East Delhi Municipal Corporation v. Yogesh Gupta and Anr.

1. The present petition has been filed by the EDMC challenging the order of the learned District Judge dated March 21, 2017 whereby the learned District Judge has dismissed the appeal filed by the EDMC challenging the order dated December 01, 2016 passed by the ATMCD allowing the Appeal No.328/2016 filed by the respondents herein for de-sealing of the premises bearing No. D- 71/B, Fazalpur, Unchepar, Mandawali, Delhi-92.

2. The learned District Judge has dismissed the appeal on the following findings:- 2019:DHC:1533

9. In the impugned order, it is stated that a status report was filed by EDMC wherein it was stated that property bearing No.D-71/B, Mandawali Fazalpur, Unchepar, Delhi-92 of the respondents Yogesh Gupta and others was protected from demolition by virtue of Delhi Laws (Special Provisions) (Second Amendment) Act, 2014 till 31.12.2017. When the EDMC could not take any action for demolition till 31.12.2017, hence, property in question was ordered to be de-sealed by Appellate Tribunal (MCD) vide impugned order. This order is a reasoned order and does not suffer from any infirmity. Accordingly same is hereby upheld. However, time of one month is given to the appellant EDMC to de-seal the property in question and accordingly the EDMC is directed to de-seal the property on or before 21.04.2017. However, an undertaking be taken from the respondents that as and when effect of Delhi Laws (Special Provisions) (Second Amendment) Act, 2014 comes to an end, they themselves shall vacate the property and EDMC will be at liberty to re-seal the same. An undertaking be also taken from the respondents that they will not raise further construction in the suit property without getting its plan sanctioned from the EDMC and they shall not create third party interest in the suit property without approval of EDMC. Floorwise photographs and map of the suit property be filed by the respondents showing the extent of existing construction, which shall be verified by the area Junior Engineer at the time of de-sealing the property. Appeal is accordingly dismissed. TCR be sent back along with copy of the order.”

3. Mr. Kumar Rajesh Singh, learned counsel appearing for the EDMC would submit that the respondents herein are not entitled to the protection of Delhi Laws (Special Provisions) (Second Amendment) Act, 2014.

4. That apart, he states that the reliance placed by the learned District Judge on the judgment of Babu Ram Singla v. EDMC & Ors., W.P.(C) No. 11542/2015 decided by the Coordinate Bench of this Court on January 13, 2017 is pending appeal before the Division Bench.

5. Learned counsel for the respondents justify the judgment of the learned District Judge. According to him, in terms of the provisions of the National Capital Territory of Delhi Laws (Special Provisions) Amendment Act, the respondents meet the twin test with regard to the maintenance of status quo, inasmuch as the unauthorized colony in question was in existence on March 31, 2002 and also the construction has been made prior to 1st Day of June, 2014. In this regard, he has drawn my attention to the affidavit filed by the respondent No.1 dated November 27, 2015, wherein he has in para 3 stated as under:- “3. That the aforesaid property falls in Shahdara South which is unauthorized colony/Village Abadi Area (including Urban village) and their extensions, which existed on the 31st day of March 2002 and constructing took place even beyond that date and prior to 2nd June 2014 mentioned in sub-section (1) of the said Act.”

6. Further, he submits that the respondents have purchased this property in the year 2008.

7. If that be so, I agree with the ultimate conclusion arrived at by the learned District Judge.

8. Insofar as the second submission with regard to the judgment in the case of Babu Ram Singla (supra) is concerned, the learned District Judge has followed the said judgment only to hold that the order of de-sealing passed by the Appellate Tribunal in that case was upheld as special Act was a protective umbrella available to the petitioner. I am in agreement with the conclusion of the learned District Judge. I may state here, there is a distinguishing feature inasmuch as in the case of Babu Ram Singla (supra), it appears that the order of the Monitoring Committee dated April 27, 2015 was challenged, which was set aside. In the case in hand, there is no order of the Monitoring Committee.

9. I do not see any merit in the petition. The same is dismissed. No costs.

V. KAMESWAR RAO, J

MARCH 13, 2019