Delhi District Court
Mrs. Vibha Mishra vs South Delhi Municipal Corporation on 6 October, 2016
IN THE COURT OF Mrs. ANU MALHOTRA: DISTRICT &
SESSIONS JUDGE (SOUTH DISTRICT) : SAKET: NEW
DELHI
CIS No. MCD APPL 7 2016
CNR DLST01000827 2014
MCD Appeal No. 05/2014
ID No.: 02406C0220822014
Mrs. Vibha Mishra
Daughter of Sh.R.K. Mishra
R/o C703, Shehnai Reasidency,
A.B. Road, Indore - 452 010, MP ........Appellant
Versus
1 South Delhi Municipal Corporation
Civic Centre, Minto Road, New Delhi.
2 Monitoring Committee of the Hon'ble Supreme Court
India Habitat Centre, 6A, Lobby Office,
Lodhi Road, New Delhi - 110 003. .......Respondents
Instituted on: 05.09.2014 Judgment reserved on: 30.09.2016 Judgment pronounced on: 06.10.2016 J U D G M E N T This judgment shall dispose off the present MCD Appeal No. 05/2014 instituted on 05.09.14 by the appellant, Mrs. Vibha Mishra against the impugned order dated 03.03.14 of the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD Appeal No.05/2014 Page 1 of 24 MCD in the Appeal No. 585/AT/MCD/2013, with the respondents no.1 & 2 arrayed to the appeal being the South Delhi Municipal Corporation and the Monitoring Committee of the Hon'ble Supreme Court respectively.
Notice of the appeal is indicated to have initially been issued to the respondent no.1 only. On the date 12.10.15 when the matter was fixed for pronouncement of judgment, as the record indicated that the Monitoring Committee of the Hon'ble Supreme Court was arrayed as the respondent no.2 and the Monitoring Committee had virtually been represented on each date of hearing before the Ld. PO, Appellate Tribunal, MCD, notice of the appeal was issued to the respondent no.2 who as per the record is indicated to have been served for the date of hearing 01.12.2015 but chose not to put in appearance.
The available records of the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD in the Appeal No. 585/AT/MCD/2013 bring forth that the appellant is the owner of the two cabins i.e. cabins no.8 & 9 in the basement of the building existing at plot No. R32, NDSE, PartII, New Delhi - 110049. As per the status report dated 27.01.14 submitted before the Ld. PO, Appellate Tribunal, MCD in the Appeal No. 585/AT/MCD/2013, there is an excess coverage and there are partitions at the basement, ground, first and second floors and the third floor of the said building of plot No. R32, NDSE, PartII, New Delhi - 110049 is reported to have been constructed unauthorizedly. The said report also indicates that the MCD Appeal No.05/2014 Page 2 of 24 existing coverage of the basement is upto the plot line i.e. beneath the front and rear setback, which is noncompoundable and that the units at the basement that were being used for commercial purpose were lying sealed and that there are ten units (cabins) which are in excess of the permissible limit and hence, they are noncompoundable and that the size of cabins is less than the permissible limit as per BBLs, apart from other variations and infringements in the mandatory setbacks in the said building. The said status report, however, indicates that there is no noncompoundable coverage from the ground to second floors and that as per the record, an amount of Rs.61100/ which included six months interest on account of Additional FAR charges in respect of the cabins no.8 and 9 at the basement has been deposited by Mrs. Vibha Mishra (i.e. the present appellant) to use the said cabins for professional activities.
The report of the Monitoring Committee dated 11.02.2014 submitted before the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD states to the effect that the ten cabins in the basement of the property No. R32, NDSE, PartII, New Delhi - 110049 as informed were sealed by the MCD for misuse of residential premises for commercial activities in violation of the provision of MPD2021 and the building byelaws and that the Monitoring Committee directed the MCD to check the dwelling units of the plots with reference to the sanctioned building plans and to forward a status report vide the note dated 27.11.2008 and that the MCD vide its note dated 06.03.2009 had stated that the construction of the basement, MCD Appeal No.05/2014 Page 3 of 24 ground floor, first floor, barsati floor (second floor) and mezzanine floor, second floor had been compounded for which compounding fees of Rs.8428/ had been paid in the year 2000. The said report of the Monitoring Committee further indicates that the Monitoring Committee had directed the MCD on 18.11.2013 to check the premises with reference to the sanctioned building plans and to forward a status report, which status report of the MCD dated 29.11.2013 is identical to the report dated 27.01.2014 referred to herein above of the MCD.
