Delhi District Court
In Re vs South Delhi Municipal Corporation on 1 October, 2020
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
RCA No. 86/2017
CNR No. DLWT01-004010-2017
In re:
Inderjeet Kaur
Through its SPA holder
S. Gurvinder Singh Dhodi
R/o H.No. D-9, Fateh Nagar,
New Delhi-110018 . . . . . . Appellant
Versus
South Delhi Municipal Corporation
Civic Centre, Minto Road,
New Delhi-110002 . . . . . . Respondent.
Date of Institution : 03.05.2017
Date of hearing arguments : 21.09.2020
Date of judgment : 01.10.2020
Appearances:
Sh. Yogender Singh, Advocate for the appellant.
Sh. Dharamb ir Gupta, Advocate for the respondent/SDMC.
JUDGMENT
1. This appeal is preferred by the appellant under Section 347-D of the Delhi Municipal Corporation Act, 1957 (66 of 1957) as amended up to day (hereinafter referred to as 'the DMC Act') assailing the order dated 13.07.2015 whereby her premises situated at ground floor of property No. 66/12, Ashok Nagar, New Delhi, has been sealed RCA No.86/2017 Inderjeet Kaur v. SDMC Page 1 of 20 by the the Deputy Commissioner, West Zone, South Delhi Municipal Corporation and also assailing an order dated 15.11.2016 passed by Sh. Sanjeev Kumar, Ld. PO, Appellate Tribunal, MCD (hereinafter referred to as the 'Ld. ATMCD').
BACKGROUND FACTS
2. Briefly stated, the appellant states that she is the owner and in possession of a retail cement shop situated at the ground floor of the aforesaid property, which have been purchased by her by virtue of two sale deeds dated 22.09.2003 and 31.10.2013; and that the same has been mutated in her name as well. It is stated that she has been running a retail cement shop from the said portion, which was earlier measuring 35.11 Sq. Metres since 01.04.1992 under the name and style 'M/s. Dhodi & Company Pvt. Ltd.'. It is also stated that she got her establishment registered on 04.01.2007 and obtained an ad hoc license from South Delhi Municipal Corporation (hereinafter referred to as the 'SDMC') to run the shop for "trading in cement" dated 01.02.2007 and now doing business from an area of 61.15 Sq. Metres after coming into force of Master Plan DELHI -2021(For short "MPD- 2021").
3. The grievance of the appellant is that on 16.04.2014 the officials of the respondent SDMC visited her shop and even without allowing her to close the front shutter of the retail shop sealed the front entry by putting threads across the shutter of the shop. It is stated that upon persistent requests and pleadings, the officials of the SDMC RCA No.86/2017 Inderjeet Kaur v. SDMC Page 2 of 20 handed over copy of the sealing order dated 16.04.2014 and aggrieved thereof, she filed an appeal bearing No. 403/14 against the said order and vide order dated 27.02.2015 Smt. Raj Rani Mitra, the then the Ld. ATMCD quashed the sealing order bearing No. EE(B- II)WZ/misuse/2013-14/613 dated 16.04.2014 and the respondent SDMC was directed to de-seal the premises in question within a week of the said order. The appellant was further directed to appear before the Deputy Commissioner in his office on 11.03.2015 at 03:00 PM and the Deputy Commissioner was directed to afford her a personal hearing and also allow her to file her written submissions and documents.
