Delhi High Court - Orders
Baby Adira Jatia & Ors vs Union Of India & Ors on 4 November, 2023
Author: Prateek Jalan
Bench: Prateek Jalan
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 14454/2023
BABY ADIRA JATIA & ORS. ..... Petitioners
Through: Ms. Manali Singhal, Ms. Shreya
Singhal, Mr. Santosh Sachin, Mr.
Deepak Rawat, Ms. Aanchal
Kapoor, Advocates with petitioner
No. 3 in person.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Arun Panwar, Mr. Rishabh
Srivastava, Advocates for R-2.
Mr. Tushar Sannu, SC with Mr.
Yash Singh, Advocates for MCD
with Mr. Rajbir Singh, AE, MCD.
Ms. Geeta Luthra, Sr. Adv. with
Ms. Ishita Agarwal, Advocate for
R-4.
Mr. Jayant Mehta, Sr. Adv. with
Mr. Samar Bansal, Advocate for R-
5 and 6.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 04.11.2023 CM APPL. 57274/2023 (for exemption) Exemption allowed, subject to all just exceptions. The application stands disposed of.
W.P.(C) 14454/2023 & CM APPL. 57273/2023 (ad interim relief), CM APPL. 57275/2023 (for permission to play video) W.P.(C) 14454/2023 Page 1 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/11/2023 at 02:02:29
1. Issue notice. Mr. Arun Panwar, learned counsel, accepts notice on behalf of the respondent No. 2. Mr. Tushar Sannu, learned Standing Counsel, accepts notice for Municipal Corporation of Delhi ["MCD"]. Ms. Ishita Agarwal, learned counsel, accepts notice on behalf of respondent No. 4 and Mr. Samar Bansal, learned counsel, accepts notice on behalf of respondent Nos. 5 and 6. Respondent No. 1-Union of India be served through the learned Standing Counsel.
2. The petitioners are the wife and two minor children [aged four years and eight years] of respondent No. 4 in this writ petition. Respondent Nos. 5 and 6 are the parents of respondent No. 4. The petitioners assail an action of the MCD of sealing of two rooms in their residential property being B-50, Gulmohar Park, New Delhi ["the subject property"] pursuant to an order dated 03.11.2023, passed under Section 345A of the Delhi Municipal Corporation Act, 1957 ["the Act"].
3. The impugned sealing order records that it was preceded by a show cause notice dated 04.10.2023, to which no reply was received. The order is predicated on unauthorised construction in the subject property, where the "Extent of unauthorised construction" has been recorded as "Deviation/excess coverage against SBP No. 55(2) 83 dt. 11.10.1983 from BM, GF, Mezznine, FF to SF (Property found Old & Occupied)".
4. The averments of the petitioners in the writ petition are that petitioner No. 3 has been a resident of the subject property since her marriage to respondent No. 4. The owner of the subject property, according to petitioner No. 3, is respondent No. 5 [mother of respondent No. 4]. Ms. Geeta Luthra, learned Senior Counsel for respondent No. 4, upon instructions from respondent No. 4, who is present in Court, states W.P.(C) 14454/2023 Page 2 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/11/2023 at 02:02:29 that the subject property is, in fact, owned by respondent No. 5 and one or more other members of his family. Be that as it may, it is undisputed that petitioner No. 3 has been resident in the property since her marriage to respondent No. 4 in the year 2010, and the minor children have also been resident in the property since their birth. The contention of respondent No. 4 is that petitioner No. 3 and respondent No. 4 were, in fact, resident overseas during the period from 2014-2019, but visited India from time to time, and during their visits, they stayed in the subject property. Ms. Luthra disputes the characterisation of the property as "matrimonial home" of petitioner No. 3, but accepts this factual position.
5. It is undisputed that, prior to the impugned sealing action, petitioner No. 3 was in occupation of a bedroom on the second floor of the subject property, petitioner No. 1 [the minor daughter] was in occupation of another bedroom on the second floor of the property and petitioner No. 2 [the minor son] was in occupation of a bedroom on the first floor of the subject property. The bedroom occupied by petitioner No. 3 was earlier the common bedroom of the married couple, until respondent No. 4, some months ago, started occupying a separate bedroom in the first floor, although his belongings admittedly continue to remain in the said room on the second floor.
6. It appears that matrimonial disputes have recently arisen between petitioner No. 3 and respondent No. 4. Ms. Luthra informs me that respondent No. 4 has instituted proceedings for divorce against petitioner No. 3, approximately in the month of September, 2023. A notice for pre- litigation mediation was issued by Samadhan, Delhi High Court Mediation and Conciliation Centre, on 19.09.2023, apparently at the W.P.(C) 14454/2023 Page 3 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/11/2023 at 02:02:29 behest of petitioner No. 3.