The proceedings dated 19.11.2013 of the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD in the present appeal indicate that on 19.11.2013, it was submitted by EE(B) Akil Ahmad that if the basement was to be used by professionals, then there was no requirement to deposit any conversion or parking charges and it was also submitted by the MCD on the said date that the partitions in the basement were not permissible and were liable to be removed.
The grievance of the appellant is that the said cabins no.8 & 9 have been sealed in December, 2007, under the orders of the Monitoring Committee because of its alleged misuse for carrying out commercial activities and for putting up glass partitions without any intimation or notice of any kind without a proper hearing or suggestion for proper remedy to correct the misuse. The appellant further submitted that in January and February, 2008, affidavits were submitted by her to the municipal authorities and that she was ready to abide by and adhere to any direction of the respondents to bring the MCD Appeal No.05/2014 Page 4 of 24 property in accordance with existing byelaws but there was no response from the respondents. The appellant also submitted that she made a detailed submission before the Monitoring Committee asserting that previously her premises were sealed in the year 1995 and had been cleared by the due process of law after detailed investigation and hearing and that the Monitoring Committee had agreed to her contentions and directed her to submit FAR charges as applicable which had been so submitted by the appellant by paying a Pay Orders of Rs. 61,100/ in FAR including parking charges compounding of deviations and that the MCD Building Department had, thus, itself issued general receipt for acknowledgment of the same vide receipt no.220012 and that through the information accessed under the RTI, the appellant learnt that the JE(Building) had in a report dated 03.06.2008 mentioned that in relation to the cabins no.8 & 9 in the basement, there was no misuse in the premises. The said status report dated 03.06.2008 states there was no misuse in cabins no. 8 & 9 and there was only a small steel almirah and one cupboard attached to a wall and bedding lying there and that the said cabins were lying sealed. The said report of the JE(Building) also stated that the records be put up before the Monitoring Committee for further necessary directions.
The submissions made by the appellant further indicate that on 27.03.2009 AE(Building), Headquarters had sent the record in relation to the cabins no. 8 & 9 in the basement of the property No. R 32, NDSE, PartII, New Delhi - 110049 to the Zone with the MCD Appeal No.05/2014 Page 5 of 24 representation of the appellant seeking desealing of the said premises with the observation of the Monitoring Committee to the effect :
"1 Please certify that all the partitions in the basement have been removed.
2 Desealing not approved."
The report dated 24.01.2009 of the JE (Building) as submitted through the heirachy of officers that EE(B) Sc (Central Zone), DC (Central zone), Deputy Commissioner (Engineering) to the Hon'ble Monitoring Committee of the Supreme Court states that no partitions had been removed and all the ten cabins were lying sealed at that time. The directions of the Monitoring Committee dated 28.04.2009 are to the effect that :
"Desealing not approved.
Large number of activities in the basement with number of chambers."
The appellant has further submitted that since 27.12.2007, the appellant's premises are lying in sealed condition despite the representation and affidavit submitted by the appellant and that despite the appellant having made payment towards FAR and that without the appellant being asked to remove the partitions sealed by the respondents, the appellant cannot remove the partitions.
The appellant has further submitted that the legal notice dated 21.01.2011 was sent by the appellant to the Monitoring Committee and to the Deputy Commissioner, MCD seeking desealing of the premises citing building byelaws of 1983 as per the MPD2021 MCD Appeal No.05/2014 Page 6 of 24 and that the appellant was not called and on filing RTI applications, she learnt that the Monitoring committee called for a hearing on 28.01.2011 on her counsel's petition and on 16.03.2011, JE (Building) had put up a note mentioning that as per the direction of the Monitoring Committee, a personal hearing was accorded to the applicant on 28.01.2011 but there was no record of the MCD of an intimation to her or her counsel of any such hearing accorded and despite her repeated RTI applications MCD refused to give any specific reply and that the appellant could not find the record of hearing that was stated to have been so accorded to her. The appellant further submitted that neither she nor her counsel were called for hearing nor did they attend any hearing.
