Destination Cafe Private Limited vs New Delhi Municipal Council & Anr
2018 Latest Caselaw 3775 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Date of decision: 9th July, 2018


+      W.P.(C) 6557/2018

       DESTINATION CAFE PRIVATE LIMITED        ..... Petitioner
                    Through: Mr. Parmod K. Sharma, Mr. Prashant
                             Bajaj and Ms. Ankita Vashishth, Advs.


                        versus

       NEW DELHI MUNICIPAL COUNCIL & ANR ..... Respondents
                   Through: Mr. Tarunveer Singh Khehar, Standing
                             Counsel with Mr. Arjun Malik, ASC
                             with Mr. Vivek Garg, Assistant
                             Architect.
                             Mr. Vinnie Sharma, Counsel for
                             Monitoring Committee.

CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO

V. KAMESWAR RAO, J. (ORAL)

1. Present petition has been filed by the petitioner with the following

prayers:

"It is most respectfully and humbly prayed that this Hon'ble Court may graciously be pleased to:

(a) Issue Writ of mandamus, order or direction setting- aside/annulling/quashing the sealing Order No.D- 149/CA/NA/AA(M)/26 dated 04.05.2018 passed by respondent No.2 in respect of premises No.E-13/29, Ground Floor, Harsha Bhawan Middle Circle, Connaught Place, New Delhi Restaurant Zabardast; AND

(b) Direct respondents to de-seal the premises No. E-13/29, Ground Floor, Harsha Bhawan Middle Circle, Connaught Place, New Delhi Restaurant Zabardast more particularly shown in red colour in the site plan annexed hereto as ANNEXURE A-17 and allow the petitioner to use the said premises as Restaurant-cum-Bar in terms of Licenses granted by respondents and other Government Departments; AND

(c) Pass such other or further order(s) as may be deemed fit and proper in the facts and circumstances of the case in favour of petitioner and against the respondents."

2. It is the case of the petitioner that an area ad-measuring 1049 Sq.

Ft. of super built area; an area ad-measuring 1091 Sq. Ft. of super built

area and an area ad-measuring 1010 Sq. Ft. of super built area at ground

floor of property no. E-13/29, E-Block, Harsha Bhawan, Middle Circle,

Connaught Place, New Delhi owned by M/s. Lunia Automobiles Pvt.

Ltd.; M/s. Aswathi Shipping Services Pvt. Ltd. and M/s. Hakoba Plastic

Pvt. Ltd. was leased out to the petitioner company for carrying out

Restaurant / Bar business vide three separate registered lease deeds

registered on May 18, 2016. It is the case of the petitioner that after

taking the physical possession of the premises from the landlords, the

petitioner company invested huge money on furniture, fixtures, fittings,

air conditioners, kitchen, kitchen appliances, decoration etc. The

petitioner company applied for various licenses/registrations like health

license; certificate of registration of a eating house; L-17 and L-17F

licenses from the Excise Department; permission from Delhi Fire Service

for carrying on the business of Restaurant and Bar from the premises in

question. It is averred that respondent no.2, Chief Architect of the

NDMC has in response to the letter dated September 1, 2016 of the

Medical Officer of the Health Department gave a "No Objection

Certificate" vide letter dated October 27, 2016 by stating that the

premises is on the ground floor and situated in the Connaught Place and

as per the development plan, the land use is commercial and restaurant is

permitted in the commercial zone as per the Master Plan of Delhi - 2021.

It is averred that after obtaining all requisite licenses from the concerned

departments the petitioner started the business of Restaurant / Bar from

the premises in question in the name and style of "Zabardast Indian

Kitchen" and employed around 70 employees. That on May 10, 2018,

surprisingly, respondent no.2, who himself had granted the "No

Objection Certificate" dated October 27, 2016, served upon the petitioner

company his order dated May 4, 2018, being an order of sealing under

Section 250 of the NDMC Act, 1994 and sealed the premises in question

at around 6.50 PM when the restaurant / bar was functioning and they by

abruptly stopping the business of the petitioner company without issuing

a show cause notice to the petitioner.

3. Mr. P.K. Sharma, learned counsel appearing for the petitioner

submitted that the sealing of the premises is arbitrary, without any basis,

more particularly after an NOC was granted by the Chief Architect of the

NDMC with total application of mind. He stated that the petitioner has

come to know that a similar notice in respect of the premises in question

was also issued by the respondent in the year 1990 to the then user who

was at that time using the premises in question for commercial purposes.

