Delhi District Court
Shri Mool Chand Sharma vs South Delhi Municipal Corporation on 6 July, 2017
IN THE COURT OF MS. ASHA MENON: DISTRICT &
SESSIONS JUDGE (SOUTH DISTRICT) SAKET: NEW
DELHI
CISMCD APPL12016
CNRDLST 010000392016
1. Shri Mool Chand Sharma
Son of Late Shri Chunni Lal Sharma
R/o A40/1, Yusuf Sarai,
New Delhi110016.
2. Shri Rajeev Sharma
Son of Late Shri Net Ram Sharma
R/o A40/1, Yusuf Sarai,
New Delhi110016.
3. Shri Sanjeev Sharma
Son of Late Shri Net Ram Sharma
R/o A40/1, Yusuf Sarai,
New Delhi110016.
.....Appellants.
Versus
1. South Delhi Municipal Corporation
Through its Commissioner
Dr. Shyama Prasad Mukherjee Civic Centre
Jawahar Lal Nehru Marg,
New Delhi.
2. Deputy Commissioner
South Delhi Municipal Corporation
South Zone: Green Park
New Delhi. ......Respondents.
Date of Institution: 02.04.2013
Judgment reserved on: 22.04.2017
Judgment pronounced on: 06.07.2017
CISMCD APPL12016 Page 1 of 35
JUDGMENT
This judgment will dispose of an appeal preferred by Shri Mool Chand Sharma, Shri Rajeev Sharma and Shri Sanjeev Sharma challenging the orders of the Ld. Appellate Tribunal, MCD dated 18.03.2013.
The respondents are the South Delhi Municipal Corporation and the Deputy Commissioner, South Delhi Municipal Corporation.
The facts as are relevant for the disposal of the present appeal are that the appellants claimed to be the owners of property No. C1/C, Green Park Extension, New Delhi admeasuring about 1000 square yards. It is stated that the appellant no.1 Shri Mool Chand Sharma alongwith Late Shri Net Ram Sharma, father of the appellant no.2 Shri Rajeev Sharma and appellant no. 3 Shri Sanjeev Sharma had purchased the said property vide sale deed registered on 29.09.1959. This property is situated on Aurobindo Marg having right of way of 60 meters.
In pursuance of the directions issued by the Hon'ble Supreme Court of India in the matter of 'M.C. Mehta vs UOI & Others', the South Delhi Municipal Corporation issued a notice u/s. 345A of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as DMC Act) directing the owners to stop the misuse and bring the premises within the permitted use as per Master Plan2021 within 48 hours and file an affidavit in prescribed format failing which premises would be sealed without further notice. This notice dated 23.05.2012 was issued on the basis of information received by CISMCD APPL12016 Page 2 of 35 the Deputy Commissioner that the entire premises (except temple at first floor, RHS) of property bearing no.C1C, Green Park Main, New Delhi was being used for running an IVF/Maternity Centre in the name and style of M/s ADIVA, which was in total violation of permissible/sanctioned use (which was Dharamshala in this particular case) of the said property and also against the Master Plan2021/Zonal Plan/Sanctioned Plan/ Modified Plan approved by DUAC and accepted by MCD, which amounts to misuse of the premises.
The owners sent a response dated 25.05.2012 to this notice submitting that there was no misuse, as the plot in question was a residential plot and as it was situated on 60 meter wide Aurobindo Marg and the stretch of which from Ansari Nagar to red light of Kaushal Park had already been declared a commercial street vide Notification No.F.13/46/2006UD/16071 dated 15.09.2006 issued under the Mixed Use Regulation in the Master Plan for Delhi, 2001, the property located on this stretch, could be used for commercial activities. Thus, the owners contended that there was no prohibition for using of the property even as IVF/Maternity Centre.
It was claimed that in fact a nursing home duly registered by the Directorate of Health Services, Government of NCT of Delhi under Delhi Nursing Homes Registration Act, 1953 had been established at the property and it was claimed that all requisite sanctions and permissions had been obtained before the activity was started. It was also claimed that even if originally the CISMCD APPL12016 Page 3 of 35 plot was used for Dharamshala, there was no prohibition that no other activities residential and/or commercial after payment of conversion or misuse charges as per provisions of Master Plan of Delhi, 2021 could be conducted from the said plot.
After considering this response of the owners, the South Delhi Municipal Corporation, through the Deputy Commissioner vide its order dated 15.10.2012 u/s. 345A of the DMC Act held that there was no force in the contentions of the owners and relying on the comments of the Town Planning Department dated 24.09.2012 and since the Building Plan of the plot was for Dharamshala Pandit Net Ram Sharma Charitable Trust, therefore, the land use for the subject property was Dharamshala, which was a permitted activity under residential use category as per MPD2021 and the commercial activity/misuse did not qualify the norms and was therefore, not permitted in the above premises.
Thus, it directed that the aforesaid premises be sealed as the permission for running IVF/Maternity Centre in the name and style of M/s. ADIVA cannot be granted and the activities permitted on the plot under reference shall be those of Dharamshala and nothing more. Accordingly, it directed the sealing forthwith of the premises in question. Against this order of sealing dated 15.10.2012, an appeal was preferred before the Ld. Appellate Tribunal, MCD. It considered the submissions made before it and vide the orders dated 18.03.2013 upheld the orders of the South Delhi Municipal Corporation dated 15.10.2012.
Aggrieved by the orders of the Ld. Appellate Tribunal, CISMCD APPL12016 Page 4 of 35 MCD dated 18.03.2013, the present appeal has been preferred before this Court. The grounds taken are inter alia that the Ld. Appellate Tribunal, MCD committed grave error in holding that full opportunity was given to the appellants for submitting reply and personal hearing had also been accorded before the orders have been issued. It is claimed that no opportunity of personal hearing was given to the appellants despite requests in writing.