The appellant further submitted that on filing an RTI application, the appellant learnt that in a letter dated 16.09.2011 to one Mr. Peer, owner of one of the cabins, she was informed that the Monitoring Committed vide order dated 12.09.2011 in relation to de sealing of office chamber no.4 of the basement at plot No. R32, NDSE, PartII, New Delhi - 110049 had observed that :
"......Premises in the basement have been sealed by the Monitoring Committee as the basement is not as per approved sanctioned building plans and for misuse, desealing not approved. Further in terms of para 15.4 where there is one dwelling unit in a residential plot, only one type of mixed use shall be permissible in that unit and on an analogy, there cannot be more than one type of mixed use in the basement"MCD Appeal No.05/2014 Page 7 of 24
and it was further submitted by the appellant that there was a deliberate misrepresentation and misreading of para 15.4 of MPD2021 which is to the effect that "
"......Where there are more than one dwelling unit in a residential plot, each of the dwelling unit will be permitted to have only one type of mixed use activity (i.e. retail shop as per para 15.6 or professional activity or one of the other other activities listed in para 15.7)"
It was further submitted by the appellant that the case of the appellant falls under 15.4(2) and not under 15.4(1) in as much as there are multiple dwelling units in a plot and the MCD is well aware of the same.
The appellant further submitted that she filed the writ petition in January, 2013 but thereafter in terms of the directions of the Hon'ble Supreme Court in the Writ Petition No. 4677 of 1985 in the case titled M.C.Mehta Vs. Union of India and Others, the other connected writ petitions, the appellant withdrew the writ petition and filed an appeal to the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD and then in view of the impugned order dated 03.03.2014 of the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD thereafter filed a Writ Petition (Civil) No.4190/2014 before the Hon'ble High Court of Delhi which was dismissed with liberty to the petitioner thereof i.e. the present appellant to file the appeal before the District Judge in accordance with the directions in Amrik Singh Layallpuri Vs. Union of India, MCD Appeal No.05/2014 Page 8 of 24 2011 6 SCC 525 and that the review petition No.381/2014 in relation thereto was dismissed vide order dated 22.08.14 of the Hon'ble High Court of Delhi and thus, the present appeal was filed before this Court.
The Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD vide the impugned order dated 03.03.14 has observed to the effect :
".........Even in the basement, partition walls exist to make 10 number of cabins which is not permissible and its existing coverage is upto the plot line i.e. beneath the front and rear setback which is non compoundable in nature. The size of cabins is less than the permissible limits as per Building Bye Laws and its number is also beyond permissible limits"
The observations of the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD as per paras 4, 5 & 6 vide the impugned order dated 03.03.14 are material which are to the effect :
".........However, clearance of setbacks, removal of partition walls in the basement, demolition of non compoundable portion and rectification of basement (so that it cannot come beneath the setback areas) etc. is to be done according to the counsel for the respondent before any application for compounding/regularization is entertained. It is also stated on behalf of the respondent that joint regularization application is required to be moved on behalf of all the floor owners of the property because at present there exist no floor MCD Appeal No.05/2014 Page 9 of 24 wise regularization policy.
It is important to mention here that in respect of 10 existing sealed cabins in the basement, only five appeals including of the appellant have been instituted for getting total 8 cabins desealed. In respect of two cabins, no appeal has been instituted by its respective owners.
It is also stated on behalf of the appellant that she had deposited Rs.61,000/ with the MCD towards additional FAR charges but admittedly that is not on account of any misuse charges with interest or penalties as per provisions of DDA (fixation of charges for mixed use and commercial use of premises) Regulations, 2006."
Vide the impugned order, the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD has further observed to the effect that the appellant herself was not using the subject cabins no.8 & 9 in the sealed basement for her own individual and self purposes, but the same were being used by her, for her relatives for alleged professional activities and that the appellant herself was not using the cabins for any media activities and rather it were her relatives who were doing so and that the factum that the appellant had no connection with the journalism was brought forth as her registration with the MCD on 09.01.2007 qua the cabins was in respect of being an architect and not for media professional category.
