Delhi High Court

M/S Unique Innovation Pvt. Ltd. vs Mcd on 3 February, 2011

Author: Rajiv Sahai Endlaw

42
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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       W.P.(C) 651/2011 & CM No.1381/2011 (for interim directions)

        M/S UNIQUE INNOVATION PVT. LTD.              ..... Petitioner
                      Through: Mr. Harish Malhotra, Sr. Adv. with
                               Mr. Neeraj Malhotra, Adv.


                                  Versus


        MCD                                               ..... Respondent
                           Through:     Mr. Ajay Arora & Mr. Kapil Dutta,
                                        Advocates.

        CORAM:
        HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

                                  ORDER

% 03.02.2011

1. This order is in continuation of yesterday's order i.e. of 2nd February,

2011. In reply to the queries posed yesterday, the counsel for the

respondent MCD states that neither any second inspection was carried out

nor any order of sealing passed or served on the petitioner. He however

states that the action of sealing against the petitioner was in pursuance to the

inspection of 14th December, 2010 by the Members of the Monitoring

Committee appointed by the Supreme Court. He has in Court handed over a

copy of the file noting recording that the basement of the motel of the

petitioner was found being used in contravention of MPD-2021/Building

Bye-Laws, 1983 and in view thereof notice under Section 345-A of the

DMC Act was approved to be issued to the petitioner. It is however

admitted that in the evening of 27th December, 2010 an unattested affidavit,

as appearing at pages 36 & 37 of the paper book was submitted by the

petitioner to the MCD.

2. It is further informed that since in the said affidavit the petitioner had

undertaken to use the basement for storage purposes only and which storage

purpose is also not permitted, the action of sealing as already scheduled for

28th December, 2010 was carried out. In this regard a copy of the

Notification dated 16th June, 1995 of the DDA is handed over prescribing

the use of basement sanctioned free from FAR, for purposes only of

airconditioning plant, filtration plant, electric sub-station, parking and other

essential services. On the basis thereof it is contended that the use to which

the petitioner undertook to put the basement i.e. of storage was also not

permitted use and hence no need was felt to carry out any other inspection

or pass an order and the basement was sealed.

3. The counsel for the respondent MCD has also contended that the

sealing action being in accordance with the directions of the Monitoring

Committee appointed by the Supreme Court, this Court in accordance with

the judgment dated 11th October, 2007 of Division Bench of this Court in

W.P.(C) No.7109/2007 titled T.S.I. Displays P. Ltd. Vs. MCD ought to

refrain itself from entertaining this writ petition and the remedy of the

petitioner is either before the Monitoring Committee or before the Supreme

Court.

4. Though Section 345-A of the DMC Act does not prescribe issuance

of show cause notice but the Division Bench of this Court in Ahuja

Property Developers (P) Ltd. Vs. MCD 42 (1990) DLT 474 (DB) followed

also in Shrimati Shamim Bano Vs. MCD 2007 VIII AD (Delhi) 304 held

that Rules of natural justice have to be followed and a notice to show cause

required to be given before the sealing action under Section 345-A. The

notice dated 24th December, 2010 in the present case was given in

compliance of the said judgment. The relevant part of the said notice for

convenience is reproduced below:-

"WHEREAS, during the course of inspection along with Members, Monitoring Committee (Apex Court) it has been found that basement of motel known as Lutyens situated at M.G. Road, Sultanpur, New Delhi is being used in total violation of permission/sanctioned use of the said property and also against the Master Plan-2021/Zonal Plan/Sanctioned Plan/Modified Plan approved by DUAC & accepted by MCD which amounts to misuse of premises.

Now, therefore, I S.K. Midha, Deputy Commissioner, Municipal Corporation of Delhi, South Zone, Green Park, New Delhi in exercise of the power vested in me under Section 345- A, of the Delhi Municipal Corporation Act, read with Section 491 of the Act and rules made thereunder, after considering the reports placed before, me, hereby direct you to stop the misuse and bring the premises within permitted use as per Master Plan- 2021 within 48 hours and also file an affidavit in the prescribed format, failing which the premises under reference will be sealed without further notice."

5. In response thereto the petitioner submitted a reply dated 27 th

December, 2010 stating inter alia as under:-

"We have not built any extra construction in the basement we have Storage & Services, however, we are given to understand that a small portion of basement usage is not as per the sanctioned which we have stopped with immediate effect also to mention that we have adequate parking space which exceed more than 350 cars and area approximate 1.5 acres.

We request your good self to condone our basement sealing since we are submitting this affidavit as required and stand committed to operate as per MCD Guide Lines.

I will abide by all the rules and regulation given by the Hon'ble Supreme Court of India.

I will use the said premises only for permitted/sanctioned use as storage purpose only."

6. The petitioner also submitted an affidavit, the relevant extracts

whereof are as under:-

"3. That pursuance to the said Notice. The deponent has stopped/vacated the misuse of a small portion in the aforesaid basement of the aforesaid property within the 48 Hrs. and the deponent hereby undertake to use the said basement as per sanctioned/permitted or in accordance with the provision of Master Plan for Delhi-2021.