4. It is stated that though she appeared before the Deputy Commissioner, West Zone, Vishal Enclave, New Delhi, in compliance to the aforesaid directions and submitted the relevant documents including the site plan, the Deputy Commissioner was not present in his office, and she was shocked to receive an order dated 13.07.2015 whereby the impugned sealing order was passed for alleged use of the premises for running a "cement godown", which order is assailed being arbitrary, illegal and bad in law for not complying with the mandatory provisions of DMC Act; and inter alia, it is claimed that though sealing order mentions that property in question is 35.11 Sq. Metres, sealing has been done on two points covering 61 Sq. Metres, while the running of "trade in cement" is otherwise permissible under MPD-2021. On challenge to the aforesaid order bearing No. D-05/DC/WZ/2015 dated 13.07.2015 passed under Section 347-B of the DMC Act before the Ld. ATMCD, the impugned order dated 15.11.2016 was passed. In order to RCA No.86/2017 Inderjeet Kaur v. SDMC Page 3 of 20 appreciate the real controversy in question, it would expedient to reproduce the operative portion of the impugned order dated 15.11.2016 in verbatim, which goes as under:
"9. I have considered the arguments and gone through the record. As far as ground taken in appeal that appellant was not provided opportunity to heard, it is worthwhile to mention here that earlier appeal No.403/14 was remanded back to the respondent AE(B) to decide the same afresh by my Id. Predecessor vide order dated 27.02.2015 on the ground that since no show cause notice has been served upon the appellant, therefore, the appellant was not given opportunity of hearing and after this remand back appellant was given personal hearing by the respondent, therefore, said ground is not tenable.
10. Now next ground is whether property in question was sealed in violation of provision of MPD 2021. Chapter 15 of 15.5 and 15.6 MPD-2021 deals with the commercial activity permissible in mixed used land regulation which are reproduce as under
15.5 PERMISSIBLE AND NON-PERMISSIBLE USES : Any trade or activity involving any kind of obnoxious, hazardous.
inflammable. non-compatible and polluting substance or process shall not be permitted.
15.6 RETAIL SHOPS 15.6.1 i. Retail shops shall be permitted on plots abutting streets notified for mixed use only on the ground floor up to the maximum permissible ground floor coverage.
ii. Shops operating from basement on such streets may continue. subject to relevant provisions of building bye laws, structural safety and fire safety clearance. However, if such use of basement leads to exceeding the permissible FAR on the plot, such FAR in excess shall be used subject to payment of appropriate charges prescribed with the approval of Government.
15.6.2 The following activities shall not be allowed under Mixed Use :
(a) Retail shops of building materials timber, timber products (excluding furniture), marble, iron and steel, (gravel, cement and sand), firewood, coal and any fire hazardous and other bulky materials.RCA No.86/2017 Inderjeet Kaur v. SDMC Page 4 of 20
(b) Repair shops/workshops for automobiles, tyre resoling and re-treading, and battery charging.
(c) storage, go-down and warehousing.
(d) Junk shop (except paper and glass waste)
(e) Liquor shop
(f) Printing, dyeing and varnishing
(g) Any other activity that may be notified from time to time by Government.
Notes. Will not include
1. Business of finished marble products where cutting and polishing activity of marble is not undertaken.
2. Retail shops of gravel, sand and cement shall be permissible in residential plots of at least 50 sq.m.. in notified mixed use streets in E. f and G category colonies, provided that the material is kept entirely within the plot premises.
3. Repair shops and workshops in case of automobiles shall not be prohibited on plots abutting mixed use streets or commercial streets of right of way (ROW) of 30m or more.
11. From the aforesaid provision it is evident that retail shop of building material is not allowed under mixed use except that a shop is situated in the street notified for mixed land use in E, F and G category and situated on the residential plot of atleast 50 sq.yds.
12. Now reverting back to the case from the impugned order it is evident that respondent has passed the order for premises is being run as Cement Godown. There is no definition of godown in the MPD 2021. But as per oxford dictionary meaning of godown in Indian subcontinent and other parts of eastern Asia is "a wharehouse or store for goods." Whereas shop meaning as per oxford dictionary is
1. "a house or building where goods are made or prepared for sale and also" 2. "a building, room or other establishment used for retail sale of merchandise or service". Thus it is evident if a place is only used for storing goods it is godown but if it is used for selling goods it is shop.
