Malarvizhi Elangovan vs Director Of Estates & Ors
2008 Latest Caselaw 2078 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

              Judgment reserved on: 07.11.2008
%             Judgment delivered on: 25.11.2008


+             (1)    W.P.(C) 19350/2006

       MALARVIZHI ELANGOVAN                           ..... Petitioner
                     Through:          Mr. R.K. Saini with Mr. Nikhil
                                       Bhalla, Advocates.

                     versus


       DIRECTOR OF ESTATES & ORS                 ..... Respondent
                     Through: Mr. Rajesh Mahajan, Advocate for
                               NDMC.
                               Ms. Namrata Toppo for Mr. R. V.
                               Sinha, Advocate for respondents 1
                               and 2.

                            And

              (2)    W.P(C)No.19447/06

       GANGA DEVI                                        ..... Petitioner
                            Through:   Mr. R.K. Saini with Mr. Nikhil
                                       Bhalla, Advocates.

                     versus


       DIRECTOR OF ESTATES & ORS                 ..... Respondent
                     Through: Mr. Rajesh Mahajan, Advocate for
                               NDMC.
                               Ms. Namrata Toppo for Mr. R. V.
                               Sinha, Advocate for respondents 1
                               and 2.


CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers may              Yes
be allowed to see the judgment?

2. To be referred to Reporter or not?                     Yes

W.P(C) Nos.19350/06 & 19447/06                                     Page 1 of 22
 3. Whether the judgment should be reported
in the Digest?


VIPIN SANGHI, J.

1. I am dealing with the aforesaid two petitions by this common

judgment since the facts are more or less identical, except that the

specific dates in the two cases are different. The appeals preferred

by the petitioners in these two petitions under Section 9 of the Public

Premises (Occupation of Unauthorized Occupants) Act ("The Act" for

short) have been dismissed by the Ld. Additional District Judge by a

common order impugned herein. For the present, I am narrating the

relevant facts in W.P.(C) No.19350/06 preferred by Malarvizhi

Elangovan.

2. The Directorate of Estates made an allotment of stall no.4 DIZ

Area, Baba Kharag Singh Marg, New Delhi in favour of one Mohd.

Zaffar on licence basis on 5.8.1998. The said allotment was made

after inviting a tender. The licence was valid for a period of three

years. Clause 16 of the licence deed, being relevant is reproduced

herein below:-

"The allotment of the shop/stall is being made for a limited period of three years. The Government shall, however, sympathetically consider renewal of the licence for a further period of three years with a like term permitting further renewal if the licensee has not been in default of any term of the licence; provided always that the total period of licence together with renewed term shall not in any case exceed 30 years and further that the renewal of the licence, if any, shall be subject to increase in the

licence fee as may be found reasonable by the Government and fulfillment by the licensee of such terms and conditions of the licences as may be prescribed by the Government from time to time."

3. During the currency of the said licence, the original licencee,

Mohd. Zaffar entered into a partnership with the petitioner on

11.05.1999 to jointly carry out business from the licenced premises.

4. The partnership deed aforesaid was dissolved on 20.1.2002

and the assets and liabilities of the said firm were taken over by the

petitioner. The petitioner continued to be in occupation of the stall

and also continued to pay the enhanced license fee to the Directorate

of Estate.

5. In the allotment letter dated 5.8.1998, it was stipulated that

the premises shall not be transferred or sublet to any other person and

in case of default, the allotment would be cancelled straightaway and

premises resumed by the Government besides taking any other action

that the Govt. may be advised. Clause 8 of the licence deed prohibited

the licensee from permitting any other person from using the same

without the previous consent in writing of the government. In default

of the said condition, the licensee was liable for ejectment. The

licensee was also precluded from introducing any partner or from

parting with possession of the premises or otherwise carrying on any

business in the premises with any other person or to assign, transfer,

charge or otherwise alienate his interest in the premises.

6. Even prior to the issuance of the licence in favour of Mohd.

Zaffar, the Directorate of Estates issued an office order on 25.7.1996.

By this order, the Government decided to allow regularization of

shops/stalls etc in the names of partners/occupants who had come

into occupation of the premises on or before 20.01.1989, on certain

terms and conditions.

