Nirmala Jain vs Municipal Corporation Of Delhi ...
2006 Latest Caselaw 1277 Del

JUDGMENT

S. Ravindra Bhat, J.

1. In all these writ petitions, common issues arise for determination; they were therefore heard together, with consent of counsel. All the petitioners claim directions for quashing of a sealing order dated 18.1.1999 as confirmed by the order of the Appellate Tribunal dated 1.12.2004 and the order of the Lt. Governor dated 6.4.2005.

2. The petitioners purchased and took possession of four different flats in D/143-144, Mahindru Enclave. As per averments in these proceedings, they acquired the premises in 1998. It is claimed that the properties are assessed to house-tax and regular connections have been provided by the utilities. The Respondent-MCD had apparently issued a demolition order on 17.12.1998 in respect of portions of the building being basement, ground floor, first floor, second floor and third floor as also partition walls on each floor. It is alleged that there are sixteen flats in all, in the said building.

3. The petitioners had preferred appeals to the Appellate Authority constituted in terms of Section 347-A of the Delhi Municipal Corporation Act (hereafter 'the Act'). The appeals against the demolition orders were disposed off by an order dated 17.8.2004 The petitioners had relied upon the judgment of this Court in Manju Chourasia v. DDA and submitted that the issues were fully covered by that judgment. The Tribunal noted that the construction in question appeared to be prior to 1.4.1997 and that the property, part of Mahindru Enclave colony which is at Sl. No. 451 in the list of 1071 unauthorized colonies proposed to be regularized in accordance with the policies of the Govt. of NCT and Central Government.

4. The Tribunal further noted the judgment reported as Common Cause v. Union of India where the Division Bench had, inter alia, held as follows:

In respect of the colonies on the Government land and other colonies which are not to be regularised for one reason or the other. It is high time that the Government takes a definite decision. Over the years, we have passed repeated orders impressing upon the Government that the result of not taking decision is resulting in corruption at various levels. We are not suggesting, for the present, whether a particular colony shall be regularised or not but when we are directing is to take a definite decision and if it is decided not to regularise a particular colony then to carry out that decision to its logical end by demolition action not merely demolition of only few selected houses but the colony as a whole.

5. The Tribunal accepted the submissions of the petitioners that their cases were fully covered by the decision in Manju Chourasia and further recorded their willingness to furnish an undertaking in terms of that judgment. On the same date, the undertakings were furnished and statements were also recorded by the Tribunal. The petitioners had undertaken and stated that they would not carry any further construction. The Tribunal disposed off the appeals in the following terms:

As far as first proposal/contention of the counsel for the appellants is concerned, it is further clarified that in case, this colony is not regularised by the Government then the respondent/MCD is at liberty to remove the entire construction, in question, after the decision of the Government on this point.

In case this colony is regularised by the Government then the following directions shall apply to the appellants:

1. It will be open to the officials of the MCD to inspect the colony, in question, and take all necessary steps to protect the area of the land.

2. It will be open to respondent MCD to take all necessary action to ensure that no further construction is carried out by the appellants.

3. It is open to the respondent to take a decision on the issue of regularisation and till the issue of regularisation is decided, respondent shall not apply the principle of pick and choose against the appellants for taking any action including for dispossession or demolition other than to ensure aforesaid directions.

4. In view of the orders passed in CWP No. 4771/93 on 3.11.1997 restraining any further construction being carried out on any unauthorised colonies, this order would not come in the way of the authorities to take any action if the construction has come up after the said date.

5. The appellants have already filed the undertaking stating that they will not carry on any further constructions. The construction, in question, has been in existence even prior to 1.4.1997. The property, in question, will be used only in residential purposes and not for commercial activities. The appellants will also not create any third party interest in any manner, whatsoever till the decision is taken on the issue of the regularisation of this colony. The appellant has also filed plan of the existing construction which is Ex.A-2. Over and above, the appellants have also undertook to pay the compounding charges and to remove the non compoundable construction if found or held as per the policy of regularisation. The appellants will remain bound by this undertaking.

In case, the colony is regularised, but within one month from the date of the decision of the regularisation, the appellants have failed to comply with their undertaking Ex.A-1, then the respondent MCD will be at liberty to remove the entire unauthorised construction as per the impugned demolition order. Till that time the respondent will not execute order of demolition against any of the appellants. With these observations these appeals stands disposed of. Copy of this order be sent to the respondent along with its records, if any and thereafter this file be consigned to record.

