Delhi District Court
South Delhi Municipal Corporation vs Hira Lal on 9 July, 2021
IN THE COURT OF SH. DINESH KUMAR SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE /
APPELLATE AUTHORITY, NEW DELHI
In the matter of :
MCD Appeal No. 02/2020 & MCD Appeal No. 03/2020
South Delhi Municipal Corporation
Through its Commissioner
Civic Centre Minto Road
New Delhi110002. ....Appellant
Versus
Hira Lal
S/o Sh. Phool Singh
R/o 138/9, Kishangarh
Vasant Kunj,New Delhi110070.
Monitoring Committee
Through its Admn. Officer
6A, Core, India Habitat Centre
Lodhi Colony, New Delhi.
Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, INA, New Delhi. ....Respondents
Date of filing of MCD Appeal No.02/2020 : 18.12.2020
Date of filing of MCD Appeal No.03/2020 : 22.12.2020
Date of arguments : 15.04.2021
Date of judgment : 09.07.2021
MCD Appeal Nos. 02/2020 & 03/2020 Page No.1 of 11
JUDGMENT
1. Vide this judgment I shall dispose off MCD Appeal Nos.02/2020 & 03/2020. The appeals have been filed challenging the impugned order dated 27.01.2020 in ATMCD Appeal Nos.1018/2015 & 1019/2015. Respondent No.1 had invoked the jurisdiction of Appellate Tribunal, MCD (ATMCD in short) against the sealing of ground floor of property no.76/9, plot no.3, Aruna Asaf Ali Marg, Kishan Garh, Vasant Kunj, New Delhi and ground floor of property no.138/9, Aruna Asaf Ali Marg, Kishan Garh, Vasant Kunj, New Delhi. Both the properties were sealed on 10.10.2011 by the officials of the appellant as per the directions given to them by the Monitoring Committee appointed by the Hon'ble Supreme Court.
2. Shorn off the details, ATMCD vide impugned order dated 27.01.2020 allowed both the appeals and ordered to deseal the above properties vide separate impugned orders dated 27.01.2020 filed in both the appeals. The appellant aggrieved of the impugned order preferred the appeal before this court u/S 347D of The Municipal Corporation Act, 1957 by way of two different appeals. However, since the question involved is purely legal one and the facts are identical, therefore, this court propose MCD Appeal Nos. 02/2020 & 03/2020 Page No.2 of 11 to dispose off both the appeals by the common judgment. Upon filing of the appeals, notices were issued to the respondents. Ld. Counsel for respondent no.2/ Monitoring Committee took a preliminary objection that the appeals are not maintainable in view of the directions of the Hon'ble Supreme Court in WP(C) No.4677/1985 and WP(C) No.8647/2017. Pursuant to this objection, this court proceeded to hear the submissions of the parties on the point of maintainability of the appeals.
3. Sh. Arun Bhardwaj, Ld. Sr. Advocate with Sh. Nitin Ahlawat, Ld. Counsel for respondent no.1 has submitted that the respondent no.1 had invoked the jurisdiction of ATMCD pursuant to the liberty granted to him by Hon'ble Supreme Court in WP(C) No.4677/1985. Ld. Counsel further submitted that the Monitoring Committee had never taken the issue of jurisdiction before ATMCD and therefore, now they are estopped from taking this plea before this court.
4. Sh. Pritish Sabharwal, Ld. Counsel for appellant has also emphasized that the ATMCD has passed an erroneous order and therefore, this court in its appellate jurisdiction has all the powers to set aside the order. Ld. Counsel for the appellant submitted that it has already been conveyed to respondent no.1 vide communication No.D/2103/EE(B)II/Bldg./SZ/2020 dated MCD Appeal Nos. 02/2020 & 03/2020 Page No.3 of 11 28.10.2020 that pursuant to the order of ATMCD regarding de dealing of property no.76/9, plot no.3, Aruna Asaf Ali Marg, Kishan Garh, Vasant Kunj, New Delhi and property no.138/9, Aruna Asaf Ali Marg, Kishan Garh, Vasant Kunj, New Delhi , the matter was placed before the Monitoring Committee and the Monitoring Committee vide order dated 06.03.2020 has turned down the request interalia observing that there is encroachment of government land in both cases. The Monitoring Committee has also taken a plea that in view of order dated 28.01.2019 passed by Hon'ble Supreme Court in WP(C) No. 4677/1985 any challenge to the decision of Monitoring Committee will lie to the Hon'ble Supreme Court. It is also pertinent to mention here that after the impugned order passed by ATMCD, respondent no.1 had also preferred a Contempt Petition before the ATMCD against the appellant for not complying with the orders of ATMCD.
