Delhi District Court
Lgf Occupants Association vs New Delhi Municipal Corporation on 10 August, 2016
IN THE COURT OF SHRI AMAR NATH, DISTRICT & SESSIONS JUDGE
NEW DELHI
MCD Appeal No. 03/14
LGF Occupants Association
17, Vijaya Building,
Barakhamba Road,
New Delhi - 110001
(Through: Sh. C.D. Gupta, Secretary) ........ Appellant
VERSUS
1. New Delhi Municipal Corporation
Through it's Chairperson,
Palika Kendra, Parliament Street,
New Delhi - 110001
2. Monitoring Committee
Habitat Centre, New Delhi. ....... Respondents
Date of Institution of Appeal : 16.04.2014 Judgment reserved on : 10.08.2016 Judgment announced on : 10.08.2016 J U D G M E N T Present appeal u/s 256 (1) of the New Delhi Municipal Council Act, 1994, (hereinafter referred to as " Act") has been filed against order dated 04.03.2014 (hereinafter to be referred as "Impugned Order") passed by Sh. Ashwani Sarpal, the then Ld. Presiding Officer, Appellate Tribunal, MCD, Delhi in petition bearing no.159/AT/MCD/SCM/2013 whereby the appeal for desealing of the property was dismissed by confirming the order of the Chief Architect, NDMC, praying therein; to set aside the impugned order alongwith rejection of the representations of the appellant.
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2. Notice to the grounds of appeal was given to the respondents who have resisted the same after filing a separate reply. TCR was requisitioned.
3. Feeling aggrieved, the appellant has challenged the impugned order mainly on the following grounds:
(a) The impugned order is wholly illegal and violative of basic principles of natural justice which alone is sufficient to set aside the same. The respondent had failed to appreciate the scope of the Monitoring Committee who restricted to recommend action for mis use of the residential premises being used for commercial purposes.
(b) The Ld. Appellate Tribunal had failed to appreciate the facts that the order passed in IA No. 22 by the Hon'ble Supreme Court was in respect of the residential areas i.e. mixed land use whereas the property in question is purely a commercial property and hence, the order passed in the said IA was not applicable to the facts and circumstances of the present case.
(c) The Ld. Appellate Tribunal had failed to take into consideration the facts that the public notice was published on 29.05.2007 while the premises of the appellant was sealed on 23.03.2011 after ignoring the terms of the Master Plan, 2021 and many subsequent amendments thereon.
Furthermore, neither any notification nor any law can take its retrospective effect until and unless the same is not specifically mentioned in the notification and hence, the premises cannot be sealed on the basis of public notice as referred to above.
(d) Ld. Appellate Tribunal had overlooked the facts that the building has all the sanctions and approval from all the development authorities including that of NDMC. The FAR of the building was also increased by the development authorities and the NDMC as well and the said building plan was never objected by the NDMC. Hence, it can be said MCD Appeal No.03/14 Page no. 2 of 12 that they are satisfied with the building plan for all purposes.
4. Brief facts of the case are that the appellant is an association of the occupants of the building known as Vijaya Building situated at 17, Barakhamba Road, New Delhi. Various portions of the middle basement and lower ground floor of the building were sealed on 23.03.2011 on the direction of the Monitoring Committee appointed by the Hon'ble Supreme Court of India. The association moved an application bearing IA No.2516/2011 in the Civil Writ Petition No. 4677/1985 titled as M. C. Mehta vs. UOI before the Hon'ble Supreme Court of India as per the direction passed by the Apex court in judgment dated 16.02.2006 wherein the Hon'ble Supreme Court of India was pleased to observe that the petition filed before the Hon'ble Supreme Court of India against the action of the sealing, be treated to be an order u/s 250 of the NDMC Act, 1994, appealable u/s 254(1) of the Act and transferred all the pending petitions to the Tribunal for disposal. The association filed its representations on 05.08.2011 to the respondent mentioning therein that they are not doing any construction in the premises and hence, there is nothing to be demolish in the said premises. The entire structure is in the same condition as it was provided by the developer of Indraprakash Building (Ansal Housing). It is further stated that Vijaya Building is a commercial building and there cannot be a mixed use of the premises. The term "mixed use" is only applicable in the matter of residential areas which are being used as commercial area also. The officials of the NDMC proceeded with sealing of the properties of the appellant after ignoring all its pleas and that too without issuing any show cause notice and even without giving any opportunity of being heard. The appellant preferred an appeal against the said order of sealing of the properties passed by the Chief Architect, NDMC after dismissing its representation. The Appellate Tribunal, MCD has also dismissed the appeal of the appellant vide order dated 04.03.2014 and hence, this appeal.