The Ld. Additional District & Sessions Judge cum MCD Appeal No.05/2014 Page 10 of 24 PO, Appellate Tribunal, MCD vide the impugned order dated 03.03.14 further held that the provision of regulation 15.8 of MPD2021 does not specifically state that only resident of the property can use the same for professional activity but held that in view of the verdict of the Hon'ble High Court of Delhi in the case titled Union of India Vs. Harish Uppal LPA NO.840/2010 dated 20.01.2011, the inference that could be drawn was that the basement could be used only by the resident of the same house, by a professional who is residing in the same house and that in the circumstances of this case, the act and conduct of the appellant who was not even the permanent resident of Delhi, in allowing her property to be used by her distant relatives for the alleged professional activities did not confer on her the status of carrying out such professional activities and the privileges and exemption attached to this provision were not available to her.
The Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD vide para 9 of the impugned order dated 03.03.14 has also observed to the effect :
".......Admittedly, appellant and other coowners have not obtained any such revised building plan in compliance of this provision so unless this compliance is done, the request for desealing cannot be entertained. The plea taken by the counsel for the appellant that appellant has complied with the conditions of 15.9 of Master Plan2021 is not correct."MCD Appeal No.05/2014 Page 11 of 24
The observations of the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD vide para 10 of the impugned order dated 03.03.14 are equally material which are to the effect :
".....Even if for the sake of arguments it is presumed that the appellant may be now ready to use the basement as per sanctioned use for domestic / household storage purposes or may not use the same for alleged professional activity again in future or she may be ready to pay all the penalties on account of misuse charges but another question arises whether willingness to do so itself is sufficient to deseal the property in question when on behalf of Monitoring Committee objection is raised that unless the property in question is got regularized in respect of excess coverage / deviation and unauthorized non compoundable construction, in whole of the building is removed, desealing should not be allowed."
In para 11 of the impugned order dated 03.03.14 of the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD has observed to the effect that order of the Hon'ble Supreme Court in M.C. Mehta's case observed that desealing cannot be allowed until the unauthorized construction/deviation/excess coverage in the building is removed or regularized as per law and observed to the effect that as at present there is no floor wise regularization policy, thus the entire building has to be got regularized in one go and regularization is not permissible and that the entire building had to be regularized as one unit and that the mere fact that it MCD Appeal No.05/2014 Page 12 of 24 was owned by different owners upon whom the appellant may not have control was the problem of the appellant and that the mutation of the separate portions in the House Tax record is also no ground to give the basement a separate identity because mutation was done only for the purpose of collection of house tax and not for the purpose of condoning the unauthorized construction or deviations.
Inter alia, it was observed by the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD vide paras 12, 13 and 14 of the impugned order dated 03.03.14 which are to the effect :
"12. .....Putting reliance upon some earlier instances of sealing and quashing of those orders by this Tribunal in the year 1996 in which simple glass partitions in the basement was not treated as illegal may be only one minor point in favour of the appellant but that will not be sufficient to ignore other major illegalities and irregularities as pointed out in the reports of both Monitoring Committee and MCD. The finding of this Tribunal on some points may operate as resjudicata while considering the reports of MCD and the Monitoring Committee but that will operate only in limited fields whereas there are various other issues also in respect of which there is no earlier finding of this Tribunal. Hence, the plea of res judicata is not fully applicable to give relief of desealing as prayed for. Accordingly, the submission of the counsel for the appellant that the objection raised by the Monitoring Committee that question of unauthorized construction / deviations and excess coverages against MCD Appeal No.05/2014 Page 13 of 24 sanctioned building plan aspect cannot be looked into by this Tribunal is misconceived and is liable to be rejected. The reliance placed upon the decision Koran vs. Kamala Shetty AIR 1978 Kerala 172 is distinguishable from the facts and circumstances. In view of the above situation regarding existence of unauthorized construction/deviations/ excess coverages in the entire building, desealing can be refused keeping in view the decision of Supreme Court passed in various IAs as mentioned above till either the same is rectified/regularized as per law.
"13. .....The basement can be used for office or commercial purposes under 14.12.1.1 (vii) of Building Bye Laws but even then it has to be in conformity with the other provisions specified in the Master Plan provisions 14.12.1 of the Building Bye Laws. If various conditions of the existing basement and situation, location, area, number and position etc. of different cabins constructed in it are taken into consideration and is compared with the sanctioned building plan lying in the file of the respondent then it does not fulfill the necessary requirements of 14.12.2 of the Building Bye Laws and accordingly required to be rectified. The defence taken by the appellant that basement is constructed in accordance with the provisions of 14.12.2 of Building Bye Laws is not correct."
