IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) NO. __________ OF 2015
IN THE MATTER OF:
North Delhi Municipal Corporation Petitioner
Through its Commissioner
Versus
Sh. Harcharan Singh Respondent
INDEX
Sl. No. PARTICULARS PAGE Nos.
1. Notice of Motion
2. Urgent Application
3. Memo of Parties
4. List of dates
5. Writ Petition under Article 226
of the Constitution of India
along with affidavit
6. ANNEXURE-P1:
NEW DELHI
DATE:
GAURANG KANTH
Counsel for the Petitioner
A-9, Nizamuddin East,
New Delhi -110013
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) NO. __________ OF 2015
IN THE MATTER OF:
North Delhi Municipal Corporation Petitioner
Through its Commissioner
Versus
Sh. Harcharan Singh Respondent
NOTICE OF MOTION
Sir,
The enclosed Writ Petition in the aforesaid matter is
being filed on behalf of the Petitioner and is likely to
be listed on at 10:30 AM or any time
thereafter. Please take notice accordingly.
GAURANG KANTH
COUNSEL FOR PETITIONER
NEW DELHI A-9, NIZAMUDDIN EAST),
DATED: NEW DELHI
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) NO. __________ OF 2015
IN THE MATTER OF:
North Delhi Municipal Corporation Petitioner
Through its Commissioner
Versus
Sh. Harcharan Singh Respondent
URGENT APPLICATION
To
The Registrar,
Delhi High Court
New Delhi-110003
Sir,
Will you kindly treat the accompanying application
as an urgent one in accordance with the High Court
Rules and Orders.
The grounds of urgency are stay/quashing of the
order dated 13.07.2016 by Ms. Raj Rani Mittra,
Additional District & Sessions Judge cum P.O.,
ATMCD, Tis Hazari, New Delhi as prayed for
GAURANG KANTH
NEW DELHI COUNSEL FOR PETITIONER
DATED: A-9, NIZAMUDDIN (EAST),
NEW DELHI
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) NO. __________ OF 2015
(Against the order dated 13.07.2015 by Ms. Raj Rani
Mittra, Additional District & Sessions Judge cum P.O.,
ATMCD, Tis Hazari, New Delhi in Appeal no.
947/AT/MCD/2013)
IN THE MATTER OF:
North Delhi Municipal Corporation Petitioner
Through its Commissioner
Versus
Sh. Harcharan Singh Respondent
MEMO OF PARTIES
NORTH DELHI MUNICIPAL CORPORATION
THROUGH ITS COMMISSIONER
S.P.M. CIVIL CENTRE,
J.L.N. MARG,
NEW DELHI 110002 Petitioner
Versus
Shri HARCHARAN SINGH
S/O LATE SH. S. MOHAN SINGH
R/O 13/3, MODEL TOWN
DELHI 110009 Respondent
NEW DELHI GAURANG KANTH
DATE: COUNSEL FOR THE PETITIONER
A-9, NIZAMUDDIN EAST,
NEW DELHI-110013
LIST OF DATES
2011 The Petitioner after the Amendment Act
of 2011 has been recognized as North
Delhi Municipal Corporation with its the
Commissioner as the Executive Head
07.06.2012 Sale Deed executed in favour of the
Respondent as one of the owner in
respect of ground floor of the property
bearing No. 21/13, Block L, Mall Road,
New Delhi
15.09.2009 The road abutting the aforesaid property
was declared/notified as commercial road
by the Union Development Department
vide notification dated 15.09.2006
31.07.2012 A show cause notice is issued by the
Petitioner to the Respondent/occupier of
the aforesaid property as the property
was used for running a bank in violation
of MPD 2021
06.08.2012 Reply to the show cause notice is
submitted by the Respondent
08.08.2012 The Petitioner on the instructions of the
Monitoring Committee seals the entire
ground floor portion of afore said
property
31.12.2012 The said tenant M/s Dena Bank vacates
the said sealed portion of the property
30.04.2013 The Honble Supreme Court in its order
dated 30.04.2013 passed in the case of
M.C. Mehta Vs. UOI, W.P. (C) No.