7. Admittedly the petitioner's case was not covered by the said

office order since the said order applied only in respect of the

shops/stalls and platforms in respect whereof the persons/occupants

had come into occupation on or before 20.10.1989.

8. The Directorate of Estates issued a public notice dated

06.08.2001. By this notice, the Director of Estates invited applications

from occupants of fourteen markets for grant of ownership rights.

Amongst the categories of persons who were eligible for consideration

for grant of ownership rights, occupants who had come in undisputed

occupation after 20.10.1989 and upto 31.08.2000 were also included.

However the petitioner's case was not covered by this notice, since the

market at Baba Kharak Singh Marg was not enlisted as one of the

markets to which this notice applied.

9. Director of Estates issued a show cause notice to Sh. Mohd.

Zaffar on 11.03.2004 alleging breach of conditions of the licence. It

was alleged that he had sublet the stall and he had made unauthorized

construction. He was asked to explain why the allotment be not

cancelled. The petitioner responded to the Show Cause Notice, and

this was followed by an order dated 27.05.2004, cancelling the licence

granted to Mr. Mohd. Zaffar at the expiry of the month of August

2004.

10. The Estate Officer/Directorate of Estates initiated eviction

proceedings under the Public Premises (Eviction of Unauthorised

Occupants), Act 1971 by addressing notices dated 11.03.2004 to "All

persons concerned in particular Sh. Mohd. Zaffar", under Section 4 of

the Act. It was alleged in the notice that Mohd. Zaffar had continued

in occupation of the premises in question even after its allotment stood

cancelled w.e.f. 1.9.2004 vide Department of Estates Order dated

27.05.2004. These proceedings were defended by the petitioner

before the Estate Officer. The said notice culminated in an eviction

order dated 15.12.2005 passed under Section 5(1) of the Act. An

appeal was preferred by Malarvizhi Elangovan, the present petitioner,

before the District Judge under Section 9(1) of the Act bearing PPA

No.18/06.

11. In the case of Ganga Devi (the petitioner in W.P.(C)

No.19447/2006) the relevant facts are that the Directorate of Estates

allotted open stall No.1, DIZ Area, Baba Kharag Singh Marg, New Delhi

to one Sh. Maheshi Dhaundiyal on licence basis on 04.08.1998. A

partnership was entered into between Sh. Maheshi Dhaundiyal and the

petitioner on 12.06.2000 for jointly carrying out the business of motor

vehicle repair/job work and accessories from the stall in question. This

partnership was dissolved on 03.08.2000 and the petitioner took over

all the assets and liabilities of the partnership including all rights, title

and interest in the allotment of the premises in question. It appears

that the allotment in favour of Sh. Maheshi Dhaundiyal was cancelled

w.e.f. 01.09.2004 vide letter dated 27.05.2004 and the Estate Officer

initiated proceedings under Section 4 of the Act against him and all

other person concerned by issuing a notice. The petitioner responded

in response to the show cause notice before the Estate Officer. The

same culminated into the passing of the eviction order dated

15.12.2005 by the Estate Officer. The petitioner Smt. Ganga Devi

preferred an appeal before the District Judge bearing P.P.A.

No.15/2006 under Section 9(1) of the Act.

12. By a common order passed in the aforesaid two appeals, the

learned Additional District Judge has dismissed the appeals on the

ground that the petitioners had failed to show that the allotment of the

premises in question had been regularized in their respective favour.

13. The first submission of Mr. Saini, learned counsel for the

petitioners in both the writ petitions, is that the allotments in question

had been made by inviting tenders. The allotments were made purely

for commercial considerations. The licence was renewable for a period

of upto 30 years with periodic enhancement in the lincence fee. The

primary concern of the respondents was that the licence fee is

regularly paid and the stalls/premises in question are utilized for the

purpose for which the licence was granted, and that the other terms

and conditions of the licence are complied with. It really does not

matter as to who is in occupation of the premises. The respondent,

Directorate of Estates, had even earlier on two different occasions,

recognized the transferees/ occupants and regularized the licence in

their favour. He submits that there is no reason why the petitioners

should not have been treated similarly. The further submission of Mr.