It is submitted that the Ld. Appellate Tribunal, MCD failed to appreciate that unusual haste had been shown in the issuing of the impugned order by the MCD dated 15.10.2012 and that the stereotyped order has been issued arbitrarily by the MCD. It is further contended that the Ld. Appellate Tribunal, MCD failed to appreciate that the impugned order dated 15.10.2012 was a non speaking order giving no reason as to how and on what basis the permissible use of the plot was held to be Dharamshala particularly when in the Resolution No.879 dated 03.11.1965, the use of the plot was shown as residential.
It is further submitted that the South Delhi Municipal Corporation had completely overlooked that the nursing home had been duly registered under the Delhi Nursing Homes Registration Act, 1953 and that the residential properties could be used for "other activities" as specified in Clause 15.7 and nursing home was recognized as one such "other activity". It is submitted that the Ld. Appellate Tribunal, MCD failed to consider that the South Delhi Municipal Corporation had acted in a predetermined manner and had passed the sealing order dated 15.10.2012 without application CISMCD APPL12016 Page 5 of 35 of mind.
It is further contended that the Ld. Appellate Tribunal, MCD had also passed the impugned order dated 18.03.2013 on assumptions and presumptions and on the contentions that were never raised before it. It is further submitted that the Ld. Appellate Tribunal, MCD exceeded its jurisdiction by deciding such issues that never raised before it and without affording an opportunity to the appellants to address the Ld. Appellate Tribunal, MCD on such issues. It is submitted that without contentions being raised or argued before it the Ld. Appellate Tribunal, MCD had concluded, presuming that the nursing home was not being managed by a doctor or group of doctors, that it was a hospital that was being run from the plot in question. It is further submitted that the Ld. Appellate Tribunal, MCD came to such a conclusion based on conjectures.
It was submitted that the Ld. Appellate Tribunal, MCD had wrongly relied on the decision of the Hon'ble Supreme Court in the case of "R.K.Mittal Vs State of Uttar Pradesh", as it had no relevance to the facts of the case, as in that case only a part of a floor could be used for professional activities, whereas in the present case the entire building could be used for running of nursing home.
It was submitted that the MCD had not objected to the deposit of Rs.500/ towards registration charges, Rs.1,42,360 towards conversion charges and Rs.4,65,500/ towards parking charges and, therefore, the South Delhi Municipal Corporation CISMCD APPL12016 Page 6 of 35 cannot now claim that the property was not eligible for use as nursing home.
It was further submitted that the Ld. Appellate Tribunal, MCD had exceeded its jurisdiction in concluding that the nursing home was not being managed by a group of doctors while at the same time referring to the 40 doctors, 52 nurses, 30 technicians besides other employees working in the nursing home. It was submitted that the nursing home was having various facilities for indoor and outdoor patients like IVF/Maternity Centre as was alleged in the impugned sealing order dated 15.10.2012.
It was further submitted that the observations of the Ld. Appellate Tribunal, MCD that ownership was in doubt as the building plan was got sanctioned in the name of Pandit Net Ram Sharma Charitable Trust were irrelevant and misplaced. It is submitted that Pandit Net Ram Charitable Trust was created only for the purposes of maintaining Dharamshala and the ownership of the property had never been vested in the Trust and, therefore, nothing had been concealed from the Ld. Appellate Tribunal, MCD. It is submitted that the Ld. Appellate Tribunal, MCD therefore, wrongly inferred that something was concealed by the appellants from the Appellate Tribunal, MCD.
It is further submitted that the Ld. Appellate Tribunal, MCD misdirected itself by embarking into an inquiry that the Dharamshala was raised for commercial/mixed use activities as per provisions of Chapter 15 of MPD2021. According to the appellants the Dharamshala could be constructed only on a CISMCD APPL12016 Page 7 of 35 residential plot and had the plot not been residential the Dharamshala could not been sanctioned by erstwhile MCD on the said plot.
It is submitted that in the lay out plan for the Green Park Extension approved by the erstwhile MCD vide Resolution No.7 dated 03.09.1958, three Plot Nos. 1A, 1B and 1C in Block C were not shown and subsequently vide orders of the Commissioner, MCD dated 05.05.1959, the layout plan was modified and these three plots were duly approved. At that time the size of plot no. 1C was shown as 500 square yards. Thus, it is claimed that plot no.1C in Block C was duly approved and became part of the layout plan but no specific user was mentioned which meant that its use was the same as other similar plots i.e. it was residential. It is further submitted that vide Resolution No. 879 dated 03.01.1965, the part of plot no.1C which was not earlier shown in the layout plan was allowed to be part of plot no.1C. Thus, there was no basis of which the Ld. Appellate Tribunal, MCD could have concluded that the plot was not residential.
It was further contended that the Development Control Norms for residential use were applied by the MCD even while granting the sanction to construct the Dharamshala. Therefore, at this belated stage, the MCD could not have claimed that the plot was not residential. It is further denied that there was any restriction on any activities on the plot of land or that the use of the plot in question could be for Dharamshala only and the use could not be changed.
CISMCD APPL12016 Page 8 of 35It was further claimed that the owners of the Dharamshala could have stopped the Dharamshala at any point of time and South Delhi Municipal Corporation could not compel the appellants to continue the activities of Dharamshala. It is submitted that even as per the building bylaws a building constructed on the plot could be demolished by the owners without seeking permission from the South Delhi Municipal Corporation and that if the property had been used once upon a time as Dharamshala, it did not mean that use can never be changed. It is submitted that if Dharamshala was to be considered to be commercial activity then a new commercial activity was also permissible in the same plot of land.
