Ramesh Pershad Seth vs Mcd And Ors
2017 Latest Caselaw 1397 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                   Judgment reserved on : 10.3.2017
                   Judgment delivered on : 15.03.2017


+      W.P.(C) 13402/2009

       RAMESH PERSHAD SETH                          ..... Petitioner

                          Through      Mr. J. C. Mahendroo, Advocate

                          versus

       MCD AND ORS                                  ..... Respondents

                          Through      Mr. Mukesh Gupta, Mr. Praney Jain
                                       and Mr. Chetan Gautam, Advocates

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

       INDERMEET KAUR, J.

1 The petitioner, the proprietor of a hotel "City Hotel" (premises

bearing No.3990, Ajmeri Gate, Delhi) is running this business since

the year 1982. Various permissions/licences were required by the

petitioner which had been obtained from the local bodies. They were

being issued to him from time to time. His last licence was renewed

for the period 2005-06 vide a communication dated 31.3.2005.

Separate applications for renewal of his heath trade licence had also

been submitted which had accordingly been issued. On 23.3.2009 the

petitioner again applied for renewal of his health trade licence.

However, the same was not renewed. A demand dated 26.3.2009 was

raised upon the petitioner seeking certain documents. This included

the structural stability certificate of the building. These documents

were furnished to the Department. Contention of the petitioner is that

the area where the hotel of the petitioner is located is a "special area"

falling in the walled city. A certificate had been issued by the

Corporation on 4.7.1980 declaring the petitioner's property to be in

local commercial area. Clause 16.2 of MPD-2021 exempts the

petitioner from payment of any conversation charges; particularly

those premises which lie in a commercial area. Clause 16.2(5) of

MPD-2021 ensures that a status quo of such properties has to be

maintained. The demand by the Department dated 13.01.2009 seeking

payment of conversation/parking charges for renewal of his heath

trade licence is thus illegal. It is liable to be set aside.

2 Counter affidavit of the respondent corporation is on record.

His stand is evidenced by their counter affidavit as also by their

additional affidavit which had been directed to be filed by them. Their

stand is that the property of the petitioner (bearing No.3990, Ajmeri

Gate, Delhi) falls in a residential area; the street on which it is located

has been incorporated in the list of notified roads/streets in MPD-2021

as "mixed use land". Accordingly the petitioner is liable to pay

conversion/parking charges; his property falling in "mixed use land".

It is denied that the property of the petitioner falls in a local

commercial area and not in a residential area. It is clarified that the

benefit of the letter dated 15.12.1980 (relied upon by the petitioner to

advance his case that it is a local commercial area) is not available to

him as it is in fact not a document of the Department. Learned

counsel for the respondent points out that certain RTI queries have

been raised by the petitioner but he was not able to substantiate his

plea that this property was ever designated as a local commercial area.

He is not entitled to the benefit of clause 16.2 of MPD-2021.

Redevelopment of the walled city even otherwise cannot be linked to

the demand of conversion charges which would be a distinct issue; the

liability of the petitioner to pay these conversation charges is writ

large.

3 A rejoinder has been filed by the petitioner. Contention in the

rejoinder is reiterated to the effect that the property of the petitioner is

a local commercial area. Provisions of Chapter-15 of MPD-2021

would not be applicable. Chapter 16 alone would be applicable.

Being a special area falling in the walled city of Chandani Chowk

(City Hotel, admittedly being located at Ajmeri Gate) a status quo qua

all these properties has to be maintained. The petitioner is protected.

4 On behalf of the petitioner arguments have been addressed by

the learned counsel for the petitioner Mr.J.C.Mahendroo. Apart from

the pleadings it has additionally been pointed out that the plea set up

by the respondent that the street of the petitioner falls in a residential

area is even otherwise negatived for the reason that the shop of the

petitioner has two entrances and the entrance which is being used by

him opens out on the commercial side. It cannot be termed as

"residential". Additional argument raised by the petitioner is that the

petitioner is even otherwise protected against any punitive action in

terms of the Government of National Capital Territory of Delhi Laws

(Special Provisions) Second Act, 2011 (hereinafter referred to as the

Special Act); submission being that a punitive action as defined under

Section 2(g) of the Special Act prohibits the Department from levying

any conversation charges upon the petitioner. This moratorium

extends up to 31.12.2017.

5 On behalf of the respondent arguments have been addressed by

Mr.Mukesh Gupta, Additional Standing Counsel. It is pointed out that

these two arguments now raised by the petitioner do not find any

mention in the pleadings. Neither in the petition and nor in the

rejoinder has the petitioner taken up any stand that his shop has two

entrances one of which opens out on the commercial street. On the

second argument, it is pointed out that the protection under the Special

Act has also not been set up as a plea.

