Babu Ram Singla v. East Delhi Municipal Corporation

1 Both these petitions shall be decided by a common order. The petitioner (in W.P. (C) No.4345/2015-Babu Ram Singla) has impugned the order dated 27.04.2015 passed by the Monitoring Committee wherein the Monitoring Committee had passed adirection that the premises in question (A-139/140, A-32 &A-32A, Madhu Vihar, Delhi) -(hereinafter referred to as the demised premises) be re-sealed. The submission ofthe learned senior counsel for the petitioner i&tl®fsuchjgi'O have been passed by the Monitoring Cor^i^ef^ilei^^rd^fej^hfonitoli^^C"^ have the powerandnor to ofthe^^\y;norwasthis // 3^ \. order based on me principles ofh^SM|&s|0e; such an order bfing arbitrary andillegal,the^eisliabletob||^a^ East Delhi MimicipMs^gQ^ia^^e^ato^^erred to the as the respondent-BDMC). TheT^^^SsTfie order dated 08.04.2015 passed by the Appellate Tribunal of the Municipal Corporation of Delhi (ATMCD) wherein the ATMCD had directed the demised premises to be desealed; the petitioner Babu Ram Singla had been directed to furnish an affidavit that he would pay all. the necessary charges to the MCD regularly; he would not carry out any unauthorized construction in the property. W.P. (C) Nos.4345/2015 &11542/20-15 Page2ofll ^3

3 Record shows that the petitioner had been granted a municipal license (dated 02.11.2016) quathe aforenoted property to run a sweet shop jhom the demised premises. Pursuant to the judgment of the Apex Court in MC. Mehta Vs. Union ofIndia & Ors. (in LA. No.22 in W.P. (C) No.4677/1985 dated 30.04.2013) non-conforming user of residential properties had been directed to be sealed. On 29.11.2006, the premises of the petitioner were sealed. In an intervening^penbd,^theyWiere de-se'ale^ in February, 2008 but "i I fi" " A- " were again sealed q'h 27.08'.2009; fftemsealing order, Syas passed by the Monitoring ConAitl^f it wa^iiq]|iMi^®fee mis-use|>nd unauthorized construction in me demised premiijse'ST i f I V ) I SU h! n. f H-- • <^14 -r I. Therepresentations made byltlrl pqliSOner were leftun-h'eard.

5 On 30.04.2043|v^P.. pex Court m had granted opportunity to the geneM^^b|^ib'%pTo"C^lS®ei?^l)J^CD for the purpose of getting their properties de-sealed (which had in fact been de-sealed by the municipal authorities).

6 The order dated 08.04.2015 had been passed by the ATMCD in favour of the petitioner; his property had been directed to be de-sealed. The order passed by the ATMCD has been perused; the highlighted portion by the respective parties has also been perused. The vehement submission of the W.P. (C) Nos.4345/2015 & 11542/2015 ov respondent is that this order is largely premised on the submission that after passing ofthe National Capital Territory ofDelhi Laws (Special Provisions) Second Amendment Act, 2011 (hereinafter referred to as the Special Act) all constructions carried out up to 01.06.2014 are protected from punitive action; the property of the petitioner which was built prior in time had been granted a protection; the ATMCD had however gone on to pass the second part ofthe order which isJldd^l.ancWs^to thje^bffdcLthat the property ofthe petitioner be de-sealedvv ^^Subn r 3missi@mof the 4EamedLcounsel for the respondent onthlFsc^Cbeingfip;^' ff "fi** ^raer couldTipT ebeen passed while relying uppn the provisionk^M^pMalAct. ! ilMl

7 Learned counsel for the rfljj^i^e^^awever does not dispute the fact that the ATMCD Section 347-B of the DMC Act and^isdndui^^t^pbwefe de^sealing of the properties; submission howeve?Mn#ftiat?sUetf^ order could not have been passed in the instant case. The Special Act only protects an unauthorized construction from being demolished; a status quo order could at best have been passed by the ATMCD; the ATMCD going on to hold that the property should at the same time be de-sealed has committed an illegality and this illegal order is thus liable to be set aside. 3^

8 It is not in dispute that the after the order dated 08.04.2015, the property had been de-sealed on 13.04.2015. Thereafter on an order being passed by the Monitoring Committee on 27.04.2015 (subject matter of the first writ petition), the property had again been sealed on 28.04.2015.

