Delhi High Court

Rameshwar Dass Aggarwal vs Mcd & Ors. on 1 April, 2011

Author: Rajiv Sahai Endlaw

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                             Date of decision: 1st April, 2011.

+                  W.P.(C) 1878/2010 & CM No.3762/2010 (for stay)

%        SAVITA RANI JAIN                                                     ..... Petitioner
                       Through:                            Mr. Raman Duggal, Advocate

                                                   Versus
         MCD & ORS.                                                           ..... Respondents
                                      Through:             Mr. Ajay Arora & Mr. Kapil Dutta,
                                                           Advocates along with Mr. P.K.
                                                           Rastogi, AE (Central Zone), MCD.
                                                           Mr. I.S. Chauhan & Mr. Manoj
                                                           Kumar, Advs. for R-2.
                                                           Mr. Nikhil Singla, Adv. for R-3.

                                                     AND

+                  W.P.(C) 1932/2010 & CM No.3845/2010 (for stay)

%        RAMESHWAR DASS AGGARWAL                ..... Petitioner
                    Through: Mr. Raman Duggal, Advocate

                                                   Versus
         MCD & ORS.                                                           ..... Respondents
                                      Through:             Mr. Ajay Arora & Mr. Kapil Dutta,
                                                           Advocates along with Mr. P.K.
                                                           Rastogi, AE (Central Zone), MCD.
                                                           Mr. I.S. Chauhan & Mr. Manoj
                                                           Kumar, Advs. for R-2.
                                                           Mr. Nikhil Singla, Adv. for R-3.

                                                     AND
W.P.(C)1878/2010, W.P.(C)1932/2010 & Cont.Cas(C)240/2011                       Page 1 of 11
 +                                         CONT.CAS(C) 240/2011

%        RAMESHWAR DASS AGGARWAL                ..... Petitioner
                    Through: Mr. Raman Duggal, Advocate

                                                   Versus
         MCD & ANR.                                                          ..... Respondents
                                      Through:             Mr. Ajay Arora & Mr. Kapil Dutta,
                                                           Advocates along with Mr. P.K.
                                                           Rastogi, AE (Central Zone), MCD.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                                     No.

2.       To be referred to the reporter or not?                              No.

3.       Whether the judgment should be reported                             No.
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The two writ petitions have been preferred impugning the notices

dated 8th March, 2010 under Section 345A of the Delhi Municipal

Corporation Act, 1957 calling upon the petitioner in each case to stop

misuse of property known as 1, Shiv Mandir, Taimoor Nagar, New Delhi

within 48 hours and threatening sealing of the property upon failure to so

stop the misuse.

2. The petitions came up first before this Court on 18 th March, 2010 &

19th March, 2010 respectively when while issuing notice to the respondent

MCD, the order dated 24th February, 2010 of the Nodal Steering Committee

appointed by this Court in Kalyan Sanstha Social Welfare Organization

Vs. Union of India and pursuant whereto the action of sealing against the

properties of the petitioners was threatened, was stayed with the

clarification that the stay would not operate against any order passed by the

Monitoring Committee appointed by the Supreme Court. The petitioners

were also restrained from carrying out any additions, alternations,

renovations, repair work in the properties.

3. Counter affidavits have been filed by the respondent MCD.

4. It was the contention of the respondent MCD during the hearing on

3rd December, 2010 that these writ petitions are not maintainable for the

reason of the alternative remedy of appeal under Section 347B (m) of the

Act being available to the petitioners. The counsel for the petitioners had

then sought time to argue on the aspect of maintainability of the writ

petitions.

5. The counsel for the petitioners has today urged that appeal is

provided against the "order" of sealing and not against the notice under

Section 345A impugning which these writ petitions have been preferred. He

thus contends that the writ petitions would be maintainable.

6. The counsel for the respondent MCD in its counter affidavit / status

report has inter alia stated that the order of demolition of unauthorized

construction and of sealing with respect to the said properties had been

made as far back as in the years 2003 & 2006 respectively and part

demolition action was also taken with respect to the property but demolition

could not be effected fully owing to the law and order problem created at

the site.

7. The counsel for the respondent MCD today clarifies that in

pursuance of the notices dated 8th March, 2010 impugned in these petitions,

no order of sealing has been passed as yet. It is stated that pursuant to the

said notices and the reply of the petitioners thereto, the matter will be

considered and the order if any of sealing will be passed. It is however

clarified that the said order will be in pursuance to the directions of the

Nodal Steering Committee appointed by this Court and would be without

prejudice to the order of demolition and sealing passed in the year 2003 and

2006 and against which no appeals whatsoever have been preferred.

8. The counsel for the respondent No.3 Residents Welfare Association

(RWA) of D Block, New Friends Colony, New Delhi contends that the land

underneath the property aforesaid is Mandir land and could not have been

sold and purchased and should be given back to the Mandir.

9. The counsel for the petitioners in rejoinder states that the respondent

no.2 New Friends Cooperative Building Society Ltd. had filed a suit with

respect to the said land and which suit and the appeal thereagainst were

dismissed.

