Delhi High Court
Salahuddin Qureshi vs Ndmc on 18 September, 2008
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on : 02.09.2008
+ Judgment delivered on: 18.09.2008
% (1) W.P. (C) No. 9664/2007
Salahuddin Qureshi ...Petitioner
Through: Mr. Vishwa Lochan Madan,
Advocate
versus
NDMC ...Respondent
Through: Ms. Madhu Tewatia, Ms. Kanika
Agnihotri and Ms. Sidhi Arora,
Advocates.
(2) W.P. (C) No. 9680/2007
Farid Qureshi ...Petitioner
Through: Mr. Vishwa Lochan Madan,
Advocate
versus
NDMC ...Respondent
Through: Ms. Madhu Tewatia, Ms. Kanika
Agnihotri and Ms. Sidhi Arora,
Advocates.
(3) W.P. (C) No. 9681/2007
Kunta Devi ...Petitioner
Through: Mr. Vishwa Lochan Madan,
Advocate
versus
NDMC ...Respondent
Through: Ms. Madhu Tewatia, Ms. Kanika
Agnihotri and Ms. Sidhi Arora,
Advocates.
W.P.(C) No.9664/2007 Page 1 of 28
(4) W.P. (C) No. 9683/2007
Shahbuddin Qureshi ...Petitioner
Through: Mr. Vishwa Lochan Madan,
Advocate
versus
NDMC ...Respondent
Through: Ms. Madhu Tewatia, Ms. Kanika
Agnihotri and Ms. Sidhi Arora,
Advocates.
(5) W.P. (C) No. 9684/2007
Anupam Dhir ...Petitioner
Through: Mr. Vishwa Lochan Madan,
Advocate
versus
NDMC ...Respondent
Through: Ms. Madhu Tewatia, Ms. Kanika
Agnihotri and Ms. Sidhi Arora,
Advocates.
(6) W.P. (C) No. 4664/2008
Deputy Warden of Fisheries,
Gujarat fishereies Central Co-op Association Ltd ...Petitioner
Through: Mr. Vishwa Lochan Madan,
Advocate
versus
NDMC ...Respondent
Through: Ms. Madhu Tewatia, Ms. Kanika
Agnihotri and Ms. Sidhi Arora,
Advocates.
(7) W.P. (C) No. 6217/2008
Mrs. F.C.Batra ...Petitioner
W.P.(C) No.9664/2007 Page 2 of 28
Through: Mr. Vishwa Lochan Madan,
Advocate
versus
NDMC ...Respondent
Through: Ms. Madhu Tewatia, Ms. Kanika
Agnihotri and Ms. Sidhi Arora,
Advocates.
(8) W.P. (C) No. 2830/2008
Sunil Kumar ...Petitioner
Through: Mr. Vishwa Lochan Madan,
Advocate
versus
NDMC ...Respondent
Through: Ms. Madhu Tewatia, Ms. Kanika
Agnihotri and Ms. Sidhi Arora,
Advocates.
(9) W.P. (C) No2831/2008
Vishwa Lochan Madan ...Petitioner
Through: In person
versus
NDMC ...Respondent
Through: Ms. Madhu Tewatia, Ms. Kanika
Agnihotri and Ms. Sidhi Arora,
Advocates.
(10) W.P. (C) No. 2832/2008
Fariduddin Qureshi ...Petitioner
Through: Mr. Vishwa Lochan Madan,
Advocate
versus
NDMC ...Respondent
W.P.(C) No.9664/2007 Page 3 of 28
Through: Ms. Madhu Tewatia, Ms. Kanika
Agnihotri and Ms. Sidhi Arora,
Advocates.
(11) W.P. (C) No. 2833/2008
M/s. G.K & Company ...Petitioner
Through: Mr. Vishwa Lochan Madan,
Advocate
versus
NDMC ...Respondent
Through: Ms. Madhu Tewatia, Ms. Kanika
Agnihotri and Ms. Sidhi Arora,
Advocates.
(12) W.P. (C) No. 2835/2008
Smt. Kanchan Rajpal ...Petitioner
Through: Mr. Vishwa Lochan Madan,
Advocate
versus
NDMC ...Respondent
Through: Ms. Madhu Tewatia, Ms. Kanika
Agnihotri and Ms. Sidhi Arora,
Advocates.
(13) W.P. (C) No.2836/2008
Gopal Krishan Dhir ...Petitioner
Through: Mr. Vishwa Lochan Madan,
Advocate
versus
NDMC ...Respondent
Through: Ms. Madhu Tewatia, Ms. Kanika
Agnihotri and Ms. Sidhi Arora,
Advocates.