13. Appellant has contended that it was being used as retail cement shop. The appellant has filed adhoc application form of retail shops. In which name of unit has been mention as "Dhodi & Company Pvt. Ltd and name of appellant has been mentioned as applicant." Thereafter RCA No.86/2017 Inderjeet Kaur v. SDMC Page 5 of 20 adhoc registration certificate was granted to appellant. But in the said application it is no where mentioned that said certificate was granted for running retail cement shop. No other documents was produced by her to proved that retail cement shop was running from the property in question. Appellant was directed to file the annual record of sale and purchase of cement. But she has only file five photocopy of carbon copy receipts having ink stamp of "Dhodi & Company Pvt. Ltd." as proof of sate of cement having address of 66/12, Ashok Nagar, New Delhi which are having serial Nos. 2,3,4 & 5 out of which four are of 01. O8.2015 and one is of 06.08.2015. Record of sale and purchase is required to be maintained in a company and usually balance sheets are prepared but no complete record even of one month prior to the date of hearing has been filed by the appellant despite specific directions. These receipts does not inspire much confidence. The appellant has concealed the said record either to hide the fact that there was huge sale which will proved that retail business of cement was not going on or there was no sale which will proved that premises was used as godown and not as shop. In both eventuality it would be fatal to the case of appellant. Moreover, the appellant has registered his shop in the name of "Dhodi & Company (P) Ltd" and according to appellant same firm was running the retail cement shop. But no proof has been produced what was she in the said company. Further photographs which are filed in appeal No.403/14 which was earlier remanded back, shows that huge quantity of cement bags were lying in the shop. It is very unlikely that such a huge quantity of cement bags can be used in a retail shop. This also prove that the shop in question was used as godown then retail shop.
14. Besides above ground I am also agree with the contention of Ld. Counsel of respondent that property in question being less than 50 sq.mt is not permissible to be used as retail cement shop even if it is considered as retail cement shop even though said ground has not been taken as ground for sealing in the impugned order. Though Ld. Counsel for Appellant has contended that appellant shop is situated on the mixed land use street and is 61.15 Sq mt thus more than 50 sq.yds., therefore, same is permitted under category of retail cement shop. He has relied upon the property tax return to proved the same. Undoubtedly in the PTR of year 2013- 2014 total area under factor 4 RCA No.86/2017 Inderjeet Kaur v. SDMC Page 6 of 20 (factor used for commercial area) has been shown as 61.15 sq.mt. But from the ad-hoc registration certificate filed by the appellant it is evident that she has registered in the name of M/s. Dhodi & Company Pvt. Ltd. for trading of cement and shown the area of plot as 35.11 sqm.
Whereas according to appellant her shop is of 61.15 sqm.
15. From the sale deeds filed by the appellant it is evident that appellant has purchased the part of property bearing No.66/12 measuring 42 sq.yds. situated at Tihar-2, Ashok Nagar. Delhi vide sale deed dated 12.09.2003 from Sh. Harbans Singh and she has also purchased back portion of the ground floor, first floor and second floor area measuring 60 sq.yds. part of property No.66/12 situated at Tihar-2, Ashok Nagar, Delhi-18 from Smt Poonam Rani Ahuja vide sale deed dated 31.10.2012. Hence, when prior to year 2012 she was only owner to 42 sq.mt. no question of shop being 61.15 sq.mt arise. It appears that the appellant has amalgamated the some of the portion of ground floor which she has purchased in the year 2012 into the earlier portion purchased in the year 2003 to make it a shop of more than 50 sq. mtr. which is also evident from the inspection report and site plan filed with inspection inspection report filed by the AE(B)on 12.11.2014 In appeal no. 403/14( earlier appeal). In the inspection report it Is mentioned that " size of godown was
34. 53 sq.mtr. The appellant has made entry in the backside wall into said godown. It is worthwhile to mention here that them is a service lane from where appellant had made entry in the back portion and from there made the unauthorized opening of 1.2x 1.85. Appellant is carrying outcommercial activity through the unauthorized opening. Some bags were also found stacked in the back side portion "
16. From the site plan it is evident that on the notified road for mixed land use first there is shop of 34.53 Sq.mt than there Is a room shown as ABCD in side plan of 29.74 Sq.mt which is also having shutter in service lane and there in another room on back side situated on rear lane. It appear appellant by making an opening in back side wall of shop has amalgamated area of back room (shown as ABCD) into front shop which falls into notified road for mixed used to make it more than 50 Sq,mt shop.
