Om Parkash v. South Delhi Municipal Corporation

RAJIV SAHAI ENDLAW, J. APRIL 22, 2016 M..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 22nd April, 2016. + W.P.(C) 3710/2014 & CM No.7519/2014 (for directions) OM PARKASH ..... Petitioner Through: Mr. Yogesh Jagia and Mr. Amit Sood, Advs. Versus SOUTH DELHI MUNICIPAL CORPORATION ..... Respondent Through: Mr. Gaurang Kanth and Ms. Biji Rajesh, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The petition under Articles 226 and 227 of the Constitution of India impugns – (i) the order dated 10th April, 2013 of the respondent South Delhi Municipal Corporation (SDMC), in exercise of powers under Section 349 r/w Section 491 of the Delhi Municipal Corporation Act, 1957 (MCD Act), directing the petitioner to vacate shop no.3 known as Shakuntalam Beauty Parlor in Block-2, Subhash Nagar, Delhi for the reason of the said shop having been constructed over land earmarked for public purpose and the petitioner having unauthorisedly encroached and constructed upon the same; and, (ii) the order dated 28th October, 2013 of the Appellate Tribunal, Municipal Corporation of Delhi (ATMCD) of dismissal as not maintainable of appeal under Section 347 B of the MCD Act preferred by the petitioner against the order dated 10th April, 2013 of the respondent SDMC. 2. The petition came up first before this Court on 30th May, 2014 i.e. after nearly six months from the order of the ATMCD and though no notice thereof was issued but the same was being adjourned from time to time. Finally on 28th July, 2015 arguments were heard and judgment reserved. It is the case of the petitioner that the respondent SDMC, after the order dated 10th April, 2013 had also sealed the subject shop; as such the petition is accompanied with an application for interim relief for de-sealing of the shop. However though the petition remained pending before this Court for nearly a year but no interim order was issued. Now that the petition has been finally heard and is being decided, the question of any interim relief does not arise. Written submissions have also been filed by the counsel for the petitioner and the counsel for the respondent SDMC and the same have also been perused. 3. The facts not in dispute are as under: A. On 27th March, 1962 Land & Development Office (L&DO), Government of India handed over a plot of land, on a very small part whereof the shop of the petitioner is situated, meant for use as a public park/for community use, in the residential colony of Subhash Nagar, to the MCD since succeeded by respondent SDMC, for maintenance. B. The inhabitants of the residential colony of Subhash Nagar started holding 'Ramlila' on the said plot of land; C. Subsequently the residents themselves, without any authority from the L&DO or the respondent SDMC, constructed a Barat Ghar alongwith public dispensary on a part of the said land and on the other part of the land Arya Samaj Mandir came up, while the remaining land continued to be used for holding 'Ramlila' annually. D. Ramlila Barat Ghar Committee which was managing the Barat Ghar and holding the Ramlila allowed some persons to develop six small shops on the said land by making onetime payment to Ramlila Barat Ghar Committee and the said shops alongwith certain other shops which came up over the said land came to be known as 'Rama Market'. The petitioner is the occupant of shop No.3 in the said 'Rama Market' and is carrying on business of a beauty parlor therefrom; the petitioner claims to have acquired the said shop from one Mr. Bajaj who was earlier carrying on business in the name of Bajaj Electrical Works therefrom and is registered under Delhi Shop and Establishment Act, 1954 and has also obtained licence at the address of the said shop from the respondent SDMC. E. One Mr. Pramod Talwar resident of the said colony of Subhash Nagar filed WP(C) No.1549/2012 titled Pramod Talwar Vs. The Commission , MCD in this Court impleading MCD, Police, Chief Fire Officer, Ramlila Barat Ghar Committee and L&DO as respondents thereto and seeking a direction