5. It is pertinent to mention here that the Hon'ble Supreme Court in M.C. Mehta Vs UOI, WP(C) No.4677/1985 vide order dated 30.04.2013 interalia held as under:
(iv) These lAs which are pending before this Court for desealing of premises, on one ground or the other, will be treated as appeals under Sections 347B, 254 and 31C of the respective Acts (NDMC Act/MCD Act/ DDA Act) before the respective Appellate Tribunal constituted under Sections 347A of the MCD Act, MCD Appeal Nos. 02/2020 & 03/2020 Page No.4 of 11 Section 253 of the NDMC Act and Section 31B of the DDA Act. The Registry will transmit all these lAs(including objections, if any) to the respective Tribunals under the MCD, NDMC and DDA Acts. The above Tribunals shall then hear these applications, as appeals preferred against an order of sealing, and decide the same on their own merits, in accordance with law. Parties will be at liberty to file additional affidavits/counter affidavits and additional documents with the leave of the concerned Tribunal."
6. Sh. Arun Bhardwaj, Ld. Sr. Advocate for respondent no.1 submitted that the Hon'ble Supreme Court in the above mentioned case had also granted liberty to all interested parties in the sealing matters to prefer appeal before the concerned Tribunal in terms of Section 347B/254/31C of the MCD/ NDMC/ DDA Act within 30 days of this order. However, since respondent no.1 herein could not file an appeal within this time frame, IA No.27022703 in IA No.22 in Writ Petition (Civil) No.4677/1985 was moved and Hon'ble Supreme Court was pleased to grant extension of time for filing of appeal before the ATMCD. Sh. Arun Bhardwaj, Ld. Sr. Advocate submitted that the jurisdiction of ATMCD was invoked pursuant to the permission granted by Hon'ble Supreme Court. It has further been submitted that in view of Section 347(D) MCD Act and in terms of directions passed by Hon'ble Supreme Court in Amrik Singh Lyallpuri Vs MCD Appeal Nos. 02/2020 & 03/2020 Page No.5 of 11 UOI & Ors., (2011) 6 SCC 535, an appeal lies to the court of Ld. District Judge. Ld. Sr. Advocate further submitted that in an identical case, ATMCD passed an order dated 06.02.2018 in appeal no.1020/2015 titled as Hira Lal Vs SDMC in respect of property no.76A/1/9, Kishan Garh, Delhi for desealing of the property and the appellant corporation never challenged the said order. Ld. Sr. Advocate further submitted that the order of Hon'ble Supreme Court dated 28.01.2019 did not oust the jurisdiction of Appellate Tribunal as respondent no.1 had approached ATMCD after the directions of the Hon'ble Supreme Court.
7. I have considered the submissions and perused the record.
8. I consider that in view of the objection raised by Ld. Counsel for Monitoring Committee, it is necessary to determine about the jurisdiction of this court before proceeding further. As referred earlier Hon'ble Supreme Court in WP(C) No.4677/1985 vide order dated 30.04.2013 had transferred all IAs pending before it to ATMCD with a direction to decide the same on their own merits and in accordance with law. By the same order, Hon'ble Supreme Court had also granted opportunity to the Monitoring Committee to prefer a writ petition before the MCD Appeal Nos. 02/2020 & 03/2020 Page No.6 of 11 Hon'ble High Court in case the Tribunal directs desealing of the property. However, thereafter much water has flown and the Hon'ble Supreme Court vide order dated 15.12.2017 in WP(C) No.4677/1985 held as under: "37. We make it clear that henceforth it will not be necessary for any person whose residential premises have been scaled for misuse for any commercial (other than industrial) purposes at the instance of the Monitoring Committee to file an appeal before the appropriate statutory Appellate Tribunal. Instead, that person can directly approach the Monitoring Committee for relief after depositing an amount of Rs.1,00,000/ with the Monitoring Committee which will keep an account of the amounts received by it. Any person who has already filed an appeal before the appropriate statutory Appellate Tribunal but would prefer approaching the Monitoring Committee may withdraw the appeal and approach the Monitoring Committee for relief on the above terms and conditions and on deposit of Rs.1,00,000/ as costs with the Monitoring Committee, provided that the premises were sealed at the instance of the Monitoring Committee. Any challenge to the decision of the Monitoring Committee will lie to this Court only. We are constrained and compelled to make this order given the history of the case and the more than serious observations of this Court of an apparent nexus between some entities and the observations regarding corruption and nepotism."
9. Subsequent thereto, Hon'ble Supreme Court in WP(C) No.4677/1985 vide order dated 28.01.2019 interalia MCD Appeal Nos. 02/2020 & 03/2020 Page No.7 of 11 directed as under: "This Court has made it clear that any challenge to the decision of the Monitoring Committee will lie to this Court only. Apart from that this was reiterated again by this Court. On 07.09.2018, this Court, inter alia passed the following order: "It is stated that some of the defaulting individuals/organizations are approaching the Courts whether it is the High Court or the District Court and even in one case the State Consumer Disputes Redressal Commission.