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5. I have heard rival contentions advanced on behalf of both the parties and have given thoughtful consideration to the record.
6. The first and foremost point raised by the Ld. Counsel for the appellant is that the public notice was published on 29.05.2007 while the premises of the appellant was sealed on 23.03.2011 after a gap of almost four years and hence, the said notice cannot be made basis for sealing of the premises. Even otherwise, it had become void and infructuous on account of Master Plan 2021 and subsequent amendments, landslide changes introduced and implemented during that period. Neither any notification nor any law can take its effect retrospectively.
7. Per contra, Ld. Counsel for NDMC has refuted the aforesaid line of arguments whilst making the submission that though the building in occupation of the appellant is sanctioned to be used as "storage" and not for professional activities, the appellant cannot be allowed to run its professional offices as the same are manifest violation of law and thus, the premises in question was sealed on the direction of the Monitoring Committee. As per public notice dated 29.05.2007 issued by the respondent NDMC, misuse of the premises shall include any unauthorised and commercial activity in Lutyens Bunglow Zone, use of residential property for commercial purposes or change in use of premises from parking/storage to office/ commercial etc., and therefore, action taken in the instant case is in accordance with law. Furthermore, para 15.9 of the MPD, 2021 is for nonresidential use in a residential premises and the same is not applicable to this premises being a commercial plot. The Vijaya Building is for commercial land use and hence, para 15.12.3 of the MPD, 2021 do not apply to the said building. Para 15.8 of the MPD, 2021 pertains to professional activity in basement of residential premises only. The basement of the said building could only be used for storage for which it was sanctioned.
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8. Ld. Counsel for the appellant has vehemently argued that the order passed in IA No. 22 of 2011 in Writ Petition No. 4677/1985 was not applicable in the property in question which is purely a commercial property and the said order is passed with regard to the residential/ mixed land use areas.
9. The public notice was published on 29.05.2007 whereas the premises of the appellant in the basement of Vijaya Building were sealed on 23.03.2011. The Master Plan 2021 and many subsequent amendments thereof came between the period 2007 to 2011. Landslide changes were also introduced and implemented, majority of which altered the very character of many streets in the residential areas converting the same to mixed use streets and allowing a host of retail, commercial and professional activities therefrom and thus, there was no question of implementation of public notice issued in the year 2007 and to take effect in 2011. Infact, after the implementation of Master Plan 2021 and amendments thereof, notice dated 29.05.2007 became void and infructuous. No notification or law can take its retrospective effect until and unless the same is not specifically mentioned therein and hence, the premises cannot be sealed on the basis of the above mentioned public notice. It is argued that the Hon'ble Supreme Court of India in IA no. 2493 in Writ Petition No. 4677/1985 has passed an order in respect of the basement offices of a professional documentary film maker observing that "we have also considered the fact that the objections now taken regarding the FAR was not taken earlier by the Monitoring Committee in its report". He further argued that as per para 15.8 (VI) of the Master Plan of the Delhi 2021, FAR in excess can be permitted to be used subject to payment of appropriate charges prescribed with the approval of the government and as such, there shall be no legal hitch in desealing the premises in question as the appellant is ready to pay a share towards the appropriate charges of the additional FAR to the NDMC within one month from the date of such demand. The same view was reiterated in WP (C) no. 1792 by staying the notice by the Hon'ble High Court in the matter of "Union of India Vs. Harish MCD Appeal No.03/14 Page no. 5 of 12 Uppal" where professional activities were allowed.