6. During the pendency of the appeals, officials of the MCD had visited the petitioners' properties in order to give effect to the demolition order. At that stage the petitioners became aware of an order dated 18.1.1999 sealing the premises. It is alleged that sealing orders were issued on 18.1.1999 only in respect of the four properties belonging and occupied by the petitioners. They petitioners preferred appeals against the common order sealing the premises. By the impugned order dated 1.12.2004, the Tribunal rejected the appeal, primarily on the question of delay. It proceeded to hold that a right of appeal is not an inherent one , but conditional upon the terms of the statute creating it. It, therefore, held that if the litigant aggrieved by an order chooses not to appeal against it and approaches the appellate forum belatedly, without convincing explanation, the appellate forum would be acting within jurisdiction in declining to hear the merits of the appeal. Therefore, it declined to entertain the merits of the appeals, and rejected them only on the ground of delay.

7. The petitioners preferred appeals to the Lt. Governor who affirmed the decision of the Appellate Authority. That decision as also the sealing order and the orders of the Appellate Authority, have been questioned in these writ petitions.

8. The petitioners allege, inter alia, that with the demolition order itself being kept under suspension, and the order of the appellate tribunal having become final, the sealing orders serve no purpose. It is alleged that only the four flats in question, which were acquired in 1998 have been subjected to sealing orders whereas all the other properties with identical dimensions, numbering 12, have been spared.

9. The MCD in its counter affidavit has resisted the petitioners claim. It is alleged that the sealing order under Section 345A was necessitated by unauthorized constructions. It has also been averred that demolition action had been proposed on various dates and in fact undertaken. Apparently, some demolition charges to the tune of Rs. 53,900/- were deposited by the owner/builder of the property. The demolition orders were however set aside by the appellate tribunal. It is further averred that sealing orders were issued on 18.1.1999; the same is in accordance with provisions of the Act and are defended as legal and proper.

10. Mr. Shali, learned Counsel contended that the petitioners have been singled out for invidious discrimination and the MCD has adopted a policy of pick and choose. It was contended that the premises or flats of the petitioners are no different from those of the twelve others and consequently there is no justification for issuing the sealing orders. It was also urged that with the demolition orders having been kept in suspension, subject to the undertaking furnished by the petitioners, the sealing orders became meaningless.

11. Learned Counsel for the MCD, Mr. Arora, justified the orders of the tribunal and the Lt. Governor and submitted that the petitioners cannot be heard to complain and seek equitable relief under Article 226 of the Constitution of India. It was submitted that the respondents were duty bound in terms of the Act, to issue sealing orders which they did. The petitioners have not complied with the terms of the order and therefore the impugned orders cannot be faulted.

12. The above factual narrative would show that the demolition orders issued in respect of the petitioners have in effect been interfered with; the MCD cannot take any action on account of the undertaking furnished by the petitioners which in consonance with the judgment of this Court in Manju Chourasia's case. The undertaking recorded by the tribunal and its orders dated 17.8.2004 have become final. In these circumstances there is some force in the submission that the sealing orders are virtually meaningless. This is more so because the premises are located in a colony awaiting regularization. It is undisputed that in the same building, several flat owners are residing.

13. The petitioners have alleged that the four flats in question are not different from any of the other twelve flats, in the building constructed upon D-140-143, Mahindru Enclave. This had not been controverter by the MCD nor disputed during the course of hearing. In such circumstances the inevitable inference which the Court can draw is that the MCD has adopted a discriminatory practice. If the sealing action had been in respect of the entire building, covering all the sixteen flats, the petitioners could not have been heard to complain of hostile discrimination or a pick and choose policy.

14. This Court has been repeatedly stating in several judgments, including Common Cause (supra) and Manju Chaurasia that while taking action, the Municipal authorities, particularly MCD ought not to adopt a 'pick and choose' approach. In Manju Chaurasia, it was held as follows:

In such matters, directions have been passed in order to ensure that there is no pick and choose by the respondents in dealing with the occupants of these colonies and a consistent policy is followed. The said directions would apply to the present case also....

The facts of this case disclose that such a course of action of 'pick and choose? has been unfortunately adopted in respect of the petitioners.

15. In the light of the above discussion a direction is issued to the respondent-MCD to treat the properties of the petitioners in the same manner as in the case of the other twelve premises in the same building and adopt a uniform approach. The MCD shall therefore remove the seals placed upon the premises of the petitioners within two weeks from today and handover the possession to them. It is open for the MCD to inspect the entire building and take such action as is permissible in law, subject to the orders of the appellate tribunal dated 17.8.2004 (in which the the demolition action has been stayed) and further subject to the condition that a uniform and non- discriminatory approach shall be adopted in respect of all the properties.

16. The writ petitions and all pending applications are disposed off in the above terms. No costs.