Delhi District Court
Kamlesh vs Edmc 1/9 on 8 January, 2021
IN THE COURT OF DR. SUDHIR KUMAR JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
MCD APPEAL 1/16
CNR No. DLET01-007274-2015
1. KAMLESH
WIFE OF RAM NIWAS
RESIDENT OF B-19, RAJA PURI
DELHI-59
2. VIMLESH SHARMA
WIFE OF RAM PRAKASH SHARMA
RESIDENT OF B-19, VISHVASH PARK
NEW DELHI
3. VIMLESH SHARMA
WIFE OF JAI PRAKASH
RESIDENT OF B-19, VISHVASH PARK
NEW DELHI
.............. APPELLANTS
V
EAST DELHI MUNICIPAL CORPORATION
THROUGH COMMISSIONER
SHAHDARA (NORTH) ZONE
SHAHDARA
DELHI-32
............RESPONDENT
APPEAL UNDER SECTION 347-D OF THE DELHI MUNICIPAL
CORPORATION ACT, 1957 AGAINST ORDER DATED 29.06.2015 PASSED
BY MCD APPELLATE TRIBUNAL, DELHI IN APPEAL NO 652 OF 2013
ORDER
1. Kamlesh, Vimlesh and Pravesh (hereinafter referred as "the appellants") purchased property bearing no C-28/4, out of Khasra no 474 situated at Village Ghonda Gujran Khadar in abadi of Bhajanpura Tanki Road, C-Block, Illaqa MCD Appeal 1/2016 Kamlesh & Ors. vs. EDMC 1/9 Shahdara, Delhi-110053 (hereinafter referred as "the property no C-28/4") from Krishan Kumar Jindal and Pawan Kumar Jindal vide registered sale deed 25.01.2011. The property bearing no C-28/4 was ordered to be sealed by the respondent on 26.07.2009 on ground of misuse. An application for de-sealing of the property no C-28/4 along with an affidavit sworn on 26.04.2011 was filed through previous owner Krishan Kumar on 28.04.2011 vide diary no 804 addressed to The Deputy Commissioner, MCD, Shahdara wherein it was mentioned that the property no C-28/4 was sealed on 26.07.2009 by MCD on ground of misuse and temporary de-sealing of the property C-28/4 was sought for future use of residential purposes. The concerned JE (Bldg.) vide noting dated 18.07.2011 observed that the property no C-28/4 was sealed on account of misuse in terms of directions of the Supreme Court given in M.C.Mehta V UOI & others and recommended that file be sent to Monitoring Committee for kind consideration and appropriate order. AE-VII(Bldg.)HQ vide noting dated 02.08.2011observed that the property no C-28/4 is abutting on notified road was sealed on 26.07.2009 and zonal office has recommended for temporary de-sealing of said property but purpose of temporary de-sealing and number of days of temporary de-sealing have not mentioned in affidavit. The file was ordered to be forwarded to Monitoring Committee for further decision which was approved by concerned higher authorities/officers. Thereafter another application along with an affidavit sworn on 07.05.2012 was filed on 10.05.2012 vide diary no 1315 for de-sealing of the property no C-28/4 through previous owner Krishan Kumar wherein it was mentioned that the property no C-28/4 measuring 35 sq. yards comprising ground and first floor was constructed prior to 07.02.2007 and as such covered/protected under National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011. The concerned JE (Bldg.) vide noting dated 07.08.2012 observed on basis of entry at serial no 12770 of Inspection Form issued from House Tax Department, Shahdara (North) Zone in respect of the property no C-28/4 that the property no C-28/4 was constructed prior to 07.02.2007. It was recommended that case be forwarded to Monitoring Committee for temporary de-sealing. The noting was approved by concerned higher MCD Appeal 1/2016 Kamlesh & Ors. vs. EDMC 2/9 authorities/officers. The Monitoring Committee vide noting dated 28.08.2012 observed that authorized construction has not been got registered in terms of Para no 4.4.3 of MPD-2021 and as such de-sealing was not approved. It was further observed that penalty amount equal to 10 times annual conversion charges is payable in terms of Para 15.9 of MPD-2021. The applicant Krishan Kumar vide letter bearing no EE(B)-1/SH.N/12/D-264 dated 18.10.2012 issued by Assistant Engg. (Bldg.) Shahdara (North) Zone was requested to comply observation of Monitoring Committee so that case of temporary de-sealing of the property no C-28/4 be processed further. JE (Bldg.)/SH-(North) vide noting dated 05.12.2012 commented that the applicant has deposited an amount of Rs.55680/- towards penalty equal to 10 times annual conversion charges in terms of para 15.9 of MPD- 2021 vide receipt no 042778 dated 30.10.2012 and case was submitted for necessary orders. JE (Bldg.)/SH-(North) vide noting dated 17.01.2013 recommended that the file be sent to Monitoring Committee for necessary orders of temporary de-sealing for residential purpose. However Dy. Commissioner/SH- (North) vide noting dated 21.01.2013 raised query about status of regularization. JE (Bldg.)/SH-(North) vide noting dated 14.02.2013 submitted that the property no C-28/4 is subdivided and cannot be considered for regularization. The Monitoring committee vide noting dated 26.03.2013 did not approve de-sealing as the property no C-28/4 cannot be considered for regularization.
