Marusha Engineers & Developers Pvt Ltd and Anr v. Delhi Development Authority & Ors

1. This batch of writ petitions seeks to challenge the order dated 30.10.2018 passed by the Deputy Director (Building), C and I, Delhi Development Authority.

2. The petitioners, who are wine shop owners, are aggrieved by the aforesaid order as the rear entrance of their wine shops has been ordered to be closed.

3. To be noted, these wine shops are located in Cross River Mall, CBD, on ground and the rear side of the mall, which is, situated in Shahdara, Delhi (hereafter referred to as “wine shops”).

4. Ms. Geeta Luthra, learned senior counsel, who appears on behalf of the petitioners, says that each of the petitioners had applied to the DDA and obtained a regularization certificate for opening a rear entrance in their respective wine shops. By way of an example, Ms. Luthra has referred to Annexure P-5 which is a regularization certificate dated 07.09.2016, issued to the owner i.e. respondent no.3 and has been filed in W.P.(C)No.12180/2018.

5. It is not disputed by learned counsel for the respondents that each of the petitioners have such a regularization certificate issued in their favour.

6. The record shows that these writ petitions came up for hearing before my predecessor on 13.11.2018. On that date, a short order was passed and the matter was posted for preliminary hearing on the next date i.e. 14.11.2018.

7. On 14.11.2018, the learned single judge issued notice in the captioned writ petitions and listed the matter for further proceedings on 19.12.2018. 7.[1] However, on that very date, the interim applications were disposed of when the petitioners pressed for stay of the order dated 30.10.2018.

8. The learned single judge via a detailed order rejected the interim applications. Since the petitioners were aggrieved, they preferred appeals with the Division Bench. The Division Bench vide order dated 20.11.2018 dismissed the appeals, inter alia, with the following observations in paragraph 3. “3. In rejecting the prayer for interim relief on such consideration, in our considered view, the learned Writ Court has not committed any error. Even though the learned senior counsel for the appellants tried to demonstrate before us through the photographs and site plan approved by the competent authority that the back entrance is approved under the site plan and is part of the sanction granted, we find that the learned Writ Court has reproduced in para 7 the entire order impugned dated 30.10.2018, thereafter the approval as granted by the Delhi Development Authority’s Building Section on 07.09.2016 in para 9 and recorded a prima facie opinion that neither the letter extracted, i.e. 07.09.2016 nor the sanction plan available at Pg.61 of the paper book in LPA 463/2018, creates a vested right in favour of the petitioners to permit access to their customers through the rear entrance of the shop. It was found that there are three entrances to the shop and even if on security consideration one entrance is closed, two more entrances are available for accessing the shops and after taking note of all these factors, a prima facie assessment is made and the prayer for interim relief rejected. In our considered view, the learned Writ Court in doing so has not committed any error or illegality so grave in nature that interference at this interlocutory stage when the writ petitions are pending for consideration on merit is called for.”

9. Ms. Luthra, who appears on behalf of the petitioners, says that the order passed by the learned single judge on 14.11.2018 which was carried in appeal dealt with the situation as to whether or not interim relief ought to be granted to the petitioners.

10. According to the learned Senior counsel, the writ petitions being alive, this court is required to decide as to whether or not the prayer made in the writ petitions ought to be allowed.

11. On the other hand, learned counsel for the DDA says that the impugned decision, which is assailed in the wit petition, was taken based on a report received by the DDA from the office of Deputy Commissioner of Police, Shahdara District. Learned counsel says that because of the security concerns expressed by the police, the DDA took the impugned decision to order the petitioners to close the rear entrance of their respective wine shops. 11.[1] Learned Counsel also drew my attention to the fact that the impugned decision was extended even to those shops which do not deal with liquor. In this behalf Haldiram Eating House and McDonalds Restaurant were cited as examples.

12. Learned counsel, who appears for the police authorities, submits that their input to the DDA was based on representations made to it by the Federation of Indraprastha Extn.-II Housing Societies (hereafter referred to as “Federation”). In this behalf, my attention has been drawn to Annexure R-2 appended at page 8 of the counter affidavit filed on behalf of the police i.e. respondent no.2 in W.P.(C)No.12180/2018. For the sake of convenience, the relevant portion of the representation made by the Federation is extracted hereafter: “November 10, 2018 Mrs. Meghna Yadav, Deputy Commissioner of Police (Shahdara) Bholanath Nagar DELHI 110032 Dear Madam, You will please recollect that the nuisance, created by the esistence of large number of Wine Shops in Cross River Mall and LSCs has been a subject matter of discussion for a long time. The issue has been repeated raised in the meetings of the District Shahdara Advisory Committee meetings as also Federation level Bhagidari meeting with the Police. The Societies have stressed that these wine shops are a source of great nuisance as not only the crime has increased, the ladies are hasitant to go to the markets because of drinking in the open. There is also parking problem. The matter was last raised by the Societies in the Federation level Bhagidari meeting held on 27th October 2018 as also in the last District Level Advisory Committee meeting. We shall be grateful if the question of closure of these shops is raised at the appropriate level. Yours sincerely, (S.R. SANGAR) Secretary General”

13. A careful reading of the representation made by the Federation would show that the residents living near the CBD, Cross River Mall are concerned by the nuisance caused on account of the very existence of the large number of wine shops in the said mall.

14. It appears that the police in order to address this situation and nuisance caused thereby which led to criminal incidents had requested the DDA to close the rear entrance of the concerned wine shops. There is no empirical material placed before me which would demonstrate that the mere closure of the rear entrance has reduced the nuisance of drinking by consumers in and about the areas proximate to the wine shops.

15. Learned counsel for the police says that the ingress and egress through wine shops is also a security hazard. 15.[1] Apart from the letter of the Federation, no material has been placed before me to show that the ingress and egress from the rear entrance has potentiality of a security risk. While this may be an aspect which the DDA may have to examine, but that, can only occur if relevant inputs are placed before the DDA.