7. According to Ms. Manali Singhal, learned counsel for the petitioners, these matrimonial proceedings provide the context in which the impugned actions have been taken by MCD. She submits that MCD has acted at the behest of respondent No. 4 to seal only the parts of the property [second floor] occupied by the petitioners, and the basement.
8. Ms. Singhal also relies upon video recordings of the action taken by MCD in execution of the sealing order. The video recordings have been handed over to the Court Master in a pen drive and will be kept in custody of the Registry. The video recordings have been also played to the Court. It prima facie appears therefrom that officials of the MCD and police officials, accompanied by respondent No. 4, entered the bedroom, which was occupied by petitioner No. 3, and sealed it, upon her vacating it. The video prima facie shows that petitioner No. 3 asked for copies of the notices and orders authorising the officials to do so and also complained of being handled physically.
9. Mr. Tushar Sannu, learned Standing Counsel for MCD, who appears on advance notice, upon instructions from Mr. Rajbir Singh, Assistant Engineer, MCD, states that the impugned actions have been taken pursuant to a complaint dated 14.09.2023, received in the office of Deputy Commissioner, MCD from one Mr. Ram Gopal Sharma, complaining of illegal construction in the second floor of the property. A copy of the complaint has been handed over to the Court, which states that the property was constructed in the 1980s, at which time the second floor only had a barsati. It is stated therein that the entire second floor has now been illegally covered and action in the form of sealing has been W.P.(C) 14454/2023 Page 4 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/11/2023 at 02:02:29 sought. The address, or interest of Mr. Ram Gopal Sharma in the matter, does not appear from the copy handed over by MCD.
10. Mr. Sannu submits that, pursuant to this complaint, a show cause notice dated 19.09.2023 was issued under Section 344(1) and 343 of the Act. No reply was received to the show cause notice, following which a demolition order has been passed on 03.10.2023. Copies of the aforesaid documents have also been handed over in Court, which reflect unauthorised construction to the same extent as mentioned in the sealing order. Mr. Sannu states that, prior to the sealing order dated 03.11.2023, a show cause notice dated 04.10.2023 was also issued. It may be noted that the show cause notice dated 19.09.2023 and demolition order dated 03.10.2023 were addressed to one Shri B.D. Mathur, who is stated to have been the previous owner of the premises, and the show cause notice dated 04.10.2023 is addressed to "Shri B.D. Mathur, owner/builder/occupier".
11. At this stage, the records relating to service of the notices or orders is not available with Mr. Sannu. However, a photograph showing a document affixed to the wall, ostensibly part of the subject property, is also part of the compilation made available by Mr. Sannu to the Court.
12. Mr. Sannu is directed to take into his own custody, the original record relating to the sealing action and the demolition action, and to produce the same before the Court on the next date of hearing. MCD will also file an affidavit by 09.11.2023, dealing inter alia with the provenance of the complaint dated 14.09.2023, whether there was any other complaint in respect of the subject property received by MCD by any means, service of the show cause notices and orders mentioned W.P.(C) 14454/2023 Page 5 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/11/2023 at 02:02:29 above, and the reasons for which action was taken only in respect of the basement and second floor of the property, despite a finding of unauthorised construction in the ground floor, mezzanine floor and the first floor also. MCD will also place on record the documents relating to the sanctioned plan and whether any further application for construction was made in regard to the subject property.
13. Having regard to the aforesaid facts, particularly to the fact that the sealing action appears to have been taken partially, limited to the basement and parts of the property which were in occupation of the petitioners (albeit, according to Ms. Luthra, not in their exclusive occupation), and that the interest of two minor children is also involved, MCD is directed to de-seal the property by tomorrow i.e. 05.11.2023. The Court is also mindful of the fact that, even according to MCD, the construction is "old and occupied" and according to petitioner No. 3, there was no construction in the property since 2010. The parties are directed to maintain status quo with regard to any construction in the property until the next date of hearing.
14. Although Mr. Sannu has taken a preliminary objection in view of an appellate remedy being available against the impugned sealing notice, the preliminary objections is reserved for consideration at an appropriate stage. For the present, the conscience of the Court is required to be satisfied as to the bona fides of the conduct of the statutory authorities and compliance with the rules of natural justice.
15. The observations in this order are prima facie in nature and will not prejudice the rights and contentions of petitioner No. 3 and respondent No. 4 in the matrimonial proceedings, already instituted or W.P.(C) 14454/2023 Page 6 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/11/2023 at 02:02:29 proposed to be instituted.
16. The pendency of this petition will not come in the way of the owners/occupants taking steps for regularisation of the property.
17. Mr. Sannu is directed to communicate the order to the concerned officials.
18. List on 10.11.2023.
19. Copy of this order be given dasti under the signatures of the Court Master.
PRATEEK JALAN, J NOVEMBER 4, 2023 "Bhupi"/ W.P.(C) 14454/2023 Page 7 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/11/2023 at 02:02:29