It was submitted that the letter of the DDA dated 20.02.2013 was wrongly ignored by the Ld. Appellate Tribunal, MCD which affirmed that the land use was residential. It is further submitted that the observation of the Layout Scrutiny Committee on the various representations made by the appellants were stereotyped and that the Ld. Appellate Tribunal, MCD had wrongly placed reliance on vague observations of the CTP. It is submitted that the CTP did not explain how the use of the plot land had become Dharamshala and permissible activity only Dharamshala and in the layout plan the plot had never been identified as that of Dharamshala. It is submitted that the structure had been in existence prior to 07.02.2007 and therefore, no sealing order or notice could have been issued by the MCD against the property since it was protected under the Government of NCT of Delhi Laws (Special Provision) Act, 2007.
CISMCD APPL12016 Page 9 of 35It was submitted that the Ld. Appellate Tribunal, MCD had committed a grave illegality in passing the impugned order in as much as it proceeded to dispose of the appeal on merits while at the same time held that the appeal was not maintainable. For these reasons, it was prayed that the order dated 18.03.2013 of the Ld. Appellate Tribunal, MCD be quashed and set aside and the appeal against the sealing order allowed.
The South Delhi Municipal Corporation has filed its reply to this appeal submitting that the appellant had no legally enforceable right in law to use the property in question as a multi speciality nursing home in as much as the appellant had unauthorizedly changed the sanctioned use of the property from a Dharamshala to a hospital and had affected substantial unauthorized constructions/major additions/alterations at basement to the fourth floor without getting sanctioned building plan.
It was submitted that though the hospital/alleged nursing home was registered on 17.04.2012 from GNCTD for use as such, this illegal activity in the form of change in sanctioned use or unauthorized construction had apparently taken place after 07.02.2007 and till date the structure continued to be unauthorized and use continued to be without sanction and the protection under the Delhi Laws (Special Provisions) Act, 2011 against punitive action was not available to the appellants.
It is further submitted that the appellants were misinterpreting the concept of Master Plan, Zonal Plan and Lay Out Plan. It was admitted as correct that in the Master Plan the area in CISMCD APPL12016 Page 10 of 35 question where the property fell was residential but it was claimed that the layout plan contained the details of the facilities earmarked for different activities in respect of pleadings such as community services, residential, hospital etc and since in the layout plan no such use of particular plot is mentioned, it was upon the requests of the owner of the property that the plans were sanctioned for the use of the plot as Dharamshala in the year 1967 and thus the use of the said plot and premises in question was to be retained for Dharamshala alone.
It was submitted that the submission merely because nothing was mentioned in the layout plan in respect of the plot in question, it had to be treated as residential, was not acceptable in view of the fact that the building plan sanctioned following a resolution of the Standing Committee was for building a Dharamshala. Thus, land use being that of Dharamshala meant it was not covered under the mixed use regulation/notification dated 15.09.2006 which covered only residential plots.
It was further claimed that where the user was not defined in the layout plan then the use of the building would be as per the sanctioned building plan which in this case was Dharamshala which was permitted in the residential area at the time of sanctioning of the building plan. The Dharamshala was defined in Table 13.27 at serial number 17 in the Chapter No.13 of MPD 2021 which was meant as "sociocultural and community facilities"
and activities permitted in the user "Dharamshala" was that of Dharamshala, personal service shops of barbers, laundries, soft CISMCD APPL12016 Page 11 of 35 drinks and snack bars upto 20 square meters. On the other hand Table 13.20 defined "hospital" at serial number 1 and "nursing home/maternity home/poly clinic" at serial number 4 under "health facilities". It is further submitted that as per the definition of hospital and nursing home/maternity home, there was a clear distinction between the two.
It was submitted that once Dharamshala was constructed on the plot it had ceased to be a residential use premises and therefore, the appellants were not entitled to get the benefits of the Mixed Use Regulation of MPD 2021 even if it was located on the road which was notified for commercial use vide Notification No.F.13/46/2006UD/16071 dated 15.09.2006. It was further submitted that though the nursing home was permissible in local shopping centre and under Clause 15.12.3 (vi) provided that one time facility for all activities permitted in local shopping centres shall be permissible in commercial streets, the appellants could get no benefit of the same as they were using the premises not for a nursing home but for a hospital and a hospital was not allowed on the commercial roads notified for mixed use.
It is further contended that merely obtaining the various licences and approvals from Government departments and mere deposit of property tax under selfassessment scheme towards conversion and parking charges would not be sufficient to entitle the appellants to get the building and use regularized for the purposes of using it as hospital as otherwise not permissible by law. It is further submitted that no one had a right to change the sanction of given use CISMCD APPL12016 Page 12 of 35 of premises and if one did the same it would clearly be without permission and would be unauthorized and actionable in law and, therefore, sealing order to stop the illegal activity was a legal and valid order which had been rightfully upheld by the Ld. Appellant Tribunal, MCD vide the impugned order.
In the reply filed by the South Delhi Municipal Corporation reference has been made to an application dated 18.11.2011 whereby the appellants submitted a regularization plan for the property in question. In order to dispose of the matter the department referred the same to the Town Planning Department which gave an opinion on 16.01.2012 to the effect that the use of the site under reference was "undetermined" on the approved layout plan and that in view of an RTI response of the Town Planning department that the use of the premises shall be as per the sanctioned building file, the building department was advised to examine the previous sanctioned building plan/file. There was also a reference to the Standing Committee Resolution No.879 dated 03.11.1965, wherein mention has been made that the special permission should be obtained from the DDA for putting up a Dharamshala on the plot under reference.
However, it may be mentioned here that in the reply of the South Delhi Municipal Corporation to this present appeal, it is submitted that such a permission of the DDA was not mandatory under the DMC Act and that the building in terms of the sanctioned plan could be constructed and put to use as such and, therefore, the construction of the Dharamshala and the use of the premises for CISMCD APPL12016 Page 13 of 35 Dharamshala was proper. In any case, the Planning Department asked the Building department to take action in the matter. Thereafter, the case was again referred to the Town Planning Department vide the note dated 20.04.2012 which opined that since the use of the plot remained undefined in the approved layout plan, the matter was placed before the Layout Scrutiny Committee which considered the matter and the decision of the Layout Scrutiny Committee was also quoted to the effect that the use of the plot in the approved Layout Plan be retained for Dharamshala as per decision of the Standing Committee dated 03.11.1965 and it should be clearly mentioned on the body of the Layout Plan and the action accordingly taken by the Zonal Office.
