North Delhi Municipal Corporation v. DCM Limited

11. Learned counsel submits that the letter dated 08.01.2018 issued by the MC to the NDMC refers to an inspection of the premises undertaken by the MC. However, no date of the so-called inspection is mentioned by the MC in its letter dated 08.01.2018.

12. Learned counsel submits that no fresh inspection was carried out by the MC after the Supreme Court passed the order dated 15.12.2017 in I.A. No. 2768/2016 in W.P.(C.) No.4677/1985, M.C. Mehta v. Union of India & Ors.

13. The further submission of counsel for the applicant is that, even otherwise, the sealing of the FFC - which houses a large number of offices and establishments, is arbitrary and unjustified inasmuch, as, the same has been undertaken without any prior notice or hearing to the applicant DCM or the occupants. Thus, learned counsel for the applicant submits that the sealing of the FFC by the NDMC at the behest of the MC is unjustified, and hence the same should be removed forthwith.

14. We may observe that on the date when the present application came up for hearing i.e. 11.01.2018, we were informed that 25-26 units in FFC of DCM Complex had already been sealed. Thus, the applicant DCM seeks the restoration of status quo ante which prevailed at the time when the application was moved.

15. On the other hand, learned counsel for the NDMC submits that the earlier sealing resorted to was on account of unauthorized construction in the premises in question, and not on account of unauthorized user. He submits that the present sealing has been undertaken under the directions of the MC, since the MC has opined that the user of the premises for commercial use is in violation of MPD 1962 and MPD 2021.

16. The MC was also noticed in this application. Initially, none appeared for the MC. Appearance was caused on behalf of the MC after the hearing had concluded on 22.01.2018. On 23.01.2018, the MC appeared through counsel and it was granted time to file its response. The MC filed its status report.

17. The submission of Mr. P.C. Sharma, learned counsel representing the MC is that this Court has no jurisdiction to deal with the matter, since it is acting under orders of the Supreme Court. He submits that in terms of the judgment passed by the Supreme Court on 15.12.2017 in I.A. Nos.93010/2017 and 93007/2017 in the same writ petition i.e. W.P.(C.) No.4677/1985, any challenge to the decision of the MC would lie only to the Supreme Court. In this regard, reference is made to para 37 of the said order, which, inter alia, provides that “Any challenge to the decision of the Monitoring Committee will lie to this Court only. We are constrained and compelled to make this order given the history of the case and the more than serious observations of this Court of an apparent nexus between some entities and the observations regarding corruption and nepotism”.

18. Mr. Sharma submits that the MC had initially inspected the DCM Complex on 20.07.2011 and directed the sealing of the premises under misuse. The DCM complex was again inspected on 08.05.2017 along with officials of the Building Department (Sadar Paharganj Zone) known as City of S.P. Zone. The Building Department S.P. Zone submitted its report dated 11.05.2017. The submission is that, even though, misuse was found in the FFC, the MC did not direct sealing of the premises in question till its powers were restored by the Supreme Court vide order dated 15.12.2017 in I.A. No.2768/2016.

19. We have considered the respective submissions of learned counsels and perused the record. For the present, we are confining our consideration to the aspect whether the MC justified in directing the NDMC to seal the FFC for the reasons contained in its communication dated 08.01.2018 and, that too without any notice or hearing to the applicant DCM and the other occupants of the FFC, in view of the pendency of the present appeal preferred by the NDMC against the order dated 26.05.2017 passed by the learned Single Judge. The maintainability of the present application shall also be examined.

20. The core issues that arise for consideration in the aforesaid L.P.A., on which submissions of the parties – including the MC were heard and the judgment stands reserved, are whether the MC had the authority or jurisdiction to object to the conversion of the use of the FFC from industrial to commercial, and, whether the DCM is entitled to seek conversion of the FFC from industrial to commercial in terms of the MPD-2021, i.e. whether commercial user of the FFC is permissible under MPD-2021. On these issues, we noticed the MC and heard the submissions of their learned counsel as well.