10. However, all the aforesaid matters need not deflect the attention from

the issue as to the maintainability of the writ petitions.

11. The contention of the counsel for the petitioners that the writ remedy

can be availed of by impugning the show cause notice and then contending

that no appeal thereagainst is provided for and the appeal provided is only

in pursuance to the order if any to be passed pursuant to the said show

cause notice cannot be accepted. Rather, I am of the opinion that

ordinarily a noticee of a show cause notice is not entitled to impugn the

show cause notice itself and can only respond thereto and the challenge, if

any, has to be, only to the order passed in pursuance of the show cause

notice. The Division Bench of this Court in Hindustan National Glass &

Industries Vs. UOI 132 (2006) DLT 454 held that statutory proceedings

pending at the stage of show cause notice ought not to be interfered with in

exercise of discretionary jurisdiction under Article 226 of the Constitution

and which ought not to be permitted to be bypassed by resorting to writ

petitions under Article 226. Another Division Bench in Pepsico

Restaurants International (I) (P) Ltd. Vs. MCD 1995 (35) DRJ 616 had

also reiterated that the High Court would not entertain a writ petition

against a mere show cause notice except in the case of patent lack of

jurisdiction in the authority issuing the notice or violation of principles of

natural justice. It was held that the High Court should leave such a hasty

petitioner to pursue the remedy of showing cause against the notice raising

all his contentions for the consideration of the statutory authority and then

taking the appropriate remedy in the event of the result going against him.

12. In this regard, it may also be mentioned that the Legislature while

introducing Section 345-A in the Act has not expressly provided for the

issuance of any show cause notice before sealing the property. However,

this Court in Ahuja Developers (P) Ltd. Vs. MCD 42 (1990) DLT 474

(DB) followed also in Shrimati Shamim Bano Vs. MCD 2007 VIII AD

(Delhi) 304 has read the issuance of such a show cause notice in Section

345-A of the Act. The notices in the present petitions are nothing but such

notices which this Court required to be issued prior to effecting the sealing.

The petitioners will have to await the order, if any, of sealing in pursuance

to the said show cause notice.

13. As far as the contention of the counsel for the respondent MCD of

the respondent MCD being entitled to take action including of sealing,

against the property in pursuance of the earlier order of demolition / sealing

of the year 2003 & 2006 is concerned, now that the matter is to be decided

by the MCD, it is appropriate that the same be not given effect to till

decision in pursuance of the show cause notices aforesaid. MCD having

already waited for five to seven years to implement the said orders cannot

be said to be in any hurry to execute / implement the same now.

14. The counsel for the respondent MCD however seeks clarification that

in the aforesaid proceedings, the earlier orders of demolition / sealing are

not to be re-opened. The counsel for the petitioners contends that they have

no knowledge of any demolition / sealing order with respect to the

properties of the petitioners and deny that any such orders were made with

respect to the properties of the petitioners.

15. In view of the said position, it is not deemed expedient to in these

proceedings make any observations with respect thereto.

16. Accordingly, the writ petitions are disposed of with the following

directions:

(i) The writ petitions be considered as the reply of the petitioners

to the notices dated 8th March, 2010.

(ii) The petitioners to appear before the Deputy Commissioner,

Central Zone of the MCD on 7th April, 2011 at 1500 hours and

on such subsequent dates as may be deemed necessary.

(iii) The Deputy Commissioner, Central Zone of the MCD to pass

an order in pursuance to the show cause notices aforesaid, on

or before 15th May, 2011.

(iv) Till the making and communication of the said order to the

petitioners and for a period of four weeks thereafter, no action

be taken with respect to the properties of the petitioners not

even in pursuance to the earlier demolition order / show cause

notices. However, after the four weeks aforesaid, if there is no

stay from any of the Courts / foras, the MCD shall be entitled

to seal the property and / or take action for demolition

including in pursuance to the earlier orders aforesaid.

(v) The respondent No.3 RWA of D Block, New Friends Colony,

New Delhi shall be entitled to participate in the aforesaid

hearing before the MCD and if the petitioners prefer any other

proceedings with respect to the sealing / demolition order with

respect to the property then the petitioners shall implead the

said respondent also as a party thereto and the said respondent

shall have a right of hearing in opposition thereto.

(vi) Owing to the report of the earlier law and order problem in

execution of the demolition / sealing orders, the petitioners are

directed to in future cooperate in respondent MCD

implementing any orders which have attained finality and

which are not under stay from any Court / fora.

(vii) Both the parties shall have remedies in accordance with law.

(viii) It is however clarified that the mere fact that the

implementation of the earlier orders stated to have been made

has been directed to be kept in abeyance would not tantamount

to this Court having interfered with the same in these petitions.

(ix) The amounts deposited by the petitioners in this Court in

pursuance to the order dated 3rd December, 2010 together with

interest accrued thereon be refunded to the petitioners.