Vikas Gaur vs Municipal Corporation Of Delhi
2011 Latest Caselaw 4444 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment: 12.09.2011


+               CM (M) No. 1056/2011 & CM Nos.16964-65/2011


VIKAS GAUR                                        ...........Petitioner
                            Through:   Mr. A. Maitri, Advocate.

                       Versus


MUNICIPAL CORPORATION OF DELHI       ..........Respondent
                 Through: Mr. Ajay Arora, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?                Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes

INDERMEET KAUR, J. (Oral)

1 The order impugned before this Court is the order dated

01.09.2011; this is an order passed by the Appellate Tribunal of

the MCD (ATMCD). Learned counsel for the petitioner has placed

reliance upon 179 (2011) DLT 168 SC Amrik Singh Vs. Union of

India & Others to support his submission that a petition under

Article 227 of the Constitution of India is maintainable against an

order passed by the ATMCD as Section 347 (D) of the DMC Act

was held to be violative of Article 14 of the Constitution. There is

no dispute to this proposition.

2 On advance notice, learned counsel for the respondent has

put in appearance. Learned counsel for the respondent has

pointed out that the impugned order in no manner suffers from

any illegality.

3 Record shows that the present appeal had been filed by the

petitioner/appellant before the ATMCD under Section 347 (B) &

(C) of the DMC Act. He claimed himself to be the co-owner of

property bearing No. 46, Basant Gaon; this has been specifically

stated in his appeal. A sealing order had been passed by the MCD

qua this property; the Court had noted that in the reply filed to

the show cause notice it was specifically stated by the petitioner

that the property in question i.e. property No. 46 does not belong

to him i.e. to the petitioner Vikas Gaur and he has no concern with

it; contention being that his property is property No. 45, Basant

Gaon. There is no dispute to this fact which has been recorded in

the order of the ATMCD. The impugned order has also noted that

since there was a confusion whether the petitioner was the owner

of property No. 45 or property No. 46 and since the sealing order

has been passed in respect of property No. 46, a surveyor had

been appointed; the survey report dated 08.10.2010 is on record;

this report shows that both the properties i.e. properties No. 45 &

46 are two distinct properties and there is gali of about 4 feet in

between two properties. The impugned order had noted that since

the petitioner has himself admitted in the reply to the show cause

notice that he has no concern with this property i.e. property No.

46, Basant Gaon (which is the subject matter of the sealing order),

this appeal is not maintainable. Learned counsel for the

respondent has also pointed out that a writ petition seeking a

same prayer i.e. assailing the sealing order dated 08.09.2010 had

been preferred by the petitioner; he was petitioner No. 6 in the

said writ petition and the said writ petition had been filed by him

along with his duly attested affidavit; this writ petition is W.P.(C)

No.6506/2011. The prayer in this writ petition had challenged this

sealing order. It is also not in dispute and it is in fact admitted by

learned counsel for the petitioner that this writ petition which was

pending before a Bench of this Court has since been withdrawn on

06.09.2011. The present petition under Article 227 of the

Constitution had been filed on 09.09.2011; relevant would it be to

state that there is not a single averment or whisper about the fact

of pendency or withdrawal of the said writ petition in which the

very same sealing order was the subject matter of dispute and

which writ petition has since been withdrawn unconditionally.

This has been brought to the notice only by learned counsel for

the respondent.

4 This petition is liable to be dismissed on the ground of

concealment alone. No discretion can be exercised in favour of

such an indeserving litigant. It is accordingly dismissed with cost

of Rs.20,000/- to be deposited with Delhi High Court Legal

Services Committee.

5 A copy of this order be sent to the Registrar General who

shall ensure compliance.

INDERMEET KAUR, J.

SEPTEMBER 12, 2011 a