Amalgamation of the property is permissible only with the condition as mentioned in the MPD-2021 clause 4.4.3 RCA No.86/2017 Inderjeet Kaur v. SDMC Page 7 of 20 condition 20. The appellant has not filed any documents that he has complied with those conditions. Hence, amalgamation of front shop with back shop is not according to the law. Hence, the appellant shop which was registered as retail cement shop is only 35.11 sq.mtr was only a shop having actual area of 34.53Sq.mt and therefore cannot be run as even retail cement shop as per the Note (2) of clause 15.6. 2 of MPD-2021 being less than 50 sq. mt. whereas the back portion shop shown as ABCD even cannot be used as shop being not situated on notified road for mixed land use. Hence, appellant cannot even run retail cement shop much less cement godown.
17. In view of the above said facts and circumstances, I held that there is no illegality in the impugned order dated 13.07.2015 passed by the respondent directing sealing of the premises in question and there is no merit in the appeal, therefore same is liable to be dismissed, however, in case appellant gives an undertaking that appellant will not use the shop in question for cement godown/cement shop and ready to used it as per the used provided in MPD 2021 and ready to pay the misuse charges as required under MPD 2021 then appellant shops will be de- sealed by the respondent within 15 days of filing the said undertaking before this Tribunal. Appeal is disposed off accordingly."
GROUNDS OF APPEAL
5. The aforesaid order is assailed in the present appeal under Section 347D of the DMC Act on the ground that the Ld. ATMCD failed to appreciate that the impugned order dated 13.07.2015 was passed in gross violation of the principles of natural justice, patently wrong in law since the MPD-2021 allowed running of "retail cement shop" having atleast 50 Sq.Metres of area in mixed land use falling in Category 'E', 'F' and 'G' and the fact that shop was being run in 61.15 Sq. Metres was ignored; and that there was no basis in the impugned order to hold that a Godown was being run from the premises in RCA No.86/2017 Inderjeet Kaur v. SDMC Page 8 of 20 question.
6. Notice of the present appeal was served upon the respondent. No reply is filed as such but needless to point out the appeal is contested tooth and nail. However, since an application has been filed by the appellant for condonation of delay in filing the appeal on the ground that she has been suffering from Psychological disorder and suffering from joint pain and unable to walk, a short reply has been filed by the SDMC stating that no sufficient grounds are shown for condonation of delay in filing the appeal within the stipulated period of one month as per section 347-B of the DMC Act.
7. I have given my thoughtful consideration to the submissions made by Ld. Counsel for the parties at the Bar who appeared physically and addressed arguments. I have also gone through the record of the Ld. ATMCD, documents filed therein as well as the record of the present appeal.
DECISION
8. First thing first, considering that the appellant is a Senior Citizen suffering from certain old age ailments, taking a liberal view, the delay in filing the present appeal is condoned. More so since this appeal raises an important question of law and also issues of MCD officials not adopting sound practices and fair procedures in the exercise of their public duties.
RCA No.86/2017 Inderjeet Kaur v. SDMC Page 9 of 209. Section 347 of the DMC provides as under:
347. Restrictions on user of buildings.--No person shall, without the written permission of the Commissioner, or otherwise than in conformity with the conditions, if any, of such permission-- (a) use or permit to be used for human habitation any part of a building not originally erected or authorised to be used for that purpose or not used for that purpose before any alteration has been made therein by any work executed in accordance with the provisions of this Act and of the bye-laws made thereunder; (b) change or allow the change of the use of any land or building; (c) convert or allow the conversion of one kind of tenement into another kind.