"14. .....Even if for the sake of arguments, it is presumed for the time being that appellant was using the basement for her professional activity but still the facts and circumstances as well as position of the building shows that her alleged professional activity MCD Appeal No.05/2014 Page 14 of 24 cannot be allowed due to non complying with few 'Other General Terms and Conditions' specified in para 15.4 of Master Plan2021.
Regulation 15.8 of Master Plan2021 allows doctor, lawyer, architect, media professional etc. to carry out his professional activity from the residential property subject to the General Terms and Conditions specified in para 15.4. Subclause (iv) of 15.8 specifically deals with carrying out such activity in basements in plotted development. Thus, any professional person before carrying out any activity in the residential property including in basement has to comply with the terms and conditions of 15.4 of the Master Plan2021 because the opening line of 15.8 specifically says that permission will be subject to compliance of general terms and conditions of clause 15.4.
Clause (I) of 'Other Terms and Conditions' of 15.4 of Master Plan2021 says that no encroachment shall be permitted on the streets or public land but the actual area of the subject building is not corresponding with the area as per sanctioned building plan which leads to the inference that there is some encroachment of the public road or land. Clause (iv) further says that front setbacks should not have boundary wall, so that it can be used for additional parking but here in the present building, the front setback is admittedly having boundary wall. Clause (v) further says that parking @ 2 ECS per 100 sq. meter built up area shall be provided within the premises but due to existence of front boundary wall in the property and some infringements in the setbacks and non MCD Appeal No.05/2014 Page 15 of 24 compoundable constructions existing in that area, certainly the space of even existing inside car parking has been reduced.
If other floor owners for the sake of arguments are not allowing the removal of entire front boundary wall of the property as it is not exclusively belonging to the appellant because it is meant for the security and safety of upper floor residents also or they are also encroaching upon the setback area and had caused encroachment on the public land, then that is the problem of the appellant and dispute which is to be sorted out by the appellant with other coowners of the property but she cannot be allowed to violate the law and to seek exemption from compliance of mandatory general terms and conditions as prescribed in 15.4 of Master Plan2021 before carrying out the alleged professional activities.
It is also argued that due to existence of multiple dwelling units in the building, any number of commercial activities can be set up in the basement as per Regulation 15.4 (ii) of the Master Plan 2021. However, this argument is liable to be rejected because in case of more than one dwelling units in a residential plot, each of such dwelling units is permitted to have only one type of mixed use activity in the same. This permission further depends upon the category of colony in which property is situated because in different types of colonies, further different types of activities at particulars floors are only permissible under Regulation 15.3.2. of the Master Plan2021. Thus, the plea taken that any number of the commercial activities or mixed use activities can be carried out in the basement alone merely MCD Appeal No.05/2014 Page 16 of 24 on the ground that subject building is having multiple dwelling units itself is not sufficient and liable to be rejected."
The Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD vide paras 17of the impugned order dated 03.03.14 has observed to the effect :
"Counsel for the appellant at last also argued that property in question was constructed prior to year 2007 so Delhi Laws (Special Provisions) Act, 2011 is applicable and no coercive action of sealing can take place so it should be now desealed. However, Delhi Laws (Special Provisions) Act, 2011 says that status quo in respect of the property has to be maintained till the end of December, 2014. Accordingly, if the property is lying in sealed condition then it has to be kept in the same position by maintaining status quo because when this Act came into force, the subject property was already lying in sealed condition and due to maintaining status quo it cannot be desealed now."
On behalf of the appellant, arguments were addressed by Ld. Counsel, Sh.Vimlendu Sharma and on behalf of the South Delhi Municipal Corporation by Ld. Counsel, Sh. Rajiv Bhardwaj. As already observed herein above, the Monitoring Committee despite notice of the appeal has chosen not to put forth any opposition to the appeal.
