Delhi District Court
Sh. Avinash Bansal vs Municipal Corporation Of Delhi on 22 May, 2012
IN THE COURT OF SH. O.P. GUPTA, DISTRICT JUDGE &
ADDL. SESSIONS JUDGE I/C (WEST)/ARCT, DELHI
RCA No.- 21/12
Unique ID No. 02401C0146712012
Sh. Avinash Bansal
Proprietor,
Abhinandan Vatika
Village Mundka, Rohtak Road,
Delhi
...... Appellant
Versus
Municipal Corporation of Delhi,
Town Hall, Chandni Chowk,
Delhi - 110 006
Through its commissioner ...... Respondent
Date of Institution : 02.04.2012
Date of Arguments : 17.05.2012
Date of Order : 22.05.2012
ORDER
1. The present appeal impugnes order dated 26.3.2012 passed by Ld. Appellate Tribunal MCD dismissing the appeal of the appellant against order dated 5.03.2012 . The case of the appellant is that he received a show cause notice dated 25.01.2010 which was replied on 2.2.2010 and 20.4.2010. The respondent passed sealing order dated 22.6.2010. He filed an appeal before Ld. Appellate Tribunal, RCA No.21/12 Page 1 of 9 MCD which was allowed vide order dated 4.2.2011. Vide same order the respondent was given liberty to examine the matter afresh after dealing with the pleas raised in replies dated 2.2.2010 and 20.4.2010 and then issue a show cause notice. The appellant was given liberty to file fresh reply if a fresh show cause notice was served.
2. The appellant received fresh show cause notice dated 5.4.2011. He sent reply dated 8.4.2011. According to him his vatika is situated in the notified industrial area which has been marked for re-development under Master Plan 2021 vide notification dated 17.9.2007. As per clause 15.7.4 of Master Plan 2010 Banquet Hall is allowed any of industrial area and the same has been duly approved by Hon'ble Supreme Court vide order dated 11.05.2006 in writ petition No. 4677/85 titled as M.C. Mehta Versus Union of India. By said order the Hon'ble Supreme Court accepted report of Monitoring Committee constituted by it in IA No. 22 in the aforesaid writ. Vide letter dated 15.01.2010 Commissioner of Industries, Government of NCT clarified that no sealing action is required to be taken against industries falling in boundary of notified area for re-development in terms of Master Plan 2021. The re-development is to be completed within the RCA No.21/12 Page 2 of 9 period specified by DDA, local bodies. Clusters which fail to complete re-development proposal within the specified period, would have to shift to other conforming industrial area and units functioning in non conforming clusters would have to close down. No period has yet been specified by DDA or local authorities within which re-development is to be completed.
3. As per National Capital Territory of Delhi Laws ( Special Provisions) Act, 2011 enacted on 5.12.2007, status quo existing as on 1.1.2006 was to be maintained. Vide circular dated 9.6.2006 Chief Law Officer of MCD quoted the opinion of Additional Solicitor General of India that farm houses/ banquet hall which has been unauthorisedly developed prior to 1.1.2006 were entitled to protection of section 3 of the Delhi Laws ( Special Provisions) Act 2006 and those which have come after 1.1.2006 would be covered by section 4 of the Act.
4. The Ld. Appellate Tribunal MCD held that appellant has not complied with guidelines laid down in Brashtachar Virodhi Sangathan Vs. Lt. Governor & ors. writ petition (Civil). 14261/04. The Ld. Appellate Tribunal held so despite the fact that sealing order was not based on non-compliance of said guidelines.
5. In the previous appeal he has placed all NOCs obtained RCA No.21/12 Page 3 of 9 from the police, fire service and SDM for holding social functions. The same had been dealt with in order dated 4.2.2011 passed in earlier appeal. The Ld. Appellate Tribunal erred in observing that these issues were not discussed in detail and relevant provisions were not dealt thoroughly and findings were on the face of it not correct. The order in the previous appeal had become final and could not be re-opened like this. The Ld. Appellate Tribunal erred in holding that Delhi Laws ( Special Provisions) Act, 2011 did not grant blanket protection.
6. I have gone through the material on record and heard the arguments. Para 3 at page 2 of the impugned order recites that counsel for respondent did not dispute that the property is situated in non-confirming cluster of Industrial Area as per notification dated 17.9.2007. The next para recites that dispute was whether it was a Banquet Hall or farm house meant or used for agricultural purpose and was being misused for organising public function or marriage etc. At page 3 the Ld. Appellate Tribunal mentioned that he could not find exact definition of farm house in Master Pal 2021 or in DMC Act or in Building Bye Laws. I fail to understand how the Ld. Appellate Tribunal held that premises fall short of definition of Banquet Hall given in table 13.27 of Master Plan RCA No.21/12 Page 4 of 9 2021. The Ld. Appellate Tribunal held at page 5 that appellant might have obtained initial clearance from Police Department, Fire Department or SDM office at one time but it appeared that ultimate permission /NOC has not been granted by the MCD.
