P.S. Gupta vs N.D.M.C.
1996 Latest Caselaw 643 Del

JUDGMENT

M.S.A. Siddiqui, J.

(1) The petitioner challenges the validity of the notice of re-entry upon cancellation of licence w.e.f. 28.4.1985, issued by the Estate Department, dated 22.1.1996 purporting to be on behalf of the respondent No. 1. The said notice required petitioner to vacate the Stall No. 12-A, Janpath within ten days from the date of its receipt and to pay damages at the market rate w.e.f. 28.4.1985. He also challenges the validity of an earlier notice dated 22.12.1995 issued by the Estate Department to the petitioner to show cause why his licence should not be cancelled w.e.f. 28.4.1985.

(2) It is undisputed that there was a space 6' x 4' in area in between Stall No. 12 and 13 at Janpath known as Piao area (hereinafter called the PIAO'). In 1977, the Piao was allotted to the petitioner in lieu of his earlier allotment of space No. 83 at R.K. Ashram Marg, New Delhi (Annexure A). This allotment was confirmed vide letter dated 23.2.1979 (Annexure B) on payment of monthly licence fee Rs. 15.00 per sq. ft. by the petitioner. On 2.2.1984, the respondent No. 1 addressed a letter to the petitioner containing a proposal to construct 3 mini stalls at the site allotted to the petitioner. It required petitioner to hand over the allotted site to the respondent for construction of 3 mini stalls out of which one stall of about 140 sq. ft. in area was assured to be allotted to him. The petitioner vacated the site for the proposed construction. Thereafter, three stalls namely stall Nos. 12.A, 12.B and 12.C were constructed by the respondent. Area of stall No. 12.B was increased from 140 sq. ft. to 279 sq. ft. and correspondingly area of the stall No. 12.A allotted to the petitioner and the area of the third stall bearing No. 12.C was reduced to 68 sq. ft. each. Stall No. 12.B was allotted to the All India Rural Women Upliftment Association (for short the 'AIRWUA'). On the petitioner's complaint against the allotment of the Stall No. 12.B, the Lt. Governor directed the respondent to submit all relevant papers regarding allotment of the said Stall. The petitioner also took up the matter with the Cbi as a result whereof a criminal case under Sections 120-B/ 420/468/471, Indian Penal Code and Section 13(1 )(d) read with Section 13(2) of the Prevention of Corruption Act was registered against Sh.Baleshwar Rai, Administrator N.D.M.C. Shri Sanjay Saxena, Director of Estate, Sh. L.R. Bakhri, Assistant Director (Estate), Smt. Prem Devi and Smt. Sarojini Devi. When the matter was placed before the Lt. Governor, he observed that the allotment of Piao to the petitioner was a "colour able transaction". Thereafter, on 22. 12.1995, the respondent issued the impugned notice (Annexure H) calling upon the petitioner to show cause as to why his licence be not cancelled w.e.f. 28.4.1985. The petitioner submitted his representation against the show cause notice (Annexure 1). Rejecting the petitioner's representation, the respondent terminated the petitioner's licence w.e.f. 28.4.1985 and directed him to vacate the Stall No. 12.A within 10 days from the receipt of the communication (Annexure J). The petitioner is in possession of the said stall.