4677/1985 grants liberty to general
public to approach the AT, MCD whose
properties have been sealed by the
municipal authorities
29.10.2013 The Respondent filed an appeal to the AT,
MCD, Delhi challenging the sealing
action by the Municipal authorities
13.07.2015 The Ld. P.O. AP MCD, Delhi passed the
order impugned herein wherein allowing
the de-sealing of the appeal property and
allowing the Respondent to carry out
activities which may be allowed under the
Master Plan 2021
Hence the Present Writ Petition
NEW DELHI GAURANG KANTH
DATE: COUNSEL FOR THE PETITIONER
A-9, NIZAMUDDIN EAST,
NEW DELHI-110013
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) NO. __________ OF 2015
(Against the order dated 13.07.2015 by Ms. Raj Rani
Mittra, Additional District & Sessions Judge cum P.O.,
ATMCD, Tis Hazari, New Delhi in Appeal no.
947/AT/MCD/2013)
NORTH DELHI MUNICIPAL CORPORATION
THROUGH ITS COMMISSIONER
S.P.M. CIVIL CENTRE,
J.L.N. MARG,
NEW DELHI 110002 Petitioner
Versus
Shri HARCHARAN SINGH
S/O LATE SH. S. MOHAN SINGH
R/O 13/3, MODEL TOWN
DELHI 110009 Respondent
WRIT PETITION UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, 1950 FOR THE ISSUANCE
OF:
WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE
WRIT, ORDER OR DIRECTION QUASHING THE
IMPUGNED ORDER DATED 13.07.2015 PASSED BY THE
LD. P.O. APPELATE TRIBUNAL, MCD NEW DELHI IN
APPEAL NO. 947/ATMCD/13 TITLED SH. HARCHARAN
SINGH Vs. NORTH DELHI MUNCIPAL CORPORATION
To,
The Honble Chief Justice and his Companion Justices of
the Honble High Court of Delhi at New Delhi
The humble petition of the Petitioner above named:
Most Respectfully Showeth:-
1. That the Petitioner in the present Civil Writ Petition
is challenging the order dated 13.07.2015 passed by
Ms. Raj Rani Mittra, Additional District & Sessions
Judge cum P.O., ATMCD, Tis Hazari, New Delhi in
Appeal no. 947/AT/MCD/2013 titled as Sh.
Harcharan Singh Vs. North Delhi municipal
Corporation whereby the Appeal of the Applicant
(Respondent herein) was allowed thereby the de-
sealing of the ground floor portion of the property
bearing no. 21/13, Block L, Mall Road, New Delhi
(hereinafter referred to as Property) subject to the
condition that the Appellant( Respondent herein)
shall use the said premises for those activities only
which are permissible under the Master Plan 2021
and shall not raise any unauthorized construction
of the said Property. Further, the Ld. P.O. Appellate
Tribunal, M.C.D. Delhi also imposed a condition
that the Appellate (Respondent herein) shall pay all
the necessary charges to the MCD and in time, if
permissible and if in case of any violation/s of the
afore said conditions/undertakings will amount to
contempt of the court and will invite criminal
proceedings as well. The copy of the impugned order
dated 13.07.2015 passed by Ms. Raj Rani Mittra,
Additional District & Sessions Judge cum P.O.,
ATMCD, Tis Hazari, New Delhi in Appeal no.
947/AT/MCD/2013 is attached hereto and marked
as Annexure P 1.
2. That the factual matrix of the present case are as
follows :-
a) That the Petitioner is a body corporate incorporated
by an Act of the Parliament earlier known as
Municipal Corporation of Delhi Act, 1957 and
hereinafter referred to as an Act. The Petitioner now
after the Amendment Act of 2011 and in terms of
the so amended/substituted section 3(1)(A) and
section 3(2) of the DMC Act, 1957 has been
recognized as North Delhi Municipal Corporation
and the Commissioner, North Delhi Municipal
Corporation is the Executive Head who is
empowered to discharge all the executive functions
of the Authority. That under the provisions of the
Act, the Authority can be sued and defended by the
commissioner, North Delhi Municipal Corporation
and ever otherwise also, the Commissioner is the,
Principal Officer, duly competent to file, institute
and defend suits/appeal on behalf of the Petitioner
and therefore the present Civil Writ Petition is being
filed by North Delhi Municipal Corporation through
its Commissioner.
b) That the Respondent is an Indian Citizen and being
one of the joint owners of the ground floor portion of
the property bearing no. 21/31, Block L, Mall Road,
Delhi which was purchased the same by virtue of
sale deed dated 07.06.2012. That the Respondent
had leased out the aforesaid Property to one M/s
Dena Bank without obtaining a No Objection
Certificate (hereinafter referred to as NOC) from the
Petitioner/appropriate authority.
c) That it is pertinent to mention here is that the road
abetting the aforesaid property had been
declared/notified as commercial road by the Urban
Development Department vide its notification dated
15.09.2006. That despite the registration charges,
the erstwhile owner of the said Property had
deposited Rs. 21,97,807.82/- towards one time
conversion charges to the MCD/appropriate
authority.
d) That the Petitioner issued a Show Cause Notice
dated 31.07.2012 vide File No.