At that time also, the matter was filed before the ATMCD, against whose

order, the NDMC has filed a petition before the Lt. Governor of NCT of

Delhi which petition was dismissed and since then and even prior to that

the premises in question is being continuously used for commercial

purposes. He would also refer to one order passed by this Court in Crl.

M.C. no. 1838/2003 titled as A.K. Ramalingam v. NDMC dated April 6,

2004, wherein this Court had quashed the complaint filed by the

respondent under Section 252 / 369 (1) of the NDMC Act, 1994 against

the petitioner therein for using the premises for commercial purposes.

According to him, this court has held that once the respondent has

permitted the user of the premises for commercial purpose and has made

such a submission before the writ court, it could not have prosecuted the

petitioner for having violated the building plans and using the same as

commercial. Mr. Sharma has also drawn my attention to certain note

sheets maintained in the files of the NDMC wherein the Chief Legal

Adviser vide his note dated May 21, 2018 has concluded that as the NOC

dated October 27, 2016 has been granted by the competent authority for

use of premises for commercial purposes, the premises could not have

been sealed for the reasons cited by the department that the stilt floor is

meant for parking only. Mr. Sharma has also referred to a note sheet

dated May 24, 2018 of AA (Misuse) wherein the following has been

stated:

"a) The building was constructed in the eighties on basis of Comprehensive Redevelopment Plan of Connaught Place prepared by the DDA.

b) The building plan was sanctioned vide resolution no. 84(28) dated 04/08/1978 and Completion Certificate & Completion Plan was approved vide resolution No: 84(28) dated 04/08/1978 and Completion Certificate & Completion Plan was approved vide resolution no: 02 dated 27/12/1982 comprising of Basement, Stilt/Ground Floor + 3 upper floors. The basement was for Part-Parking / Part- storage, Ground Floor for Part - Commercial / Part-Parking (Stilt) and upper floors were for commercial use."

4. Mr. Sharma contended that the building plan for the Ground floor was

sanctioned for part commercial / part parking (stilt) and upper floors for

commercial use. According to him, since it is for part commercial, the

petitioner was within its right to use the premises for commercial activity. He

also stated that even though the impugned communication dated May 4, 2018

referred to a direction of the Monitoring Committee, a copy of the direction

had never been given to the petitioner. That apart it is his submission that had

the respondent issued a show-cause notice to the petitioner, the petitioner

would have highlighted the aforesaid facts which surely would not have

resulted in the impugned action of sealing. He also referred to the stand taken

by respondent no.1 in their counter-affidavit that the remedy for the petitioner

is to approach the Monitoring Committee appointed by Supreme Court in

view of the order of the Supreme Court dated December 15, 2017 in I.A. No.

2768/2016 in W.P.(C) 4677/1985 in M.C. Mehta v. Union of India and Ors.

by drawing my attention to the Judgment of the Division Bench of this Court

in the case of North Delhi Municipal Corporation v. DCM Limited and

Anr., LPA 487/2017, to contend that the Division Bench of this Court has

clearly held that the order of the Supreme Court is in relation to misuser /

non-confirming user of the residential premises for industrial or commercial

purposes, which is not the case herein. He also stated that the Division Bench

has also held sealing could not be affected without any prior notice or hearing.

5. On the other hand, Mr. Tarunveer Singh Khehar, learned Standing

Counsel appearing for the respondent no.1 submitted that the impugned action

of sealing has been taken in terms of the directions of the Supreme Court

dated May 15, 2017. According to him, order directed any challenge to the

decision of the Monitoring Committee would lie in the Supreme Court only.

According to him, since the action is on the basis of the direction of the

Monitoring Committee, appropriate shall be for the petitioner to approach the

Supreme Court. That apart on merit, he stated that the premises is situated at

E-13/29, middle circle, Connaught Place, New Delhi and at the time of

construction, the ground floor where it is situated is to be used for parking

only. He has drawn my attention to the plans dated August 4, 1978 approved

by the Chief Architect in the New Delhi Municipal Council in that regard.

According to him, a perusal of the approved drawings would show that

initially the construction was carried out as a four storey building. Thereafter,

the construction was again carried out for additional block with basement and

ground floor for parking. According to him, the NDMC has no role in letting

out the premises. But the same has been let out by the landlords which they

could not have done for the purpose other than for what it has been approved,

i.e., parking. In substance, it is his submission that the ground floor being

meant for parking should be used for parking and not for any commercial

purposes, like bank, restaurant, music shop or for any other purposes.