(3) Briefly stated the petitioner's case is that the Piao was meant to be used as a stall/shop and was in fact allotted to the petitioner for running the trade in readymade garments. After construction of the mini stalls, the Stall No. 12-A was allotted to the petitioner. According to the petitioner, Airwua, a bogus organisation of Smt. Prem Devi and Smt. Sarojini Devi, in collusion with some senior officials of the N.D.M.C., got the stall No. 12.B allotted in its favour. The area of stall No. 12.B was arbitrarily increased from 140 sq. ft. to 279 sq. ft. and correspondingly the area of the petitioner's stall No. 12.A and the area of stall No. 12.C was reduced to68sq. ft. and the petitioner was coerced to accept the allotment of 68 sq. ft. stall, which was less than half of the area which had been assured for allotment. The petitioner, however, continued to represent to the respondent from time to time, highlighting the hardship and illegality, with regard to reduction of his stall area, and also against the illegal allotment of stall No. 12.B to AIRWUA. On 14.12.1992, the allotment of stall No. 12.B in favour of Airwua was cancelled by the then Administrator Sh. Ramesh Chandra, on the basis of various complaints made in this regard. Later on, the present Administrator Sh. Baleshwar Rai ignoring the consistent reports of the Crime Branch, Anti-corruption Branch and the Vigilance Deptt. against the said allotment, illegally reversed the orders of his predecessor Shri Ramesh Chandra. Thereupon, the petitioner made a complaint to the Lt. Governor against the senior officials of the N.D.M.C. Senior officials of the Ndmc placed distorted version before the Lt. Governor and misled him in making an observation against the petitioner's allotment. The petitioner also approached the Cbi in this regard in consequence of which a criminal case under Sections 120B/420,468,471, Indian Penal Code read with Sections 13(l)(d)/13(2) of the Prevention of Corruption Act was registered against Shri Baleshwar Rai, Administrator, N.D.M.C., Shri Sanjay Saxena, Director of Estate, Shri L.R. Bhakari, Assistant Director (Estate), Smt. Prem Devi and Smt. Sarojini Devi. Incensed by this. Administrator Sh. Baleshwar Rai instigated the officers of the Ndmc to initiate proceedings against the petitioner for cancellation of the licence as a result where of the impugned show cause notice (Annexure H) was issued to the petitioner for cancellation of the petitioner's licence on non-existent ground. According to the petitioner,his licence was renewed upto 28.4.1992 on year to year basis and there after the same stood renewed for 5 years as mentioned in the memo dated 9.11.1992 (Annexure G). He had also paid licence fee upto January, 1996 but the respondent illegally cancelled his licence with effect from 28.4.1985. It is alleged that the proposed action of the re-entry by the respondent at the instance of the Administrator Shri Baleshwar Rai is meant to be an act of personal vendetta. The impugned notices have been issued with an evil eye and unequal hand and with a malafide design to evict the petitioner from the stall No. 12.A.

(4) It is stated in the counter affidavit filed on behalf of the respondent that the petitioner was interested in acquiring a portion of the Stall No. 12.B and for that he adopted various dubious methods including political influence. He had also struck a deal with the Airwua way back in 1991 for transferring him a portion of the Stall No. 12.B and when the deal did not materialise, he attempted to pressurise the respondent by political intervention but in vain. According to the respondents, the petitioner, with a view to creating a ground for artificial malice against the respondent No. 1, addressed a complaint against the officials of the respondents to the Cbi with regard to the allotment of Stall No. 12.B in favour of the AIRWUA. It is further alleged that the petitioner's licence came to an end in April, 1985. Consequently, the petitioner became an unauthorised occupant of the said Stall No. 12.A since 1985. Even after receipt of the notice dated 9.11.1992 (Annexure G), the petitioner did not apply for renewal of licence and as such he became an unauthorised occupation the said Stall w.e.f. 28.4.1992. The petitioner with a view to evading the penal consequences for non-conforming with the terms contained in the notice dated 9.11.1992 had taken a false plea in his reply to show cause notice dated 22.12.1995 that on receipt of the said letter, he allegedly approached the Director of Estate for renewal of licence who advised him that it was not necessary to do so for reasons mentioned in the said reply. It is also alleged that the payment of licence fee by the petitioner after expiry of licence subsequent to revocation of licence can by no stretch of imagination be construed as acquiscence on the part of the respondent as the petitioner has been in unauthorised occupation of the Stall No. 12.A since April, 1985. Lastly, it is alleged that the respondent had initiated proceedings for the petitioner's eviction from the Stall No. 12.B before the Estate Officer who is the Competent Authority to adjudicate the legality of the cancellation order.