On a consideration of the entire available record, it is essential to observed that the Ld. Additional District & Sessions Judge MCD Appeal No.05/2014 Page 17 of 24 cum PO, Appellate Tribunal, MCD has itself vide para 12 put forth the observations of the directions in the year 1996 to the effect that the simple glass partitions in the basement were not treated as illegal, the report dated 03.06.2008 of the JE(Building) also shows that there was no misuse in the premises i.e. in the cabins no.8 & 9 on the said date but that they were lying sealed. The report dated 28.04.2009 of the JE(Building) indicates that none of the partitions in the plot No. R32, NDSE, PartII, New Delhi - 110049 of the ten cabins in the basement had been removed and that the Monitoring Committee of the Hon'ble Supreme Court vide note dated 24.08.2009 thus, had observed that desealing was not approved and that large number of activities were there in the basement in the number of chambers. The MPD 2021 vide para 15.4 (2) also adverted to herein above clearly lays down that where there are more than one dwelling unit in a residential plot, each of the dwelling unit will be permitted to have only one type of mixed use activity i.e. retail shop as per para 15.6 or professional activity or one of the other other activities listed in para 15.7 of the Master Plan - 2021. Thus, the observations of Monitoring Committee dated 28.04.2009 that there is more than one activity being conducted in the premises is no ground for continuation of the sealing in the cabins no. 8 & 9 in the basement tof plot No. R32, NDSE, PartII, New Delhi - 110049.
Another aspect which cannot be overlooked is that the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD has repeatedly observed to the effect that the basement in MCD Appeal No.05/2014 Page 18 of 24 question can be desealed only if the excess coverage / deviations in the building from top to bottom is regularized and compounded after removal of all unauthorized constructions by joint efforts of all the co owners after making payment of Ld. Additional FAR charges and regularization charges, if any.
It was further observed by the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD that as on the date on 03.03.14, the date of pronouncement of the order, no floor wise regularization policy existed and thus, the request of the appellant to regularize her two cabins out of ten cabins in the basement alone was liable to be rejected and that she had to wait for coming of floor wise and part wise of a particular floor regularization policy or she was required to pursue coowners to come forward to jointly apply for regularization afresh. Qua this aspect, it is essential to observe that vide the verdict dated 11.03.2003 in the Civil Writ Petition no.3535/2000 and the verdict of the Hon'ble High Court of Delhi in the case titled Renu Agarwal and Anr. Vs DDA and Others, in the Writ Petition (Civil) 2404/2012 dated 03.02.2014, the verdict of the Hon'ble High Court of Delhi in the case titled Ashok Kapoor and Anr. Vs MCD, in the Writ Petition (Civil) 3535/2001 dated 11.03.2013, the verdict of the Hon'ble High Court of Delhi in the case titled Lalit Mohan Madhan and Anr. Vs MCD and Others in the Writ Petition (Civil) 6522/2010 dated 30.03.2016, all make it abundantly and explicitly clear as laid down by the Hon'ble High Court of Delhi that once the municipal authorities have accepted the MCD Appeal No.05/2014 Page 19 of 24 disintegrated interest of individuals by mutating different portions of subject property in their respective names, the municipal authorities cannot withhold regularization of interest of persons in different portions of the subject property on the ground that excess coverages of separate portions having not been consented to be removed or the others having not sought regularization.
It is, thus, apparently open to the appellant to seek regularization of the cabins no.8 & 9 in the plot No. R32, NDSE, PartII, New Delhi - 110049 in accordance with municipal byelaws.
Another aspect that cannot be overlooked is that on behalf of the respondent no.1, the South Delhi Municipal Corporation, reliance was placed on the verdict of the Hon'ble High Court of Delhi in the Civil Writ Petition No.130/2008 & CM No.227/2008 dated 09.08.2010 to submit that the said observations of the verdict had not been over ruled till date as a consequence thereof, the provision of Delhi Laws (Special Provisions) Act, 2014 currently in force would not apply to the properties in question situated in the posh colony of Delhi and it has been observed vide para 20 of the said enactment to the effect that :
"That brings me to the second contention of the counsel for the petitioner. The NCT of Delhi Laws (Special Provisions) Act,2009 is not intended to suspend the statutory function of respondent MCD to ensure compliance of Building Regulations and to take action for its breach, in the entire city of Delhi. It is intended only for protection of that, policy with respect whereto and as defined MCD Appeal No.05/2014 Page 20 of 24 in the Preamble to the Act, has not been finalized. The Preamble mentions housing for urban poor (who have formed unauthorized colonies, proposal for regularization whereof is underway), urban street vendors, village abadi areas,jhuggi jhopri colonies, farm houses, etc. The house in question is situated in a posh colony of Delhi and can by no stretch of imagination fall within the ambit of the said Act. The said Act is not applicable to unauthorized constructions in regularized old established colonies in Delhi. There is therefore no merit in the said contention also."