It has been submitted that based on this decision of the Town Planning Department that the use of the plot was to be only for Dharamshala, the Building Department of MCD rejected the application for regularisation of the property as a nursing home, which was communicated to the appellant on 24.05.2012. It is further submitted that the South Delhi Municipal Corporation noticed running of a commercial activity in the shape of IVF/Maternity Centre in the name and style of M/s Adiva in the entire property, except the first floorRHS. Taking cognizance of the same, a 48 hours sealing notice was issued on 23.05.2012 in pursuance of the directions of the Hon'ble Supreme Court to stop the misuse. The said notice was replied vide reply dated 25.05.2012 by the respondent. It is mentioned that this notice has led to the orders leading to the present appeal and are the subject matter of the CISMCD APPL12016 Page 14 of 35 present appeal.
The respondent has further stated in the reply that the property was booked for unauthorized construction vide File No. 85/UC/B/B1/2012 dated 28.05.2012 for carrying out additions/alterations and conversion of the property from basement to fourth floor without sanctioned Building Plan for action u/s. 343/344 of the DMC Act, 1957. It is stated that after following due process of law, the demolition order was passed, which was challenged by the present appellants before the Ld. Appellate Tribunal, MCD in which the MCD was restrained from taking any demolition action in the property on the basis of the said order. Since the Ld. Appellate Tribunal, MCD vide order dated 25.06.2012 directed the MCD to decide the application for regularisation, the said application was taken up for consideration and the department rejected the requests for regularisation vide order dated 06.03.2012 (sic).
It is further stated that on 14.06.2012 based on the comments of the Town Planning Department dated 08.08.2012 that though the use of the plot was not defined in the approved plan, the same has got defined through a sanction of Building Plan for Dharamshala and that the land use of the site in question at user premises level is Dharamshala which is a permitted activity under the residential use category as per MPD 2021 and the Building Department (HQ), rejected the case for regularisation vide orders dated 13.09.2012. Thereafter, on 11.10.2012 vide order u/s. 345A of DMC Act vacation notice dated 16.10.2012 was also issued.
CISMCD APPL12016 Page 15 of 35The appellants filed a representation dated 18.10.2012 which was again forwarded to the Commissioner South Delhi Municipal Corporation on 22.10.2012. The Chief Town Planner reiterated the earlier decision/stand of the MCD on the issue further adding that the plot in question was not covered under mixed use regulations/notifications dated 15.09.2006 since only the residential plots at user premises level are covered under mixed use regulations, whereas the use of the plot was Dharamshala at the time of Notification.
It is further submitted in the reply that in the conspectus of these facts the appellants had questioned the decision of the Ld. Appellate Tribunal, MCD in the present appeal on wrong insinuation and wrong and erroneous interpretation of the relevant provisions of the MPD. It is submitted that in these circumstances, the land user being Dharamshala which was not residential use, the opening of the hospital was clearly a misuse. The appellants were not entitled to get the benefit of mixed use regulation of MPD 2021 and that in any case the mixed use, if at all, permitted only a nursing home, whereas the appellants had opened a hospital and on that ground also there was misuse and in this background the appeal was liable to be dismissed.
Rejoinder was filed by the appellants. The appellants reiterated the stand taken in the appeal and refuted the contentions of the South Delhi Municipal Corporation. It is reiterated that the use of the property for nursing home was in accordance with law. It was denied that there was any unauthorized construction beyond the CISMCD APPL12016 Page 16 of 35 compoundable limit. It is denied that any illegal activity in the form of change in the sanctioned use or unauthorized construction had taken place after 07.02.2007. It is denied that a hospital had been set up in the property. It was submitted that merely because the plans for construction was sanctioned for Dharamshala, the nature of the plot did not change from residential and, therefore, the benefit of the Mixed Use Resolution was available to the appellants. It was denied that only residential plots would be covered under the Mixed Use Resolution or that therefore, the appellants were not entitled to get the benefit of this Resolution even if they were located at a commercial street.
It was denied that the sealing order was in accordance with the law. It was also submitted that the observation of the Chief Town Planner were patently wrong and misconceived and that the alleged notice dated 08.08.2012 was perverse and was not binding on the appellants. It is submitted that therefore, the orders of the Deputy Commissioner, South Zone, MCD dated 14.06.2012 declining the regularisation and issuing of vacation notice was patently illegal. It is further submitted that all these orders of the South Delhi Municipal Corporation had been passed without adherence to principles of natural justice as no effective hearing had been accorded to the appellants. It is submitted that therefore, the stand taken by the South Delhi Municipal Corporation to justify the sealing order were untenable. It was thus prayed that the appeal be accepted.
I have heard the detailed arguments from Shri Anil CISMCD APPL12016 Page 17 of 35 Sapra, Ld. Senior Counsel with Shri Kulbhushan Gupta, Ld. Counsel for the appellants and Ms. Madhu Tewatia with Ms. Promila Kapoor and Sh. Sachin Saini, Ld. Counsel for the respondent. I have also considered the materials available on record carefully.
Ld. Counsel for the appellants submitted that the Ld. Appellate Tribunal, MCD had misdirected itself and had decided beyond the issues. It was submitted that the Ld. Appellate Tribunal, MCD misread the provisions of the Master Plan 2021 and without giving an opportunity to the appellants to address the Ld. Appellate Tribunal, MCD, it concluded that what was being run at the spot was not a nursing home but a hospital. It was submitted that the Ld. Appellate Tribunal, MCD wrongly applied the parameters of a hospital to the plot in question merely on a misreading that a nursing home could not be owned by any entity and that it had to be owned by doctors, whereas the only requirement was that doctors had to manage the nursing home.