21. These issues are not being gone into at present, and our judgment in the aforesaid LPA shall also be shortly pronounced separately.

22. From the stand taken by the NDMC and the MC, it is evident that the present action of sealing of the premises in question i.e. the FFC has been undertaken on the directions of the MC contained in its communication dated 08.01.2018. The MC directed the sealing of the commercial establishment in DCM FFC by 11.01.2018 on the premise that, upon inspection it found “misuse of most of the Flatted Factories in shape of commercial establishments which is against the Sanctioned Building Plan and MPD-1962 & MPD-2021”.

23. The issue that, firstly, arises for consideration is whether it was open to the MC (even if the MC is of the view that the conversion of user from industrial to commercial is not permissible qua the FFC under the MPD-

2021) to direct the sealing of the FFC, in the face of the order dated 26.05.2017 passed by the learned Single Judge – thereby setting aside the rider put by the NDMC at the behest of the MC, which order has not been stayed during the pendency of the present appeal. The record shows that the earlier sealing of the premises in question had been undertaken on 30.10.2011 on account of unauthorised construction. Even at that stage, the MC had sought to urge that the commercial use of the flatted factories was not permissible under the MPD-2021. However, the said stand was not accepted either by the NDMC, or the DDA, or even by the ATMCD, and once the deviations in construction – pointed out by the Technical Committee had been removed, the sealing orders were withdrawn and the completion certificates issued in respect of Blocks A & D of the FFC were restored.

24. There is no dispute that the orders passed by the ATMCD on 30.05.2012 and 04.04.2012 attained finality. No petition was preferred by the NDMC– either on its own, or on the directions of the MC before this Court to assail the desealing of the FFC; the restoration of the completion certificates, and; the orders passed by the ATMCD. No action for sealing on any ground whatsoever was taken either by the NDMC, or by the MC till the present action. So far as the MC is concerned, presumably, in view of the order passed by the Supreme Court on 03.01.2012 curtailing its powers, it could not direct the sealing of the FFC of the DCM.

25. The MC continued to maintain its stand that the commercial use of the FFC tantamounted to unauthorised user. This stand of the MC was the reason why the application to seek conversion of user made by DCM came to be rejected vide order dated 20.04.2017. The order dated 20.04.2017 was passed by a committee of five senior officers, which included the Additional Commissioner (Engineer- NDMC), the Chief Law Officr, the Chief Town Planner, S.E. (B)/ HQ and E.E. (Bldg.)/ SPZ. It also placed reliance on an opinion obtained from Mr. Mohan Parasaran, the then Solicitor General of India. In the order dated 20.04.2017, the NDMC extracted the observation and stand of the MC in the following words: “......... it was brought out that the MC has been insisting that DCM will be only permitted redevelopment in terms of Master Plan 1962. This position may not be appropriate as the Supreme Court ruling was only by way of pointing out to DDA that DCM redevelopment plan cannot be considered in terms of the provisions of revised Master Plan which was yet to come into force but rather the existing Master Plan. There have been further modifications in the master plan and all the leases and other title holders have been provided for in terms of the revised master plans. There cannot be an exception in this specific case.......... Though, it is quite clear that the Development has to be in terms of MPD 2021 / current bye-laws. Law Department of DDA will examine the issue comprehensively and if the need be, in consultation within the law officers of Government of India.” (emphasis supplied)