1653/EE(B)/CLZ/2012 to the owner/occupants of
the aforesaid Property on account of misuse of the
said premises i.e., for running a Bank without
obtaining a NOC and also in violation of MPD 2021.
That a detailed reply dated 06.08.2012 to the show
cause notice was received which was not found
satisfactory by the MCD.
e) That thereafter, the aforesaid Property was sealed
by the Petitioner/ North Delhi Municipal
Corporation acting on the instructions of the
Monitoring Committee so constituted by the Honble
Supreme Court in the matter titled as M.C. Mehta
Vs. Union of India, Writ Petition (C) No.
4677/1985. It is pertinent to mention here is that
the said Property was sealed under the provisions
of section 345-A of the Delhi Municipal Corporation
Act, 1957, as amended upto date as the Respondent
was misusing the said premises for running a Bank
from the ground floor without the NOC from the
Petitioner and also in clear contravention and
derogation of the provisions of the MPD-2021 and
other relevant statutory provisions of law.
f) That pursuant to the order dated 30.04.2013
passed by the Honble Supreme Court in the case of
M.C. Mehta Vs. UoI W.P. (C) No. 4677/1985 wherein
the Honble Apex Court granted liberty to the
general public at large to approach the Ld. Appellate
Tribunal, MCD, Delhi whose properties have been
sealed by the municipal authorities or the
Monitoring Committee. It is pertinent to mention
here is that the order of the Honble Apex dated
30.04.2013, it categorically stated that its
Monitoring Committee is required to be compulsory
be heard before entertaining any such appeal for de-
sealing any property.
g) That acting on the liberty accorded by the Honble
Apex Court and as such the Respondent had filed
an appeal bearing No. 947/AT/MCD/2013 before
the Appellate Tribunal, MCD, Delhi under section
347-B of DMC Act challenging the sealing action of
the Petitioner dated 08.08.2012. Initially the
Monitoring Committee was not impleaded as a
necessary party, however, the Tribunal gave notice
of the said appeal to the Monitoring Committee.
h) That the Ld. Presiding Officer, AT, MCD, Delhi while
passing the impugned order has allowed the de-
sealing of the said Property with certain direction
namely, firstly, that the Respondent herein will the
use the subjected premises i.e., Property for those
activities only which are permissible under the
Master Plan 2021 and shall not raise any
unauthorized construction in the same. Secondly,
the Respondent herein shall also pay an
undertaking that in future the Respondent will pay
all the necessary charges to the MCD regularly and
in time, if permissible.
i) That feeling aggrieved from the impugned order
dated 13.07.2015 which is in itself is arbitrary,
illegal and bad in law. It is stated that the Ld. P.O.
AT, MACD, Delhi overlooked the detailed Report No.
442 dated 02.07.2015 of the Monitoring Committee
submitted before the Ld. P.O. on 13.07.2015 and
also relevant directions issued by the Honble Apex
Court in M.C. Mehtas case. Hence the present Civil
Writ Petition.
3. Therefore, amongst other grounds, the impugned
order is erroneous, untenable and is challenged
under following grounds:-
GROUNDS
A. Because the Ld. Presiding Officer, Appellate
Tribunal, MCD has taken into consideration
extraneous facts and circumstances while passing
the impugned order dated 13.07.2015 which are
untenable in the eye of Law.
B. Because the Ld. Appellate Tribunal has not
considered the points raised by the Monitoring
Committee detailed Report no. 442 dated
02.07.2015 which was filed on 13.07.2015 before
the Ld. Appellate Tribunal but considered only the
report dated 20.02.2014 filed earlier wherein the
Monitoring Committee had informed the Honble
Tribunal that the Petitioner/NDMC has not
furnished the complete status report and copy of
de-sealing file to file its detailed report before the
Honble Appellate Tribunal. The Report filed on
13.07.2015 should have been considered by the
Honble Appellate Tribunal which has not been done
and order was passed on the same day.
