Delhi High Court
M/S Shanti Electroplating vs Mcd & Others on 16 September, 2015
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) NO.5035/2013
M/S SHANTI ELECTROPLATING ..... Petitioner
Through: Mr. M.K. Gautam, Adv.
Versus
MCD & OTHERS ..... Respondents
Through: Mr. G.D. Mishra, Adv. for R-1.
Ms. Renuka Arora & Mr. Kunal
Kohli, Advs. for R-3/DSIIDC.
Mr. Anul Aggarwal, Adv. for
GNCTD.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 16.09.2015
1. The petition seeks, (i) a direction to the respondents No.2 &3 viz.
Commissioner of Industries and Delhi State Industrial and Infrastructure
Development Corporation Ltd. (DSIIDC) to allot an alternative plot under
the Re-location Scheme of the Government of National Capital Territory of
Delhi (GNCTD) to the petitioner in reference to its application dated 30th
December, 1996 and at the same rates as prevailing at the time of booking of
the plot by the petitioner in the year 1996; (ii) a direction to the respondent
No.1 Municipal Corporation of Delhi (MCD), since succeeded by South
Delhi Municipal Corporation (SDMC), to de-seal the industrial unit of the
petitioner at 31, Main Market, Subhash Nagar, New Delhi; and (iii) damages
for sealing of its premises since the year 2000 i.e. for 13 years, of
Rs.50,00,000/-.
2. The petition was entertained and counter affidavits have been filed by
SDMC and DSIIDC and to counter affidavit of the DSIIDC, rejoinder has
been filed by the petitioner. The counsels have been heard.
3. The premises of the petitioner at 31, Main Market, Subhash Nagar,
New Delhi were sealed for non conforming use thereof by the petitioner and
in accordance with the directives issued by the Supreme Court as recorded in
M.C. Mehta Vs. Union of India (2004) 6 SCC 588. The government, at that
time had also floated a Re-location Scheme for such industrial units being
operated in non-industrial areas. The petitioner, as per the prayer paragraph
of the petition, had made an application in 1996 itself for allotment of a plot
under the Re-location Scheme. However this petition has been filed only on
1st August, 2013 i.e. after nearly 17 years of the date on which the petitioner
claims to have applied for plot under the Re-location Scheme and after 13
years from the date (30th November, 2000) on which the petitioner claims its
premises to have been sealed and which are stated to be lying sealed till date.
4. It has been put to the counsel for the petitioner that the premises of the
petitioner can be directed to be de-sealed, subject to the compliance by the
petitioner of all the formalities required to be done in this regard and further
subject to the petitioner furnishing an undertaking to this Court that upon the
premises being so de-sealed, the petitioner shall not use the same for any non
conforming purpose or in violation of the guidelines / directions of the
Supreme Court in M.C. Mehta supra.
5. The counsel for the petitioner has drawn attention to the licence
earlier issued by the MCD to the petitioner for running the electroplating
unit from the subject premises and contends that the said unit is not a
industry and would fall within commercial purpose, which is permitted on
the street on which the property of the petitioner is situated.
6. This Court in this proceeding cannot enquire as to whether the activity
intended to be carried out by the petitioner from his premises is permitted or
not. If the petitioner desires to, upon de-sealing of the property, carry on any
polluting activity from the said premises, the petitioner will have to apply for
permission therefor and only upon obtaining the permission would be
entitled to carry on the said activity / activities. Else, the petitioner would be
entitled to use the premises only for the residential or such of the commercial
activity which may be permitted.
7. The counsel for the respondent No.5 Sub-Divisional Magistrate
(SDM), Rajouri Garden, Delhi contends that the electroplating activity is a
polluting activity which is prohibited and not permitted.
8. The counsel for the petitioner on behalf of Smt. Sushma Baluja,
proprietor of the petitioner under instructions from Mr. Mohit Baluja,
Nephew of the said Smt. Sushma Baluja present in Court states that Smt.
Sushma Baluja furnishes an undertaking to the Court not to use the premises
for any purpose other than residential and / or permitted commercial purpose
in the event of the property being de-sealed. The petitioner through counsel
has been made aware of the consequences of breach of undertaking given to
the Court.
9. As far as the claim of the petitioner for allotment of an alternative plot
under the Re-location Scheme is concerned, not only is the same highly
belated and liable to be rejected on grounds of laches, acquiescence and
waiver but the counsel for the respondent No.3 DSIIDC also points out that
upon the application of the petitioner for allotment of an alternative plot
being rejected in the year 2000, the petitioner also obtained refund in the
year 2002 of the initial amount deposited therefor. On enquiry, she further
states that no further applications are being entertained today inasmuch as 50
eligible applicants who had applied as far back as in the year 1996 are still
awaiting allotment owing to paucity of plots available for re-location.
10. This Court in DSIDC Vs. Naresh Gupta 128 (2006) DLT 777 (DB)
has held that non-availability of the re-location plot is not a ground for
continuing non conforming use.
11. Accordingly, while dismissing the petition, it is directed that subject to
the petitioner filing an affidavit in this Court of the proprietor of the
petitioner within three weeks from today, giving an undertaking to the Court
in terms of above, the respondent No.1 SDMC shall de-seal the premises of
the petitioner.
12. List before the Registrar General on 29th October, 2015, who will
verify whether the affidavit filed by the proprietor of the petitioner is in
terms of above and if the petitioner has furnished the undertaking as
aforesaid, the respondent No.5 SDM shall, within two weeks thereafter, de-
seal the premises.
No costs.
Copy of this order be given dasti under signature of the Court Master.
RAJIV SAHAI ENDLAW, J
SEPTEMBER 16, 2015
'gsr'..