26. The order dated 20.04.2017 extracted the stand of the MC, contained in its letter addressed to the DDA with copy to the NDMC, which reads as follows: “… … … The Monitoring Committee is of the firm view that from the above directions it is clear that the Hon’ble Supreme Court has given specific directions that the instant scheme be considered under the provisions of MPD as existing on 01.02.1983 (i.e. MPD 1962), otherwise it would be spelled out as a step to undermine the orders of the Court … … … The monitoring Committee is of the view that the note (vi) below Table 7.2/7.[3] (development control norms) of MPD 2021 clarifies that the provision of conversion of Industrial plots to commercial use shall not affect the Supreme Court orders in any way. In view of the above position the flatted factories complex cannot be converted into commercial use as has been specifically directed by the Hon’ble Supreme Court in its orders dated 1st May, 1991 to accommodate the displaced units in Ahata Kidara and other areas, as the DCM appears to be interested in converting the area as commercial in the guise of MPD-2021, violating the orders of the Hon’ble Supreme Court.” (emphasis supplied)

27. The NDMC came to the following conclusion in its order dated 20.04.2017: “CONCLUSION:- The committee, after considering all the records placed before it and after detailed discussions and deliberations, has arrived at the opinion, on the basis of the advice rendered by D.D.A. (which is competent and final authority for interpretation of Master Plan) vide its note dated 01.09.2014, read with opinion of Solicitor General dated 02.05.2014 and 06.05.2014 that the provisions of MPD 2021 would have been extended to the instant case of conversion of DCM flatter factory complex into the Commercial complex;” (emphasis supplied)

28. However, since the MC was insistent that the user of the FFC for commercial purpose was not permissible under MPD-2021, the following rider was put by the NDMC in its said order dated 20.04.2017: “...... but no orders to this effect are being passed as the above said case of DCM Flatted Factory Complex has been under the consideration of Monitoring Committee constituted by Hon’ble Supreme Court of India in W.P.(C) no. 4677/1985 titled M.C. Mehta V/s/ UOI & Ors., and in terms of Hon’ble Supreme Court orders dated 03.01.2012 in the said case, no orders to this effect can be passed.”

29. When the writ petition was decided by the learned Single Judge vide order dated 26.05.2017, the NDMC did not claim that there was any nonconforming user of the FFC in question, on the basis that user of the FFC for commercial purpose tantamounted to misuser/ non-confirming use. Consequently, the learned Single Judge set aside the aforesaid rider put by the NDMC in its order dated 20.04.2017, after examining the scope of authority and jurisdiction exercised by the MC at the relevant time i.e. 10.01.2017. Thus, the FFC was entitled to conversion from industrial to commercial use after the order dated 26.05.2017 was passed by the learned Single Judge.

30. The NDMC preferred the present appeal at the instance of the MC, wherein we have heard arguments and reserved judgment. The MC, inter alia, argued that the permitted user of the FFC is as prescribed under the MPD-1962, and that it cannot seek the conversion of the said use, even if it is so permitted under MPD-2021.

31. The operation of the judgment passed by the learned Single Judge has not been stayed by this Court. Thus, as on date, though the present appeal is pending, in our considered view, it was not open to the NDMC, or the MC, to act on the basis of their stand that the commercial use of the FFC tantamounted to misuse, and on that premise take action for sealing of the same. The stand taken by the NDMC and the MC is presently under scrutiny by this Court in appeal. We are in seisen of the said issue, which is sub-judice. In fact, so far as NDMC is concerned, the stand taken by it is that the DCM is entitled to seek conversion of the FFC from industrial to commercial use under MPD-2021. It is only the MC which contends otherwise. The MC and the NDMC have, by resort to the present action for sealing, by-passed the judgment of the learned Single Judge, and also the present appeal proceedings. In our view, the MC and the NDMC have not acted with due consideration of the aforesaid aspects and their conduct tantamounts to overreach of this Court. Though the MC may continue to persist with its stand that the use of the FFC for commercial purposes tantamounts to non-confirming user, or that it is not permissible under MPD-2021, the MC could not have acted on the said stand, since the matter is sub-judice before this Court, and in the first round, i.e. before the learned Single Judge, the said stand has not been accepted. In Western Press Pvt. Ltd. Mumbai Vs. Custodian & Others, (2001) 10 SCC 703, the Supreme Court held that a party “ought not to be allowed to take shelter under technicalities to overreach the Court”. In this case, the concerned party had given an undertaking to the special Court and derived benefit of the order passed by the special Court. In the present case, the stand taken by the NDMC and the MC has not been accepted in the first round by the learned Single Judge, and the present appeal is pending with no stay of the order of the learned Single Judge.