6 Arguments have been heard. Record has been perused.

7 Record shows that the petitioner has been running a hotel under

his proprietorship under the name and style of City Hotel. He

commenced this activity in the year 1982. Licence for running this

lodging business had been issued to the petitioner every year. The

licence (Annexure A-1) dated 27.01.1994 shows that the licence for

running this lodging business for 8 rooms and 8 lodges has been

granted to the petitioner on a yearly basis and the last renewed licence

was up to 31.3.2004. The petitioner had also applied for renewal of

his health trade licence which is evident from his letter dated

23.3.2009 (Annexure R-3). He had sought renewal of his health trade

licence w.e.f. 01.3.2009 up to 31.3.2010. This request was reiterated

on 29.4.2009. This application was rejected on 19.6.2009 by the

Health Department. It was for three reasons; running of a lodge under

insanitary and unhygienic condition; non-submission of documents;

non-submission of mixed land use charges, parking

charges/conversion charges. The petitioner in his communication

dated 06.7.2009 replied to this letter dated 19.6.2009. His contention

was that since his premises have been declared as a local commercial

area and not being in a residential area, no conversion charges are

liable to be paid by him. These representations and counter replies

continued. On 07.9.2009 the Deputy Health Officer of the City Zone

sent a final letter asking the petitioner to pay his conversion/parking

charges as per the provisions of MPD-2021.

8 Learned counsel for the petitioner has relied upon a document

dated 15.12.1980 to advance his submission that his premises (bearing

No.3990, Ajmeri Gate, Delhi) falls in a local shopping area. This

document reads as under:

"MUNICIPAL COROPORATION OF DELHI CITY ZONE No.1548/ZAC/CZ/80 Date. 15.12.1980

It is to certify that Premises No.3990/VII, Chowk Ajmeri Gate,

Delhi fall in Local Commercial area. No unauthorized construction

has been reported in the above said premises.

Zonal Asstt. Commissioner, City Zone The City Hotel, 3990, Chowk Ajmeri Gate, DELHI

9 At the outset only a typed copy of the aforenoted document had

been filed. During the course of these proceedings, the petitioner had

been directed to place the original document on record. Along with

the reply affidavit a purported photocopy of the said document bearing

illegible signatures had been placed on record. The RTI queries raised

by the petitioner qua this document are also relevant. The petitioner in

these RTI queries had allegedly requested information on this

document. On 11.12.2012 the information given to the petitioner was

that property bearing No.3967-68, falls on a declared commercial

street. The property of the petitioner is property bearing No.3990.

Why the petitioner was interested in the property of another person

has not been explained. It appears that the petitioner was raising

useless queries; there was never a query raised by him qua this

document dated 15.12.1980. His queries were restricted to the

submission that out of two departments i.e. Building Department or

the Health Department who could levy conversion charges upon the

petitioner. It is also relevant to note that all along the petitioner has

been pleading his case stating that his property falls in a local

commercial area based on a communication dated 15.12.1980 and the

typed copy of the document which had been placed on record also

bore the date of 15.12.1980. In the rejoinder the date suddenly

changed and from 15.12.1980 to becomes 15.7.1980. The date of

15.7.1980 appears in para 5 of rejoinder. It was along with this

rejoinder that a true photocopy of this document has been filed. This

document is far from legible. It however depicts the date as

15.7.1980. It definitely cannot be read as a document dated

15.12.1980. The date of 15.12.1980 has been relied upon the list of

dates. Relevant would it be to note that in the body of the petition this

document nowhere finds mention. It is only mentioned as a document

dated 15.12.1980 in the list of dates. In the rejoinder filed by the

petitioner 15.12.1980 becomes 15.7.1980. At the cost of repetition, a

typed document along with this petition has a date of 15.12.1980 but

the photocopy of the so-called original of the said document has a date

of 15.7.1980. This is the reason why in the rejoinder date of

15.7.1980 has been relied upon. Again at the cost of repetition, it is

noted that in the entire RTI queries raised by the petitioner he has

never asked or queried either about document dated 15.7.1980 or

15.12.1980. In response learned counsel for respondent vehemently

submits that this document has not been issued by the Department and

there is no authenticity qua this document. This Court endorses this

submission. This Court also notes that this is the only document relied

upon by the petitioner to advance his submission that his property falls

in a local commercial area. The authenticity of document dated

15.7.1980/15.12.1980 being dubious and in doubt, this Court is not

inclined to accept that document. In the absence of this document,

there is nothing on record to show that the property of the petitioner

falls in local commercial area. This document is rejected.