2. The appellants filed as appeal under section 347B of the Delhi Municipal Corporation Act, 1957 before Appellate Tribunal, Municipal Corporation of Delhi challenging sealing of First Floor of the property C-28/4 on 26.07.2009 on ground that the first floor of the property C-28/4 was sealed without serving/supplying any show cause notice or order under section 345A of the Delhi Municipal Corporation Act, 1957 to erstwhile owner in pursuance of direction/order of the Monitoring Committee appointed by The Supreme Court in M. C. Mehta V UOI, WP (c) No 4677/1985. The appellants challenged sealing of the property C-28/4 on 26.07.2009 on other grounds which are impugned order/sealing of first floor of the property C-28/4 was illegal, arbitrary, unjust and against facts and law and against principles of natural justice. Sealing order was passed without application of mind MCD Appeal 1/2016 Kamlesh & Ors. vs. EDMC 3/9 and appreciation of facts and based on conjectures and surmises. Show cause notice was never served/supplied to the appellants/predecessors in interest. The property no C-28/4 is less than 32sq. meters and as such Master Plan of Delhi- 2021 and Building Bye Laws do not require any building regulation. The property no C-28/4 is in existence since long period as reflected from photographs and Inspection Form of the year 1991-92 issued by House Tax Department of the respondent and as such protected under Delhi Laws (Special Provisions) Act, 2006 Delhi Laws (Special Provisions) Second Act, 2011. Monitoring Committee and the respondent have taken selective and discriminatory action in respect of the property no C-28/4. Monitoring Committee unnecessarily stretched issue of regularization while considering application for de-sealing. No opportunity of being heard was given to affected persons. The appellants also mentioned other grounds. The appellants prayed that impugned order/sealing of First Floor of the property no C-28/4 issued by the respondent in pursuance of direction of Monitoring Committee be quashed/set aside and the respondent be directed to de- seal first floor of the property no C-28/4.
3. The Appellate Tribunal, MCD (hereinafter referred to as "ATMCD") vide order dated 29.06.2015 (hereinafter referred to as "the impugned order") dismissed the Appeal. The perusal of impugned order reflects that ATMCD referred and considered Status Report dated 28.03.2014 submitted by AE (B), Report of Monitoring Committee bearing no 218 dated 16.05.2014 and Status Report dated 25.05.2015. ATMCD also considered arguments advanced on behalf of the Appellants through counsel.
4. The Appellants being aggrieved filed present Appeal and challenged impugned order on grounds that impugned order is based on conjectures and surmises. ATMCD was bound to adjudge validity of sealing and demolition orders on basis of material available on record prior to issuance of show cause notice. The respondent has not complied with mandatory provisions of law. No adverse order can be passed without prior show cause notice. The Appellants also challenged impugned order on various other grounds. It is prayed that impugned order be set aside.