32. In Union of India & Another Vs. Malti Sharma, (2006) 9 SCC 262, the respondent was selected against the one post of Zonal Inspector created in the appellant No.2 Council. She was put on probation for a period of two years. Just before the end of her probation period, on 03.04.1996, she was asked to submit her self-appraisal report. Without waiting for the same, a recommendation was made on or about 08.04.1996 to the Departmental Promotion Committee that her services be not confirmed. On 09.04.1996, she submitted her self-appraisal report. On the same day, her services were terminated with immediate effect. The respondent preferred a writ petition questioning the order of termination dated 09.04.1996. During pendency of the writ petition, her termination was ratified by the Executive Committee, which, in turn, was ratified by the General Body of the Council on 05.07.1996. In the writ proceedings, the stand taken by the appellant Council, inter alia, was that on 08.04.1996, the said post was proposed to be abolished by the Executive Committee. However, the post had not been abolished but was converted into another post of Assistant Secretary (Nursing) in the same pay scale as that of Inspector. Necessary sanction/ approval from Government of India was awaited for filling the post of Assistant Secretary (Nursing).

33. The petition preferred by the respondent was heard by the learned Single Judge and judgment was reserved on 16.02.1998. Before the judgment could be pronounced, Government of India issued a letter to the Council on 17.06.1999, directing the Council to issue an order of abolition of the post of Inspector on the ground that the said post was lying vacant for more than one year as per communication received from the Council.

34. The learned Single Judge thereafter rendered his judgment holding the termination of the respondent to be punitive and mala fide. He also found several other lacunas in the action of the appellant No.2 Council. However, since the post of Inspector had been abolished and the same was converted into the post of Assistant Secretary (Nursing), reinstatement was not directed. The learned Single Judge held that it would be open to the respondent to take such steps in law in respect of abolition of the post of Inspector, as she may be advised. Eventually, the respondent preferred another writ petition, which was allowed by the learned Single Judge on the premise that the post of Inspector was a statutory post. The Division Bench dismissed the appeal preferred by the appellants. Consequently, the appellants preferred the appeal before the Supreme Court.

35. In the aforesaid background, while dismissing the appeal preferred by the Union of India and the appellant Council with costs, the Supreme Court, in respect of the post of Inspector – to which the respondent was appointed, observed: “16.......... It was filled but the services of the respondent were terminated which was questioned by her by filing a writ petition before the High Court. The said writ petition was admittedly pending. In fact, the judgment was reserved. Despite the fact that the writ petition was pending for a period of three years, as to why the Government of India was approached for the purpose of obtaining a direction that the post stood abolished is not known. Even in view of the findings of fact recorded by the High Court, the authority concerned took recourse to suppressio veri and suggestio falsi. It had not been disclosed that a writ petition was pending.

17. It is furthermore not in dispute that after the pronouncement of the judgment of the High Court the respondent has been reinstated. Whether the post had been revived before such reinstatement again has not been disclosed.