Saini is that during the pendency of the petitioners appeals before the

learned District Judge the Directorate of Estates had transferred the

market in question to the NDMC by issuing a public notice. The

relevant part of the public notice reads as follows: -

"Government of India had decided to transfer the markets under the control of Land & Development Office, Directorate of Estates and Central Public Works Department (except Indira Chowk, Rajiv Chowk and I.N.A. Complex) comprising shops and flats, over the shops (excluding as the general pool flats, over the shops in R.K. Puram Market, Srinivaspuri, Andrews Ganj, Nanakpur and Lancer Road Markets) to the New Delhi Municipal Council and Municipal Corporation of Delhi on "as is where is" basis.

Consequent upon transfer of these markets, NDMC and MCD will function as the Lessor or Licensor, in respect of shops and flats in these markets and shall exercise all powers being performed by Land & Development Office, Directorate of Estates and Central Public Works Department as the case may be as lessor or licensor, in the matter of substitution/mutation of title, Gift Permission, Sale Permission, Mortgage Permission, Conversion of lease hold into freehold, change of use of premises, regularization/restoration of allotment of shops etc.

The transfer of Markets will take effect from 01st April, 2006 and transfer of all records shall be completed by 30th April, 2006.

With effect from 1.4.2006, all applications in respect of these markets may be submitted to the concerned local body. The names and addresses of the nodal officers of the local bodies are give below:

New Delhi Municipal Council Sh. D. Verma, Director (Recovery) NDMC,

10th Floor, Palika Kendra, Sansad Marg, New Delhi - 110001.

(Tel. No.23340638)" (emphasis supplied)

14. He submits that once the market in question had been

transferred to the NDMC, post 01.04.2006 the NDMC was obliged to

follow its own stated policy for allowing mutation in favour of a

partner/sub-lettee, which the NDMC had been applying in respect of

the markets which were already under its control and management.

He submits that the NDMC has a uniform and ongoing policy for this

purpose. The petitioner has placed on record the gist of the said policy

as downloaded from the website of the NDMC. The relevant extract

from the said policy reads as follows:

"TRANSFER OF ALLOTMENT Transfer of allotment is made as per policies/resolutions of NDMC.

Partnership:

Partnership or subletting is allowed after enhancement of licence fee at rates fixed by Council from time to time."

15. Mr. Saini further submits that the treatment meted out to the

petitioners by the NDMC is also partisan, inasmuch as, in respect of

another similar appeal being P.P.A. No.127/2005 preferred by one Mrs.

Poonam Singh, also a sub-lettee in the same market, which was

decided on 13.04.2006 (and the appeals in the case of the petitioners

were decided later on 05.12.2006), the learned ADJ had remanded the

case back for reconsideration by the Estate Officer. However, when

the petitioners appeals were heard the respondent NDMC did not act

fairly by bringing to the notice of the learned ADJ the order passed in

the case Poonam Singh, who was identically situated. It is argued that

in all fairness, the respondents should have themselves pointed out

the order passed in Poonam Singh's case so that their appeals could

also be remanded back before the Estate Officer for reconsideration.

16. I may, at this stage, take note of certain other developments

which have taken place during the pendency of the writ petition. The

writ petitions had earlier come up before the Court on 08.09.2008. It

had then been brought to the notice of the Court that there were

substantial amounts of damages outstanding from the petitioners

which had not been paid by them. Since the interim stay of

dispossession had been granted in both these writ petitions at the

initial stage subject to payment of licence fee/ damages, this Court

vacated the interim stay in both the matters. Both the writ petitioners

preferred Letters Patent Appeals bearing L.P.A. Nos.556/2008 and

558/2008, respectively, against the orders dated 08.09.2008. The

said LPAs were dispossessed off by the by the Division Bench on

15.09.2008. The Division Bench requested this Court to dispose off

the writ petitions within a period of three months from the date of the

said order and granted relief against dispossession subject to their

depositing the amounts due.

17. The matters were thereafter listed before this Court on

01.10.2008 by the Registry. They were listed for hearing on

05.11.2008. On 05.11.2008 they were directed to be listed on

06.11.2008. In the meantime, the petitioner in W.P.(C)

No.19350/2006 filed C.M. No.15102/2008 seeking a direction to the

respondent Nos.1 & 3 to disclose whether the NDMC has approached

the Central Government for granting permission to regularize the

stalls/shops in the market in question, in the name of the

occupants/partners, and if so, to disclose the reply of the Central

Government. The petitioners also sought information with regard to

the actual date of implementation of the said proposed regularization.