9 Relevant would it be to note that the Monitoring Committee has been constituted under the aegis of the Supreme Court in the case of MC. Mehta (Supra) on 24.3.2006. ^ftC^owlrsfafiy followed by the w •••-'Sk Monitoring Committee^^s beenTdefSilift4m,para 8^r„a^ubsequent order (dated 30.04.20B passed by IfefMplf^^ (LA. 1^21 in W.P. (C) ^ ^ are relevant. It states that where, a property is s#l,^^^iL.^Md be open to such an applicant No.4677/1985)jin MC. Mehta. Pir^/3^ub% (vi) and (vii) t Ifk IrII. K to approach the C6iporatibn^fbr%n4i0rae%0HaelsCaMniHf an order is passed in favour such an appMcffit tlm^y&nitori^SCoi^ recommend to the MCD/NDMC/DDA to pr^¥%^^sv(;nifcpetitfon against such an order before the High Court. Thus these powers which had been granted to the Monitoring Committee by the Apex Court were only recommendatory powers i.e. a power to recommend to the Corporation to file a petition in the High Court against an order of de-sealing. W.P. (C)Nos.4345/2015 & 11542/2015 10 The order dated 27.04.2015 is definitelynot a recommendation; it was an order directing the MCD to re-seal; the property.

11 The Monitoring Committee in itsorder dated 27.04.2015 has recorded the reasons for deciding to re-seal the property. These are contained in paragraph 5. Theaforenoted paragraph reads asunder:- "As per the record rec^ed^jiwn^^h&ii^j^ci South Zone/EDMC, the has observed thefollSwmg; ff:#

1 Theaffiday^it saidproperty has been c^^sep^d©^AS.04.W^5^The*i^nitormg Committee \ ffre the Hoh^Me-Wribunal is not We Hon 'ble TribunM. Further as ^ JV 1 »iji i • per the order Mated 08.04.2015 pfmeimSnFk Tribunal, the affidavit be 4jF^'1 f submitted before the Tribun$^^idWhm to the conkered Deputy i IS X'l ^ # Commissioner property in question be de-sealed^enfpftVri^jthin 7day§^

2 The copy of the affdavf^nt concerned Deputy Commissioner. not been filed with

3 The de-sealing was carried out on 13.04.2015 by Shahdara South Zone/EDMC with the help ofPoliceForce but nowhere the date and time is recorded in thefile.

4 The Photographs taken at the time of sealing on 27.08.2009 and Videography done at the time of de-sealing on 13.,04.2015 clearly shows -31 that the status ofconstruction is not same and unauthorized construction has also takenplace during theperiod when theproperty was lyingsealed.

5 The CDs recorded on de-sealing day i.e. 13.04.2015 and thereafter on 23.04.2015 (under the orders ofthe Monitoring Committee) by the Shahdara South Zone/EDMC clearly show that repairs and addition/alteration was in progress which is not permissible and tantamount to unauthorized construction in the property in question. This is not permissible as per MPD-2021 and BBL. " I'lRT

12 Admittedly, bety7^n|the^efiod blt^e^n2^.^8^009to 13.04.2015 the custodian ofthe p^#erty as'^l^foperty was lying sealed. Thus Isdb'^ara 5 w, 1 le relevant^Thl Monitoring Committee wal of the view thal®|lfs intervening perild i.e. from 9 f.M.I'laiv. -I IW'Kll mm addition/alftmation were 13A.2015 uptofe[3].04.2015, done which were not T

13 In the course ofthese^i^^eedings,^Gjert^u^rders came to be passed by this Court. The order dated 05.05.2015 is relevant. The predecessor Bench ofthis Court was prima-facie ofthe view that the Monitoring Committee can only direct the Corporation to challenge the orders passed by the Appellate Tribunal before the High Court and it cannot suo moto override the order passed by the Appellate Tribunal. On 12.05.2015, a direction had been given to the Corporation to examine the reasons for re-sealing of the property.