10. As per Delhi Building By Laws, applicable to NDMC also under section 14.12.1.1 (VII), basement can be used for office or commercial purposes provided it is an air conditioned storage and part of FAR.
11. It is further urged that the building has all the sanctions and approvals from all development authorities including that of NDMC. The development authorities as well as the NDMC increase the FAR of the building as the said building plan was never objected to by the NDMC or any other development authorities which clearly indicates that the development authorities and NDMC were satisfied with the building plan for all the purposes.
12. I am coming to next plea of the appellant that its building ought to have been treated a nearby building situated on Barakhamba Road just ahead of the building in question where an office in UB 31 has been allowed by the NDMC for carrying out all the professional activities such as surveyor, valuer, consulting Engineers and premises were desealed permanently on 11.09.2007. It is important to mention here that the area under occupation of the appellant is on the lower ground floor which has been shown in the building plan as a basement. The original plan of the property was sanctioned on 19.12.1984 and was revalidated on 05.02.1987. The basement area was rearranged and parking area was confined to a part of the second and full third basement being part of the LGF which was termed as first basement and now, the same was allowed to be converted into an air conditioner storage. The officials of the NDMC were apprised about the scope of the Monitoring Committee who restricted to recommend action for misuse of residential premises for commercial purposes and the NDMC cannot initiate any action against the commercial establishments operating from a commercial property but they did not pay any heed to MCD Appeal No.03/14 Page no. 6 of 12 its representation and proceeded with sealing of the property and that too, without issuance of any show cause notice and without granting any opportunity of being heard which is against the principles of nature justice.
13. The commercial use of the basement for the purpose of running offices and shops/ commercial establishment is not against the provisions of law. The permissible FAR of the building was 250 % of the plinth area at the time of occupation of the property and in case the area of the property of the appellant is included in the total permissible FAR at the relevant time, there was no excess coverage. The area is developed as a commercial center in the original Master Plan of Delhi promulgated in the year 1963 and status of the area has remained same in the subsequent Master Plan of Delhi 2001, 2011 and MPD 2021 as well.
14. The NDMC has failed to appreciate that the bye laws 14.12.2011 (VII) permits use of basement for commercial purposes provided it is an air conditioned storage and part of FAR. Even the clause 15.6.1 (II) of the Master Plan permits use of basement for the aforesaid purposes.
15. Ld. Counsel for the respondent has contented that there was construction of three basements viz. mezzanine floor, ground floor to 14th floor and machine room in the entire building as per the sanctioned building plan but the entire building was not constructed as per this plan. It is significant to mention here that till date completion certificate has not been issued in respect of the entire building. In sofar as temporary occupancy certificate is concerned, that has already been expired somewhere in the year 1996. There are number of deviations against the sanctioned building plan as well as unauthorized construction in each floor including the sealed portions. The Monitoring Committee passed an order on 11.02.2011 for sealing of the subject property on account of misuse after considering the inspection report and MCD Appeal No.03/14 Page no. 7 of 12 accordingly, the alleged 44 flats were sealed on 23.03.2011. All members of the appellant association are not professionals. It is pertinent to mention here that all the spaces in the subject property were not being used exclusively by professionals but various other members for carrying out different types of commercial and business activities. Appellant has filed an affidavit dated 31.03.2011 before the Hon'ble Supreme Court of India in I.A. 22 of 2011 and also before the Chief Architect of NDMC stated therein that the appellant is running property dealing business from the subject property.