It was also submitted that the Ld. Appellate Tribunal, MCD had wrongly presumed that the appellants have no locus standi as ownership was in doubt when in reality nobody had questioned the ownership of the appellants. It was submitted that beyond the sale deed what other proof could have been submitted by the appellants to establish their title. Merely because the Trust had sought sanction plan, the Ld. Appellate Tribunal, MCD could not have concluded that the property had been transferred to the Trust. The Ld. Counsel argued that land use was as per approved layout CISMCD APPL12016 Page 18 of 35 plan but the sanction could be for any activity. It was argued that Dharamshala was a permissive use in the residential area. It was submitted that the construction on the plot in question had been as per the norms of residential use i.e. Development Control Norms for residential purposes and that in these circumstances the plot in question had to be considered as bearing residential character, which was covered under the Mixed Use Regulations.
It was submitted that the Standing Committee in its Meeting dated 03.11.1965 was not considering the question of change in use, but it had been seized only of the agenda whether to accept the representation of the owners that the plot size was not 500 square yards as recorded in the layout plan but was 1000 square yards and this correction was allowed. Nodoubt, the Resolution also recorded that permission for Dharamshala had to be taken from the DDA which was not taken nor was required. It was submitted that since the plot use had not been specified in the layout plan, the location of the plot in the residential area clearly established that the plot was a residential plot and the benefit of the Mixed Use Resolution ought to be allowed to the appellants and the sealing order be set aside.
Ld. Counsel for the respondents on the other hand submitted that in the original lay out plan dated 03.09.1958, the disputed property was not shown as part of the layout plan. Three plots 1A, 1B and 1C were subsequently recognized as part of the development of Green Park. It was the submission of the ld. Counsel that Resolution dated 03.11.1965 related to the amendment CISMCD APPL12016 Page 19 of 35 of the size of the plot earmarked as 1C in the layout plan that was revised in 1962 and was not an approval for the sanctioned plan for Dharamshala. It was submitted that the layout plan did not make a plot residential or otherwise. The Ld. Counsel also pointed out that as far as the adjoining plots namely, 1A & 1B were concerned, they were described as for "Hotel" and were measuring 500 square yards each. But nothing was indicated in respect of 1C, but since the sanction for the Building Plan of a Dharamshala had been accorded, therefore, the mixed use for nursing home was not permissible.
It was submitted that somewhere in the year 20112012 a four storied structure came up which was leased out for a nursing home. This was without sanctioned plan and the original Dharamshala was completely done away with. It is in that context that the Ld. Appellate Tribunal, MCD could go into the question of the violation of the sanction plan and the use. It was further argued that since the question was of misuse, the Ld. Appellate Tribunal, MCD could determine whether it was a nursing home or a hospital that was being run. It was submitted that the Ld. Appellate Tribunal, MCD was right in concluding that the plot of land could not be used for a hospital in view of the size requirement and these conclusions of the Ld. Appellate Tribunal, MCD were not beyond the issues.
It was further submitted that the basic foundation for mixed land use was that the premises should be residential premises and a Dharamshala was not a residential premises. It was also submitted that merely because the layout plan did not describe the CISMCD APPL12016 Page 20 of 35 plot in question, no inference could be drawn that it was a residential plot. Without a dwelling unit the Mixed Use Resolution would not be available to the appellants. It was submitted that there were many infrastructural requirements in the residential zone and these were also earmarked in case of Guest House and Dharamshala and no mixed use could be permitted. Ld. Counsel submitted that a harmonious reading of all the provisions of the MPD 2021 would establish that activity of a hospital/nursing home was not permissible in the premises in question. The two activities were differently classified, one as social infrastructure and the other as health facility. Thus, under no circumstances the plot could be converted from Dharamshala to that of a nursing home. It was also submitted that the Ld. Appellate Tribunal, MCD relied on the description given by the appellants of their so called nursing home to conclude that they were running a hospital which was completely in violation of the requirements of the Master Plan both in location as well as building norms. Thus, it has been submitted that the appeal was liable to be dismissed.
A perusal of the impugned order would show that the Ld. Appellate Tribunal, MCD first concluded that the property no. C1/C, Green Park Extension, New Delhi was being used as a hospital and not a nursing home. The reasons for coming to such a conclusion were that the M/s. Adiva Health Care Pvt. Ltd. was a private limited company, whereas a nursing home could be run only by doctors. It referred to the letter of doctor working at the M/s. Adiva Health Care Pvt. Ltd. that 4000 patients had been treated CISMCD APPL12016 Page 21 of 35 between 17.04.2012 when the nursing home opened and 18.10.2012 and that there were 40 doctors, 52 nurses, 30 technicians, 40 beds out of which three were ICU and thus operations, surgeries and trauma were being attended to in the premises which clearly established that what was being run was not a nursing home but was a hospital. The Ld. Appellate Tribunal, MCD concluded that a hospital cannot run from the residential area and moreover, the area available i.e. 1000 square yards were against the norms prescribed for hospital under the Building Byelaws. Thus, it concluded that hospital was impermissible in the plot in question.
The Ld. Appellate Tribunal, MCD also concluded that the Dharamshala had been demolished and converted into a hospital without sanctioned building plan as the sanctioned plans were only for Dharamshala. It was also concluded by the Ld. Appellate Tribunal, MCD that the mixed use was permissible only if the area was residential. It held that Dharamshala was not a residential use for the reasons that it entailed temporary stay for a few days and because no special permission was taken and, therefore, the plot could not be treated as residential plot. It also observed that the Layout Scrutiny Committee had rightly concluded that the plot could be used only for Dharamshala as the sanction plan was for Dharamshala and thus, the running of even a nursing home was illegal and in violation of the MPD 2021. Thus, it concluded that there was misuse. It also rejected the appeal on an additional ground that the appellants had no locus standi to challenge the CISMCD APPL12016 Page 22 of 35 sealing order, as the sanction was obtained by Pandit Net Ram Charitable Trust and there was nothing to show how the appellants had become the owners.
