Delhi High Court - Orders
Apnaghar Builders Pvt Ltd vs South Delhi Municipal Corporation & Ors on 25 February, 2019
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1860/2019
APNAGHAR BUILDERS PVT LTD ..... Petitioner
Through: Mr. Ravi Gupta, Sr. Adv. with
Mr.Ankit Jain, Mr. Sachin Jain and
Ms. Divya Kapoor, Advs.
versus
SOUTH DELHI MUNICIPAL CORPORATION & ORS
..... Respondents
Through: Ms. Ruchi Jain, Adv. for R-1 & R-2.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 25.02.2019 CM APPL. No. 8717/2019 (for exemption) Allowed, subject to just exceptions.
Application stands disposed of.
W.P.(C) 1860/2019 & CM APPL. No. 8716/2019 (for interim relief) The petitioner company impugns the action on the part of respondents Nos. 1 and 2/SDMC whereby they have declared the stretch of road on Aurobindo Marg falling between 'Ansari Nagar to red light of Kaushalaya Park', as a non-commercial/residential street based on a re-verification of notified streets conducted on 28.06.2008.
2. The petitioner's property bearing No. C-2/10 Safarjung Development Area, New Delhi falls on Aurobindo Marg between Ansari Nagar and red light of Kaushalaya Park; which street was, by notification dated 15.09.2006 issued by the Urban Development Department of Government of NCT of Delhi, notified as a commercial street.
3. On 24.09.2015 the petitioner paid to respondents Nos. 1 and 2/SDMC conversion charges in the sum of Rs. 83,06,874/- and obtained conversion of land-use of the subject property to 'commercial', whereby, the petitioner contends, it became permissible for the petitioner to run a gymnasium from the subject property.
4. Mr. Ravi Gupta, learned senior counsel for the petitioner states that in spite of obtaining conversion of land-use as above, the petitioner received show-cause notice dated 19.09.2016 under Section 345-A of Delhi Municipal Corporation, 1957 ('DMC Act') directing the petitioner to stop the misuse of the subject property; to which the petitioner sent a reply dated 22.09.2016.
5. Thereafter, respondents Nos. 1 and 2/SDMC issued to the petitioner a sealing notice dated 19.01.2018 under the DMC Act, which the petitioner has impugned by way of an appeal filed before the Appellate Tribunal MCD. It is stated that the principal contention of the petitioner before the ATMCD is that the petitioner had obtained conversion of land use by payment of requisite conversion charges after the street upon which the subject property is situate was notified as a commercial street vide notification dated 15.09.2006; and therefore the use of the subject property for running a gymnasium is permissible.
6. Learned senior counsel for the petitioner states that in the proceedings before the ATMCD, the SDMC contends that on the basis of re-verification of notified street/roads (2183) in South Zone dated 28.06.2008, the subject property does not fall on a commercial street and therefore cannot be put to commercial use.
7. It is also noteworthy that in this regard, in order dated 24.12.2018 in appeal No. 65/2018, the ATMCD records as under:
"16. ... It is further stated that with regard to the impugned property a complaint is also pending consideration before the Monitoring Committee of the Apex Court and on taking note of the facts Monitoring Committee has directed the answering respondent/SDMC to get the stay order vacated by moving an application before the Tribunal for early hearing. It is concluded that submissions of the appellant that the location of the property on notified as commercial road are not sustainable. In this regard copy of the survey report is annexed as annurexe-A which is re- verification of notified street road 2183 Southern dated 28.6.2018 wherein relevant stretch is of the Aurobindo Marg as mentioned at serial no.10 showing the stretch of the road from and to as notified i.e. Ansari Nagar to red light to Kausalya park. There is a complaint of SDA Welfare association as annexure-I page no. 48 of the paper book regarding unauthorized commercial activities in the subject property. It is stated in the said complaint that all the houses of main Aurobindo Marg from IIT gate to Aurobindo market are residential house properties of category-B for residential use only as per MPD-2021 i.e it is a purely residential area where no commercial activities are allowed. The commercial streets and mixed use streets as identified by latest revision to modified Master Plan for Delhi 2021 as amended upto July 2012 does not include any properties on Aurobindo Marg from Aurobindo Market to IIT gate. Commercial activity on Aurobindo Marg is only permitted from Ansari Nagar to red light of Kaushyala park. It is further alleged that house no. C-2/10 Safdarjung Enclave (sic) which is subject property has been converted into commercial activities whereas no other property in that lane is commercial and the subject property has been let out for running of a new fitness center, gymnasium which is a commercial activity and not allowed in this lane as per the MPD- 2021. The complainant has quoted the provisions of 15.3.2 and 15.7.1 of the MPD-2021 stating that fitness centers including gymnasium, yoga meditation centre as existed on 07.2.2007 are only permissible. The commercial activities in the form of a gymnasium has been started by the appellant in the year 2016 and is in violation of the above mentioned provisions/regulations of MPD-2021. This complaint of SDA Resident Welfare Association is signed by 20 residents of the area"
8. Mr. Gupta states that an appeal from ATMCD's order dated 24.12.2018 is pending before the District Judge; and by order dated 04.01.2019 the District Judge has restrained further action on the sealing order passed by the SDMC.