10. In view of the said provision, the moot question is whether the action taken by the SDMC is covered by sub-section (3) of section 347 of the DMC Act? At the outset, the impugned order dated 15.11.2016 passed by the Ld. ATMCD appears to be perverse, based on incorrect appreciation of facts established on the record and wrong application of law, and hence cannot be sustained in law. In assigning reasons for taking such decision, it would be expedient to reproduce the impugned sealing order No. D-5/DC/WZ/15 dated 13.07.2015, which read as under:-
"Order under section 345-A of the DMC Act, 1957 (66 of 1957) in respect of Property No. 66/12, Ashok Nagar, Delhi. This order shall dispose of the directions given by Hon'ble Appellate Tribunal vide order dated 27/02/2015 in Appeal No.403/2014 titled "Smt. Inderjeet Kaur V/s SDMC" concerning to Sealing of Property No. 66/12, Ashok Nagar, Delhi. In the present case a show-cause notice u/s 345-A of DMC Act was issued to the owner/occupier of Property No. 66/12, Ashok Nagar, New Delhi as the premises is being used for commercial purposes/misused under the name and style of M/s. Building RCA No.86/2017 Inderjeet Kaur v. SDMC Page 10 of 20 Material Shop(Cement Godown) in total violation of permissible/sanctioned use of the said property and also against the Master Plan-2021/Zonal Plan/Sanctioned Plan which amounts to misuse of premises. As no reply was received from the owner/occupier of the property, hence sealing orders u/s 345-A of the DMC Act was passed and the property was sealed on 16.04.2014 Aggrieved with the sealing orders, the owner/occupier of the property filed an Appeal before the ATMCD vide Apeeal No. 403/14 titled as Smt. Inderjeet Kaur V/s SDMC. The Appellate Tribunal in its orders dated 27/02/2015 inter-alia observed that the Show-Cause Notice dated 26.02.2014 sent to the appellant on 28.02.2014 through speed post had returned undelivered with the remarks Left. Apparently, the show cause notice was not served upon the appellant and no opportunity of being heard of personal hearing was ever granted to the appellant to file reply of the show cause notic, which is sufficient to remand back the matter.
The impugned order of sealing bearing No. EE(B)11/WZ/misuse/2013-14/613 dated 16.04.2014 is quashed and set aside. The respondent Is directed to deseal the premises of the appellant bearing No. 66/12,Ashok Nagar, New Deihl within one week from today.
The ATMCD further directed that the appeallant shall appear before the Dy. Commissioner, West Zone in his office on 11.03.2015 at 3.00 PM and the Dy. Commissioner shall give the appellant a personal hearing and shall receive the reply of the show-cause notice, documents and written submission, if any submitted by the appellant. The appellant shall not seek and adjournment and he Is permitted to file reply and written submission before the Dy. Commissioner concerned, thereafter, after taking into consideration the reply of the Show-Cause Notice any further document or written submission shall pass the speaking order afresh and deal with all the submissions, please and the defenses raised by the appellant and shall complete the proceedings maximum within three months thereafter.
With these observations appeal is remanded back. The appellant shall not raise any further construction in the said property nor shall sell it, dispose off or create any third party interest In the same till the matter is decided afresh by the Dy. Commissioner, West Zone or till the period of three months whichever is later. The appellant shall not make any repair in the premises except white-wash without permission of the Executive Engineer. The appeal, is, thus, disposed off.RCA No.86/2017 Inderjeet Kaur v. SDMC Page 11 of 20
In compliance of directions of Appellate Tribunal, respondent South DMC de-sealed alleged property bearing No. 66/12, Ashok Nagar, Delhi. In the wake of directions of Appellate Tribunal, the owner/occupier, Smt. Inderjeet Kaur appeared in the office of the undersigned, but as the undersigned was in the meeting at HQ, the owner filed/submitted documents in support of her case. The owner/occupier filed the sale-deed of the property, Affidavit, site plan of the GF and a copy of RTI reply obtained from Town Planning Department.
The facts placed before me revealed that the property is being used for Cement Godown and as per the provisions of Master Plan of Delhi 2021 bearing No. 15.6.2, Godown is a prohibited activity under mixed use. The opinion of Building (HQ) was obtained in the present case on 09.4.15 and Building (HQ) opined that as per the Provision No. 15.6.2, Godown is a prohibited activity under the Mixed use.