Taking the last point first, when the show cause notice u/s. 345A of the DMC Act, 1947 had been issued to the 'owner/occupier' M/s. Adiva Health Care Pvt. Ltd., C1/C, Green Park Extension, New Delhi it would be either the owner or occupier who responded to that show cause notice and if the contentions in the response were rejected and an order of sealing issued, clearly they would be the same persons, who would be aggrieved and who would then approach the Ld. Appellate Tribunal, MCD for recourse. Thus, the locus standi of the appellants was not dependent on ownership alone, since notice was issued also to the occupier.
The one who gave response to this show cause notice is the appellant no.2 Shri Rajeev Sharma, who described himself as the owner of the property no. C1/C, Green Park Extension, New Delhi. The Deputy Commissioner while passing the order dated 15.10.2012 directing sealing, did not raise any question about the claim of ownership by Shri Rajeev Sharma. Even in the appeal filed by the appellants before the Ld. Appellate Tribunal, MCD they again described themselves as owners of property no. C1/C, Green Park Extension, New Delhi. This statement was not questioned by the South Delhi Municipal Corporation in any reply filed to the appeal. The record of the Ld. Appellate Tribunal, MCD also does not reveal that the present appellants, who were also appellants before the Ld. Appellate Tribunal, MCD, were at any point of time CISMCD APPL12016 Page 23 of 35 directed to produce the documents of their title.
The observation and conclusion of the Ld. Appellate Tribunal, MCD to the effect that there appears to be "some doubt emerging from the record as to how the property in question a Trust property" belonging to Pandit Net Ram Sharma had become the property of the appellants. In fairness, Ld. Appellate Tribunal, MCD ought to have given an opportunity to the appellants to satisfy the Tribunal on the question of ownership, if the Ld. Appellate Tribunal had any doubts about their rights.
Be that as it may, the copy of the sale deed has been placed on the record dated 29.09.1959, whereby the Urban Development Housing and Construction Company Private Limited through Shri Mohan S. Lakhani and Pandit Leela Ram landlord of Masjid Moth sold to Shri Net Ram, Mool Chand, sons of Shri Chunni Lal, son of Shri Kanhaiya Lal the land in question. The land was transferred by Shri Mohan S. Lakhani and Pandit Leela Ram to Shri Net Ram and Shri Mool Chand, sons of Shri Chunni Lal for consideration. Admittedly, the sanctioned building plans were obtained by the trust namely, Pandit Net Ram Charitable Trust. But as rightly pointed out by the Ld. Counsel for the appellants, the application by the Trust for sanction plan would not establish that ownership rights had been transferred to the Trust and such a doubt raised by the Ld. Appellate Tribunal, MCD was completely mis placed. Therefore, these observations in the impugned order and conclusion are liable to be set aside and are set aside.
The next issue that needs to be dealt with is the inquiry CISMCD APPL12016 Page 24 of 35 of the Ld. Appellate Tribunal, MCD into the question as to whether what was being run from the plot in question was a nursing home or a hospital. It is submitted that these questions were not put to the appellants and they had no opportunity to answer the queries. The file of the Ld. Appellate Tribunal, MCD does not disclose that any such questions were raised by the Ld. Appellate Tribunal, MCD for a response from the appellants. Be that as it may, the fact is that the appellants in the name of Adiva Health Care have obtained registration certificate from the Directorate of Health Services to run a multi speciality nursing home with the capacity of 40 beds. This registration certificate has been issued by the Directorate of Health Services. A presumption ought to be attached with the same that it has been issued after the Competent Authority had satisfied itself that a nursing home could be run from the premises.
The question that was before the Ld. Appellate Tribunal, MCD was simple: whether there is misuse in the premises. The use to which the appellants have put the plot in question is as a multispeciality nursing home as per their contentions. The inquiry should have been whether such an activity would amount to misuse or not. There was no occasion for the Ld. Appellate Tribunal, MCD to make a study of the various provisions and to come to a conclusion that because only a doctor or association of doctors could run a nursing home, since Adiva Health Care was being run by M/s. Adiva Health Care Pvt. Ltd., therefore, the nursing home was not a nursing home and it was a hospital. Such a conclusion is completely misplaced.
CISMCD APPL12016 Page 25 of 35There are no documents that have been called for or examined to understand who was managing or running Adiva Health Care. The Ld. Appellate Tribunal, MCD went by the letter of Dr. Aparna Gupta, Director, M/s. Adiva Health Care Pvt. Ltd. that 4000 patients have been treated till date and that there were super speciality services to conclude that this was possible only in a hospital. A claim by a doctor while making a representation to the Hon'ble Lt. Governor on 18.10.2012, after the regularisation plea of the appellants had been rejected by the MCD is building on very weak foundation to say the least. It is usual for a petitioner to strengthen its case with hyperbole. There was no independent material in the form of the registration books and treatment registers to confirm about these 4000 patients. Since the appellants claimed that the Adiva Health Care is a multispeciality nursing home availability of super speciality health facility would not suffice to call it a hospital.
The MPD 2021 only prescribes what is the plot size that is required for a hospital and what is required for a nursing home. The nature of a facility being a nursing home or a hospital, ought to be determined on more professional parameters which was not available to the Ld. Appellate Tribunal, MCD. Therefore, this conclusion of the Ld. Appellate Tribunal, MCD that it was a hospital that was being run from the plot in question is completely misdirected and cannot be held to be a conclusive decision on the nature of activities being run from the premises. These questions have to be left open for decision by the Competent Authority, if at CISMCD APPL12016 Page 26 of 35 all these issues arise. Hence, all these conclusions are also liable to be set aside and are set aside.