MCD Appeal 1/2016 Kamlesh & Ors. vs. EDMC 4/9
5. The counsel for the appellants during arguments referred sale deed dated 13.11.1990 stated to be executed by Prahled Kumar in favor of Jyoti Kamra in respect to property no C-28/4 wherein it was mentioned that property no C-28/4 was comprising one hall with boundary walls and Inspection Form of the year 1991-92 issued by House Tax Department of the respondent wherein one room measuring 9'x12' was stated to be constructed at first floor of property no C-28/4. The counsel for the appellants argued that construction existed on first floor of property no C-28/4 was in existence prior to 07.02.2007 and the appellants also paid house tax up till date. The counsel for appellants also referred applications preferred by the appellants through previous owner Krishan Kumar for temporary de-sealing of property no C-28/4. The appellants had paid penalty amount equal to 10 times annual conversion charges in terms of Para 15.9 of MPD-2021 and JE (Bldg.)/SH-(North) vide noting dated 05.12.2012 commented that penalty amount of Rs.55680/- equal to 10 times annual conversion charges in terms of para 15.9 of MPD-2021 was deposited vide receipt no 042778 dated 30.10.2012. The counsel for the appellants also referred status reports dated 08.03.2014 and 25.05.2015. It was argued that property no C-28/4 be ordered to be de-sealed. The counsel for appellants also cited M.C. Mehta V Union of India (UOI) and others decided on 14th August 2020 by the Supreme Court.
The counsel for the respondent argued that present appeal is not maintainable in view of circular issued by Monitoring Committee constituted by the Supreme Court of India bearing no MC/SC/HC/2019/D-212 DATED 10.01.2020 and Monitoring Committee was not impleaded as necessary party.
6. It is reflecting from record that the appellants") purchased property no C-28/4, from Krishan Kumar Jindal and Pawan Kumar Jindal vide registered sale deed 25.01.2011 which was ordered to be sealed by the respondent on 26.07.2009 on ground of misuse. The appellants through previous owner Krishan Kumar filed applications along with affidavits for temporary de-sealing of the property no C- 28/4 which were sent to Monitoring Committee for appropriate orders but Monitoring Committee did not approve de-sealing of property no C-28/4. The appellants also deposited penalty amount equal to 10 times annual conversion MCD Appeal 1/2016 Kamlesh & Ors. vs. EDMC 5/9 charges in terms of Para 15.9 of MPD-2021 vide receipt no 042778 dated 30.10.2012. Monitoring Committee again vide noting dated 26.03.2013 did not approve de-sealing as the property no C-28/4 cannot be considered for regularization being sub divided.
7. ATMCD in impugned order observed that first floor of property no C-28/4 which abuts on notified street was sealed by the respondent on 26.07.2009 due to misuse. ATMCD also referred Status Report submitted by AE(B) dated 28.03.2014 wherein it was mentioned that property no C-28/4 is situated at notified mix land commercial street and owner/occupier deposited 10 times penalty of conversion charges vide G8 No 26.03.2014. ATMCD also referred Report submitted by Monitoring Committee bearing no 218 dated 16.05.2014 wherein it was mentioned that property no C-28/4 is comprising ground floor, first floor and half portion of second floor having plot area measuring 29.82 sq. meters. It was also mentioned that property no C-28/4 was constructed without sanction of building plan and abuts on notified mixed land use street. The property is sub divided and cannot be considered for regularization. ATMCD also considered arguments advanced by the counsel for the appellants that property no C-28/4 is protected under Delhi Laws (Special Provisions) Act, 2011 being constructed prior to February, 2007 and as such no coercive could be taken against property no C-28/4 but said argument was not accepted by ATMCD by observing that no specific notification was issued by concerned government to this affect. ATMCD also referred Status Report dated 25.05.2015 wherein it was mentioned that as per Report of Town Planning Department, property no C-28/4 falls in area earmarked for college and cannot be considered for regularization. ATMCD also considered and observed that property no C-28/4 was already sealed when the appellants purchased property no C-28/4 on 25.01.2011 and as per photographs placed on record by the appellants reflect new constructions.
8. Monitoring Committee issued circular bearing no MC/SC/IHC/2019/D-212 dated 10.01.2020 as referred by counsel for the respondent regarding de-sealing of premises by the Appellant Tribunals which were sealed at instance of Monitoring Committee. It was mentioned that some of the sealed properties sealed on the MCD Appeal 1/2016 Kamlesh & Ors. vs. EDMC 6/9 directions of the Monitoring Committee have been de-sealed by the local bodies under orders of the Appellate Tribunals, MCD which is against the spirit of the directions dated 28.01.2019 passed by the Supreme Court. In this circular order dated 28.01.2019 passed by the Supreme Court in M. C. Mehta V UOI & others, PC No 4677/1985 was referred. The operative portion of said order is reproduced as under:-
.....this court has made it clear that any challenge to the decision of the Monitoring Committee will lie to this court only.
.......It is stated that some of the defaulting individual/organization 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 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 commission that prima facie jurisdiction does not lie with them leaving it for the courts to take a decision in the matter.