C. Because the Ld. Appellate Tribunal has
ordered the de-sealing of the premises wherein the
unauthorized construction has been carried out
after subdividing the premises into 12 portions
which are against the Sanction Building Plan issued
by MCD vide File No.
588/B/HQ/2003/209/AE(B)VI dated 14.05.2004 in
the name/favour of one M/s Jindal Aluminum
Limited and M/s Jindal Pipe Limited in respect of
the said property bearing No. 21/13, Mall Road,
Delhi total measuring 7374 sq. meters.
D. Because the Ld. Appellate Tribunal erred in
facts and in law when the it failed to appreciate that
the said Property in question was sealed on
08.08.2012 as the same was being misused to run a
bank under the name and style of M/s Dena Bank
without obtaining a Non Objection Certificate from
the MCD office. The Ld. Appellate Tribunal failed to
note the fact that the said premises forms part of
the property bearing No. 21/31, Block L, Mall Road,
Delhi which was booked on the grounds of
unauthorized construction and as such after
following due process of law, sealing orders were
passed against the entire said property. Further,
the construction existing on the entire property
bearing No. 21/31 Mall Road, Delhi including the
ground floor is unauthorized vide order dated
01.04.2014 passed by the Deputy commissioner,
Civil Lines Zone, Delhi. That the requirement of
obtaining a No Objection Certificate from the MCD
cannot be done away with at any cost and on this
basis alone the Ld. Appellate Tribunal should have
dismissed the appeal preferred by the Respondent
herein before the Ld. Appellate Tribunal.
E. Because the Ld. Appellate Tribunal has
ignored the fact that there can be no unauthorized
construction in a plot/flat and the premises cannot
be de-sealed for running any mixed use
activity/residential use without first removing the
unauthorized construction. The impugned order is
silent on this aspect which hits to the roots of the
present dispute leaving many questions of facts and
law unanswered and therefore unsettled. Therefore
the impugned order dated 13.07.2015 is not tenable
in the eye of law. That the Ld. Appellate Tribunal
over looked the Monitoring Committees reports
which were based and backed by the judgment
passed by the Honble Apex Court in M.C. Mehtas
case wherein it was stated that the unauthorized
construction should be demolished first before
allowing the desealing of the subject property. That
the findings of the Ld. Appellate Tribunal is in
blatant violation of the specific guidelines of the
Honble Apex Court.
F. Because the Ld. Appellate Tribunal has failed
to appreciate that the Respondent herein have
sought the protection and benefit of clause 15.7.3(ii)
of MPD-2021 whereby operating a bank is
permissible in residential plots, however the said
clause is not exhaustive/independent but is
dependent upon other conditions under the MPD-
2021, is required to be fulfilled by the
owner/occupier so as to use the premises for other
activity as provided in 15.7 of MPD-2021.
G. Because the Ld. Appellate Tribunal has failed
to appreciate that the clause 15.7.3(ii) of the MPD-
2021 provides that the bank shall be permissible on
the maximum 2/3rd of the FAR subject to 600 sq.
mtrs. It is submitted that the floor area ratio (FAR)
has veen defined in clause 2.36 of the Delhi
Building Bye-laws 1983 as total covered area on all
floors x 100/ plot area. In the given case, since the
entire construction existing in 21/31, Block L, Mall
Road, Delhi is unauthorized, the Respondent is
devoid of the benefit of 15.7.3(ii) as neither the
Respondent herein has provided the covered area of
all the floors, which has been raised in gross
negation of the sectioned plan.
H. Because the Ld. Appellate Tribunal has failed
to appreciate that the it is a admitted stand by the
Respondent herein that the subject property was
sanctioned for residential purpose and was built to
form a residence till the Respondent converted it to
be used for running as a bank under the name and
style of M/s Dena Bank. It is imperative to note that
the Respondent before converting the earlier
residential unit to be used for banking purposes.
The Respondent was duty bound to carry structural
changes for which no permission was even sought
by the Respondent from the Petitioner before the
subject property was sealed.
I. Because the Ld. Appellate Tribunal has failed
to note that the Respondents contention of non
requirement of obtaining the permission/ no
objection certificate from the Petitioner / NDMC is a
sham in view of the Respondents application dated
14.08.2012 at page No. 151/C of the Appellants
record whereby the Respondent himself had sought
permission for grant of No Objection Certificate in
his favor in respect of the subject Property.
