East Delhi Municipal Corpration Through Its Commissioner v. Babu Ram Singhla

INDERMEET KAUR, J- (oral) W.P. (C)Nos.4345/2015&11542/2015 Page1of11 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. Both these petitions shall be decided by a common order. The petitioner(in W.P. (C) No.4345/2015-BabuRam Singla)has impugnedthe order dated 27.04.2015passed by the MonitoringCommitteewherein the MonitoringCommitteehad passedadirectionthat the premisesin question (A-139/140,A-32 &A-32A,Madhu Vihar,Delhi)- (hereinafterreferredto as the demisedpremises)be re-sealed. The submissionofthe learnedsenior counselfor the petitioneri&tl®fsuchjgi'O havebeenpassedby the MonitoringCor^i^ef^ilei^^rd^fej^hfonitoli^^C"^ havethe powerandnor to ofthe^^\y;norwasthis // 3^ \ . orderbasedon me principlesofh^SM|&s|0e;such an orderbfingarbitrary andillegal,the^eis liabletob||^a^ East Delhi MimicipMs^gQ^ia^^e^ato^^erredto the as the respondent-BDMC). TheT^^^SsTfie order dated 08.04.2015 passed by the AppellateTribunal of the Municipal Corporationof Delhi (ATMCD)whereinthe ATMCDhad directedthe demisedpremisesto be de-sealed; the petitionerBabu Ram Singla had been directed to furnish an affidavitthat he wouldpay all.the necessarychargesto the MCD regularly; he wouldnot carryout any unauthorizedconstructionin the property. W.P. (C)Nos.4345/2015&11542/20-15 Page2ofll ^3 Recordshowsthat the petitionerhad been granteda municipallicense (dated02.11.2016)quathe aforenotedpropertyto run a sweetshop jhomthe demised premises. Pursuant to the judgment of the Apex Court in MC. Mehta Vs. Union ofIndia & Ors. (in LA. No.22 in W.P. (C) No.4677/1985 dated 30.04.2013)non-conforminguser of residential properties had been directed to be sealed. On 29.11.2006,the premises of the petitionerwere sealed. In an intervening^penbd,^theyWierede-se'ale^in February,2008 but "i I fi" " A- " were again sealed q'h 27.08'.2009; fftemsealing order, Syas passed by the MonitoringConAitl^fit wa^iiq]|iMi^®feemis-use|>ndunauthorized construction in me demised premiijse'ST i f I V ) I SU h! n . f H-- • <^14 -r I. Therepresentationsmade byltlrlpqliSOnerwere leftun-h'eard. On

30.04.2043|v^P.. pex Court m had granted opportunityto the geneM^^b|^ib'%pTo"C^lS®ei?^l)J^CDfor the purposeof getting their properties de-sealed (which had in fact been de-sealed by the municipal authorities). The order dated 08.04.2015 had been passed by the ATMCD in favour of the petitioner; his property had been directed to be de-sealed. The order passed by the ATMCD has been perused; the highlighted portion by the respective parties has also been perused. The vehement submission of the W.P. (C) Nos.4345/2015 & 11542/2015 ov respondentis that this order is largelypremisedon the submissionthat after passingofthe NationalCapitalTerritoryofDelhi Laws (SpecialProvisions) SecondAmendmentAct, 2011 (hereinafterreferredto as the SpecialAct) all constructionscarried out up to 01.06.2014 are protected from punitive action;the propertyof the petitionerwhich was builtpriorin time had been granteda protection;the ATMCD had howevergone on to pass the second part ofthe orderwhich isJldd^l.ancWs^tothje^bffdcLthathe propertyofthe petitioner be de-sealedvv ^^Subn r 3missi@mof the 4EamedL counsel for the respondentonthlFsc^Cbeingfip;^' ff "fi** ^raer couldTipT ebeenpassed whilerelyinguppnthe provisionk^M^pMal Act. ! ilMl Learnedcounselfor the rfljj^i^e^^aweverdoes not disputethe fact that the ATMCD Section 347-B of the DMC Act and^isdndui^^t^pbwefe de^sealingof the properties;submissionhoweve?Mn#ftiat?sUetf^ordercouldnot have been passed in the instant case. The Special Act only protects an unauthorized constructionfrom being demolished;a status quo order could at best have beenpassedby the ATMCD;the ATMCDgoingon to holdthatthe property should at the same time be de-sealedhas committedan illegalityand this illegal order is thus liable to be set aside. W.P. (C) Nos.4345/2015 & 11542/2015 3^ It is not in dispute that the after the order dated 08.04.2015, the property had been de-sealed on 13.04.2015. Thereafter on an order being passed by the Monitoring Committee on 27.04.2015 (subject matter of the first writ petition), the property had again been sealed on 28.04.2015. Relevant would it be to note that the Monitoring Committee has been constituted under the aegis of the Supreme Court in the case of MC. Mehta (Supra) on 24.3.2006.^ftC^owlrsfafiy followed by the w •••-'Sk Monitoring Committee^^s beenTdefSilift4m,para 8^r"a^ubsequent order (dated 30.04.20Bpassed by IfefMplf^^ (LA. 1^21 in W.P. (C) ^ ^ are relevant. It statesthat where,a propertyis s#l,^^^iL.^Mdbe open to such an applicant No.4677/1985)jinMC. Mehta. Pir^/3^ub%