18. It is, therefore, evident that Appellant 2 tried to overreach the Court. Its action was plainly mala fide both on facts as well as in law.” (emphasis supplied)

36. The situation in the present case is also similar, if not more glaring. In Malti Sharma (supra), the appellant Council and the Union of India (which acted on the basis of information furnished by the appellant Council) had abolished the post of Inspector during pendency of the petition preferred by the respondent Malti Sharma (wherein she had staked her claim to the said post of Inspector), was held to be an act of overreach by the appellants, which did not meet approval by the Supreme Court. The judgment had been reserved when the abolition of post of Inspector took place. In the present case, in the first round the writ petition has already been allowed and the present appeal is pending. Thus, the NDMC and the MC were well aware that their stand had not been judicially approved by a learned Single Judge of this Court. We may also refer to a decision of Allahabad High Court in Rex Vs. Shah Mohammad Etizadrasul Khan, AIR 1953 All 266, wherein the Division Bench of the Allahabad High Court held that the conduct of the plaintiff, who had filed suit for possession in the Civil Court, in making collections from tenants and publicising his title in negation of the title of the defendants tantamounted to contempt of Court.

37. No party or person can be permitted to act unfairly in respect of a matter which is pending consideration before a Court, so as to present a fait accompli before the Court. A party cannot change the status quo to the detriment of the opposite party when the matter is sub-judice, particularly when, in the first round such party has remained unsuccessful, and an appeal is pending at its behest. Such conduct would be most unfair and cannot be countenanced by the Court. The action of the MC in issuing the communication dated 08.01.2018 is, thus, clearly out-of-step, and tantamounts to overreach of this Court.

38. Considering that the MC consists of very senior, experienced and highly reputed persons, we have no doubt that the MC acted bonafide. However, it acted without realizing that its action in issuing the order dated 08.01.2018 tends to defy the orders and authority of this Court. It appears to us that the MC may not have fully understood the legal position, and may have been ill-advised in taking such a step.

39. The submission of Mr. Sharma, learned counsel for the MC is that this Court has no jurisdiction to entertain the present application in the pending appeal, in view of the directions issued by the Supreme Court in its judgment dated 15.12.2017 in I.A. Nos.93010/2017 & 93007/2017 in W.P.(C.) No. 4677/1985 titled M.C. Mehta Vs. Union of India & Others. The said judgment sets out the history of the orders passed in M.C. Mehta (supra) from time to time in relation to the misuse of, particularly, residential properties for industrial use or commercial purposes and the manner in which the MC was constituted and it was vested with powers which were partially curtailed and thereafter. This judgment also contains directions devising the mechanism for desealing of premises already lying sealed at the instance of the MC. In so far it is relevant, we take note of the developments which have taken place in that respect from time to time.

40. The Supreme Court issued the directions in its decision dated 07.05.2004 [M.C. Mehta Vs. Union of India, (2004) 6 SCC 558], with regard to stoppage of industrial activity in residential or non-conforming areas in Delhi.

41. In its subsequent decision dated 16.02.2006 in the same petition, reported as (2006) 3 SCC 399, the Supreme Court focused its attention on the misuse of residential premises for commercial purposes. The Supreme Court directed the Delhi Municipal Corporation to give wide publicity in leading newspapers, to the effect, that those misusing their residential premises for commercial purposes should cease the misuse on their own, and that after 30 days of issuance of public notice, in case the misuse is not stopped, the process of sealing of such premises would start. By its further decision dated 24.03.2006 in the said petition, reported as 2006 (3) SCC 429, to oversee the implementation of the direction regarding stoppage of misuse of residential premises for commercial (non-industrial) purposes, the Supreme Court appointed the MC consisting of Mr. K.J. Rao, Former Advisor to the Election Commissioner, Mr. Bhure Lal, Chairman, EPCA and Major General (Retd.) Som Jhingan.

42. The MC was constituted in view of the apathy shown by the Municipal Corporation and other limbs of the State in implementing the directions issued by the Supreme Court with regard to stoppage of industrial and commercial use of residential premises. The MC was constituted to oversee the implementation of the law regarding residential premises being misused for commercial (non-industrial) purposes.

43. Other developments took place, inter alia, with the enactment of the Delhi Laws (Special Provisions) Act, 2006. However, they are not relevant for the present purpose and, therefore, we omit to take note of the said developments.