16. According to the appellant, no notice was ever served before sealing action, therefore, the entire proceedings are liable to be quashed. The public notice was issued in various newspapers on 29.05.2007 in compliance of the direction of the Hon'ble Supreme Court of India given in M.C Mehta's case wherein misuse of the premises was defined as "unauthorized commercial activity in Lutyens Bungalow Zone, use of residential property for commercial purposes or change in use of premises from parking/storage to office, commercial etc". Even otherwise, stand of non service of the notice taken by the appellant is self contradictory as they are claiming that public notice issued in pursuance of the direction of the Hon'ble High Court is invalid meaning thereby they cannot deny that no such notice was issued simply for the reason they challenged the validity of the notice. It is not out of place to mention here that the appellant has no right to challenge the validity of the public notice when the Hon'ble Supreme Court of India had mentioned in paras 6465 of its order dated 16.02.2006 in M.C. Mehta's case that "public notice was given to all the concerned through various newspapers from time to time with the direction to stop the misuse and file the affidavit to that effect failing which sealing action shall be commenced thereafter". Hon'ble Supreme Court of India vide judgment dated 03.01.2012 gave general directions to DDA, NDMC and MCD to ensure that no encroachment is made in any public land whether belonging to the government or to any public authority. They shall also ensure MCD Appeal No.03/14 Page no. 8 of 12 that no illegal construction is made on any of the properties which have been subject matter of scrutiny by the Monitoring Committee. Hon'ble Supreme Court of India in IA no. 2001 and 2043 directed that construction beyond the sanctioned plan be first demolished and prayer for desealing of the property shall be considered only after an affidavit is filed by the occupier/owner that the demolition beyond the sanctioned plan has already been carried out as well as compoundable construction has been regularized as well.
17. There are number of deviations in the entire building against the sanctioned plan and unauthorized construction including the basement which exists in the entire building as no completion certificate has been issued till date.
18. The subject property as per the sanctioned building plan is a first basement and there is no reference of construction on any lower ground floor. Clause 2.35 of the Building By Laws provides the definition of 'floor' "no such construction of lower or upper ground floor is permissible." There is no definition or any provision relating to lower or upper ground floor in the property as per the NDMC Act or Building By Laws. Infact, the property is to be dealt with as per the provisions of the Municipal Act, Building By Laws of sanctioned plan only. The nomenclature of the part of the property cannot be changed as per the wishes of the seller or buyer. The nomenclature of lower ground floor as given in the document executed in favour of the appellant by the seller shall not legalize the construction or turning the basement into a lower ground floor. There is sheer violation of sanctioned building plan which is actually meant for parking and storage purpose. The appellant relied upon the chapter 15.8 (iv) of the Master Plan 2021 that if FAR of the building has already expired, the same can be regularized by purchasing the FAR of the basement by making payment of the charges and then the same can be permitted to be used for commercial activities instead of parking or storage facilities. FAR of all the three basements was not MCD Appeal No.03/14 Page no. 9 of 12 calculated according to the provisions of the Building Bye Laws as it was meant for A.C. Storage and parking purposes. FAR of 250 in the entire building at the time of sanction has already been utilized and now only 150 FAR can be sanctioned as per the present norms of Master Plan 2021. Purchase of excess FAR beyond 250 FAR on payment of charges is not applicable as per para 15.8(iv) of the Master Plan 2021 in the present case simply for the reason that the provision fall in chapter 15 of the Master Plan 2021 which deals with mixed use regulations. As per regulation, mixed use means the provision for non residential activity in a residential premises.
19. As per clause 5.3.1 of the Master Plan 2021, a special development plan is required to be prepared for the area of Connaught Place and its extension. Since no other development plan of this area has been prepared so far thus, the activities being carried out by members of the appellant association in the basement of the building are to be governed as per the existing norms and basement have to be used strictly according to the sanctioned plan which was sanctioned for parking purpose and A.C. storage. The relied upon judgments "Union of India Vs. Harish Uppal (supra)" and "M Block Residents Welfare Association Vs. MCD" WP (C) 1374 of 2003 decided on 26.02.2009 are not applicable to the present facts and circumstances as in both the cases residential building was involved but in the present case, the basement exists in a purely commercial building and that too being not used for the professional activities by members of the association.