9. The Supreme Court in decision M. C. Mehta V Union of India & others delivered on 14th August, 2020 and also cited by the counsel for the appellants considered authority of Monitoring Committee to seal the residential premises on the private land particularly when they are not being used for the commercial purpose and whether the Monitoring Committee could have sealed these residential premises. It was observed as under:-
85. It is apparent from the various orders passed by this Court from time to time and from the various reports of the Monitoring Committee that it was never authorized by this Court to take action against the residential premises that were not being used for commercial purposes. It was appointed only to check the misuser of the residential properties for commercial purposes. After that, this Court directed that the Monitoring Committee should also look into the matter of "encroachment on the public land" and "unauthorized colonies" that have come up on the public land and were wholly unauthorized without sanction. At no point in time, this Court had empowered the Monitoring Committee to act vis-Ã -vis to the purely residential premises.
86. The power of sealing of property carries civil consequences. A person can be deprived of the property by following a procedure in accordance with law. The Monitoring Committee is not authorized MCD Appeal 1/2016 Kamlesh & Ors. vs. EDMC 7/9 to take action concerning the residential premises situated on the private land. If there is unauthorized construction or in case of deviation, the requisite provisions are under the DMC Act, such as Sections 343, 345, 347(A), 347(B). The mode of action and adjudication under the Act is provided including appellate provisions and that of the Tribunal. It would not be appropriate to the Monitoring Committee to usurp statutory powers and act beyond authority conferred upon it by the Court. The Monitoring Committee could not have sealed the residential premises, which were not misused for the commercial purpose as done vide Report No. 149, nor it could have directed the demolition of those residential properties.
87. Article 300A of the Constitution provides that nobody can be deprived of the property and right of residence otherwise in the manner prescribed by law. When the statute prescribes a mode, the property's deprivation cannot be done in other modes since this Court did not authorize the Committee to take action in the matter. An action could have been taken in no other manner except in accordance with the procedure prescribed by law as laid down in the decisions.
10. The Supreme Court in directions issued on 14th August, 2020 only discussed authority of Monitoring Committee in sealing residential premises on the private land particularly when they are not being used for the commercial purpose. The observations made by the Supreme Court vide order dated 28.01.2019 as referred in circular dated 10.01.2020 were not modified or set aside in decision delivered on 14th August, 2020. If the respondent sealed property no c-28/4 in utter violation of procedure of law or Monitoring Committee did not approve de-sealing of property no C-28/4 it doesn't mean appropriate remedy for de-sealing of property no C-28/4 vested either with ATMCD or this court in view of observations dated 28.01.2019. The appropriate remedy available to the appellants is to approach Monitoring Committee for appropriate relief. The decision delivered by the Supreme Court on 14th August, 2020 does not provide any help to the appellants.
11. It is established that property no C-28/4 abuts on mixed land commercial street and was sealed by the respondent on 26.07.2009 due to misuse. The property no C- 28/4 comprises ground floor, first floor and half portion of second floor having plot area measuring 29.82 sq. meters and was constructed without sanction of MCD Appeal 1/2016 Kamlesh & Ors. vs. EDMC 8/9 building plan. The property no C-28/4 cannot be considered for regularization being sub divided. The property no C-28/4 cannot be protected under Delhi Laws (Special Provisions) Act, 2011 in absence of any specific notification. The property no C-28/4 falls in area earmarked for college.
12. ATMCD in impugned order considered entire relevant issues and rightly dismissed the appeal. The impugned judgment was passed with application of judicial mind and after appreciating material on record and is well-reason. There is no infirmity or illegality in the impugned order. There is no merit in appeal and the impugned order does not call any interference. The grounds as taken by the appellant are without any basis on facts and law. Hence present Appeal is dismissed. Records pertain to ATMCD and the respondent be send back along with copy of this order for information. Appeal file be consigned to Record Room.
ANNOUNCED IN OPEN Sudhir Digitally signed
by Sudhir
Kumar Jain
COURT ON 08th JANUARY, 2021 Kumar Date:
2021.01.08
Jain 15:51:32 +0530
(DR. SUDHIR KUMAR JAIN)
PRINCIPAL DISTRICT AND SESSIONSJUDGE
NORTH-EAST
KARKARDOOMA COURTS, DELHI
MCD Appeal 1/2016 Kamlesh & Ors. vs. EDMC 9/9