J. Because the Ld. Appellate Tribunal failed to
appreciate the fact that under clause 2.85(c) of the
Delhi Building Bye-Laws 1983, it has been clearly
provided that erection includes conversion of one
occupancy to another. Further for erection of any
building permission is required as provided under
section 332 of the Delhi Municipal Corporation Act,
1957 as amended up to date. In the present case,
the conversion of residential premises for being used
for other activity (running a Bank) was committed
by the Respondent which was without any
permission/no objection certificate from the
Petitioner/NDMC, as such the same was rightly
sealed by the Petitioner. Moreover, the fact that the
word occupancy has been defined under the clause
2.54 of the Delhi Unified Building Bye-Laws 1983
provides that the use of the building for which it is
either used or indented to be used determines the
classification of the building according to the
occupancy.
K. Because the Ld. Appellate Tribunal has failed
to appreciate that the clause 2.3 of the Delhi
Building Bye-Laws 1983 further provides the
definition of alteration wherein the change from one
occupancy to the other is duly embodied within the
four corners of the term alterations. In addition,
under section 334 of the Delhi Municipal
Corporation Act, 1957, as amended upto date, for
addition/alteration in the premises, prior sanction
is essentially required. In the present case, the said
property was sanctioned for residential purpose,
but the Respondent or his predecessors in interest
raised huge unauthorized construction and the
Respondent converted the residential occupany of
the said Property to be used for commercial
purposes i.e., used for running a bank from the said
Property. Further, it is stated that under clause
2.17 of the Building Bye-Laws, the change, if any
from one occupancy to the other is termed as
conversion and the same tantamount to erection
under the clause 2.85 of the Building Bye-laws. For
erection, the law which provides for the prior
permission of the commission under section 332 of
the Delhi Municipal Corporation Act, 1957 as
amended upto date, which admittedly has not been
procured by the Respondent in the present case and
as such the impugned order dated 13.07.2015 is
liable to be quashed/set aside.
L. Because the Ld. Appellate Tribunal failed to
appreciate the fact that there are massive non
compundable deviatition existing in the subject
Property which without ordering for demolition
should not have been overlooked.
3. That in view of the afore-going grounds and
reasons, the Petitioners are filing the present Writ
Petition before this Honble Court.
4. That the Petitioners reserve its right to raise any
other and further grounds before this Honble Court
at the time of arguments.
5. That the Petitioners has no other efficacious
remedy available other than to approach before this
Honble Court.
6. That the Petitioner has not filed any similar Writ
Petition before this Honble Court or any other
Court.
PRAYER
Under the above said circumstances and in the
interest of justice, it is most respectfully prayed that
this Honble court be pleased to:-
a) Quash and set aside the order dated 13.07.2015
by Ms. Raj Rani Mittra, Additional District &
Sessions Judge cum P.O., ATMCD, Tis Hazari,
New Delhi
b) Pass any other order(s) and further orders may
also be passed by this Honble Court in favor of
the Petitioner and against the Respondents as
may be deemed fit in the facts and circumstances
of the case.
NEW DELHI
DATE:
PETITIONERS
Through
GAURANG KANTH,
Counsel for the Petitioners
A-9, Nizamuddin East,
New Delhi-110013
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) NO. __________ OF 2015
IN THE MATTER OF:
North Delhi Municipal Corporation Petitioner
Through its Commissioner
Versus
Sh. Harcharan Singh Respondent
AFFIDAVIT
I, ____________, S/o ________________, aged about ___
years, working as ____________________ with the Petitioner
Corporation do hereby solemnly affirm on oath as under:
1. That I am the Deponent in the Petitioner
Corporation and being well versed with the facts of
the case, am competent and authorized to sign on
the present Affidavit on behalf of the Petitioner.
2. That I have read the contents of the accompanying
Writ Petition and have understood the contents of
the same. I say that the contents of the present Writ
Petition are true and correct and nothing material
has been concealed therefrom and that no part of it
is false.
DEPONENT
VERIFICATION:
I the above named Deponent do hereby solemnly
affirm on oath that the contents of the present
Affidavit are true and correct to the best of my
knowledge and nothing material has been concealed
therefrom and that no part of it is false.
Verified at New Delhi on this the _____ day of
November, 2015.
DEPONENT
