Delhi High Court

Aman Ahuja vs Mcd & Anr. on 27 April, 2011

Author: Rajiv Sahai Endlaw

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 27th April, 2011

+                             W.P.(C) 2717/2011

         AMAN AHUJA                                        ..... Petitioner
                          Through:    Mohd. Sajid & Zafar Sadique.

                                   versus
         MCD & ANR.                                     ..... Respondents
                          Through:     Mr. Nawal Kishore Jha, Advocate
                                      for MCD in W.P.(C) No.2717,
                                      2719, 2720, 2721, 2722, 2723, 2724,
                                      2725, 2730 & 2733/2011 with Mr.
                                      K.P. Singh, A.E & Mr. Satish, E.E.,
                                      MCD.
                                      Mr. Dev. P. Bhardwaj with Ms.
                                      Anubha Bhardwaj, Advocates for
                                      MCD In W.P.(C) No.2718, 2727,
                                      2728 & 2729/2011.
                                      Mr. Mukesh Gupta, Advocate for
                                      MCD in W.P.(C) No.2726, 2730,
                                      2731 & 2723/2011 with Mr. K.P.
                                      Singh

                                     AND

         W.P.(C) No.2718, 2719, 2720, 2721, 2722, 2723, 2724, 2725, 2726,
         2727, 2728, 2729, 2730, 2731, 2732 & 2733 all of 2011




W.P.(C) 2717/2011
                                                                    Page 1 of 12
 CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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 reported          No.
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. All these petitions impugn the notices, all dated 13th April, 2011

issued by the respondent MCD notifying that the properties mentioned

therein, all situated in Sanjay Nagar, Gulabi Bagh, Delhi are being misused

for commercial/industrial purpose and calling upon the owners/occupants

of the said properties to stop the misuse within 48 hours failing which they

have been threatened that the properties shall be sealed. The notice further

states that the same has been issued in pursuance to the orders dated

16th February, 2006/24th March, 2006/11th March, 2008 of the Apex Court

in M.C. Mehta v. Union of India directing MCD to take sealing action

against misusers.

W.P.(C) 2717/2011

2. The counsels for the respondent MCD appearing on advance notice

inform that in pursuance to the said notices the properties subject matter of

W.P.(C) No.2722, 2723, 2725, 2727 ,2728 ,2729, 2731, 2733/2011 have

already been sealed.

3. It is further informed that the properties subject matter of the

W.P.(C) No.2718, 2719,2720,2721,2724& 2730/2011 have stopped the

misuse and the owners/occupants thereof have furnished

affidavits/undertakings to the respondent MCD to not misuse the properties

in future and as such sealing action against them has been dropped.

4. It is further contended by the counsels for the respondent MCD that

the action of sealing being in terms of the directions of the Apex Court,

this Court should in accordance with the principles laid down by the

Division Bench in judgment dated 11th October, 2007 in W.P.(C)

No.7109/2007 titled T.S.I. Displays P. Ltd. Vs. MCD should refrain from

entertaining the petitions and the remedy if any of the petitioners is before

the Supreme Court only.

W.P.(C) 2717/2011

5. It is yet further contended by the counsel for the respondent MCD

that in the copy of the notice dated 13th April, 2011 filed in W.P.(C)

No.2727/2011 the number of the property has been altered from 20 to 20A;

it is contended that the petitioner therein has indulged in tampering. The

original file of the respondent MCD containing a copy of the notice where

the number of the property is shown as 20 and not 20A is shown in the

Court.

6. Though the petitioners have challenged the notices aforesaid but

have neither in the petition nor during the course of hearing been able to

contend that the user of the property which is contended by the respondent

MCD to be misuser, is permitted in law.

7. I have enquired from the counsels as to what is prescribed user

under the Master Plan/Zonal Plan. The counsels for the respondent MCD

have replied that the prescribed user in the locality is 'Residential' on all

floors while the properties are being misused for commercial/industrial

purpose.

W.P.(C) 2717/2011

8. The only case of the petitioners is that the governmental agencies

including the respondent MCD have over the last 30 years recognized the

commercial/industrial use by issuance of various licenses etc. and by

collection of taxes at commercial/industrial rates.

9. The sheer length of illegality will not confer any right and there can

be no estoppel against the law.

10. It is the settled position of law that merely because the respondent

MCD or other governmental agencies owing to admitted

commercial/industrial use have levied charges/taxes at the

commercial/industrial rate or granted licences controlling the activities

admittedly being carried out, would not tantamount to the change of the

prescribed use of the locality and would not stop the said agencies from

enforcing the use in accordance with law. The Division Bench of this

Court in Rajiv Aggarwal v. New Delhi Municipal Committee

MANU/DE/0425/1987 held that merely because electric supply was

charged at commercial rates, cannot convert the illegal user into legal user

or even permissible user and it cannot be deemed to be conferring a license

W.P.(C) 2717/2011

for the illegality. Thus the same cannot form a justification for the

petitioners to continue the misuse or to challenge the notices aforesaid.

