*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 5th April, 2011.
+ W.P.(C) 2284/2011 & CM No.4877/2011 (for stay)
DEVYANI INTERNATIONAL LIMITED ..... Petitioner
Through: Mr. Ravi Gupta, Sr. Advocate with
Mr. Rishi Kapoor, Advocate
Versus
MCD ..... Respondent
Through: Mr. Ajay Arora & Mr. Kapil Dutta,
Advocates
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported
in the Digest? No
RAJIV SAHAI ENDLAW, J.
1. The petition impugns the sealing action on 30 th March, 2011 by the
respondent MCD of the portion of the ground floor of property No.J-12/38,
Rajouri Garden, New Delhi-110 027 in the tenancy of the petitioner. Prior
thereto, the respondent MCD had served a notice dated 23 rd March, 2011
W.P.(C)2284/2011 Page 1 of 6
under Section 345-A of the Delhi Municipal Corporation Act, 1957 calling
upon the owner / occupant to stop the misuse and to bring the premises
within the permitted use as per the Master Plan Delhi – 2021 failing which,
it was threatened that the premises will be sealed without further notice. It
is the case of the petitioner that though the petitioner as well as the landlord
of the petitioner filed affidavits with the respondent MCD to the effect that
the misuse had been stopped and the use of the property was in accordance
with the MPD-2021 but nevertheless the sealing was effected without even
considering whether there was any misuse or not.
2. The counsel for the respondent MCD appearing on advance notice
however contends that after the undertaking / affidavits were filed as
aforesaid, the premises were again inspected and finding the misuse, the
action for sealing was undertaken.
3. The senior counsel for the petitioner relies upon the order dated 3 rd
February, 2011 of this Court in W.P.(C) No.651/2011 titled M/s Unique
Innovation Pvt. Ltd. Vs. MCD observing that pursuant to the notice, an
order of sealing has to be made. It is urged that no such order was made in
W.P.(C)2284/2011 Page 2 of 6
the present case.
4. It is also the contention of the petitioner that though a restaurant may
not be permitted in the said premises but a takeaway is permitted to be
operated therefrom. The petitioner in this regard relies upon Clause 15.6.3.
of the Mixed Use Regulations under the MPD-2021 where small shops of
maximum 20 sq. mtrs. are permitted on residential plots and the businesses
permitted to be carried on from the said small shops include the business of
sweet shop / tea stall without sitting arrangement. It is urged that the
petitioner is thus entitled to operate pizza take away in the name and style of
Pizza Hut therefrom.
5. The counsel for the respondent MCD however contends that since the
property aforesaid is situated on a mixed land use street, Clause 15.6.1. and
not Clause 15.6.3. would be attracted. It is contended that Clause 15.6.3
applies to respondent properties but once the residential property is situated
on a mixed land use street, it has to be governed by the Regulations as
applicable on the said street. It is contended that under the Clause 15.6.2., a
takeaway joint is also not permitted on a mixed land use street when it
W.P.(C)2284/2011 Page 3 of 6
entails the activity of cooking as is inherent in a takeaway joint and as the
petitioner is admittedly carrying on.
6. It is also contended that Clause 15.6.3. would in any case be not
applicable since the area in possession of the petitioner is more than 20 sq.
mtrs.
7. Needless to state that all the aforesaid questions have not been gone
into by the respondent MCD and there is no decision on the aforesaid rival
contentions.
8. It is therefore deemed expedient to direct that the writ petition be
treated as a representation of the petitioner to the respondent MCD and to
direct the respondent MCD to dispose of the same on or before 15 th April,
2011, including the aforesaid contentions.
9. The senior counsel for the petitioner seeks temporary de-sealing till
then.
10. The counsel for the respondent MCD opposes.
W.P.(C)2284/2011 Page 4 of 6
11. However, considering that the business was already being carried on
by the petitioner therefrom and which has been interrupted owing to the
sealing action aforesaid and in the event of the petitioner succeeding, the
losses to the petitioner would be irreparable, it is deemed expedient to in the
meanwhile direct de-sealing of the property forthwith on the condition that
the petitioner will not allow any sitting activity therein and shall maintain
status quo and shall not cause any impediment as to re-sealing, if any, of the
property pursuant to the decision to be taken by the respondent MCD as
aforesaid.
12. The counsel for the respondent MCD has also contended that the
petitioner has not even paid the parking charges required to be paid under
the Mixed Land Use Regulations.
13. It is directed that if at all it is the decision of the respondent MCD that
activity be it of restaurant or of a takeaway, with such restrictions as may be
imposed, is permitted in the property, the petitioner in the decision aforesaid
be also intimated the charges, if any payable therefor and only if the
petitioner fails to pay the same would the respondent MCD be entitled to re-
W.P.(C)2284/2011 Page 5 of 6
seal the property.
The petition is disposed of. No order as to costs.
Dasti under signature of Court Master.
RAJIV SAHAI ENDLAW
(JUDGE)
APRIL 05, 2011
‘gsr’
W.P.(C)2284/2011 Page 6 of 6