According to Mr. Khehar, similar sealing action has been carried out with

regard to other premises in the middle circle of the Connaught Place by the

respondent no.1 in consonance with the directions of the Monitoring

Committee. On the "No Objection Certificate" Mr. Khehar states, the same

has been obtained by suppressing and misrepresenting the facts. Even

otherwise, the NOC which has been issued cannot be allowed to continue in

perpetuity as the same is contrary to the approved building plans. During the

course of his submissions, he conceded to the fact that no show-cause notice

was issued to the petitioner before taking the impugned action. He also

conceded that there is no sealing order. He stated, the action is primarily

under Section 250 of the NDMC Act, 1994 which stipulates action for

unauthorized construction. According to him, as the said unauthorized

construction has resulted in running of a restaurant which is impermissible,

the impugned action is justified.

6. Having heard the learned counsel for the parties, the first and foremost

issue that needs to be decided whether the petitioner should approach the

Monitoring Committee in terms of the judgment of the Supreme Court dated

December 15, 2017 in the case M.C. Mehta (supra). Suffice to state, a similar

issue arose before the Division Bench of this Court in the case of North Delhi

Municipal Corporation v. DCM Limited and Anr.(supra), wherein the Court

had clearly held that the same shall be applicable where the residential

property is being put to use for industrial purposes / commercial purposes,

which is not the case herein. Hence, the remedy for the petitioner shall not lie

before the Monitoring Committee and the said plea is rejected.

7. On merits, it is noted there is no dispute that the petitioner started

running the restaurant on the basis of "No Objection Certificate" granted by

respondent no.2 and has been operating since then without any hindrance.

The impugned action, as conceded by Mr. Khehar during his submissions,

was taken on May 10, 2018 at 6.50 PM abruptly without even seeking a

response and passing a sealing order. The petitioner through Mr. Sharma is

justified in airing its grievance that the action is most arbitrary. Mr. Sharma is

also justified in stating that had a show cause notice been issued to the

petitioner, the petitioner would have represented the facts as narrated in the

petition including the fact that the petitioner had taken requisite permissions

from all authorities and invested huge amount of money and the construction

on the ground floor has been approved in the past litigation before the Lt.

Governor when the appeal filed by the NDMC against the order of the

ATMCD was dismissed, and also the views expressed by the officers of the

NDMC in their notes as referred above.

8. The case of the respondent is that action has been taken on the

directions of the Monitoring Committee appointed by the Supreme Court.

Further, it is the stand that the construction of additional block where the

premises is situated, more particularly, the ground floor can be used only for

parking and no commercial activity contrary to the building plans is

permissible.

9. The stand of the respondent that they have taken the action on the

direction of the Monitoring Committee, surely suggest non-application of

mind. There is nothing to suggest the respondent NDMC has considered, the

material / the past litigation referred to by the petitioner, before taking the

action of sealing. It is a case of flagrant violation of principles of natural

justice. The action cannot be justified. The Division Bench in North Delhi

Municipal Corporation v. DCM Ltd. and Anr. (supra) has clearly held that,

an order of sealing could not have been passed without giving a hearing. The

relevant para is reproduced as under:

"Thus, the MC, in our view, was not justified in springing into action and issuing the order/communication dated 08.01.2018 directing the NDMC to seal the FFC of DCM, and that too, without any prior notice or hearing. In our view, by issuing the communication dated 08.01.2018 the MC overreached this Court, and arguably overstepped its authority vested by the Supreme Court, since the MC directed sealing of the FFC- which is not a residential premises. Since the MC is a creation of the orders passed by the Supreme Court, it derives its authority only from its orders. It has no independent statutory existence or powers."

10. The above conclusion, must normally result in the de-sealing of the

property in question. Having said that, this court is of the view, in the facts of

this case, more particularly in view of the stand taken by the parties to balance

the equities, appropriate should be for the respondent to issue a show-cause

notice to the petitioner within three days from today detailing therein the

reasons for which they intend to take action of sealing against the petitioner's

premises enclosing therewith the communication received by it from the

Monitoring Committee and seek a reply on the same from the petitioner

within four days thereafter and pass a reasoned and speaking order, on all the

pleas urged / taken by the petitioner in its reply within one week thereafter. If

the respondent no.1 agrees with the pleas taken by the petitioner, then the

follow-up action shall be taken. If in the eventuality, the petitioner is

aggrieved with the order to be passed by respondent no.1, liberty is with the

petitioner to approach this Court in accordance with law.

11. The petition is disposed of but with cost of Rs.10,000/- to be paid to the

petitioner, along with the order to be communicated to the petitioner, in terms

of above.

CM No. 25032/2018 (for stay)

Dismissed as infructuous.

V. KAMESWAR RAO, J

JULY 09, 2018/jg