* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6796/2011 & C.M. No.13689/2011 (stay)
Decided on 20.09.2011
IN THE MATTER OF :
SARITA KALUCHA AND ORS. ..... Petitioners
Through : Mr. Rakesh Tiku, Sr. Adv. with
Mr. P. Gautam and Mr. Vivek Ojha, Advs.
versus
MCD AND ORS. ..... Respondents
Through : Mr. Mukesh Gupta, Adv. with
Mr. Nutan, AE(Building), S.P. Zone, MCD.
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may No.
be allowed to see the Judgment?
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be No.
reported in the Digest?
HIMA KOHLI, J. (Oral)
1. The petitioners have filed the present petition praying inter alia for quashing of the order dated 8.9.2011 passed by the respondent/MCD rejecting the representation of the husband of petitioner No.2 for regularizing the unauthorized construction existing on the first floor of the property bearing No.S-207, Greater Kailash Part-I, New Delhi, and for W.P.(C) No.6796/2011 Page 1 of 5 paying compounding charges in respect thereof. The petitioners have also sought quashing of the order dated 12.9.2011 issued by the respondent/MCD under Section 345-A of the DMC Act, 1957 (in short 'the Act') directing sealing of the entire premises. Pertinently, while the aforesaid order was signed on 29.8.2011, as is apparent from the date endorsed at the bottom of the said document, the same was dispatched on 12.9.2011, the date endorsed on top of the document.
2. On the first date of hearing, i.e., on 16.9.2011, counsel for the respondent/MCD, who appeared on advance copy, had sought an adjournment to obtain instructions from his client and as a result, the matter was adjourned to 19.9.2011. On 19.9.2011, in view of the submission made by the counsel for the respondent/MCD that only a part file was available with the officer of respondent/MCD, the present case was adjourned for today.
3. Today, it is submitted by the counsel for the respondent/MCD that the present petition is not maintainable in view of the fact that the petitioners have an equally efficacious alternate remedy available to them by way of an appeal under the statute, which they have not exhausted. It is further stated that the show cause notice under Section 345A of the Act was addressed to the owners/occupiers of the aforementioned property on 7.7.2011, whereafter a reply was received to the said notice and after examination, it was found to be unsatisfactory and as a result, a sealing order was passed on 12.9.2011. On the same date, a vacation W.P.(C) No.6796/2011 Page 2 of 5 notice under Section 349 of the Act was issued by the respondent/MCD. The aforesaid vacation notice was pasted at the site on the very same day. This was followed by a sealing action in respect of the basement and third floor of the subject premises on the very same day. The ground and the first floors of the aforesaid premises were sealed on 14.9.2011, while the second floor was sealed on 15.9.2011.
4. Learned Senior Advocate appearing for the petitioners reiterates the submissions, as recorded in the order dated 16.9.2011, that the vacation notice dated 12.9.2011 was delivered at the address of the petitioners by speed post on 15.9.2011, which was after the sealing action had already taken place, thus denying the petitioners the opportunity to prefer an appeal before the Appellate Tribunal, MCD. He further states that pursuant to the notice to show cause, no reply was submitted by the petitioners to the respondent/MCD, hence the mention of a reply in para 1 of the impugned order dated 12.9.2011, passed under Section 345A of the Act is erroneous.
5. Counsel for the respondent/MCD hands over copies of the extract of the relevant file in respect of the subject premises, which included copies of the order dated 12.9.2011 passed under Section 345A of the Act, vacation notice dated 12.9.2011 passed under Section 349 of the Act and order dated 12.9.2011 passed under Section 345A of the Act, which are taken on record.
6. A perusal of the aforesaid documents and those filed by the W.P.(C) No.6796/2011 Page 3 of 5 petitioners bears out the submission made on behalf of the petitioners that the sealing notice dated 12.9.2011 issued by the respondent/MCD under Section 345A of the Act, was signed on 29.8.2011, dispatched on 12.9.2011 and came to be served on the petitioners only on 15.9.2011, as is apparent from a copy of the speed post tracking record maintained by the postal department and placed on record by the petitioners under Index dated 19.9.2011.
7. In these circumstances, the present petition is disposed of with the following directions :
(i) The respondent/MCD shall temporarily de-seal the premises of the petitioners, i.e., the ground, the first and the second floors of the subject premises in the course of the day, for a period of two weeks upto 5.10.2011.
(ii) Upon de-sealing the subject premises, the respondent/MCD shall simultaneously give written intimation of the said temporary de-sealing to the local discom for the electricity supply to be restored in respect of those portions forthwith. The petitioners shall also be at liberty to bring to the notice of the discom, the order passed today, for necessary compliance.
(iii) The petitioners shall be entitled to approach the Appellate Tribunal, MCD by preferring an appeal against the aforesaid sealing/demolition orders passed by the respondent/MCD. W.P.(C) No.6796/2011 Page 4 of 5
(iv) The petitioners shall request the Appellate Tribunal, MCD to consider their interim application, which shall accompany the appeal, proposed to be filed by them for being taken up for hearing.
(v) Both the parties shall be bound by the interim orders that may be passed by the Appellate Tribunal, MCD, till the same are altered/vacated in appeal.
8. Needless to state that the observations made herein above shall not influence the Appellate Tribunal, MCD in any manner and the interim application and the appeal of the petitioners, shall be heard and disposed of in accordance with law.
The petition is disposed of, along with the pending application. A copy of this order be given dasti, under the signatures of the Court Master.
HIMA KOHLI,J SEPTEMBER 20, 2011 sk W.P.(C) No.6796/2011 Page 5 of 5