Since the said application was moved by the petitioner only on

04.11.2008 i.e. just before the date of hearing, I did not permit an

adjournment of the matter to call for a reply in the said application,

particularly considering the fact that the petitioners had agreed to the

disposal of the writ petitions within three months from the date of

order of the Hon'ble Division Bench. Counsel for the NDMC, Mr.

Mahajan categorically stated that there is no such proposal sent by the

NDMC to the Central Government, as is sought to be made out by the

petitioners in C.M.No. 15102/2008. After the arguments were heard

and judgment reserved on 7.11.2008, the learned counsel for the

petitioner, Mr. Saini mentioned another application on 17.11.2008 with

advance copy to counsel for the respondents, which was permitted to

be listed on 18.11.2008. By moving C.M.No.15669/08 in

W.P(C)No.19350/2006, the petitioners sought to place on record the

information/document received from the respondent NDMC in

response to the queries made under the Right to Information Act.

After hearing the parties, I directed that the documents filed along

with the application would be taken into account. Based on the said

documents, another submission of Mr. Saini, learned counsel for the

petitioners is that a proposal is pending before the Government of

India, recommended by the NDMC to regularize the shops/stalls in the

name of the occupants/partners, in a similar fashion as had been done

in the year 1996 and 2001 by the Directorate of Estates.

18. These petitions are opposed by the learned counsel for the

NDMC.

19. Mr. Mahajan submits that admittedly the petitioner's case is

not covered by the office order dated 25.07.1996 issued by the

Directorate of Estates or by the public notice dated 06.08.2001

aforesaid. Admittedly, the allotment in favour of the erstwhile

licensees had been cancelled in both the cases and proceedings under

the Act had been initiated. There was no defence raised by the

petitoners and the Estate Officer had rightly passed the eviction

orders. Mr. Mahajan submitted that vide a notification dated

24.03.2006 bearing SO-404(E) issued by the Ministry of Urban

Development, the Central Government decided to transfer the markets

under the land and development office, Directorate of Estates and

Central Public Works Department comprising of shops and flats over

the shops to, inter alia, the NDMC on "as is where is" basis. Clause 3

of the said notification provides as follows:

"On transfer of these markets, New Delhi Municipal Council and Municipal Corporation of Delhi will function

as the lessor or Licensor, in respect of shops and flats in these markets and shall exercise all powers being performed by Land & Development Office, Directorate of Estates and Central Public Works Department, as the case may be, as the lessor or licensor. The guidelines and procedure followed by Land & Development Office and Directorate of Estates in the matter of substitution/mutation of title, Gift Permission, Sale Permission, Mortgage Permission, Conversion of lease hold into freehold, change of use of premises, regularization/restoration of allotment of shops etc., change of trade, conferment of ownership rights, recovery of misuse/damages charges etc. may also be followed by the local bodies viz. New Delhi Municipal Council and Municipal Corporation of Delhi."

20. Mr. Mahajan submits that in respect of the markets

transferred to NDMC, which included the premises in question situated

on Baba Kharag Singh Market, the NDMC had decided to continue to

apply the same guidelines as were in application when these markets

were under the control and jurisdiction of the Directorate of Estates

and the set of rules and guidelines, inter alia, for the purpose of

transfer of allotment in favour of the partner / occupant being

followed by NDMC in relation to various other markets under its

management from before had not been made applicable to such

transferred markets. He also argued that the case of Poonam Singh

was materially different from that of the petitioners. He submits that

in the case of Poonam Singh, the remand was directed by the learned

ADJ to the Estate Officer for re-consideration, primarily for two

reasons: the first was that the appellant Poonam Singh had relied

upon the cases of Ved Rajol, occupant of Stall No. 6 and Sh. Nasir

Ahmed, occupant of Stall No. 7. The cases of both these occupants

was covered by the scheme of regularization floated by the Directorate

of Estates on 25.07.1996 as these occupants had come into occupation

of premises on or before 20.01.1989. Mr. Mahajan has produced

photocopies of the partnership deeds executed by the original allottees

in favour of Sh. Ved Rajol and Sh. Nasir Ahmed respectively which are

dated 22.08.1988 and 19.02.1988. Secondly, the learned ADJ in the

case of Poonam Singh had found that the appellant Poonam Singh had

not been given a proper hearing, and that there was a violation of

principle of natural justice in her case. Mr. Mahajan, therefore, argues

that the case of Poonam Singh cannot be relied upon by the petitioners

and there was no discrimination in the approach of the respondents

before the Estate Officer or the learned ADJ against the petitioners.

