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