Coming to the merits of the case, it is to be noted that the show cause notice was issued on the grounds that an IVF/Maternity Centre was being run in the name and style of Adiva Health Care at C1/C, Green Park Extension, New Delhi which was against the Master Plan2021/Zonal Plan/Sanctioned Plan/ Modified Plan approved by DUAC and accepted by MCD and was in total violation of permissible/sanctioned use which was Dharamshala. The South Delhi Municipal Corporation has taken the stand that the plot is earmarked for Dharamshala and, therefore, even though the road was a commercial road on which the plot was located, the benefit of mixed use was not available to the appellants and, therefore, the conversion of the Dharamshala for which the building plans were sanctione, into a nursing home amounts to misuse and, therefore, the sealing order was justified.
On the other hand, the appellants claimed that the sanction plan cannot determine the nature of the plot since the layout plan which marked out the activities permitted in the residential area did not specify the use and just because the owners originally wanted to use it for a Dharamshala, they could not be prohibited from using their property located in a residential area for any other purpose for all times to come. It is their contention that since the plot was located in a residential area/zone, the plot in question was also residential in character and, therefore, the appellants were entitled to mixed use of the land in question under CISMCD APPL12016 Page 27 of 35 the Mixed Use Regulations MPD 2021.
The Ld. Appellate Tribunal, MCD was also of the view that use of Dharamshala was not a residential premises use and nor was it included in other kind of activity as such activity could not include running of nursing home in the Dharmashala premises. Despite observing that the Master Plan 2021 prescribed no definition for residential premises, nevertheless, the ld. Appellate Tribunal, MCD felt that it would certainly be "just opposite to the definition to Dharamshala" which was defined in Clause 17 of Table 13.27 of the Master Plan 2021. The definition of Dharamshala as given, was for temporary accommodation, for short duration on profit basis and the other activities permitted were small shops of barbers, laundries, soft drinks and snack bars upto 20 square meters. It also felt that since special permission in terms of the Resolution dated 03.11.1965 had not been taken from the DDA when the Dharamshala was constructed in 1967, therefore, the plot upon which the Dharmashala was constructed could not be treated as a residential plot and "in the absence of its undefined user" (sic). Thus, it concluded that the said property was being misused.
The Ld. Appellate Tribunal, MCD felt that it was immaterial that the Dharamshala has been constructed upon a plot which falls in a residential area or it is a residential plot. The Ld. Appellate Tribunal, MCD rejected as immaterial the question whether the Dharamshala has been constructed upon a plot which falls in a residential area or in a residential plot. It also rejected the opinion of the DDA given in their Letter dated 20.02.2013 as being CISMCD APPL12016 Page 28 of 35 vague and unspecific and the opinion being found on the basis of the documents that the appellants may have produced before the concerned Assistant Director. It felt that the necessary opinion namely Resolution dated 03.11.1965 and the opinion of the Layout Scrutiny Committee should have been placed before the DDA officials prior to the taking of the opinion. It also felt that the letter mentioned that further clarifications should be taken from the MCD and, therefore, it could not be said that this was conclusive or a binding conclusion.
The Ld. Appellate Tribunal, MCD also felt that the decision of the Layout Scrutiny Committee that if in the layout plan any use of particular plot was not defined then the same could be inferred and taken into consideration from the sanctioned building plan, was perfectly correct and since the sanctioned building plan clearly showed that it was obtained for the purposes of Dharamshala and the Resolution of the Standing Committee dated 03.11.1965 relied upon by the appellants, also stated that the approval was given for setting up of Dharmashala as per the intention of the appellants, therefore, it could be said that the user of the subject plot was defined and inferred for Dharamshala and not for any other purposes. It concluded that in the absence of the special permission from DDA, the user of the land in question cannot be held as residential but only for Dharamshala.
Thus, in short the Ld. Appellate Tribunal held that the plot in question could be used only for Dharamshala and under the Master Plan 2021, the plot which was being used for Dharamshala CISMCD APPL12016 Page 29 of 35 could not be used for running a nursing home, even under the head of "other activities" and that since the plot was a plot for Dharamshala but did not qualify as a residential plot, therefore, the Mixed Use regulation were not applicable. Thus, the Ld. Appellate Tribunal, MCD concluded that the plot was being misused. Accordingly, it found the sealing order of the South Delhi Municipal Corporation dated 15.10.2012 valid and executable.
Much depends on the nature of the plot in question. The Ld. Appellate Tribunal, MCD had relied on the Resolution of the Standing Committee dated 03.11.1965. However, it has been accepted by both sides before this Court that at the meeting dated 03.11.1965 the Standing Committee of the MCD was seized of only of the question of the size of the plot 1C and nothing more. The South Delhi Municipal Corporation has also conceded that no permission from DDA was required, as was observed in the proceedings recorded on 03.11.1965 of the Standing Committee of the MCD. A perusal of this Resolution, copy of which has been placed on this record reflects that there was only one item on the agenda which was "Amendment with respect to size of Plot No.1C (Block C), Green Park Extension, Mehrauli Road. In respect of this agenda item, the Resolution was as follows:
"Resolved that as recommended by the Commissioner in his letter No.1830/C&C dated 25.09.1965, the area of plot No.1C be read as 1000 square yards instead 500 square yards subject to the condition that the plot in question does not fall in the proposed widening of CISMCD APPL12016 Page 30 of 35 roads and its building plan will have to be got sanctioned as per Building Byelaws."
Thus, the agenda was to rectify the size of the plot 1C and nothing more. It was in the course of the discussion which has been recorded under Item No.1, that a reference has been made to the intent of the owners to build a Dharamshala on the plot and the need for special permission of the DDA. An advise was also given that as such, the applicant should make a special appeal to the Authority for necessary permission.