Mr. Mahajan also relied upon Narmada Bachao Andolan Vs. U.O.I

(2000) 10 SCC 664 to submit that the courts, in exercise of their

jurisdiction, would not transgress in the field of policy decisions as the

courts are ill equipped to adjudicate on a policy decision of the

Government. When two or more options or views are possible, and

after considering them the Government takes a policy decision, it is

then not the function of the Court to go into the matter afresh and, in

a way, sit in appeal over such a policy decision.

21. Mr. R.K. Saini, counsel for the petitioner made his

submissions in the rejoinder. Mr. Saini submitted that the

discriminatory approach of the respondent vis-à-vis Poonam Singh's

case lay in not bringing to the notice of the learned ADJ the fact that

the case of Poonam Singh is not covered by the public notice dated

25.07.1996 issued by the Directorate of Estates. It is argued that the

respondent should have pointed out in the case of Poonam Singh that

the cases of Ved Rajol and Nasir Ahmed are distinct from that of

Poonam Singh, which the respondents deliberately did not do. It is

also argued that the so called policy adopted by the respondent NDMC

to apply a different set of rules and guidelines in relation to markets

transferred to NDMC vide notification dated 24.03.2006 is

discriminatory. Once the transferred markets became a part of the

pool of markets being managed by the NDMC, there was no rationale

in treating the said markets differently and in denying the benefit of

the same liberal policies which the NDMC applies to other markets

owned and managed by it from before.

22. Having considered the rival submissions of the parties I am

inclined to agree with the submissions of the petitioners and to allow

the writ petitions.

23. The premises in question was allotted to the original allottees

against public auction and by charging licnese fee. The license fee

itself was revised from time to time. These allotments were not made

out of any other consideration apart from monetary considerations.

The original license deed itself shows that the intention was to grant a

long term license of up to 30 years. Therefore, unless there was a

serious and un-remedied breach of an essential term of the license,

normally the same would not be terminated. No doubt the license of

the original allottees, in the present cases, were terminated since it

was not open to induct a partner or to transfer or sublet the premises

to a stranger without the prior permission of the Directorate of

Estates. It cannot be argued that the said breach was not a material

breach and that the termination of the licnese as originally done by the

Directorate of Estates was bad in law. However, the matter does not

end there. While the appeals filed by the petitioners under Section 9

were pending before the learned ADJ, Baba Kharag Singh Market stood

transferred to the NDMC. On transfer of the market to NDMC, the

NDMC became entitled to exercise the power being exercised by the

Land & Development Office, Directorate of Estates as licenser. Mr.

Mahajan, to justify the adoption of a different policy in respect of the

transferred markets, from the policy adopted in markets owned and

governed by it from before, has laid great emphasis on Para 3 of the

notification dated 24.03.2006 which states: "The guidelines and

procedure followed by Land & Development Office and Directorate of

Estates in the matter of substitution/mutation of title, Gift Permission,

Sale Permission, Mortgage Permission, Conversion of lease hold into

freehold, change of use of premises, regularization/restoration of

allotment of shops etc., change of trade, conferment of ownership

rights, recovery of misuse/damages charges etc. may also be followed

by the local bodies viz. New Delhi Municipal Council and Municipal

Corporation of Delhi." The submission of Mr. Mahajan is that the

markets were transferred to the NDMC with the express stipulation

that the guidelines and procedures followed by Land & Development

Office and Directorate of Estates, inter alia, in the matter of

substitution / mutation of title would continue to govern the occupants

of the shops / stalls being transferred and, therefore, the NDMC is

justified in not applying its more liberalized norms to such markets.