(vi) and (vii) t I fk IrII. K to approach the C6iporatibn^fbr%n4i0rae%0HaelsCaMniHfan order is passed in favour such an appMcffittlm^y&nitori^SCoi^ recommendto the MCD/NDMC/DDAto pr^¥%^^sv(;nifcpetitfonagainstsuch an orderbefore the High Court. Thus these powers which had been granted to the Monitoring Committee by the Apex Court were only recommendatory powers i.e. a power to recommend to the Corporation to file a petition in the High Court against an order of de-sealing. W.P. (C)Nos.4345/2015 & 11542/2015 The order dated 27.04.2015is definitelynot a recommendation;it was an order directing the MCD to re-seal; the property. The MonitoringCommitteein itsorderdated27.04.2015has recorded the reasons for deciding to re-seal the property. These are containedin paragraph5. Theaforenotedparagraphreadsasunder:- "As per the recordrec^ed^jiwn^^h&ii^j^ciSouth Zone/EDMC, the has observedthefollSwmg; ff :# Theaffiday^it saidpropertyhas beenc^^sep^d©^AS.04.W^5^The*i^nitormgCommittee \ ffre the Hoh^Me-Wribunalis not We Hon 'ble TribunM. Further as ^ JV 1 »iji i • per the order Mated 08.04.2015pfmeimSnFk Tribunal, the affidavitbe 4 jF^'1 f submitted before the Tribun$^^idWhm to the conkered Deputy i IS X'l ^ # Commissioner property in questionbe de-sealed^enfpftVri^jthin7day§^ The copy of the affdavf^nt concerned Deputy Commissioner. not been filed with The de-sealingwas carried out on 13.04.2015by ShahdaraSouth Zone/EDMCwith the help ofPoliceForce but nowherethe date and time is recorded in thefile. The Photographs taken at the time of sealing on 27.08.2009 and Videographydone at the time of de-sealingon 13.,04.2015clearlyshows W.P. (C)Nos.4345/2015 & 11542/2015 -31 thatthestatusofconstructionis notsameandunauthorizedconstructionhas also takenplaceduringtheperiodwhen thepropertywas lyingsealed. The CDs recordedon de-sealingday i.e. 13.04.2015and thereafteron

23.04.2015(underthe ordersofthe MonitoringCommittee)by theShahdara South Zone/EDMCclearlyshow that repairsand addition/alterationwas in progress which is not permissible and tantamount to unauthorized constructionin the property in question. This is not permissibleas per MPD-2021 and BBL. " I'lRT Admittedly,bety7^n|the^efiod blt^e^n2^.^8^009to 13.04.2015 the custodianofthe p^#erty as'^l^fopertywas lying sealed. Thus Isdb'^ara 5 w , 1 le relevant^Thl Monitoring Committee wal of the view thal®|lfs intervening perild i.e. from f.M.I'laiv. -I IW'Kll mm addition/alftmationwere 13A.2015 uptofe3.04.2015, done which were not T In the courseofthese^i^^eedings,^Gjert^u^rderscameto be passedby this Court. The orderdated 05.05.2015is relevant. The predecessorBench ofthis Courtwas prima-facieofthe viewthatthe MonitoringCommitteecan only directthe Corporationto challengethe orderspassedby the Appellate Tribunalbefore the High Court and it cannot suo moto overridethe order passed by the Appellate Tribunal. On 12.05.2015,a directionhad been W.P. (C)Nos.4345/2015 & 11542/2015 given to the Corporation to examine the reasons for re-sealing of the property. Two status reports have been filed by the Corporation. The first status report is dated 14.05.2015 and in this report, it has been stated that the inspection of the property had been carried out on 13.05.2015 wherein certain activities were noted; the activities noted herein as under:- '(i) Plaster repairsgffwcM^bofs, columnsep

(ii) Repairoffl^or^^'