7. I am unable to endorse the finding at last para at page 6 rejecting the plea of resjudicata. The Ld. Appellate Tribunal was exercising concurrent jurisdiction and was not sitting in appeal over first order dated 4.2.2011 of Ld. Appellate Tribunal, MCD.
8. In para 3 at page 7 of the impugned order the Ld. Appellate Tribunal has observed that even if it is presumed that appellant is misusing the farm house and his act amounts to unauthorised development within the definition of section 2 (J) of Delhi Laws ( Special Provisions) Act, 2011 and no punitive action can be taken till end of December 2014, still appellant cannot be exonerated to run his business by flouting the rules and regulations of MCD as well as guidelines issued by Hon'ble High Court in Bhrashtachar Virodhi Sangathan case. The appellant cannot be given benefit of letter dated 9.6.2006 by Chief Law Officer of the respondent based upon opinion of Additional Solicitor General because at that time no rules, regulations and guidelines in respect of use of farm house for holding social RCA No.21/12 Page 5 of 9 function etc. existed. Ultimately it held in last para of page 7 that appellant was protected from sealing subject to the condition that he fully filled and complied with all rules and regulations framed by MCD and other competent authority. In para 3 at page 9 he held that sealing action cannot be taken till December 2014 due to bar of Delhi Laws ( Special Provisions) Act, 2011 but still the appeal was dismissed. At the same time it was observed that if appellant gives an undertaking in the form of affidavit that he will comply with all rules and regulations, pay all charges due to Government and MCD and shall fully comply with guidelines issued by Hon'ble High Court in Bhrashtachar Virodhi Sangathan case, then his request for de-sealing the premises should be entertained.
9. It appears to me that the order of the Ld. Appellate Tribunal is self contradictory. At page 97 of the appeal file Mundka Udyog Nagar is specified as non conforming area for which a re- development scheme is to be prepared by concerned local body/land owning agency in consultation with society( to be formed by the land owners) based on norms/conditions specified in clause 7.6.2.1 of Master Plan 2021. The said scheme has not yet been formed. So there is no question of closing down as per RCA No.21/12 Page 6 of 9 notification at page 100 of the appeal file.
10. The circular dated 9.6.2006 from Chief Law Officer of the respondent placed at page 125 of the appeal file is binding upon the respondent. The same is based upon opinion of Ld. Addl. Solicitor General of India. Undisputedly the land of appellant is being misused since prior to 01.01.2006. The same is covered in the definition of unauthorised development as the said definition is wide enough to include misuse. It is not confined to unauthorised construction.
11. The counsel for the appellant relied upon division bench decision in Kailash Sharma Vs. NCT of Delhi 160 (2009) DLT 59 in which the guidelines framed by government of National Capital Territory and approved by Hon'ble High Court vide order dated 10.10.07 have been reproduced. Those guidelines are that farmhouse must have sufficient parking space i.e. minimum 1 acre inside the boundary wall. The same should be properly demarcated with separate entry and exit gate. The owner should deploy his own security guard to manage the parking within the premises. No parking shall be permitted outside the farmhouse on roadside. The farmhouse should have access from 60 feet wide road. It should deposit Rs.20,000/- per event for five acres and above, Rs. RCA No.21/12 Page 7 of 9 10,000/- per event for farmhouse below five acres but not less 2.05 acres. The land of the appellant is more than 2.5 acres as mentioned at page four of the impugned order. The application would be considered by committee in the Chairmanship of Zonal Deputy Commissioner, ACP Traffic, ACP (Sub-Divisional), Divisional Fire Officer, SDM and representative of DDA in case of DDA area land. Permission was to be given on rotational basis so that each farmhouse is not used for more than 120 days in a year. The noiseless generator would be used, use of loud speaker, musical instrument, use of fire crackers inside and outside the farmhouse should be within the permissible limit and the pollution level should not exceed prescribed limits. No loud speakers or bands should be permitted beyond 10.00 pm. Processions and horse- drawn carriage should not be permitted on the roads outside the farmhouse, sanitary condition should be maintained in and around farmhouse.
12. It is important to mention that judgment itself recited that said guidelines could be reviewed by the government. Now they stand reviewed by Delhi Laws ( Special Provisions) Act, 2011. Still the counsel for the appellant offered to file an undertaking that appellant will comply with all the guidelines except formal RCA No.21/12 Page 8 of 9 permission from committee as mentioned in guidelines no. 1 and 5.
13. As a result of the above discussion, the appeal is accepted.
The impugned order is set aside. The appellant will be entitled to use his land for social function subject to condition that he will file an undertaking in the above terms and complete the re- development work within the time decided by the authorities. He would be entitled to do so till December, 2014 atleast as per provision of Delhi Laws ( Special Provisions) Act, 2011. File be consigned to record room.
Announced in open Court on this 22nd day of May, 2012 (O.P. GUPTA) DJ & ASJ I/C (W)/ ARCT DELHI RCA No.21/12 Page 9 of 9