(5) Under these pleadings, the point for determination that arises is whether the impugned notices suffer from arbitrariness and non-application of mind. The facts in the present case are eloquent. It is undisputed that in 1977, the Piao was allotted to the petitioner in lieu of earlier allotment of space No. 83 at R.K. Ashram Marg, New Delhi, that on 2.2.1984, the respondent No. 1 addressed a letter to the petitioner containing a proposal to construct 3 mini stalls at the site allotted to the petitioner and that it required the petitioner to hand over the allotted site to the respondent No. 1 for construction of the said stalls out of which one stall of about 140 sq. ft. in area was assured to be allotted to the petitioner, (Annexure C). The petitioner vacated the site for the proposed construction and after construction stall No. 12.A was allotted to the petitioner. It is also undisputed that one of the stalls namely, stall No. 12.Bwasallotted to the Airwua and the area of the said stall was increased from 140 sq. ft. to 279 sq.ft. and correspondingly the area of the remaining two stalls i.e. stall Nos. 12-A and 12.C was reduced to 68 sq. ft. each. It appears that the petitioner had certain grievances against allotment of the stall No. 12. B in favour of the Airwua, he therefore, made a complaint to the Lt. Governor. In addition to this, the petitioner also took up the matter with the Cbi as a result where of a criminal case under Sections 120-B/420/468/471, Indian Penal Code and Section 13(l)(d) read with Section 13(2) of the Prevention of Corruption Act was registered against the Administrator Shri Baleshwar Rai, Shri Sanjay Saxena, Director ofEstate,Shri L.R. Bhakhri Assistant Director of Estate, Smt. Prem Devi and Smt. Sarojini Devi. However, when the petitioner's complaint came up for consideration before the Lt. Governor, he made the following observations on 2.2.1985 : "SHRIR.B. Maurya, Director (Estates), Ndmc has given me details of the case. The Ndmc story is that Shri P.S. Gupta was allottee of a Piao in between Stall Nos. 12-13 Janpath, and in 1984 he was required to hand over possession of the Piao for construction of 3 mini stalls; he was told that he would be allotted one of the new stalls on Tahbazari and that-the carpet area of the new stall was likely to be 140 sq. ft. The casualness with which this "assurance" was given to Shri P.S. Gupta is most unfortunate. The conversion of a Piao into a garment shop or any other kind of shop is not normally done and I would call it a colour able transaction. However, it is clear that Shri P.S. Gupta could claim only area for area which he has been given and the separate transaction with the Women's Association has nothing to do with it. Ndmc should give this firm and final reply to Shri P.S. Gupta and proceed with action against the Women's Association in the normal manner. That action also need not wait for completion of the Cbi inquiry. (P.K. DEVE) Lt. Governor, Delhi".

(6) It is significant that on 9.11.1992, the respondent No. 1 had issued following notice for renewal of the petitioner's licence. Notice for Renewal of Licence Whereas Stall No. 12.A situated at Municipal Market, Janpath, New Delhi is owned and possessed by the New Delhi Municipal Committee (hereinafter called the Committee) and was licenced to you tor a period of one year commencing from 28.4.1984 for carrying on the trade of readymade garments. As per policy of the Committee the licence in respect of the said premises was being renewed on year to year basis without execution of fresh licence deed and without enhancement of licence fee. The Committee vide its Reso. No. 49 dated 12.9.1991 decided that the licence fee of such premises be enhanced by 200% with effect from the next date of renewal after 12.9.1991 for a period of five years. The term of licence granted in your favour will expire on 28.4.1992 and as such in case you are interested to have the licence renewed for use and occupation of the Public Premises for another period of 5 years you are hereby advised to give your consent for renewal of licence within 10 days of receipt of this letter. The licence of the stall is enhanced at Rs. 3060.00 o.m. W.C./. 28.4.1992. In case no consent for renewal of licence is received within the specified period, it will be presumed that you are not interested in the renewal of licence and your occupation of the premises w.e.f. 28.4.1992 is unauthorised and as such liable to hand over the vacant possession of the above mentioned premises to the Executive Engineer (North) Civil Engg. Deptt., Ndmc under intimation to Estate Deptt. It may also be noted that occupation of the Public Premises after the term expiry is unauthorised for which you are liable to pay damages at the rate of Rs. 3,978.00 p.m. (i.e. Rs. 3,060.00 + its 30%) besides interest calculated at the rate of 15% p.a. on each defaulted payment till the accounts are finally squared up besides disconnection of the electricity supply on account of unauthorised use of the premises and the action for your eviction from the premises and recovery of damages shall also be taken as per provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Assistant Director (Estate)

