ new Master Plan entitles the owners/ users to apply for and
obtain permission to use their premises for a different purpose than the one
earlier prevailing, no one can grudge the same. Unfortunately, the MC does
just that. We have extracted herein above the stand taken by the MC in their
status report. The MC is aggrieved by the fact that the respondent DCM has
taken advantage of both - MPD-1962 and MPD-2021 to cherry pick
provisions from these plans which are favourable to them. If the law
permits the respondent DCM to do so, we fail to understand how anyone,
including the MC, can have a grouse with the same.
55. The submission of Mr. Sharma that the language of Note (vi) as
amended to Table 7.3 containing the Development Control Norms does not
entitle the respondent DCM to seek change of user also has no merit. The
premises of the respondent DCM, namely, the Flatted Factory Complex does
not fall in the non-conforming/ regularized industrial cluster. When the
amended Note (vi) was enforced and, for that matter even now, the Flatted
Factory Complex of DCM is situated in a conforming area. There has been
no occasion for the DCM to seek “regularization” of its user of the Flatted
Factory Complex. The prescription that “ the above provision shall not
LPA 487/2017 Page 42 of 46




affect the Supreme Court orders in any way ” has to be understood
meaningfully in the context in which the amendment in Note (vi) to Table
7.3 was brought about. Since the Supreme Court was seized of the matters
relating to misuser, the legislature while amending Note (vi) to Table 7.3
only intended to ensure that in cases where the Supreme Court has rejected
change of user, the same should not be so permitted by resort to the
amended Note (vi) to Table 7.3. The said prescription does not come in the
way of the respondent DCM, since, in our view, there was no prescription
against the DCM that they would continue to remain bound by MPD-1962
for all times to come, and they would not be able to avail of the provisions
of the subsequently enforced Master Plans for Delhi including MPD-2021.
56. The further submission of Mr. Sharma is that the NDMC should have
ensured that the Right of Way (ROW) of 24 metres abuts the premises, and
it is not clear whether, while passing the order dated 20.04.2017, the same
has been taken care of, or not.
57. Mr. Nigam submits that its Flatted Factory Complex abuts a road of
24 metres ROW. In this regard, he places reliance on the lay-out plan
produced during the hearing before this Court.
58. The status report filed by the MC does not contain any definite
statement that the ROW of 24 meter does not abut the premises of the
respondent DCM. The respondent DCM has categorically stated in its reply
to the status reports that its Flatted Factory Complex abuts road of 24 meter
ROW. Moreover, the NDMC has placed on record the layout plan, which
shows the existence of 24 meter ROW.
LPA 487/2017 Page 43 of 46





59. Thus, we find no merit in the objections raised by the MC to the
application for conversion of user of the Flatted Factory Complex move by
the respondent DCM. From the status reports filed by the MC, we observe
that the MC has sought to impute favoritism in favour of DCM by the
officers of the North MCD. There is no basis for making such serious
allegations. The MC is expected to function with objectivity, which,
unfortunately, is lacking in the present case.

60. The next submission of Mr. Sharma is that upon inspection of the
premises of the Flatted Factory Complex of DCM ltd. on 08.05.2017, it was
found that the complex was being misused for commercial purpose.
61. The amendment in Note (vi) of table 7.3 of the Development Control
Norms of the Master Plan, permitting conversion of user from industrial to
commercial was made vide S.O. 2034 (E) dated 12.08.2008. It came into
effect on the same day. The Delhi Municipal Corporation then came out
with the order dated 07.06.2010, prescribing the conversion charges for
conversion of industrial user to commercial/ banquet halls. The respondent
DCM sought conversion of the use of the Flatted Factory Complex to
commercial/ banquet halls, as early as 26.04.2011. The same was initially
rejected on 02.09.2011. Another representation was made by the DCM on
27.02.2013. In the meeting chaired by the Vice Chairman, DDA, MC
sought to interdict the conversion of the user of the Flatted Factory
Complex. The matter kept hanging fire and the respondent- DCM had to
approach this Court by filing W.P.(C.) No. 10104/2013. The writ petition
was disposed of on 06.01.2017 with a direction to the NDMC to decide the
LPA 487/2017 Page 44 of 46




representation in accordance with law. Since that direction was not complied
with, a contempt petition was preferred by the respondent-DCM. Only
thereafter, belatedly, the order dated 20.04.2017, was passed which rejected
the application for conversion, though found meritorious, only on account of
the objection raised by the MC. We have found the objections raised by the
MC to be completely meritless. In this background, for the Monitoring
Committee to claim that there was misuser of the Flatted Factory Complex,
in as much, as, the same was found to be put to commercial use, has no
merit. Since the respondent- DCM was entitled to seek conversion of user
of the Flatted Factory Complex to “commercial” under the amended MP–
2021, and it had made its application for conversion which was kept
pending, unreasonable and unauthorized obstruction of the said process by
MC could not be used as an excuse to claim misuser of the Flatted Factory
Complex for commercial purpose, since such user was permitted in law.
The MC cannot be heard to complain that the Flatted Factory Complex was
being misused for commercial purpose– though the same was permitted in
law, because the MC had unjustifiably and unauthorisedly obstructed the
conversion of user to commercial. Thus, in our view the learned Single
Judge was completely justified in quashing the notice dated 12.05.2017,
issued to the respondent-DCM on the premise that there was misuser of the
Flatted Factory Complex for commercial purpose.
62. For all the aforesaid reasons, we find no merit in the present appeal,
and dismiss the same. Looking to the frivolous nature of objections raised
to deny conversion of user – to which the respondent DCM is entitled in
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law, we would have imposed costs. But these objections have been raised
by the MC and not the NDMC. Thus, we are refraining from doing so.


(VIPIN SANGHI)
JUDGE


(REKHA PALLI)
JUDGE
AUGUST 30, 2018
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