(Hi) POP worko^he walls I • 1 til 1111/111 i

(iv) Repair offront portion byplastermg mndreplacing windows. \

(v) Fixingcft^esqfwafl^

(vi) False ceilinglk^^^^

(vii) Repair ofelectricanafdu^ingiMLOJ-The status report further states that these works which were being carried out by the petitioner were permitted under clause 6.4.1 of the Building Byelaws and no permission was required from the respondent for the said works. W.P. (C) Nos.4345/2015 & 11542/2015 This status report thus clearly shows that the Monitoring Committee directing re-sealing of the property has committed a folly. The subsequent status report is contrary to the first status report. This status report is dated 20.08.2016. While reiterating the stand in its earlier status report dated 13.04.2015, the EDMC has noted that the aforenoted work being carriedout by the petitioner^yethe benefitof Byelaw6.4.1 could ft m 'r. not be extended to the Authority was required. \ This CouCT is^f the view? reiteratingthat s^^^ySiti^S^^MSn ^rfi^^E^cAied out bv the conflictto one Inother. The firstirfep^^:|t|testhatthe acts of|;hepetitioner are protected under Byelaw jC4T]^<|felph%second status? report while status rej^rtslare clearlyin petitionerhas drawn a differ^K^^eljusi^^ that the benefit of clause 6.4.1 cannot be extended to the petitioner as permission had not been taken. The respondent is blowing hot and cold. In the first report, it states that clause 6.4.1 does not require permission from the Competent Authority to carry out such works yet in the second report it states that since permission had not been taken under Byelaw 6.4.1, the benefit of 6.4.1 cannot be granted to the petitioner. W.P. (C) N0S.4345/2CI5 & 11542/2015 Noting this narration of facts, this Court is of the view that the order passedby the MonitoringCommitteeon 27.04.2015clearlysuffersfrom an illegality. It was only a RecommendingBody and being only advisoryin nature it could at best have made a recommendationto the local body to assail such an order of de-sealingby preferringa writ petition. The order passed by the Monitoring Committee being in the nature of a positive mandatewas thus an illegaHly;it cpuld^'notha\^b.fenpassed. It was also not premisedon a^plr^fattu^m^pn.The ^^^ptedto have been carriedoutbyth^petMbner is clelb^^^i.thefirststatus fs report of the Cotporationand this^^il."w.x* " ''If B fm' P i' il ' •/ted under Clause 614.1. The earlier order passedJylpmMCD (08.04.20151directingthe Pr'CifAC • # Departmentto de^ from any infirmity. Special Act is a protectiveumbrellaavailabl^fe^thespetitionerand his propertycannot be demolishedhavingbeen constructedpriorto the cut-offdate 01.06.2014had thereafter gone on in the subsequent paragraph to discuss the various documentsreliedupon by the petitioner(licenseby the MCD sincethe year 2000, CNGF Bills,DelhiJal BoardBills,ElectricityBills,DDA noticesetc.) regardinguse ofpropertyas commercial;orderofthe CourtofSh. Rajneesh W.P. (C) Nos.4345/2015 & 11542/2015 oEder; itl'does not suffer K. Guptastatingcommercialuse since 12.11.2002;the salestax registration certificate dated 04.08.1994; house tax notice dated 20.03.1998 and the MCD licensesince 1990.The Departmentwas onlythereafterdirectedto de-sealthe property;the petitionerhad also beendirectedto file an affidavitthat he will not carry out any furtherunauthorizedconstructionand will pay all necessarychargesto the MCD. This orderwas a perfectlylegal orderas no partycan be madeto suffer^fdr^WE0ng?ac^h partwhichis so in the f. A-instant case. Accordin^/feorder Committ^ied27.04.2015 li W¥MkmM ' .1 is set aside and ftie order of the A Fm™a JANUARY 13,2017 W.P. (C)Nos,4345/2015 & 11542/201^

08.04.2 Petitionsdisposedo^ th|;|^|v^rt^^^ IMDE^EJ^ KAUR,J

* IN THE HIGH COURT OF DELHI AT NEW DELHI o/o Date ofJudgment:13.01.2017 + + W.P.(C)4345/2015&C.M. Nos.7865/2015,11796/2015& 19313/2015 BABU RAM SINGLA ..... Petitioner Through Mr. Ravi Sikri,Sr. Adv. withMr. Deepak Yadav, Adv. EASTDELHIMeltelfldy^^ ^ «i. fi tfm, \ 44^^; Respondents ' #^i?Throy^^l^^y^ajeJ^d^r^l._ Uppal^r.'^dvwith Mr. r'Vinnra ^nd D: Raieshwar Petitioner Chopra and D. .Rajeshwar • forR-2 &'R-^. Ii|i^.^yakam,ASC wit| Mr. Naveen i ilttir, Advs for Rr4 k R-5 along -Hawa Singh %'hw f cqrpMM^hrough its Throi^'^WIfByi Rajesh,Adv versus BABU RAM SINGHLA Respondent Through Mr. Ravi Sikri,Sr. Adv. withMr. DeepakYadav,Adv. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR