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2007 DIGILAW 517 (DEL)

CARMA ARTS & CRAFTS P. LTD. v. MCD

2007-03-08

S.MURALIDHAR

body2007
JUDGMENT CM No. 2833/2007 (Exemption) Exemption allowed subject to all just exceptions. Dr. S. Muralidhar, J. (Open Court)-Application disposed of. WP. (C) 1538/2007 & CM 2832/2007 (stay) The petitioner claims to be a lessee in a premises bearing municipal No. H-5/11 Ward No.1 Mehrauli, New Delhi-110030 forming part of Khasra No. 1493 admeasuring 10 bighas and 11 biswas in the revenue estate of Village Mehrauli. The petitioner states that he is running a shop/boutique under the name and style of Carma and deals with high end products including clothes, handicrafts, etc. 2. The Honble Supreme Court in M.C.Mehta v. Union of India, 127 (2006) DLT 226 (SC)=II (2006) SLT 103= (2006) 3 SCC 399 , gave a series of directions on 16.2.2006 with regard to the misuse of residential premises and dealt with the power of the MCD to seal premises on account of such misuser. The Honble Supreme Court constituted a Monitoring Committee to examine the various aspects to facilitate the implementation of the Orders of the Honble Supreme Court. An order was passed on 24.3.2006 directing that the sealing would continue "notwithstanding any order passed by any Court". A further detailed order was passed on 28.4.2006. 3. On 11.5.2006 the Honble Supreme Court reiterated its earlier orders and finally directed as under: "Be that as it may, we reiterate that no Court other than this Court will have any jurisdiction to make an order of de-sealing the premises sealed under the orders of this Court." 4. According to the petitioner the respondent MCD, purportedly acting under the directions of the Honble Supreme Court in its order dated 24.3.2006, "illegally, arbitrarily and without authority of law sealed the petitioners premises on 27.12.2006 in spite of the said order being completely inapplicable to the petitioner and the facts and circumstances of the present case." According to the petitioner, on 2.1.2007 and 8.1.2007 it made representations to the Monitoring Committee appointed by the Honble Supreme Court of India, comprising Shri KJ. Rao, Major General Som Jhingon and Shri Bhure Lal. The petitioner was given a hearing by the Monitoring Committee on 10.1.2007 and 17.1.2007. 5. When no decision was communicated by the Monitoring Committee the petitioner on 5.2.2007 filed the Writ Petition (C) No. 983/2007, in which this Court passed the following order: "This writ petition questions the action of the respondent-MCD sealing the premises in question on 27.12.2006. The petitioner was given a hearing by the Monitoring Committee on 10.1.2007 and 17.1.2007. 5. When no decision was communicated by the Monitoring Committee the petitioner on 5.2.2007 filed the Writ Petition (C) No. 983/2007, in which this Court passed the following order: "This writ petition questions the action of the respondent-MCD sealing the premises in question on 27.12.2006. On the issue of sealing of unauthorised constructions, the Honble Supreme Court has, in a PIL constituted a Monitoring Committee. In paras 25 and 26 of the writ petition it is stated that the petitioner made a representation to the Monitoring Committee for de-seal ing the premises, in question. In para 29 it is stated that an affidavit dated 17.1.2007 was filed before the Monitoring Committee and in para 30 it is stated that the petitioner was heard by the Monitoring Committee on 10.1.2007 and 17.1.2007. Learned Senior Counsel appearing for the petitioner states that at this stage, the petitioner is only pressing for a decision of the Monitoring Committee on its representation. If the Monitoring Committee has heard the petitioner, then naturally it would be taking a decision thereon expeditiously. The Court is of the view that such decision should be taken by the Monitoring Committee within ten days from today and its decision communicated to the petitioner soon thereafter. The respondent MCD is, therefore, requested to convey to the Monitoring Committee the above direction that the Monitoring Committee should take a decision on the petitioners representation within ten days from today and in any event not later than 19.2.2007 and communicate such decision to the petitioner within three days thereafter. No further direction is called for in this writ petition at this stage and it is disposed of as such. Writ petition and application stand disposed of." 6. Soon thereafter on 14.2.2007, the petitioner moved an application for clarification/modification of CM No. 2150/2007 stating that the Monitoring Committee referred to in this Courts order dated 7.2.2007 is the Monitoring Committee constituted by the Honble Supreme Court in relation to commercial activity in the residential premises. On the said application of the petitioner this Court passed the following order: "By inadvertence, in the first paragraph of this Courts order dated 7.2.2007, it was indicated that the Monitoring Committee constituted by the Honble Supreme Court was on the issue of sealing of un authorised construction. On the said application of the petitioner this Court passed the following order: "By inadvertence, in the first paragraph of this Courts order dated 7.2.2007, it was indicated that the Monitoring Committee constituted by the Honble Supreme Court was on the issue of sealing of un authorised construction. In fact, the reference was to the Monitoring Committee appointed by the Honble Supreme Court in relation to the commercial activity in residential premises (Coram KJ. Rao, Major General Som Jhingon and Shri Bhure Lal). The order dated 7.2.2007 should be accordingly read. The Monitoring Committee is now requested to take a decision on the petitioners representation not later than 22.2.2007. Application stands disposed of." 7. The Monitoring Committee decided representation given by the petitioner and rejected it by an order, the gist of which was communicated to the petitioner on 21.2.2007 by a letter No. D-2569/DC/SZ/2007 of the Deputy Commissioner. South Zone, MCD. The MCD informed the petitioner that its request for de-sealing was not approved by the Monitoring Committee as it did not fulfil the requirement of the Proviso to Section 14 of Delhi Development Act, 1957. The petitioner was informed that "the Committee has further directed that the misuse of the property has to be stopped for permanent de-sealing." 