The Ld. Appellate Tribunal, MCD has relied on this Resolution to conclude that the plot was meant for a Dharamshala. Rather the extract reproduced hereinabove, would reflect that the Standing Committee of the MCD while noting the intent of the owner to build a Dharamshala in the plot in question, underlined the need to make a special appeal for necessary permission, since the Dharmashala could be permitted on a "residential plot" only with such special permission. In other words, the Standing Committee had dealt with Plot No. C1/C, Green Park Extension, Mehrauli Road, New Delhi on 03.11.1965 as a residential plot. The Resolution dated 03.11.1965 did not change the user of that plot into that of a Dharamshala. It is not at all clear why special permission for construction of a Dharmashala was required in the year 1965. On the contrary, it is now explained that in fact no such special permission was actually required even in 1965. The Ld. Counsel for the South Delhi Municipal Corporation did submit that no permission was mandatorily required for constructing the CISMCD APPL12016 Page 31 of 35 Dharamshala. This is also written in the reply of the South Delhi Municipal Corporation in Para No.3 under the heading "Factual Matrix". Thus, a mere references to such a requirement based on some erroneous impression can not lead to an inference that the land use was Dharamshala.
The Ld. Counsel for the appellants pointed out to the layout plan to submit that all plots were not earmarked for use since the area was a residential area but where some other activities were to be carried out it was marked out, such as school, market etc. It was therefore, argued that when the three plots which were originally not reflected in the layout plan but subsequently earmarked in the year 1962 as 1A, 1B & 1C and 1A & 1B were earmarked as Hotel, the continued unmarking of the land bearing no.1C, reflected that it was intended for residential use purposes. I find force in this contention of the ld. Counsel for the appellants. The area of Green Park Extension is a residential area. Plots 1A & 1B were to have hotels. The absence of description for specific use with regard to Plot 1C would only lead to the conclusion that the said plot of land was residential. This is why in 1965 the Standing Committee referred to the Plot as a "residential plot" on which a Dharamshala was to be constructed.
The next question is whether the use of a residential plot as a Dharamshala by the owners would act as an estoppal against their using it for any other purposes because they chose to put up a Dharmashala instead of a residential premises. The Ld. Appellate Tribunal, MCD felt that this was the correct position CISMCD APPL12016 Page 32 of 35 because the sanction plan would determine the use of the plot of land in the absence of a description in the layout plan. However, as discussed above, it is not as if this plot has no description for its use. It was located in a residential area and it was a residential plot in contra distinction of the other two plots earmarked for use as a Hotel or a commercial space. It is difficult to accept that the approval given by the Commissioner vide orders dated 01.05.1963 for construction of a Dharamshala would amount to changing the user of the plot from residential plot to something else. Therefore, the Ld. Appellate Tribunal, MCD fell into error relying on this Resolution to come to a conclusion that the plot in question was not a residential plot.
Thus, when the plot had been properly described as a residential plot, the conclusion that the sanction plan for Dharamshala would convert the plot into a non residential plot would also be, as a necessary corollary, erroneous. Only building plans are sanctioned; the purpose is not sanctioned alongwith such building plans. The Master Plan governs land use. That is reflected in the layout plan. Thus, the layout plan is to be referred to determine land use and not the sanctioned building plans. The DMC Act provides for some definitions in Chapter 16 relating to building regulations. As per the definition in Section 331 the expression to "erect a building" would amount to erection of a new building at any site, whether previously built upon or not; and to "reerect a building" would include inter alia the conversion of the building. The prohibition was u/s 332 is of the DMC Act that such CISMCD APPL12016 Page 33 of 35 erection of building would not be except with the previous sanction of the Commissioner. Thus, it is clear that the sanction of the building plans by the Commissioner would neither validate nor invalidate the use of premises for various purposes.
The purpose and user will necessarily be governed by the Master Plan for Delhi issued from time to time. There is nothing that has been brought on the record on the basis of which it could be deduced that in the year 1963 the Dharamshala was not a permissive user on residential plots and residential area and that a construction of the Dharamshala would necessarily result in an automatic change in the user of the plot in question. On what basis, therefore, the Layout Scrutiny Committee came to such a conclusion that the land use in question was Dharmashala and the activities would be those of Dharmashala is not clear. The Ld. Appellate Tribunal upheld the findings of the Layout Scrutiny Committee on the basis of the Standing Committee Resolution of 03.11.1965. But, as noted above, such reliance is misplaced.
The Ld. Appellate Tribunal, MCD has also referred to some admissions. The admission has not been spelt out but probably the admission intended is the expression of the interest of the owner to construct the Dharamshala in the plot in question. It is doubtful that such an estoppel is applicable against an owner of a plot that the first owner's intention will remain with the plot of land and even if policy changes happen the successor in interest of the original owner will never be able to take advantage of such policy changes. It is not for anyone to be judgmental about the change in CISMCD APPL12016 Page 34 of 35 outlook from that of charity to quite the opposite.
The plot in question thus being a residential plot in a residential area and abutting a commercial road is clearly governed by the mixed land use resolution of the MPD 2021. The running of a nursing home cannot therefore, be held to be "misuse".
This conclusion is strictly and limited for the purposes of the show cause notice u/s. 345A of the DMC Act dated 23.05.2012. In these circumstances, the sealing order issued by the Deputy Commissioner vide order dated 15.10.2012 was not justified. The sealing order dated 15.10.2012 is set aside. The orders of the Ld. Appellate Tribunal dated 18.03.2013 cannot also be upheld and are also therefore, set aside.
The appeal is accordingly allowed. Subject to any existing orders of the superior Court there shall be no sealing of the premises no. C1/C, Green Park Extension, New Delhi on the basis of the notice u/s. 345A of DMC Act dated 23.05.2012.
The records of the Ld. Appellate tribunal, MCD be returned alongwith copy of this judgment.
The file be consigned to the record Room.
Announced in open Court
today i.e 06.07.2017 (ASHA MENON)
District & Sessions Judge (South)
Saket/New Delhi.
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