24. I do not agree with the interpretation given by the

respondents to the notification dated 24.03.2006. By the aforesaid

extract of Para 3 of the notification dated 24.03.2006, in my view, the

Central Government desired that after transfer of the markets to, inter

alia, NDMC, the rights and privilege being enjoyed by the occupants in

relation to, inter alia, mutation/substitution of title should be

preserved so that the occupants are not faced with either more

stringent rules and regulations or a complete ban in that regard.

However, it could not mean that if more liberalized policies and norms

were in vogue in the NDMC in relation to any of the matters including

substitution/mutation of title, the occupants of the transferred markets

would be denied the benefit of such policies and norms. Once the

markets were being transferred, inter alia, to NDMC it was not for the

Land & Development Office or the Directorate of Estates to tell the

transferee NDMC how it should deal with the aspects of, inter alia,

substitution/mutation, except to say that the pre existing rights of the

occupants be not adversely affected. While providing for the

protection of the rights of the allottees/occupants, inter alia, in respect

of substitution/mutation of ownership, all that the Central Government

did was to recognize the vested rights of the allottees/occupants, since

the same could not have been altered to their disadvantage merely on

account of the transfer of ownership and management of the markets

to, inter alia, the NDMC. The NDMC was not, and could not have been

prohibited its own policy with regard to the manner in which it deals

with occupants and allottees inter alia in relation to substitution /

mutation of title. The imposition of such a condition by the Directorate

of Estates while transferring the markets to, inter alia, NDMC would

militate against the concept of the transfer itself, which clearly states

that "on transfer, NDMC.......... will function as the lessor or licensor in

respect of shops an shall exercise all powers being performed

by.............. Directorate of Estates as lessor or licensor". The aforesaid

interpretation of the notification dated 24.03.2006 also finds support

from the stand taken by the Directorate of Estates in their response

dated 08.07.2008 to the communication dated 21.05.2008 sent by the

NDMC. The NDMC sent a communication dated 21.05.2008 to the

Directorate of Estates, Ministry of Urban Development, which stated as

follows:

"Sir,

The representative of market associations of the markets transferred to NDMC by the Dte of Estates are time and again representing for revision of prescribed cut off date i.e. 20-10-89 for transfer of shops in the names of the occupants entered into premises on sub-letting/partnership basis and are running their business.

Their representation have been examined and considered and it has been felt that as the cut off date is quite old now nearly about 20 years thus requires revision as many shops may have changed hands and operating business without paying any enhanced licence fee to the NDMC.

It is, therefore, requested to guide in this matter on priority."

25. In response, the Directorate of Estates, vide their reply dated

8.7.2008, after setting out the policy being followed by it till the time it

was dealing with the market in question, further stated as follows:-

3. Subsequently, a decision was taken by the Cabinet in October 2005 to transfer all markets under control of DOE, CPWD and L&DO to Local Bodies on "as is where is basis." Accordingly, all records was transferred to NDMC/MCD. In this background the representations of the associations of the non-ownership markets were further considered upto the level of Hon'ble Minister of Urban Development and it was decided that since the administration of markets have been transferred to local bodies, decision in this regard may be left upon them.

4. In view of the above facts and having regard to the fact that all powers to administer the markets now rest with NDMC/MCD, the concerned local body i.e. the NDMC may take appropriate action in this particular case at their end."

26. The Directorate of Estates, therefore, did not even remotely

suggest that its policies, which were being implemented till the market

in question was under its control and regulation, should be continued

to be applied by the NDMC. The decision has been left to NDMC to

take since the market stands transferred to it. In all fairness, the

respondent NDMC should have itself placed the aforesaid documents

on record. At least when the petitioner made a categorical statement

that the NDMC has itself favourably recommended the

substitution/mutation in favour of the occupants, the NDMC should not

have denied the same. Instances like this erode the confidence that

the Court reposes in favour of public bodies in relation to their

statements on the assumption that they would act fairly as no one has

a personal interest in the matter.

27. Since the refusal of the NDMC to substitute/mutate the

stalls/shops in question stems from its wrong interpretation and

understanding of the meaning of para 3 of the notification dated

24.3.2006, the same cannot be sustained. Having itself recommended

the grant of permission to substitute/mutate the shops/stalls in favour

of the occupants, so as to be able to recover the enhanced licence fee,

the respondent NDMC has not been able to show any good reason not

to go by its own recommendation despite the Directorate of Estates

giving it a "go ahead" to do as it considers proper.