11. The counsel for the petitioners has next contended that the

notice/order of sealing is appealable before the Appellate Tribunal, MCD

and this Court in writ petitions preferred with respect to certain other

properties in the same locality has protected the existing users of the said

properties owing to vacancy in the office of the Presiding Officer of the

Appellate Tribunal, MCD and owing to those petitioners being not in a

position to approach the Appellate Tribunal by way of appeal against the

notices threatening sealing.

12. Though it is correct that owing to the vacancy in the office of the

Presiding Officer of the Appellate Tribunal, MCD, this Court in other caes

also has been granting interim protection but in all those cases the matter

required investigation by the Tribunal and it was owing to the said fact that

it was deemed expedient to grant interim protection till the filling up of the

vacancy in the Tribunal. However if this Court finds that the petitioners

have no case to be tried by the Tribunal, this Court would not grant interim W.P.(C) 2717/2011

protection. None can have a relief to which he/she is not entitled to in law,

taking advantage of the vacancy aforesaid.

13. The present is a case of such nature. The petitioners have been

unable to demonstrate before this Court that under the Master Plan/Zonal

Plan the petitioners are entitled to use the properties for

commercial/industrial purposes. Though it is correct that in some cases

copies of which have been filed by the petitioners interim protection has

been granted to the owners/occupants of properties similarly situated as the

petitioners herein till hearing of their appeals by the Appellate Tribunal,

MCD but there can be no claim to negative equality. Without petitioners

herein being able to make out the case of being entitled in law to continue

with the use and without the petitioners being able to show that the notices

impugned in the petitions suffer from any illegality, and without the

petitioners being able to show that there is anything to be tried/adjudicated

by the Tribunal, this Court would not perpetuate a misuser merely because

without considering all the said facts interim protection has been granted to

others.

W.P.(C) 2717/2011

14. The counsel for the petitioners has lastly contended that since the

petitioners have been using the properties for the same purpose for which

they are being used today for the last over 30 years, and further since the

petitioners have been representing to the authorities for change of

prescribed user of the area owing to majority of the properties being put to

misuse, the petitioners should be granted reasonable time of six months

from today to, if failing in persuading the authorities concerned to change

the prescribed user, restore the properties to their permitted use. It is

contended that the said time is required to enable the petitioners to make

alternative arrangements for their commercial/business purposes and/or for

earning their livelihood.

15. The counsels for the respondent MCD also on instructions confirm

that the misuse has been existing for the last at least 20 years.

16. In the circumstances, though the petitions are liable to be dismissed,

it is deemed expedient to, subject to certain conditions grant reasonable

time to the petitioners to stop the misuse and to make alternative

arrangements for their business/industry. Time till 30th September, 2011 is W.P.(C) 2717/2011

deemed sufficient for the said purpose. On enquiry, the counsel for the

petitioners states that all the petitions have been filed by the owners of the

respective properties and who are also the occupiers of the properties. The

petitioners through counsel undertake to this Court to, till restoring the

permitted use of the properties, not alienate, encumber or part with the

possession of the properties in any manner whatsoever and not to carry out

any works of addition, alteration and construction thereon.

17. The said undertakings of the petitioners through counsel are

accepted and the petitioners are ordered to be bound thereby.

18. The counsel for the petitioners has contended that since time as

aforesaid is being granted by this Court, the same be made available also to

those cases where the properties have already been sealed. The said request

is also found to be reasonable. However the properties aforesaid where the

misuse has already been stopped and undertakings/affidavits to in future

not carry out the misuse have been furnished would not be entitled to the

benefit of this order or to again commence misuse of the properties.

W.P.(C) 2717/2011

19. The petitions are accordingly disposed of with the following

directions:-

a) the petitioners are not found entitled to continue existing

use of the properties and owing whereto notices of misuse

have been issued by the respondent MCD. The petitions on

merits are therefore dismissed;

b) the petitioners are however, subject to the undertakings

aforesaid of the petitioners granted time till 30th

September, 2011 to stop the misuse of the properties.

However such of the petitioners as aforesaid who have

already stopped the misuse and/or who have furnished the

undertakings/affidavits to the respondent MCD shall not be

entitled to the said benefit and shall not be entitled to re-

commence misuse of the properties;

c) the respondent MCD is directed to, latest by 1600 hours

day after tomorrow i.e. 29th April, 2011, de-seal the

properties which have already been sealed. Such of the

W.P.(C) 2717/2011

petitioners shall be entitled to continue the use for the

reason whereof the properties were sealed but only till 30 th

September, 2011 as aforesaid;

d) notwithstanding the aforesaid the petitioners shall be

entitled to continue to make representations to the

governmental agencies for changing the prescribed use of

the area/locality and if prescribed use is so changed before

30th September, 2011 and the use to which the properties