ORDER The report placed on record establishes that the alleged, property is being used for the activity of Cement Godown which is not permissible as per the provisions of MPD-2021. After taking into consideration all the facts of the case, place before me I do not find any reason as to why alleged property bearing No. 66/12, Ashok Nagar should not be re-sealed. As Per report placed before, Building Department de-sealed the alleged property in pursuance of aforesaid orders. Now, therefore, I Deputy Commissioner, South Delhi Municipal Corporation, West Zone, New Delhi in exercise of the powers vested in me under section 345-A of the Delhi Municipal Corporation Act, 1957 read with Section 491 of the Act and rules made thereunder, hereby order that the aforesaid premise should be sealed forthwith.
I authorize Assistant Engineer (Bldg.) West Zone to execute forthwith the above order in the manner prescribed under rules 2, 4 & 7 and shall exercise the powers mentioned in the Rules and to report immediate compliance to the undersigned. The premise shall be sealed with the seal of the South Delhi Municipal Corporation and the said seal shall remain in the personal custody of the Assistant Engineer (Bldg.),West Zone until further orders.
No person shall remove the seal except under the orders of the undersigned or as provided u/s 345-A(3) of the DMC Act. Issued under my hand and seal on this 13 th day of July 2015."RCA No.86/2017 Inderjeet Kaur v. SDMC Page 12 of 20
11. Ex facie a bare perusal of the aforesaid order would show that neither on 11.03.2015 nor thereafter any opportunity of hearing was afforded to the appellant. Apparently, the official concerned did do some inquires at his end and arrived at the impugned decision, which belies common sense, highly lopsided and mechanical in nature. Secondly, it is admitted position that the running of "trade in cement" is permissible as per MPD-2021 but her representation asserting that she was doing 'trading in cement' from the shop in question in conformity with the MPD-2021, as applicable to the location in question, was not considered. Thirdly, there was no inspection report(s) as to how many cement bags were found stocked or stored in the premises so as to raise an inference that instead of retailing in cement, a cement Godown was being operated at the site.
12. Now, interestingly the Ld. ATMCD in paragraph (8) of the impugned order, referred to some objections raised by an intervener opposing use of the shop by the appellant for commercial purposes. Whatever be the motives of such applicant/intervener or personal scores to be settled with the appellant, Ld. ATMCD observed as under:-
"8. Applicant has argued that she is the neighbourer of the appellant. Appellant is using the shop in question and nearby shop No.D-9 (part) which is adjacent to the cement Godown. She submits that in the night cement comes in big 'Trallas' (large truck) which were parked in front of the applicant house and which engine is remain running causing lot of noise and applicant is not able to sleep. She also submits that in the day time cement is supplied to small shopkeepers through 'rickshaw' and huge quantity of cement transport and storing daily cement particle fly in air and causing air pollution which has made life of the applicant hell. Therefore, in the circumstance, appellant should not be allowed to run the RCA No.86/2017 Inderjeet Kaur v. SDMC Page 13 of 20 cement Godown from the subject property in question. She also submits that property in question has been sealed on her complaint to the respondent, therefore, property in question should not be de-sealed.
