W.P.(C)/1268/2019 of R. K. GANDHI AND ANR. Vs SOUTH DELHI MUNICIPAL CORPORATION

IN THE HIGH COURT OF DELHI AT NEW DELHI+W.P.(C) No. 1268/2019R. K. GANDHI AND ANR.R. K. GANDHI AND ANR.

..... Petitioners

Through:Mr. Pradeep Kumar Arya, Mr. RajKaran Sharma, Mr. Aditya Yadav,Ms. Deepika Khari & Mr. PriyanshMalik, Advs.Karan Sharma, Mr. Aditya Yadav,Ms. Deepika Khari & Mr. PriyanshMalik, Advs.

versus

SOUTH DELHI MUNICIPAL CORPORATION

..... RespondentThrough:Mr. Kartik Jindal & Ms. Stuti Karwal,Advs. for R-1/SDMC.

CORAM:

HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANIO R R

%06.02.2019

W.P.(C) No. 1268/2019 & CM APPL. No. 5684/2019 (for interim relief)

The petitioner seeks quashing of notices dated 08.01.2019 and25.01.2019 issued by the respondent/SDMC whereby property, being shopbearing No. 1/81 Punjabi Bagh West, New Delhi has been booked forunauthorised construction and show-cause notices in respect thereof havebeen issued by the respondent as pre-cursor to taking action against it. Therecord shows that the petitioner has received the aforesaid notices and hasalso responded thereto.

Learned counsel appearing for the respondent/SDMC has shown incourt complaint letter dated 27.10.2018 against the subject propertyaddressed to the Monitoring Committee constituted under orders of theSupreme Court in W.P. (C) No. 4677/1985 titled M.C. Mehta vs. Union ofIndia & Ors.; and states that, as indicated by the noting on the saidcomplaint, action against the subject property has been initiated at the

instance of the Monitoring Committee. copy of the complaint has beenhanded-up and also shared with counsel for the petitioner.The same istaken on record.

To be sure, when the Monitoring Committee was constituted by theSupreme Court vide order dated 24.03.2006 made in W.P. (C) No.4677/1985 titled M.C. Mehta vs. Union of India & Ors., its primary taskwas to oversee implementation of the law relating to misuse of premises,that would culminate in sealing of such premises.

Over period of time however, other tasks relating to implementationof Master Plan for Delhi-2021, Unified Building Bye-Laws and othermunicipal legislations have also come to be entrusted and assigned to theMonitoring Committee, including all aspects of unauthorised construction,misuse of premises, encroachment on public land and allied illegal activities.This has been acknowledged by the Monitoring Committee inter alia in itsreport No. 128 dated 05.09.2018 submitted to the Supreme Court. The saidreport has been cited by the Supreme Court in order dated 07.09.2018 madein W.P. (C) No. 4677/1985, whereby the Court has also noted theMonitoring Committee’s submission that it is doing its best to comply withthe orders passed by the Supreme Court to ensure ‘that there are noencroachments or unauthorised constructions or misuse of property inDelhi’; with the Monitoring Committee lamenting however that it is notgetting adequate support from executing agencies such as MCD, NDMC,DDA and the Police.In the said order, the Supreme Court has furtherrequested the Monitoring Committee to continue with its onerous task andhas observed that it expects statutory bodies and the police to render allnecessary assistance to the Monitoring Committee in carrying out its task.

In various orders made by the Supreme Court in W.P. (C) No.4677/1985 aforesaid, the Supreme Court has mandated that no court,including the High Court, shall entertain any matters in which the actionimpugned has been initiated at the instance of Monitoring Committee. It isinter-alia so mandated in order dated 15.12.2017, the relevant portion ofwhich is extracted below:

“37.We make it clear that henceforth it will not be necessary forany person whose residential premises have been sealed formisuse for any commercial (other than industrial) purposes atthe instance of the Monitoring Committee to file an appeal beforethe appropriate statutory Appellate Tribunal. Instead, thatperson can directly approach the Monitoring Committee forrelief after depositing an amount of Rs.1,00,000/- with theMonitoring Committee which will keep an account of theamounts received by it. Any person who has already filed anappeal before the appropriate statutory Appellate Tribunal butwould prefer approaching the Monitoring Committee maywithdraw the appeal and approach the Monitoring Committeefor relief on the above terms and conditions and on deposit of Rs.1,00,000/- as costs with the Monitoring Committee, provided thatthe premises were sealed at the instance of the MonitoringCommittee. Any challenge to the decision of the MonitoringCommittee will lie to this Court only. We are constrained andcompelled to make this order given the history of the case andthe more than serious observations of this Court of an apparentnexus between some entities and the observations regardingcorruption and nepotism.”(Emphasis supplied)

In its report No. 128 dated 05.09.2018 rendered by the MonitoringCommittee, it was stated as follows:

“CHANNEL OF COMMUNICATIONS FOR REDRESSALBYTHEAGGRIEVED/DEFAULTINGPUBLICONSEALING MATTERS:

The Monitoring Committee would like to submit that despiteclear orders from the Hon’ble Court with respect to the chain ofcommunication for appeal against the sealing actions to be onlyaddressed to this Hon’ble Court, it has been seen that in anumber of cases, the parties concerned have approached otherCourts i.e. High Court, District Court and surprisingly in onecase, Consumer Court with the sole purpose of delaying theprocess of sealing ordered under the orders of the Hon’bleCourt. The Monitoring Committee has come to the conclusionthat all these dubious deviations in redressal appeals areprimarily to gain time and delay the process. Some examples ofthisunfairpracticearehighlightedinthesucceedingparagraphs.”

Whereupon the Supreme Court made order dated 07.09.2018 in whichit said:

It is submitted by the Monitoring Committee that these Courtsand the Commission do not have any jurisdiction over theseissues in view of the order passed by this Court.The learned Amicus will bring it to the notice of the Courts andthe Commission that prima facie jurisdiction does not lie with”them leaving it for the Courts to take decision in the matter.

(Emphasis supplied)

In recent order dated 27.11.2018, the Supreme Court has furtherobserved as under:

“PetitionsbeingentertainedbyotherCourts/Tribunals/AuthoritiesThe Monitoring Committee has brought to our notice thatotherCourts/Tribunals/AuthoritiesincludingtheStateConsumer Commission and District and Sessions Judge areentertaining the petitions despite order passed by this Court.

We have requested Mr. A.D.N. Rao to look into thesecases. We reiterate that no Court or Tribunal or any otherAuthority shall look into these mattersas well as the petitionswhich are pending before us.”

(Emphasis Supplied)

In view of the above, it is clear that any action taken at the instance ofMonitoring Committee – be it action relating to unauthorised construction,encroachment or misuse of premises – would be covered by the mandate ofSupreme Court in the foregoing orders; and accordingly this court ismandated not to intercede in any such action.

Accordingly, as per the mandate of the Supreme Court, this courtought not to entertain the present petition.

The writ petition is accordingly dismissed.

It will of course be open to the petitioners to approach the MonitoringCommittee and/or the Supreme Court to seek remedy in accordance with theorders made by the Supreme Court.

FEBRUARY 06, 2019/uj

ANUP JAIRAM BHAMBHANI, J.