44. Vide its decision dated 03.01.2012, reported as (2012) 11 SCC 759, the Supreme Court curtailed the authority of the MC. The Supreme Court, inter alia, directed that: “3. … … the Monitoring Committee shall not order further sealing of the premises which are under its scrutiny. We also direct that no construction, temporary or permanent, shall be made on the premises which have been the subject-matter of scrutiny of the Monitoring Committee and no order shall be passed by the Government or any authority regularising such construction or sanction the change of user”.

45. It further observed: “5. The Monitoring Committee shall be entitled to inspect the premises in which any illegal construction may have been made after this order or any encroachment on public land or regularisation and if necessary submit report to this Court”.

46. By a further direction issued by the Supreme Court on 30.04.2013, reported as (2013) 6 SCC 336, the Supreme Court, inter alia, continued its order dated 03.01.2012. The Supreme Court observed: “Till the matter is heard by the Court, the Monitoring Committee shall not order further sealing of the premises which are under its scrutiny. We also direct that no construction, temporary or permanent, shall be made on the premises which have been the subject-matter of scrutiny of the Monitoring Committee and no order shall be passed by the Government or any authority regularising such construction or sanction the change of user.”

47. The Supreme Court further directed that the applications filed before it for desealing of premises, will be treated as statutory appeals and will stand transferred to the appropriate statutory Appellate Tribunal for disposal (i.e. ATMCD). The Supreme Court also granted 30 days time to the persons aggrieved by orders of sealing to prefer their appeals before the appropriate statutory Appellate Tribunal for disposal. The Supreme Court also transferred all the petitions pending before it, raising a challenge to the Delhi Laws (Special Provisions) Act, 2006 to this Court with a request that the matter be heard at an early date – preferably within one year from the date of receipt of entire records and papers. Thus, it appears that vide judgment dated 30.04.2013 [(2013) 16 SCC 336], so far as the Supreme Court is concerned, the matter stood concluded at that stage.

48. It appears, that several persons approached the Supreme Court to seek permission to prefer their appeals before the ATMCD belatedly (considering the fact that the Supreme Court had granted 30 days time to the aggrieved parties to prefer their appeals). Such applications were allowed by the Supreme Court, subject to costs of Rs.[1] Lakh.

49. Similar applications being I.A. Nos.93010/2017 & 93007/2017 were preferred by the applicants Vishvjyoti Overseas (P) Ltd & few others to seek permission to prefer their belated appeals before the ATMCD subject to payment of Rs.[1] Lakh towards costs. The Supreme Court, while dealing with the said applications, inter alia, observed in paragraph 34 of its judgment dated 15.12.2017 in the aforesaid writ petition that, since the applicants are keen to utilize the premises in question for residential purposes, it would hardly serve any purpose if the applicants are required to formally file an appeal before the Appellate Tribunal. The Supreme Court directed desealing of the premises in question for residential purposes subject to certain conditions.

50. Specific conditions were imposed on the applicant Infinity Knowledge Systems, which are set out in paragraph 35 of the said judgment.

51. In paragraphs 36 to 38 of the said judgment, the Supreme Court observed as follows: “36. In the event the Monitoring Committee is satisfied that the premises in question ought to be de-sealed, it may require the concerned statutory authority to de-seal the premises in question. If the Monitoring Committee is not satisfied that the premises in question ought to be desealed, the applicants will be at liberty to approach this Court for appropriate orders. We make it clear that in view of Report No. 46 dated 12th November, 2007 this Order will not be applicable to all other commercial activities that have been sealed in the premises in question.