It is submitted by the Monitoring Committee that these Courts and the Commission do not have any jurisdiction over these issues in view of the order passed by this Court. The learned Amicus will bring it to the notice of the Courts and the Commission that prima facie jurisdiction does not lie with them leaving it for the Courts to take a decision in the matter."
Again on 27.11.2018, the Court, inter alia, passed the following order: The Monitoring Committee has brought to our notice that other Courts/Tribunals/Authorities including the State Consumer Commission and District and Sessions Judge are entertaining the petitions despite order passed by this Court. We have requested Mr. A.D.N. Rao to look into these cases. We reiterate that no Court or Tribunal or any other Authority shall look into these matters as well as the petitions which are pending before us."
MCD Appeal Nos. 02/2020 & 03/2020 Page No.8 of 11
10. It is also necessary to refer to order dated 18.12.2019 in WP(C) 8647/2017 and CM Appl.No.35519/2017 in South Delhi Municipal Corporation Vs Brigadier (Retd.) A S Popli And Anr. In this case, SDMC had filed a writ petition challenging the order dated 19.07.2016 passed by ATMCD. The writ petition apparently was filed pursuant to the liberty granted by Hon'ble Supreme Court in WP(C) No.4677/1985 vide order dated 30.04.2013. However, Hon'ble Delhi High Court taking note of the orders of Hon'ble Supreme Court passed in the same writ petition on 15.12.2017 and 28.01.2019 and the status report dated 21.10.2019 filed by Monitoring Committee interalia held as under: "14. Learned counsel for respondent No. I has however taken a stand that this writ petition and other connected writ petitions have been filed against a judicial order passed by the ATMCD. It is their contention that the appropriate forum to challenge the orders of ATMCD would be the District Judge who is the appellate authority of ATMCD as per the judgment of the Supreme Court in Amrik Singh Lyallpuri vs. UOI & Ors., (2011) 6 SCC 535. Petitions were filed here on the instructions of the Supreme Court dated 30.04.2013. Learned counsel for the respondent also states that they have complied with the directions of the ATMCD.
15. I may note that this writ petition has been filed on the MCD Appeal Nos. 02/2020 & 03/2020 Page No.9 of 11 directions given by the Monitoring Committee to SDMC. The Monitoring Committee, however, in the status report has now taken the stand that this court in view of the orders of the Supreme Court dated 28.01.2019, should not deal with these writ petitions. As the petitions have been filed on the instructions of the Monitoring Committee, it would be appropriate that this writ petition be treated accordingly.
16. Even otherwise, a perusal of the order of the Supreme Court dated 28.01.2019 shows that the intent was that where the premises have been sealed/dealt with at the instance of the Monitoring committee, then it is the Monitoring Committee/Supreme Court who are to deal with litigations pertaining to such a situation.
17. Keeping in view the status report filed by the Monitoring Committee and the aforenoted orders of the Supreme Court, it would be for the petitioner to take further appropriate steps as per law/as per the directions passed by the Supreme Court. The petitioner is also free to approach the Monitoring Committee/Supreme Court for appropriate directions/further proceedings."
11. Thus a combined reading of the orders passed by Hon'ble Supreme Court in WP(C) No.4677/1985 and order passed by Hon'ble Delh High Court in WP(C) 8647/2017 dated 18.12.2019, it is crystal clear that the intent of the Hon'ble Supreme Court by virtue of orders passed from time to time is that where the premises is sealed at the instance of Monitoring MCD Appeal Nos. 02/2020 & 03/2020 Page No.10 of 11 Committee then it is only the Monitoring Committee/ Supreme Court who are to deal with the litigations pertaining to such situation. In these circumstances, this court finds that it does not have any jurisdiction to entertain the present appeals. The jurisdiction of this court has been taken away by virtue of order dated 28.01.2019 passed by Hon'ble Supreme Court in WP(C) No.4677/1985. In the circumstances, this court having no jurisdiction is bound to dismiss the appeals. Appeals are dismissed accordingly. The appellant may take appropriate steps as provided under law to challenge the impugned order.
12. File be consigned to Record Room.
Digitally signed by DINESH DINESH KUMAR
KUMAR SHARMA
Date: 2021.07.09
SHARMA 18:13:37 +0530
Announced through (DINESH KUMAR SHARMA)
electronic mode on Principal District & Sessions Judge/
09.07.2021 Appellate Authority, New Delhi
MCD Appeal Nos. 02/2020 & 03/2020 Page No.11 of 11