10 Chapter 15 of MPD-2021 relates to "mixed land use". Mixed

land use is applicable for residential areas. Annexure-B filed by the

respondent giving list of commercial streets, mixed used streets,

pedestrian shopping streets etc (pursuant to MPD-2021) at serial no.23

shows that "Ajmeri Gate Road from Ajmeri Gate Park to Houz Quazi

Chowk, Shop No.4904 to 3982" is a mixed use street. Admittedly the

shop of the petitioner (3990) falls within this list of shop numbers.

The petitioner having failed to espouse his case that his property falls

in a local commercial area and the respondent on the other hand

having placed on record the list of mixed use streets which includes

the location of the property of the petitioner, this Court is of the firm

view that the property of the petitioner falls within the mixed land use.

W.e.f. from the date of promulgation of MPD-2021 (07.02.2007) the

property of the petitioner falling in Ajmeri Gate Road from Ajmeri

Gate Park to Houz Quazi Chowk has thus become a mixed land use.

11 The mixed use regulations are contained in Chapter 15. Clause

15.9 (vi) is relevant. They read as under:

"In respect of residential premises already under mixed use on

7.2.2007 in Special area, the owner/allottee/occupier of the plotted

development shall be required to declare such mixed use by filling up

a form in this respect and depositing it with local body concerned and

pay one time registration charges and conversion charges without

penalty on or before 30.6.2009 at the rate to be notified with the

approval of the Government from time to time."

12 This sub-clause specifies that in respect of residential premises

falling in a "Special Area" (as per the case of the petitioner being in

the walled city, he is in special area) after the street has been declared

as a mixed land use, conversion charges are liable to be paid by such a

party. Provisions of Chapter 16 which deal with the land use plan

and particularly clause 16.2(5) (relied upon by the petitioner) do not

come to the aid of the petitioner. Relevant would it be to extract Bye-

Law 16.2(5). It reads as under:

"Re-development Plan and Schemes for the Special Area should be prepared by the local body within three years of approval of the MPD 2021. In this Plan, the Metropolitan City Centres as referred in 5.3, Chapter 5.0 Trade and Commerce, shall be delineated based on survey. Till such time, status quo shall be maintained."

13 This clause only specifies that on redevelopment plan, a scheme

for special area should be prepared by the local bodies within three

years of approval of the MPD-2021; till such a time status quo has to

be maintained. This status quo as is envisaged in Chapter 16 does not

prohibit or prevent the Corporation from making demand of

parking/conversion charges upon the party. Even presuming that

benefit of clause 16.2(5) can be given to the petitioner, this Court is of

the view that conversion charges sought to be levied by the

Department on the petitioner would not be a hurdle even if this

provision kept in mind. The clarification made by the Department in

the additional affidavit is also relevant. This clarification is to the

effect that in minutes of the meeting held under the Chairmanship of

the Vice-Chairman, DDA on 26.6.2007, the DDA had intimated to the

respondent Corporation that the properties on notified streets qualify

for payment of conversion charges as per the mixed use regulation

prescribed in the MPD-2021; the preparation of the redevelopment

plan/scheme may not be linked with the commercial activities at this

stage. A copy of the aforenoted communication dated 10.8.2007

addressed by the DDA to the Corporation is also a part of the record.

14 This Court is thus of the view that the property of the petitioner

falling under a residential area Chapter 15 of MPD 2021 is applicable.

Under Clause 15.09 (vi) conversation/parking charges are to be paid

by the petitioner. A status quo qua a property ( in terms of Clause

16.2 (5)) MPD 2021 would not prevent the Corporation from the levy

of such a demand. This would be wholly unrelated.

15 The submission of the petitioner that his property actually has

two sides one of which opens out on the commercial street is an oral

argument. It has not been pleaded either in the main petition or in the

rejoinder. This submission cannot be taken note of. The second

submission of the learned counsel for the petitioner that he is

protected under the Special Act and no punitive action can be taken is

also a submission noted to be rejected. The definition of "punitive

action" as contained in Section 2(g) of the Special Act reads herein as

under:

(g) "punitive action" means action taken by a local authority under the relevant law against unauthorised development and shall include demolition, sealing of premises and displacement of persons or their business establishment from their existing location, whether in pursuance of court orders or otherwise;"

16 The levy of conversion charges/parking charges which are

mandated under the statutory enactment of MPD-2021 will not come

within the definition of a "punitive action". This is clear from the

definition enumerated supra.

17 This Court notes that in the course of these proceedings, the

petitioner had been granted interim relief for the interregnum period

on deposit of a sum which has since been deposited and is lying with

the Registry of this Court. This was vide order dated 20.9.2011. This

interim order is made absolute. The petitioner has no case. His

liability to pay conversion/parking charges cannot be linked with the

redevelopment plan of the walled city even presuming that he falls

under the Special Area of the walled city.

       18     Petition is without any merit. Dismissed.



                                             INDERMEET KAUR, J

       MARCH 15th, 2017
       A