37. We make it clear that henceforth it will not be necessary for any person whose residential premises have been sealed for misuse for any commercial (other than industrial) purposes at the instance of the Monitoring Committee to file an appeal before the appropriate statutory Appellate Tribunal. Instead, that person can directly approach the Monitoring Committee for relief after depositing an amount of Rs. 1,00,000/- with the Monitoring Committee which will keep an account of the amounts received by it. Any person who has already filed an appeal before the appropriate statutory Appellate Tribunal but would prefer approaching the Monitoring Committee may withdraw the appeal and approach the Monitoring Committee for relief on the above terms and conditions and on deposit of Rs.1,00,000/- as costs with the Monitoring Committee, provided that the premises were sealed at the instance of Monitoring Committee. Any challenge to the decision of the Monitoring Committee will lie to this Court only. We are constrained and compelled to make this order given the history of the case and the more than serious observations of this Court of an apparent nexus between some entities and the observations regarding corruption and nepotism.

38. We make it clear that this order will inure to the benefit of only those who are using residential premises for commercial purposes (nonindustrial) or for any other nonresidential purpose and whose premises were sealed at the instance of the Monitoring Committee. This order will not at all inure for the benefit of anybody using residential premises for any industrial activity of any sort or nature whatsoever”. (emphasis supplied)

52. The decision of the Supreme Court in M.C. Mehta (supra) dated 15.12.2017 passed in I.A. Nos.93010/2017 and 93007/2017, therefore, brings out, inter alia, the following salient aspects:

(i) While rendering the decision dated 15.12.2017, the Supreme Court was dealing with I.A. Nos.93010/2017 & 93007/2017 preferred by the applicants, namely Vishvjyoti Overseas (P) Ltd. and a few others, to seek condonation of delay and the permission of the Supreme Court to prefer their statutory appeals before the ATMCD, upon payment of costs of Rs.[1] Lakh in respect of their sealed premises.

(ii) The said premises was lying sealed at the instance of the MC, when the said applications were moved by the applicants before the Supreme Court.

(iii) Since the applicants stated that they were keen to use their premises for residential purpose, the Supreme Court held that no purpose would be served in requiring them to formally appeal to the ATMCD. The Supreme Court directed desealing of the premises subject to certain conditions.

(iv) The Supreme Court devised a procedure to deal with such like cases, where the premises were already lying sealed at the instance of the MC, to enable the owner/ occupants to seek the relief of desealing of their premises by approaching the MC. In such cases, the MC was directed to deseal the premises if it were satisfied that the premises ought to be desealed. However, in cases where the MC is not satisfied that the premises in question ought to be desealed, the applicants were granted liberty to approach the Supreme Court for appropriate orders. The benefit of this order (i.e. 15.12.2017) was not available to anybody using residential premises for any industrial activity of any sort or nature whatsoever.

(v) The Supreme Court held that, henceforth, it will not be necessary for any person – whose premises had been sealed for misuse for commercial (other than industrial) purpose at the instance of the MC, to prefer an appeal before the ATMCD. Instead, the person could directly approach the MC for relief after depositing Rs.[1] Lakh with the MC.

(vi) Persons who had already preferred their statutory appeals before the

ATMCD, but who preferred approaching the MC, were permitted to withdraw their appeals and approach the MC for relief of desealing on the same terms & conditions, and on deposit of Rs. 1 Lakh as costs with the MC, provided the premises were sealed at the instance of the MC.

(vii) Any challenge to the decision of the MC was permissible only before the Supreme Court.

53. The aforesaid history of the orders passed by the Supreme Court shows that the MC was initially empowered by the Supreme Court to undertake decisions with regard to sealing of, primarily, residential properties which were used for industrial or commercial purposes. Pertinently, in the order/ communication dated 08.01.2018 issued by the MC, the MC describes its mandate on its letterhead in the following words: “Sealing of commercial establishments in residential premises Constituted by Hon’ble Supreme Court of India” (emphasis supplied)

54. Empowered by the Supreme Court, the MC directed sealing of a large number of residential premises being misused for industrial and commercial purposes. However, by the order dated 03.01.2012, the Supreme Court curtailed the powers of the MC by observing that the MC shall not order further sealing of the premises which are under its scrutiny. The MC was, however, entitled to inspect the premises in which any illegal construction may have been made, or any encroachment on public land or regularization may have been made, after the passing of its order by the Supreme Court and to submit its report to the Supreme Court. Only on 15.12.2017, the order dated 03.01.2012 was recalled by the Supreme Court while dealing with I.A. No.2768/2016. Thus, the MC was again empowered to direct sealing of premises.