9. The petitioner contends that regardless of the fact that a statutory appeal is pending before the ATMCD and an appeal from an order made by the ATMCD is also pending before the District Judge, by way of the present petition, the petitioner is impugning the action of respondents Nos. 1 and 2/SDMC whereby, after having conducted a verification and having notified the subject street as a commercial street, they have conducted a re- verification which, the petitioner challenges, is not in consonance with the provisions of clause 15.12 of the Master Plan for Delhi-2021 relating to 'Commercial Streets and Areas'. According to the petitioner, even assuming that a re-verification is permissible, there has been no fresh notification as required by clause 15.12.3 nor any modification of the earlier notification.
10. Petitioner contends that since such action on the part of respondent Nos. 1 and 2/SDMC is in breach inter-alia of clause 15.12 of Master Plan for Delhi-2021, the challenge would lie only before this court in its writ jurisdiction and cannot be canvassed before the ATMCD or the District Judge. He submits therefore that this court can entertain this petition and decide the issue.
11. Learned senior counsel for the petitioner therefore contends that the subject street must be considered a 'commercial street' and running a gymnasium from the subject property cannot be faulted.
12. Issue notice.
13. Ms. Ruchi Jain, learned counsel for respondents Nos. 1 and 2 appears on advance copy and accepts notice.
14. Since respondent No. 3/Oscar Guest House and respondent No. 4/Fibre Fitness have been impleaded only for the reason that these are entities that are also conducting commercial activities from neighbouring properties, I am of the view that respondents Nos. 3 and 4 have no role to play in the matter. At this stage however, respondents Nos. 3 and 4 are retained in the array of party-respondents as proforma parties. No notice is issued to them.
15. Learned counsel for respondents Nos. 1 and 2 states that re- verification of 2183 roads, among which the subject road falls, was conducted in compliance of order dated 27.08.2007 made by the Supreme Court in WP(C) No. 4677/1985 titled M.C. Mehta vs. Union of India & Ors. and upon directions issued by the Monitoring Committee appointed by the Supreme Court. She wishes to place on record documents relating to the aforesaid alongwith the counter-affidavit to be filed.
16. Counsel further states that conversion charges paid by the petitioner were by way of self-assessment and no right or benefit accrued to the petitioner by merely paying a sum of Rs. 83 lacs towards conversion charges. Counsel further objects to the very maintainability of the present petition in view proceedings pending before the ATMCD as well as the District Judge.
17. This court is conscious of the fact that it is the mandate of the Supreme Court as contained in various orders made in M.C. Mehta vs. Union of India & Ors. that where any action has been initiated by, or at the instance of, the Monitoring Committee appointed by the Supreme Court, no other court, including the High Court, is to intercede in such action. However to ascertain if the subject matter of this petition is related to action initiated at the instance of the Monitoring Committee, I deem it appropriate to call for a response from respondents Nos. 1 and 2/SDMC.
18. I do not deem it appropriate however, to grant any interim relief in the matter, at least at this stage.
19. Let counter-affidavit be filed within four weeks; rejoinder thereto, if any, be filed within two weeks of receiving counter-affidavit.
20. List on 22nd May 2019.
21. Dasti.
ANUP JAIRAM BHAMBHANI, J.
FEBRUARY 25, 2019/uj