8. Aggrieved by the order dated 21.2.2007, the petitioner has filed this writ petition seeking a writ of certiorari to quash the order of the Monitoring Committee dated 21.2.2007 and declaring the sealing of the premises illegal and unconstitutional. 9. At the very first hearing on 28.2.2007 a preliminary objection was raised on behalf of the MCD as to the maintainability of the writ petition. The MCD was also asked to supply to the petitioner a copy of the order dated 21.2.2007. That has since been done. 10. Pursuant to the order dated 28.2.2007, the learned Counsel for MCD Sh. Sanjeev Sabharwal, has produced a copy of the order of the Honble Supreme Court dated 11.5.2006 in I.A. No. 22 in W.P.(C) No. 4677/1985 in M.C. Mehta v. Union of India, which is in continuation of the earlier order dated 16.2.2006 and has been noticed in para 3 hereinabove. 11. Sanjeev Sabharwal, has produced a copy of the order of the Honble Supreme Court dated 11.5.2006 in I.A. No. 22 in W.P.(C) No. 4677/1985 in M.C. Mehta v. Union of India, which is in continuation of the earlier order dated 16.2.2006 and has been noticed in para 3 hereinabove. 11. Learned Senior Counsel appearing for the petitioner vehemently contends that the Monitoring Committee constituted by the Honble Supreme Court as per the directions contained in the order dated 16.2.2006 was only expected to deal with the residential premises which were being misused and had no concern with unauthorised construction. He accordingly submits that the Monitoring Committee ought not to have dealt with the matter at all. Further, since the Monitoring Committee lacks jurisdiction, the order dated 11.5.2006 of the Honble Supreme Court forbidding any other Court from deal ing with the matter cannot apply in the present case. Learned Senior Counsel for the petitioner further urged that the Monitoring Committee erred in ignoring the evidence placed on record before it to support the contention that the petitioner was in continuous commercial use of the property in question even prior to 1962. 12. The Court is unable to agree with the submissions of the learned Senior Counsel for the petitioner. The order dated 16.2.2006 of the Honble Supreme Court in para 14 (SCC page 407) states "in these matters we are considering only the issue of misuse, we are not considering the issue of unauthorised construction." The Monitoring Committee in the instant case appears to have based its decision on the information available that "the main land across the main Qutub and Mehrauli road was being misused and unauthorizedly encroached by M/s. Carma as a parking for their commercial complex." Further the Monitoring Committee appears to have considered the case of the petitioner herein from the point of view of Proviso to Section 14 of the DDA Act, 1957 and has concluded that it could not prove "continuous use of the premises for commercial activities". 13. The petitioner too appears to have repeatedly made representations to the Monitoring Committee and in fact approached this Court earlier both by way of writ petition and subsequently by application for clarification insisting that it is this very Monitoring Committee that should hear and dispose of the petitioners application. 13. The petitioner too appears to have repeatedly made representations to the Monitoring Committee and in fact approached this Court earlier both by way of writ petition and subsequently by application for clarification insisting that it is this very Monitoring Committee that should hear and dispose of the petitioners application. Considering that the Monitoring Committee was dealing with the issue of not only unauthorised construction but also misuse of premises in question by the petitioner, it is not possible to accept the submission of the petitioner that the premises in question was entirely outside the purview of the order dated 14.2.2006 passed by the Honble Supreme Court of India. In that view of the matter the mandatory direction in the order dated 11.5.2006 passed by the Honble Supreme Court barring any other Court from interfering with a sealing order made pursuant to the directions of the Honble Supreme Court. In that view of the matter, there is no need to examine the merits of the matter. 14. Notwithstanding the repeated submissions by the learned Senior Counsel for the petitioner that this Courts jurisdiction under Article 226 can never be ousted, this Court is barred (sic. bound) to abide by the above mandatory direction issued by the Honble Supreme Court in its order dated 11.5.2006. Such orders are traceable to the plenary power of the Honble Supreme Court under Article 142 of the Constitution of India. It is not possible for this Court, therefore, to entertain this writ petition. The writ petition is accordingly dismissed on the ground of maintainability. Consequently, the application is dismissed. This will not preclude the petitioner from approaching the Honble Supreme Court for relief. Application and Writ Petitions dismissed.