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IN THE HIGH COURT OF DELHI
D.N. Patel, Jyoti Singh, JJ.
Shubhamkar Mishra - Appellant
Versus
New Delhi Municipal Council - Respondent
LPA 437 of 2021
Decided On : 22-11-2021
The court concluded that the operation of a Diagnostic Centre is permissible under the Master Plan while a conversion application remains pending, necessitating interim protection against sealing orders.
Headnote:(A) Delhi Master Plan 2021 - Paragraph 15.7 - Mixed land use - Appellants' Diagnostic Centre operated within permissible activities under MPD-2021, yet Respondents issued sealing order and notice despite pending land use conversion application since 2016. - Court restrains Respondents from sealing the premises, noting prima facie case for interim relief. (Paras 6, 9, 10)
(B) Writ Jurisdiction - Interim Relief - The denial of interim relief by the single judge necessitates examination; balance of convenience favored granting relief to avoid irreparable harm. (Paras 7, 10)
Facts of the case:
The Appellants are joint owners of a property used for a Diagnostic Centre, challenging the sealing order issued by the Respondents despite a relevant application for land use change pending since 2016.
Findings of Court:
The court found strong grounds for granting interim relief against the sealing order and emphasized maintaining the status quo regarding property use.
Issues: Main issues involve whether the Appellants could continue operating without being sealed despite pending application for land use conversion.
Ratio Decidendi: The court concluded that the Appellants established a prima facie case for interim relief and that a balance of convenience favors their continued operation.
Result: Interim order granted, restraining sealing of Diagnostic Centre.
| Table of Content |
|---|
| 1. appellants' ownership and pending application for land use conversion. (Para 4 , 5) |
| 2. legality of operating a diagnostic centre under mpd-2021. (Para 6 , 7) |
| 3. determination of prima facie case and balance of convenience. (Para 8 , 9) |
| 4. interim relief conditions and implications on rights. (Para 10 , 11 , 12) |
| 5. closing and future directions regarding the petition. (Para 13 , 14) |
JUDGMENT
D.N. Patel, Chief Justice (Oral)
CM APPL. 40908/2021 (Exemption) & 40907/2021 (lengthy synopsis and list of dates)
Allowed, subject to all just exceptions.
Applications stand disposed of.
LPA 437/2021& CM APPL. 40906/2021 (Stay)
1. Issue notice.
2. Mr. Abhinav Bajaj, learned counsel accepts notice on behalf of Respondent No. 1 and 2.
3. Mr. Anupam Srivastava, learned Additional Standing Counsel accepts notice on behalf of Respondent No. 3.
4. Assailing the impugned orders dated 27.10.2021 and 10.11.2021 passed by the learned Single Judge in W.P.(C) 12082/2021, learned Senior Counsel for the Appellants submits that the learned Single Judge has erred in declining to grant interim relief to the Appellants during the pendency of the writ petition. It is submitted that the Appellants are brothers and joint owners of basement and Flat Nos.G-1 and G-2, Ground Floor, Plot No.2, Factory Road, Ring Road, Safdarjung, New Delhi and had purchased the same in 2014 after paying the entire sale consideration. Plot No.2 measures approximately 1430.424 sq. meters and is comprised of a basement with three floors on the front portion as well as construction in the back portion of the plot. Appellants have been using the basement of Flat Nos.G-1 and G-2 for the purpose of running a Diagnostic Centre.
5. It is further submitted by the learned Senior Counsel that MPD-2021 allows mixed land use on residential plots in a residential area, which are abutting 18 metres ROW Road and Appellants have applied for conversion of land use from residential to commercial, with Respondents No.1 and 2, way-back on 19.02.2016. However, the application is still pending consideration.
6. It is further submitted that by virtue of para 15.7 of MPD-2021, it is permissible to run/operate a Diagnostic Centre, and attention of the Court is drawn to para 15.7 of MPD-2021, which reads as follows:
"15.7 other Activity
15.7.1 Subject to the general conditions given in para 15.4 and additional conditions given in para 15.7.3, the following public and semi-public activities shall also be permitted in the residential plots abutting roads of minimum ROW prescribed in
15.7.2, whether or not the road is notified as mixed use street:
a. Pre-primary school (including nursery/Montessori school, creche.)
b.
i) Nursing home
ii) Clinic, Dispensary, Pathology lab and Diagnostic center.
iii) Wellness Centers including Day Spas/Weight Loss Centres/Ayurvedic Centres offering Ayurvedic treatment/Salons offering fitness & aesthetic medical services and operating as on 7.2.2007."
7. The contention is that despite the fact that a Diagnostic Centre is a permissible activity under the MPD-2021, yet acting contrary thereto, Respondents No.1 and 2 have issued a show cause notice and sealing order. Attention of the Court is also drawn to a letter dated 05.11.2020 written by the Deputy Director (PLG) MP&DC, Delhi Development Authority to the Chief Architect, NDMC, stating therein that Diagnostic Centre is a permissible activity as per Chapter-15 Mixed Use Regulations, more particularly, para 15.7 therein. It is argued that while on one hand, the application for conversion has not been decided for the last five years, on the other hand, the Appellants are sought to be dislodged from the Diagnostic Centre. Learned Single Judge has issued notice in the writ petition but has not granted an interim relief and if the Diagnostic Centre is sealed pursuant to the sealing order dated 05.04.2021, irreparable harm shall be caused to the Appellants and the writ petition shall be rendered infructuous.