(7) The aforesaid notice clearly shows that the Stall-No. 12.A was licenced to the petitioner for a period of one year commencing from 28.4.1984 for carrying on the trade of readymade garment? and as per policy of the Committee the licence in respect of the said premises was to be renewed on year to year basis without execution of fresh lease deed. It required the petitioner to give his consent for renewal of licence for another period of 5 years as his licence was expiring on 28.4.1992. Learned Counsel for the respondent No. 1, relying on Clause 4 of the notice, strenuously urged that since the petitioner did not give his consent for renewal of licence, he became an unauthorised occupant of the premises in question w.e.f. 28.4.1992. Admittedly, the respondent did not take any action against the petitioner on the basis of the said notice. On the contrary, the respondent No. 1 accepted payment of the enhanced licence fee from the petitioner in respect of the premises in question. The conduct of the respondent No. 1 in accepting payment of enhanced licence fee and not taking any action against the petitioner under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act after expiry of the period specified in the said notice warrants an inference that it voluntarily or intentionally abandoned the threatened action and acquiesced in his continuance as a licenced occupant of the premises in question. It is only after registration of the Fir dated 20.9.1995 against the Administrator and other senior officials of the respondent No. 1, the notice dated 22.12.1995 (Annexure J) was issued to the petitioner calling upon him to show cause as to why his licence be not cancelled w.e.f. 28.4.1985 and further, why action under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 be not taken against him for his unauthorised use and occupation of the premises in question. The petitioner submitted his representation (Annexure 1) against the said show cause notice. Rejecting the petitioner's representation, the Estate Department of the respondent No. I served upon the petitioner the notice of re-entry (Annexure J) intimating him that his licence had been cancelled w.e.f. 28.4.1985 and as such he was liable for eviction and payment of damages at the market rate w.e.f. 28.4.1985. Learned Counsel for the petitioner contends that the sequence of events set in motion immediately after registration of the Fir against the Administrator and other senior officials of the Estate Department clearly demonstrates the extent to which and the keenness with which the Administrator persued the matter and activated the taking of steps culminating in the issue of the impugned notices. He accordingly contends that the impugned notices were issued in bad faith and actuated by improper motives and then the impugned action of the respondent No. 1 was wholly mala fide.

(8) It appears that while issuing the impugned notices, the Estate Department of respondent No. 1 deliberately, ignored its earlier notice dated 9.11.1992 (Annexure G), which specifically mentions the date of expiry of the petitioner's licence as 28.4.1992. In this view of the matter, cancellation of the petitioner's licence with retrospective effect, in the absence of any justifiable ground, establishes arbitrariness of the impugned action of the respondent No. 1. Such cancellation makes a mockery of the governmental action. According to Professor de Smith "a power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise". (Judicial Review of Administrative Action, 4th Edition by Professor de Smith at Pp 335-36). In Dr. Ram Manohar Lohia v. State of Bihar, , it was laid down that the Court had always acted to restrain a misuse of statutory power and more readily when improper motive underlie it. In the instant case, admittedly, the petitioner had submitted a complaint to the Lt. Governor highlighting certain irregularities committed by the officials of the Estate Department in alloting the Stall No. 12.A to the AIRWUA. I refrain from expressing any opinion on that aspect but it is quite evident that the petitioner had complained to the Lt. Governor against senior officials of the Estate Department. It is also admitted that the petitioner had also approached the Cbi in this regard as a result whereof a criminal case was registered against the Administrator and other senior officials of the Estate Department. It appears that after registration of the Fir dated 20.9.1995 against the Administrator and senior officials of the Estate Deptt. the official machinery was geared into action for cancellation of the petitioner's licence with retrospective effect. In the conspectus of the circumstances of this case, the allegations of the petitioner that the impugned notices were issued in bad faith and actuated by improper motives appear to be reasonably probable.

(9) Lastly, it is contended by the learned Counsel of the respondent that the petitioner had constructed a wooden loft in the Stall in question with out the express consent of the Competent Authority and thereby committed a breach of Clause Condition No 9 of the licence deed which entitled the respondent to issue the notice dated 22.12.1995 of re-entry upon forfeiture of licence and to re-enter upon and take possession of the premises in question. Admittedly, the petitioner had constructed a wooden loft in the said stall, but it is worth highlighting that the respondent has not produced the licence deed to substantiate its allegation that the said construction or addition constituted a breach of any of the terms contained in the licence deed entitling the respondent to re-enter upon and take possession of the said stall. In this view of the matter it can't be held that the said construction constituted a breach of Clause Condition No. 9 of the licence deed entitling the respondent to cancel the licence deed and take possession of the Stall in question.

(10) The Apex Court has laid down in S. Pratap Singh v. State of Punjab, Air 1964 Sc 733, that the powers of the High Court under Article 226 of the Constitution is designed to ensure that each and every authority in the State, including the Government; acts bonafide and within the limits of its powers and that when the Court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is incumbent on the Court to afford justice to the individual.

(11) In the facts and circumstances, I am constrained to hold that the impugned notices dated 9.11.1992 and 22.12.1995 suffer from arbitrariness and nonapplication of mind and as such they are liable to be quashed.

(12) The result, therefore, is that the petition under Article 226 of the Constitution must succeed and is allowed. The impugned notices dated 22.12.1995 and 22.1.1996 are quashed and it is directed that the respondents No. 1 and 2 shall forbear from giving effect to the impugned notices in the manner threatened or in any other manner whatsoever. No order as to costs.