It is also essential to observe that vide the impugned order dated 03.03.14, the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD has also observed to the effect that the Delhi Laws (Special Provisions) Act bars the MCD from taking coercive action against construction but does not prevent the initiation and conduction of legal proceedings of demolition and sealing qua the unauthorized construction totally and that the MCD can initiate proceedings U/s 343/345A of the DMC Act against the unauthorized construction as per law though it may defer the same till the end of December, 2014 observed therein (now extended till December, 2017) in case the demolition order or sealing order is passed.
In the present circumstances, it is essential to observe that as submitted by the appellant, there have been desealing actions by the municipal authorities in a large number of cases even if the premises were sealed earlier. A list of such properties has also been submitted by the appellant and the said list of the properties shows desealing MCD Appeal No.05/2014 Page 21 of 24 action having been taken in 1368 properties including desealing in the area of NDSE, PartII and that the respondent no.1 has submitted copy of circular no. 85/ADDL.CM(ENGG)/BLDGHQ/SDMC/2015 dated 21.07.2015 and it has been observed therein to the effect :
"It has been decided that henceforth, it would be open to deseal the properties that have been constructed prior to 2nd June 2014 in any Unauthorized Colony, Village Abadi area (including Urban Villages) and their extensions, which existed on March, 2002 and no punitive action shall be taken with respect to these properties till December 31, 2017.
The owners / applicants, claiming entitlement of benefit under the aforesaid Act and falling within the ambit of the said Act, may file application with the concerned Building Department for de sealing of their sealed property, along with an Affidavit, a specimen of which is annexed herewith. The Zonal Building Department will scrutinize the application and documents submitted by the applicant on merits and ensure that the claim of this applicant is valid, and qualifies the stipulations of the said Act in terms of category of colony, cutoff date and other stipulations, etc. It is, however, made clear that the desealing in this manner at the level of the Deputy Commissioner in respect of unauthorized construction and misuse cases is confined only to those cases, which are covered under the aforesaid. The National Capital Territory of Delhi Laws (Special Provisions) Second (Amendment) Act 2014, notified vide Gazette Notification dated 29.12.2014. Desealing MCD Appeal No.05/2014 Page 22 of 24 in other type of cases, not covered under the said Act shall continue to be dealt with in the same manner and procedure." also brings forth that desealing of sealed properties constructed prior to 02.06.2014 which existed in March, 2002 is permissible as per procedure.
Taking the totality of the circumstances into account as already adverted to herein above where the partitions raised by the appellant in relation to cabins bearing no.8 & 9 of the plot No. R32, NDSE, PartII, New Delhi - 110049 are only the glass partitions and not the permanent constructions and taking into account the status report dated 03.06.2008 of the municipal authorities which reports that there is no misuse in the premises and there is only a small steel almirah and one cupboard attached to a wall and bedding lying there and that the said cabins are lying sealed, thus, the impugned order dated 03.03.14 of the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD in the Appeal No. 585/AT/MCD/2013 is modified to the extent that the desealing of the cabins no.8 & 9 in plot No. R32, NDSE, PartII, New Delhi - 110049 is allowed for the purposes of removal of the glass partitions that is a temporary construction of cabins no.8 & 9 with specific directions that the appellant is allowed to use the portion of the area of cabins no.8 & 9 in the basement of plot No. R32, NDSE, PartII, New Delhi - 110049 only on regularization of the two cabins in the basement bearing No.8 & 9 in accordance with municipal rules and in accordance with MPD 2021.
The MCD Appeal No.05/2014 against the impugned order MCD Appeal No.05/2014 Page 23 of 24 dated 03.03.14 of the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD in the Appeal No. 585/AT/MCD/2013 is accordingly disposed off, and the records thereof be consigned to the Record Room.
The records of the Ld. Additional District & Sessions Judge cum PO, Appellate Tribunal, MCD be sent back along with copy of this judgment.
Announced in the open Court (ANU MALHOTRA)
today on this 6th day of District & Sessions Judge (South)
October, 2016 Saket/New Delhi.
MCD Appeal No.05/2014 Page 24 of 24