13. Be that as it may, the clause 15.6.2 referred by the Ld. ATMCD in his order vide paragraph (10) under the heading 'Notes' vide Clause-2 clearly stipulates that: "a retail shop of gravel, sand and cement shall be permissible in residential plots of at leas 50 Sq. Metres in notified mixed use streets in 'E' , 'F' and 'G' category colonies, provided that the material is kept entirely within the plot premises. It was held in the case of Kotak Mahindra Bank Ltd vs. MCD, 149(2008) DLT 99, that MPD-2021 have statutory force and binding. That being the position, and this should be fourth aspect of our decision, that it is nowhere the case of the SDMC that required material i.e. cement bags or whatever material there might be, were not being kept entirely within the plot premises. In other words, there is dispute that the goods or cement bags, if any, were stored or stocked inside the shop premises. Fifthly, though Clause 15.6.2 of the MPD- 2021 stipulates that running of "storage, godown and warehousing" is not allowed in "mixed land use", it is also admitted position that there is no definition of the word "Godown" in the MPD-2021. The sealing order dated 16.04.2013 and the subsequent impugned sealing order dated 13.07.2015, which is a mirror image of the earlier order, even failed to assign any cogent or patent reason as to the foundation or the basis of arriving at a decision on the part of SDMC that the appellant had been running or operating a "Cement Godown". Interestingly, the Ld. ATMCD RCA No.86/2017 Inderjeet Kaur v. SDMC Page 14 of 20 although adverted to the dictionary meaning of "Godown " as also 'Warehouse', it manifestly fell in error in failing to perceive that mere storage of any material in a shop or premises may or may not amount to ipso facto using it as a Godown. Elementary as it may look, it would be matter of common business sense that storage of goods may be a dominant purpose, or it may be incidental purpose depending upon whether one is doing business in wholesale or retail trade, having regard to usage of such terms in common business sense. Merely because a place is used for storage of goods, it would not in all situation lead to an inference that it is Godown and not being used for selling or trading of goods. A bare literal and grammatical interpretation of Clause 15.6.2 of the MPD-2021 referred above would clearly invite a strong inference that the facility or the business activity should be such that is predominantly used for "storage, warehouse and Godown" as understood in business parlance.
14. To my mind, there is another flaw in the reasoning given by the Ld. ATMCD in paragraph (13) of the impugned order dated 15.11.2016, referred hereinabove, when it proceeded to delve into the genuineness of the documents submitted by the appellant without even examining the appellant, while no such reasoning was given by the officials of the SDMC in passing the impugned sealing order dated 13.07.2015. In other words, the Ld. ATMCD committed a grave error of jurisdiction as it embarked on to appreciate the documents placed on the record by the appellant one way or other when such documents were not even considered by the concerned authorities of the SDMC RCA No.86/2017 Inderjeet Kaur v. SDMC Page 15 of 20 nor were disputed by them.
15. I find substance in the plea of the ld. Counsel for the appellant that the findings given by the Ld. ATMCD in paragraph (16) of the impugned order are contrary to the facts and circumstances established on the record. No such notice or facts were put to the appellant at any point of time and she was not afforded any opportunity to explain or rebut the said findings. The finding that the appellant got amalgamated two different shops as one, even if it is assumed to be correct for the sake of convenience, cause neither any crack nor it is in contravention of any other clauses/stipulations under the MPD-2021 in as much as the entire shop area of the appellant is admittedly on the ground floor of the same premises. A bare perusal of the ad hoc license at page 243 of the paper book would show the date of the establishment of the Unit/Trade at present site is indicated to be 01.04.1992 for an area of 35.11 Sq. Metres and as against the head 'Trade Details', it is typed 'Trading of Cement'. It has been further demonstrated by the appellant that on coming into force of the MPD- 2021 in the year 2007, the other portion in the same premises was acquired. It is common position that the premises in question is falling in the Area category 'F' & 'G' and further trade license, registration fee and handling charges of Rs. 550/- were paid on 29.12.2008 and a sum of Rs.25,828/- were paid on 24.12.2014 towards parking and mixed use charges for the same property i.e. 66/12, Ground Floor, Ashok Nagar, New Delhi comprising of 61.15 Sq. Metres. Further, admittedly last time the conversion charges totaling Rs. 36162/- was RCA No.86/2017 Inderjeet Kaur v. SDMC Page 16 of 20 paid vide MCD Receipt no. C/88797 dated 18.06.2015. The plea that the parking charges and other charges were paid after the inspection at the spot by the officials of the SDMC has not been denied either. It is also not disputed that the appellant is assessed for house tax for the ground floor portion for the purposes of Municipal Tax at commercial rates. It is also pointed out by the ld. Counsel for the appellant that his letter dated 16.04.2014 apprising the SDMC about such facts were not considered and the records were not updated by the SDMC as to amend the license for an area of 61.15 Sq. Metres in terms of MPD- 2021 despite his letter dated 23.10.2017 addressed to Deputy Commissioner, West Zone.
