$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on:
24. h May, 2014 % + W.P.(C) 3442/2014 SHILPI JAIN AND ORS. ..... Petitoners Represented by: Ms. Nandita Abrol, Adv. Versus NORTH DELHI MUNICIPAL CORPORATION THROUGH: ITS COMMISSIONER AND ORS. ..... Respondents Represented by: Ms. Mini Pushkarna, Adv. CORAM: HON'BLE MR. JUSTICE SURESH KAIT SURESH KAIT, J.
(Oral) 1. Vide the present petition, petitioners are seeking direction to set aside the order dated 23.05.2014 passed by Ld. ATMCD; and seeking Mandamus to withdraw the vacation / sealing and demolition notice dated 23.05.2014 passed by respondent nos. 1 and 2. Further seeking direction to de-seal the premises of the property bearing Shop nos. 4, 5, 6, 7 and 8, situated at Durga Plaza, 2919-2922, Bhadurgarh Road, Sadar Bazar, Delhi.
2. Ms. Nandita Abrol, Ld. Counsel appearing on behalf of the petitioners submits that the petitioners are the occupiers / owners of the shops mentioned above. No notice was served to the petitioners in respect of the sealing of the premises and it was not at all in their knowledge about any notice or any matter pending before the Ld. Tribunal. The petitioners received the vacation / sealing / demolition notice dated 23.05.2014 at 5 PM.
3. Notice issued.
4. Ld. Counsel named above accepts notice on behalf of the respondent nos. 1 and 2. Since, respondent No.3 is the Tribunal, therefore same is deleted from the array of the parties.
5. Ms. Mini Pushkarna, Ld. Counsel appearing on behalf of respondent nos. 1 and 2 admits that the petitioners are not parties in appeal No.148/2014, which is pending before the Ld. Tribunal. It is also admitted that the impugned order dated 23.05.2014 was passed in the absence of all the petitioners or their representatives.
6. I note, vide the impugned order dated 23.05.2014, Ld. Tribunal directed the MCD to take sealing action at least in respect of those 7 shops, whose owners / occupiers have not come to any court to challenge either the demotion or the sealing order. It was further directed that this action shall be completed within 24 hours.
7. On perusal of the impugned order, it is revealed that Ld. Tribunal passed the aforesaid direction on the submission of the appellants, who stated therein that other shop owners knew about the passing of the demolition and sealing orders qua the building in question, however, they were watching the proceedings of these cases.
8. It is pertinent to mention that pursuant to impugned order dated 23.05.2014 passed by the Ld. Tribunal, the Executive Engineer (Building) / S.P. Zone issued vacation notice under Section 349 of the DMC Act to the petitioners on 23.05.2014 itself and the same was received by the petitioners at 5 PM.
9. It is also pertinent to mention that as admitted by Ld. Counsel appearing on behalf of the MCD, the action for sealing was started at 11 am today and the shops of the petitioners in question have been sealed by the respondents at around 12.30 noon.
10. Keeping in view the facts recorded above, I have no hesitation to say that the Ld. Tribunal passed the impugned order without application of the mind as that the petitioners were not party in the said appeal which is apparently illegal and violation of natural justice.
11. Therefore, the impugned order dated 23.05.2014 is hereby quashed. Consequently, vacation notice issued under Section 349 of the DMC Act, 1957 is quashed.
12. Accordingly, respondent nos. 1 and 2 are directed to de-seal the premises of the petitioners by 6 PM today itself.
13. The petitioners are at liberty to intervene in the proceedings pending before the Ld. Tribunal in Appeal No.148/2014 or independently, failing which the appropriate authority shall be at liberty to pass appropriate orders of vacation / demolition as per law by giving proper opportunity of hearing in accordance with law.
14. In view of above, the present petition is allowed.
15. No order as to cost.
16. A copy of this order be sent to the concerned Tribunal. CM. No.7062/2014 With the disposal of the instant petition, instant application has become infructuous and disposed of as such. A copy of this order be given dasti to Ld. Counsels appearing on behalf of the parties under the Signature of the Court Master. SURESH KAIT, J.
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