Mohd. Shafiq vs Shimla Enclave Welfare Society And Another

Ramesh Ranganathan, CJ

Heard Sri A.S. Rawat, learned Senior Counsel for the applicant-appellant. The appellant herein has sought leave to appeal against the order passed by the learned Single Judge in Writ Petition (MS) No. 1377 of 2019 dated 17.05.2019.

The applicant is a neighbor of the respondent-writ petitioner who filed Writ Petition (M/S) No. 1377 of 2019 questioning the order passed by the Secretary, MDDA sealing his premises.

The learned Single Judge, after taking note of the submissions of Sri Rahul Consul, learned counsel for the MDDA, that the respondent-writ petitioner had already preferred an appeal against the order of sealing, directed that the pending appeal be decided within six weeks from the date of the order and, till then, the sealing order, passed by the authority concerned, be kept in abeyance. The respondent-writ petitioner was directed not to make any construction over the property in question. Recording the submissions of Sri Rahul Consul, learned counsel for the MDDA, the writ petition was disposed of.

The submission urged on behalf of the applicant / appellant is that no reasons have been assigned by the learned Single Judge, in the order under appeal, for keeping the sealing order, passed by the competent authority, in abeyance.

While Sri T.A. Khan, learned Senior Counsel appearing on behalf of the respondent-writ petitioner, would question the very locus of the applicant to file the present writ petitioner, the subject premises, which was directed to be sealed, was constructed without permission from the MDDA. A neighbor cannot be said, not to be aggrieved, by the construction raised without permission, in the vicinity of his / her premises. We see no reason, therefore, not to grant the applicant leave to prefer an appeal. The application, seeking leave to appeal, is therefore ordered.

In so far as the direction issued by the learned Single Judge, directing the sealing order to be kept in abeyance, is concerned, the order passed by the competent authority can only be interdicted by this Court for just and valid reasons. No reasons are discernible from the order under appeal as to why the learned Single Judge had concluded that the sealing order should be kept in abeyance.

Sri T.A. Khan, learned Senior Counsel appearing on behalf of the respondent-writ petitioner, would submit that several other submissions were urged by the respondent-writ petitioner, which did not necessitate examination, by the learned Single Judge, in the light of the order passed by him.

Suffice it, therefore, to set aside the order under appeal, and restore the writ petition to file, leaving it open to the respondent-writ petitioner to request the learned Single Judge to take up the writ petition for admission early, and for grant of an interim order.

The applicant shall stand impleaded as respondent no. 2 in the writ petition. He shall file a counter affidavit within two weeks from today.

It is open to Sri Aditya Kumar Arya, learned counsel for the respondent-writ petitioner, to request the learned Single Judge to take up the writ petition for admission, and for grant of inter-locutory relief, any day after two weeks from today.

Sri Rahul Consul, learned counsel for the MDDA, is present in Court today, and undertakes to inform the authorities of their obligations under this order.

The special appeal is disposed of accordingly. No costs.

Let a certified copy of this order be furnished to the parties, on payment of prescribed charges, by 03.06.2019.