16. During the course of arguments, it was pointed out by the ld counsel for the SDMC at the time of inspection, which report is incidentally, not placed on the record, a huge quantity of 70 bags of cement was found to be stocked/stored in the shop. Is it a huge quantity considering when the total area would be 700 Sq. Feet measuring '15 x 43'. It is really baffling to the mind that sometimes the the SDMC Official calls it a shop while at other times they call it a Godown, without disclosing as to how they arrived at such conclusion. Lastly, the observation of the Ld. ATMCD with regard to non-production of the stock register and other documents viz. bills, etc. can not be sustained since, at no stage the appellant was called upon to produce the such documents with or without her affidavit. The ld ATMCD proceeded to decide something that was never in contemplation of the concerned authority and such approach was absolutely unwarranted.
RCA No.86/2017 Inderjeet Kaur v. SDMC Page 17 of 2017. Drawing the curtains finally down in this case, unfortunate as it may seem, this case is a stark case illustration of the manner in which the officials of the SDMC acted whimsically, mechanically and perversely to the detriment of not only the fundamental rights of the appellant to carry on trade and business as enshrined under section 19 (1) (g) of the Constitution of India but also eroding the confidence of the general public in the Rule of law. . The officials of the SDMC also ignored the admitted fact that whole area in question is otherwise meant for mixed use land where lot of shops and establishment are being run dealing in construction material including cement and yet selected application of iron hand of law by all accounts resulted in loss of income to the appellant, loss of job prospects to the work men in the unorganized sector also leading to loss of revenue to the State. Such arbitrary, whimsical and lackadaisical approach on the part of public functionaries in SDMC cause untold miseries and a ripple effect on the economy of the city, if not nationally. The officials or the public functionaries in the SDMC must be reminded time and again that they are in position of great trust and responsibility towards the general public and must comply with the law in fair manner that promotes not only the objectives of the government under the DMC Act and also the larger interest of the people to have a planned development in the city of Delhi. It would not be out of place to mention that as per the latest World Bank Report, India has improved its ranking placed at 63 rd "in the ease of doing business in 2020". It is not only multinational companies or big corporate sectors but also small traders like the appellant who bring about a significant change in improving the economic status of RCA No.86/2017 Inderjeet Kaur v. SDMC Page 18 of 20 this country. The officials of SDMC should have a re-look at their disposition in applying laws selectively and restrain themselves from creating unwarranted road blocks in the path of the economic progress.
18. In the said view of the matter, the present appeal is allowed and the impugned order dated 15.11.2015 passed by the Ld. ATMCD is set aside. Consequently, the sealing order No. D-05/DC/WZ/2015 dated 13.07.2015 passed by the Deputy Commissioner, West Zone is hereby set aside as well. The respondent SDMC is directed to de-seal the ground floor portion of the property No. 66/12, Ashok Nagar, New Delhi, forthwith.
19. A copy of this order be sent to the Commissioner, SDMC with the request that they should endeavour to sensitize their officials and ensure that they should comply with the letters of the law and its spirit. The concerned officials of the SDMC have caused irreparable damage to the quality of life of the appellant in her old age and obviously have caused her great of pain and anxiety to her as also her family members. The Commissioner, SDMC should initiate disciplinary action against the erring officials who violated the letter and spirit of the law, and thereby eroded the confidence of the people in such institution and caused loss to its exchequer. The respondent SDMC is burdened with costs of Rs. Two lakh, which on realization be paid to the appellant as compensation for violation of her fundamental rights, peace and life.
RCA No.86/2017 Inderjeet Kaur v. SDMC Page 19 of 2020. The original record of the Ld. ATMCD be sent back along- with copy of this Judgment. File of appeal be consigned to Record Room. Digitally signed by DHARMESH DHARMESH SHARMA SHARMA Date:
2020.10.01 22:58:45 +0530 Announced in the open Court (DHARMESH SHARMA) on 01st October, 2020 Principal District & Sessions Judge (West) Tis Hazari Courts: Delhi RCA No.86/2017 Inderjeet Kaur v. SDMC Page 20 of 20