Delhi High Court
Parveen Ahuja vs Mcd And Ors on 5 July, 2011
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2816/2011 and CM 5990/2011
Decided on 05.07.2011
IN THE MATTER OF :
PARVEEN AHUJA ..... Petitioner
Through: Mr. Sameer Abhyankar, Advocate
versus
MCD AND ORS ..... Respondents
Through: Ms. Suparna Srivastava, Standing
Counsel, 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 present petition is filed by the petitioner praying inter alia
for quashing the action of respondent No.1/MCD in sealing the shop of the
petitioner situated at premises bearing No.7/56, Old Rajinder Nagar, New
Delhi, being run under the name and style of M/s Ahuja Tailors.
2. Counsel for the petitioner states that the aforesaid shop was
being run by the father of the petitioner since 29.11.1960. He submits
that on 03.03.2008, the said shop was sealed by respondent No.1/MCD
without issuing a notice to show cause to the petitioner. From
04.03.2008 to 19.06.2009, the petitioner made several representations
before the Monitoring Committee appointed by the Supreme Court as well
as before respondent No.1/MCD for temporary/permanent de-sealing of
the said shop. Finally on 19.06.2009, the said shop was permanently de-
sealed by respondent No.1/MCD under the directions of the Monitoring
Committee appointed by the Supreme Court (Annexure P-4). Thereafter,
the petitioner continued to conduct his business from the aforesaid shop
right upto 30.03.2011, when the officers of respondent No.1/MCD
suddenly came to the shop of the petitioner and re-sealed the same,
without issuing him any notice to show cause or affording an opportunity
of hearing to him.
3. Counsel for the petitioner submits that the petitioner kept
running from pillar to post to ascertain the cause of the sealing action
undertaken by respondent No.1/MCD on 30.3.2011, but to no avail.
Finally, he filed an application under the Right to Information Act, 2005
with the Executive Engineer, MCD, raising queries as to the basis on
which his shop was sealed, the name of the authority under whose order
the same was sealed and as to whether any notice to show cause was
served upon the petitioner regarding the sealing action. As per the reply
dated 26.04.2011 received by the petitioner from the MCD on
01.05.2011, the shop in question was re-sealed on 30.03.2011 on the
directions of the Monitoring Committee and it was further stated that no
notice to show cause was served upon the petitioner before sealing the
said shop. Counsel for the petitioner also draws the attention of this
Court to the letter dated 18.05.2011 issued by MCD to the petitioner,
wherein it was mentioned that based on the petitioner's request dated
19.04.2011, a report was forwarded to the Monitoring Committee, and
vide order dated 12.05.2011, the said Committee observed that the
premises had been rightly sealed as no mixed use is permissible in an
unauthorized construction. Further, the MCD was directed to take
necessary action regarding the unauthorized construction in the premises.
As a result, the request of the petitioner for de-sealing of the shop was
declined by the Monitoring Committee. Pertinently, the aforesaid
communication dated 18.05.2011 was addressed by the respondent/MCD
to the petitioner in compliance of the order dated 02.05.2011 passed in
the present case, wherein a direction had been issued to the MCD to
request the Monitoring Committee to take a decision on the pending
application of the petitioner within 10 days, under written intimation to
the petitioner.
4. Counsel for the petitioner states that the aforesaid action of
the Monitoring Committee as also the MCD in sealing the shop of the
petitioner on 30.03.2011, is contrary to law and is in complete violation of
the principles of natural justice, as no notice to show cause was issued to
the petitioner much less an opportunity afforded to him for making a
representation and being granted a personal hearing before sealing the
shop. In this regard, he relies on the following judgments:-
(i) W.P.(C) 651/2011 entitled M/s Unique
Innovation Pvt. Ltd. vs. MCD decided on
03.02.2011.
(ii) W.P.(C) 2284/2011 entitled Devyani
International Limited vs. MCD. decided on
05.04.2011.
5. There is no dispute on the facts of the case and it is not
denied by the respondent/MCD that no notice to show cause was issued
to the petitioner before sealing the premises in question. It is also not
denied that a personal hearing was not granted to the petitioner before
the sealing of his shop. Furthermore, admittedly no notice to show cause
was issued to the petitioner, before passing of the order dated 20.5.2011
by the Monitoring Committee directing MCD to take action regarding the
unauthorized construction at the premises in question. However, counsel
for the respondent/MCD states that MCD had placed the representation of
the petitioner dated 19.04.2011 for de-sealing of the premises, before the
Monitoring Committee, which was duly considered and disallowed.
6. It cannot be denied that principles of natural justice have
been violated in the present case, particularly when it is settled law that
rules of natural justice must be read into Section 345-A of the DMC Act,
as observed in the case of Ahuja Property Developers (P) Ltd. vs. MCD
reported as 42(1990) DLT 474 (DB) and followed in the case of
Shrimati Shamim Bano vs. MCD reported as 2007 VIII AD (Delhi) 304.
7. This Court is not inclined to agree with the submission of the
counsel for the respondent/MCD that merely placing the representation of
the petitioner dated 19.04.2011 before the Monitoring Committee and the
decision taken by the said Committee after considering the same can be
treated as sufficient compliance of the principles of natural justice. It
was incumbent on the respondent/MCD to have issued a notice to show
cause to the petitioner before proposing to seal his shop and further, any
action proposed to be taken in respect of the unauthorized construction
existing at the premises in question is required to be preceded by a notice
to show cause to the owner/occupier. Having failed to take such
measures before resorting to coercive measures against the petitioner is
unacceptable. This Court is of the opinion that principles of natural justice
have certainly been violated by the respondent/MCD. As a result, the
present petition succeeds. The sealing action undertaken by the
respondent/MCD on 30.03.2011, in respect of the shop of the petitioner is
held to be illegal. The respondent/MCD is directed to de-seal the shop of
the petitioner forthwith, preferably within 48 hours from today. However,
this does not preclude the respondent/MCD from issuing a notice to show
cause to the petitioner for sealing and/or for demolition of the
unauthorized construction, if any, existing at the premises, in accordance
with law. As and when the petitioner receives such a notice to show
cause, he shall be entitled to submit his reply thereto and seek a personal
hearing, if necessary. The said representation shall be placed before the
appropriate authority for consideration and personal hearing shall be
granted to the petitioner, whereafter, the decision taken shall be duly
communicated to him in writing. In the event that the petitioner is
aggrieved by the orders that may be passed, he shall be entitled to seek
his remedies as may be available to him in law.
8. The petition is disposed of with no orders as to costs.
A copy of this order be given DASTI to the counsels for the
parties under the signatures of the Court Master.
(HIMA KOHLI)
JULY 5, 2011 JUDGE
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