28. No doubt, the court would not interfere with a policy decision

of the Government merely because the policy adopts one of the many

possible views. However, that does not mean that if the policy

adopted by the NDMC is discriminatory the Court has to remain a mute

spectator. If the policy itself is discriminatory and arbitrary, the Court

will certainly step in to remove the discrimination and arbitrariness in

the policy decision. Even in Narmada Bachao Andolan Vs. U.O.I

(supra) the Court held that "the Court, no doubt, has a duty to see

that in the undertaking of a decision, no law is violated and people's

fundamental rights are not transgressed upon except to the extent

permissible under the constitution".

29. Once the transferred markets have got merged in the pool of

markets being managed by the NDMC from before, it does not stand to

reason that the NDMC should adopt a different yardstick in respect of

such transferred market and give the occupants / allottees of such

markets step motherly treatment. Merely because market in question

i.e. Baba Kharag Singh Market has fallen into the lap of NDMC by

virtue of the notification dated 24.03.2006, it does not mean that the

policy with regard to substitution/mutation of ownership for that

market can be different from the one adopted by NDMC for all other

markets managed by it. The purpose of granting permission to the

occupant to seek substitution/mutation of the shop/stall in his favour

is to be able to recover the enhanced license fee. As aforesaid, the

shops/stalls in question were given only for monetary considerations.

The classification of the transferred markets, like the Baba Kharag

Singh Market differently from the markets managed by the NDMC from

before does not bear a reasonable nexus with the object sought to be

achieved, i.e. to recover the enhanced license fee. On the contrary,

the said object would stand defeated as stated by NDMC itself in its

letter dated 21.05.2008 aforesaid. The classification is therefore

arbitrary and discriminatory and is quashed. The policy of NDMC to

recognize substitution / mutation of title in favour of partner /

sublettee also does not appear to be restricted to only such cases

where the original allotment has not been cancelled.

30. An appeal is a continuation of the original proceeding. The

NDMC became the licensor and manager of the market in question

during the pendency of the appeals of the petitioners before the

learned ADJ. It, therefore, cannot be said that the eviction

proceedings had attained finality by the time NDMC assumed charge of

the market in question. As soon as the NDMC became the owner and

manager of the said market, the occupants who were still in

occupation of the premises in question became entitled to seek relief

in terms of the stated policy of the NDMC for substitution / mutation in

their respective favour. The respondent NDMC could not have ignored

such a request. It was the positive case of the petitioners both before

learned Estate Officer and the learned ADJ, that they were entitled to

regularization of allotment in view of Government's policy and that

they had represented in this regard. From the impugned order, it

appears that the representation of the petitioners and 10 others were

rejected. From the communication dated 31.10.2005 of Sh. Gulam

Nabi Azad extracted in the order of the learned ADJ, it is seen that at

the time of rejecting the representation of the petitioners seeking

regularization of the allotment in their favour, the issue was not

viewed in the light of the fact that the markets stood transferred to

NDMC vide notification dated 24.03.2006. In fact the said decision

rejecting the representation is of 31.10.2005, that, is even prior to the

issuance of the said notification of March, 2006.

31. For the aforesaid reasons, I am of the view that the NDMC is

bound to consider the representation of the petitioners for substitution

/ mutation of the allotment in favour of the petitioners by application

of its policy for transfer of allotments in such like cases and cannot

treat the petitioners differently only on the ground that their stalls are

situated in a market which had been transferred to in March 2006, and

is not in a market which NDMC had been managing from before.

32. I accordingly quash the impugned orders passed by the

learned ADJ in the two cases and direct the NDMC to process the case

of the two petitioners for transfer of allotments in their respective

favour in accordance with its policies. However, in case the petitioners

do not comply with the terms and conditions that may be laid down by

the NDMC in terms of its policy for transfer of allotment, the

petitioners shall be liable to be evicted from their respective stalls

occupied by them. The petition stands disposed of leaving the parties

to bear their respective costs.

(VIPIN SANGHI) JUDGE

NOVEMBER 25, 2008 as/rsk/dp