20. Even the mutation in house tax record and the length of the occupancy of the property in question by the appellant cannot legalized misuse of the property simply for the reason that the mutation does not confer any legal title as the same is meant for the purpose of payment of taxes. Long possession cannot be considered to be a ground to condone the breaches without modification in the building and its regularization. Not only this, the appellant has concealed the material facts from this MCD Appeal No.03/14 Page no. 10 of 12 court as the respondent had passed an order for sealing of the subject property against which the occupant Mr. Rohit Kumar has preferred two appeals, one bearing no. 1164/13 and another bearing no. 1166/13 against the order of NDMC which are pending before the Appellate Tribunal NDMC for 02.05.2016.
21. In the result, I may say that since there are number of deviations against the sanctioned building plan as well as an unauthorized construction on each floors including sealed portions, hence, the Monitoring Committee rightly passed an order on 11.02.2011 for sealing of the subject property on account of misuse after considering the inspection report.
22. Plea of the appellant that no notice was given to it or that notice was given 3 years prior cannot be treated as a notice, is a frivolous plea since the public notice was issued in pursuance of the directions of the Hon'ble Supreme Court of India and further that the appellant never challenged the validity of such public notice. The public notice was even published in the newspapers from time to time and the Hon'ble Supreme Court vide of India its judgment dated 03.01.2012 had directed the concerned authorities to ensure that no encroachment is made on any public land and no illegal construction be made on the properties which are the subject matter of the scrutiny by the Monitoring Committee.
23. It is an admitted fact that no completion certificate has been issued in respect of this building because of the deviations and unauthorized construction. The reference of the appellant to various provisions of Chapter 15 dealing with mixed land use, has no relevance to the dispute in question and even the arguments that a special development plan is required to be prepared for the area of Connaught Place and its extension, has no basis as no such development plan has come up till date and hence, the construction of the building is to be governed by the existing norms wherein the MCD Appeal No.03/14 Page no. 11 of 12 basement is strictly to be used for parking purposes and AC storage.
24. On the basis of reappreciation of material including the documents available on record, I do not find any infirmity in the impugned order dated 04.03.2014 passed by learned Estate Officer. Hence, the appeal stands dismissed on all grounds. Impugned order dated 04.03.2014 is upheld and confirmed. Copy of the order be placed in the trial court record of learned Estate Officer and thereafter, it be sent back. Appeal file be consigned to the record room.
Announced in the open court on this 10th day of August, 2016.
(AMAR NATH)
District & Sessions Judge
New Delhi
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IN THE COURT OF SH. AMAR NATH,DISTRICT & SESSIONS JUDGE, NEW DELHI MCD Appeal No. 03/14 LGF Occupants Association Vs. NDMC & Anr.
10.08.2016 Present: Sh. Ashok Jain and Sh. R.K. Malhotra, Members for the appellant along with Ld. Counsel Sh. Pranav Verma.
Sh. Nilesh Sawhney, Ld. Counsel for R1/NDMC.
None for R2.
Arguments concluded.
Put up at 4 pm for order.
(AMAR NATH) District & Sessions Judge New Delhi/10.08.2016 At 4 pm Present: Sh. Ashok Jain and Sh. R.K. Malhotra, Members for the appellant along with Ld. Counsel Sh. Vishwandra Verma.
Sh. Nilesh Sawhney, Ld. Counsel for R1/NDMC.
None for R2.
Vide separate judgment of the even date, the appeal stands dismissed on all grounds. Impugned order dated 04.03.2014 is upheld and confirmed. Copy of the order be placed in the trial court record of learned Estate Officer and thereafter, it be sent back. Appeal file be consigned to the record room.
(AMAR NATH)
District & Sessions Judge
New Delhi/10.08.2016
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