55. The judgment dated 15.12.2017 passed by the Supreme Court in I.A. Nos. 93010/2017 and 93007/2017, as noticed above, pertained to properties/ persons whose residential premises were already lying sealed at the instance of the MC. Such persons were permitted to approach the MC by depositing costs of Rs.[1] Lakh, so as to seek desealing of their premises. Even such persons, who had preferred their statutory appeals before the ATMCD against the orders of sealing passed at the instance of the MC [which appeals were preferred in pursuance of the judgment dated 30.04.2013 (reported as (2013) 16 SCC 336)] were permitted to, instead, approach the MC by withdrawing their appeals from the ATMCD and on deposit of Rs.[1] Lakhs as costs with the MC. It is the decisions of the MC in such cases – where it deals with applications seeking desealing of the premises which were initially sealed at their instance, which were made assailable only before the Supreme Court. The present case does not fall in that category, because the sealing in the present case has taken place only after the passing of the order dated 15.12.2017. The aforesaid mechanism/ procedure devised by the Supreme Court in its judgment dated 15.12.2017 cannot, by any force of reason, be understood or interpreted to mean that the MC could disregard the earlier orders passed by the learned Single Judge of the High Court in a given case; the pendency of the appeal against the decision of the learned Single Judge; that it could resort to directing sealing of the premises by overreaching the Court, and; then to tell the Court that it has no jurisdiction in the matter.

56. Reliance placed by Mr. Sharma, learned counsel for the M.C. on the directions issued by the Supreme Court in paras 36 to 38 of its judgment dated 15.12.2017 is clearly out of context. The said judgment has to be read and understood as a whole, and it is not permissible to pick out one sentence out of context and place reliance thereupon. Thus, the submission that against the present order of sealing dated 08.01.2018 passed by the M.C., the only remedy available to the applicant-DCM is to approach the Supreme Court is meritless, and we reject the same. The applicant DCM has neither approached the ATMCD nor the MC (in terms of the judgment dated 15.12.2017) against the sealing order, since the matter is sub-judice before this Court. Thus, the question of the applicant approaching the Supreme Court at this stage – to raise a grievance against the sealing order dated 08.01.2018, does not arise.

57. As we have noticed hereinabove, the authorization of the MC by the Supreme Court from time to time has been in relation to the misuser/ nonconfirming user of the residential premises for industrial or commercial purpose. The same does not relate to the alleged misuser of industrial premises for commercial purpose – which is the alleged misuser in the present case, according to the stand taken by the MC.

58. Thus, the MC, in our view, was not justified in springing into action and issuing the order/ communication dated 08.01.2018 directing the NDMC to seal the FFC of DCM, and that too, without any prior notice or hearing. In our view, by issuing the communication dated 08.01.2018 the MC overreached this Court, and arguably overstepped its authority vested by the Supreme Court, since the MC directed sealing of the FFC – which is not a residential premises. Since the MC is a creation of the orders passed by the Supreme Court, it derives its authority only from its orders. It has no independent statutory existence or powers.

59. For the aforesaid reasons, the action of the MC in issuing the communication dated 08.01.2018 directing the NDMC to seal the FFC of the applicant DCM, and the action of the NDMC in sealing the premises appears to be unjustified and illegal. We, therefore, set aside the said actions of the MC and the NDMC, and direct forthwith desealing of the FFC.

60. The application stands disposed of in the aforesaid terms.

(VIPIN SANGHI) JUDGE (REKHA PALLI)

JUDGE FEBRUARY 27, 2018