4. That the deponent undertakes to use the said premises only to permitted/sanctioned use as storage purpose only.

5. That the deponent undertakes to abide by all orders given by Hon'ble Supreme Court of India.

6. That the deponent also undertakes that he will above by all the guidelines norms issued time to time regarding above mentioned property/areas."

7. A perusal of the aforesaid shows that in the show cause notice, it was

not specified that to what use the basement was being put and which was

found objectionable or to what use it should be put. No date also of

carrying out sealing on 28th December, 2010 as now argued, was intimated

or could be intimated inasmuch as the date of sealing could not possibly be

fixed while issuing a show cause notice inasmuch as that would defeat the

purpose of giving show cause notice and show a pre-determination on the

part of the respondent MCD to seal the basement.

8. As far as the argument of the counsel for the respondent MCD of the

petitioner having shown defiance by undertaking to use the basement for

storage purposes and which is not permitted, is concerned, the reply and the

affidavit submitted by the petitioner have to be read in entirety. The

petitioner had clearly undertaken to bring the use of the basement in

conformity with the Master Plan and permitted user. Merely because the

petitioner while stating so also stated that the sanctioned use was storage,

did not entitle the respondent MCD to pick up that line only and on the basis

thereof seal the basement. Even if the respondent MCD was of the view

that the storage was not permitted, opportunity ought to have been given.

The petitioner ought to have been intimated of the same and if the petitioner

had failed to comply with the direction, then the respondent MCD would

have been entitled to seal the basement.

9. I am also unable to understand as to how the sealing action could

have been taken without passing an order. The law has provided for the

remedy of an appeal against the order of sealing. The said appeal has to be

filed against the order to be passed by the respondent MCD. The office

noting sheet handed over as aforesaid by the counsel for the respondent

MCD shows a noting of 28th December, 2010 to the effect that no reply had

been received from any of the motel owners. The said noting itself is

incorrect inasmuch as admittedly reply/affidavit had been received from the

petitioner. On the basis that no reply had been received, sealing action was

approved. No order is shown to have been passed. The file notings cannot

take place of the order required to be made.

10. The aforesaid shows a total non application of mind on the part of the

respondent MCD in taking the sealing action. Once the Division Bench of

this Court has held that the Rules of natural justice apply and a hearing has

to be given, the respondent MCD could not without considering the reply or

passing any order thereon have sealed the basement of the petitioner.

11. It is also the contention of the petitioner in the present writ petition

that though at the time of sanction of construction, basement was not taken

into consideration for the purposes of FAR but under the revised norms, the

FAR has been increased and the basement is permitted to be used for all

purposes as allowed in a hotel and the basement is within the enhanced FAR

norms. The counsel for the respondent MCD of course controverts the said

plea. However the fact remains that the respondent MCD is not shown to

have applied its mind to the aforesaid matter, having not passed an order

and having sealed the basement merely on the premise that reply has not

been received.

12. Insofar as the argument of the counsel for the respondent MCD of the

remedy of the petitioner being before Monitoring Committee or the

Supreme Court is concerned, the controversy in T.S.I. Displays (supra) is

also the subject matter of a Full Bench of this Court and which is still

pending. Even otherwise, the petitioner having been deprived of the hearing

which it is entitled to in law, I am of the opinion that the procedure

preceding sealing having not been followed, this Court is entitled to exercise

its power of judicial review under Article 226 of the Constitution of India.

The office noting sheet handed over does not show that the matter was put

up before or considered by the Monitoring Committee after the issuance of

the show cause notice.

13. The counsel for the respondent MCD has further contended that the

MCD is powerless in this regard and the pleas of the petitioner have to be

considered either by the Monitoring Committee or by the Supreme Court. It

is up to the MCD to place the representation and the matter before

appropriate authorities.

14. In the circumstances, the writ petition is disposed of with the

following directions:-

(i) The respondent MCD to immediately within 24 hours de-seal

the basement of the petitioner.

(ii) The petitioner is however bound with its reply and the affidavit

and directed to use basement till the decision below mentioned for

permitted purposes only and to not use the same for any other

purposes.

(iii) The petitioner is also restrained from till then, parting with

possession or encumbering the said basement in any manner

whatsoever.

(iv) The MCD to treat the present writ petition also as part of the

reply of the petitioner to the show cause notice and to hear the

petitioner on 22nd February, 2011 at 1100 hours and on such further

dates as may be necessary and to pass a reasoned order thereon.

(v) In the event of the MCD after hearing the petitioner, finding a

case for sealing to have been made out, the petitioner shall be served

with a copy of the said order and unless there is stay from any Fora in

remedy if any availed by the petitioner thereagainst, the petitioner

shall not obstruct the sealing carried out after seven days of the

service of the said order on the petitioner.