W.P.(C) No.9664/2007 Page 4 of 28
(14) W.P. (C) No.3727/2008
Raj Kumar ...Petitioner
Through: Mr. Vishwa Lochan Madan,
Advocate
versus
NDMC ...Respondent
Through: Ms. Madhu Tewatia, Ms. Kanika
Agnihotri and Ms. Sidhi Arora,
Advocates.
(15) W.P. (C) No. 3729/2008
Rajan Bhatia ...Petitioner
Through: Mr. Vishwa Lochan Madan,
Advocate
versus
NDMC ...Respondent
Through: Ms. Madhu Tewatia, Ms. Kanika
Agnihotri and Ms. Sidhi Arora,
Advocates.
(16) W.P. (C) No. 3914/2008
Inderjeet Singh Chadha ...Petitioner
Through: Mr. Vishwa Lochan Madan,
Advocate
versus
NDMC ...Respondent
Through: Ms. Madhu Tewatia, Ms. Kanika
Agnihotri and Ms. Sidhi Arora,
Advocates.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
W.P.(C) No.9664/2007 Page 5 of 28
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
VIPIN SANGHI, J.
1. In this batch of writ petitions under Article 226 of the
Constitution of India, a short and interesting question of law has been
raised by the petitioners. The contention of the petitioners is that the
Public Premises (Eviction of Unauthorised Occupants) Act 1971 (P.P
Act) does not apply to the premises belonging to the New Delhi
Municipal Council (the Municipal Council), as such premises do not fall
within the definition of "public premises" contained in Section 2 (e) of
the P.P Act. It is urged that, consequently, the Estate Officer of the
respondent Municipal Council has no jurisdiction to proceed to either
evict the petitioners, who are occupying premises belonging to the
Municipal Council, or to levy damages upon them by resort to the P.P.
Act.
2. The petitioners have filed these petitions on account of
issuance of orders of cancellation of the respective allotments made to
them in Gole Market. In these cancellation orders the respondent
Municipal Council has threatened the petitioners with action under
Section 5 & 7 of the P.P Act. By orders passed in these petitions, the
proceedings before the Estate Officer in each of these cases have been
permitted to go on. However, the Estate Officer has been restrained
from passing final orders. It is submitted by the learned counsel for
the petitioners that the petitioners have raised various other issues to
impugn the cancellation of allotment. However, in case this Court
comes to the conclusion that the P.P Act is applicable in respect of the
premises belonging to the Municipal Council, and, therefore, the Estate
Officer has jurisdiction, all other contentions could be raised by the
petitioners before the Estate Officer. Consequently, the parties have
neither addressed any other arguments in relation to the impugned
cancellation orders, nor are being presently considered in this
judgment.
3. Before articulating the submission of the petitioners in
support of the aforesaid contention, it is necessary to take limited note
of the transition of the relevant law. Earlier it was the Punjab Municipal
Act 1911, which was made applicable to New Delhi. The New Delhi
area was being administered by the New Delhi Municipal Committee
(the NDMC) under the Punjab Municipal Act 1911. Chapter IX A was
introduced into the Constitution of India by the Constitution (74th
Amendment) Act, 1992 w.e.f. 01.06.1993. This chapter deals with
municipalities. The provisions of Constitution (Seventy-fourth
Amendment) Act 1992 were brought into force with effect from 1 st
June, 1993 and the laws governing municipalities all over the country
had to be harmonized in consonance with the provisions of Part IXA of
the Constitution by 31st May, 1994. Consequently, an Ordinance was
promulgated on 25th May, 1994 incorporating the Municipal Council.
Due to increase in population and more areas falling in its jurisdiction,
the Parliament considered it necessary to form the Municipal Council
for New Delhi. The Parliament passed the New Delhi Municipal Council
Bill and the same received the assent of the President on 14.07.1994.
It came into force as the New Delhi Municipal Council Act 1994 (44 of
1994). In the aforesaid background the said Act 44 of 1994 was
deemed to have come into force on 25.05.1994 by virtue of Section 1
(3) thereof. Consequently, from 25.05.1994 it is the Municipal Council
and not the NDMC which has been in existence. The NDMC ceased to
exist upon the constitution of Municipal Council w.e.f. 25.05.1994, by
virtue of Section 416 of Act 44 of 1994. By that provision the Punjab
Municipal Act 1911, as applicable to New Delhi ceased to have effect
within New Delhi.
4. Soon after the enactment of Act 44 of 1994, the Parliament
amended the P.P Act. Amongst the various amendments, one of the
amendment was in relation to Section 2(e)(3) wherein the words
"National Capital Territory of Delhi" were substituted for the words
"Union Territory of Delhi" w.e.f. 01.06.1994. Clause (iii) was added to
Section 2(e)(3) whereby any premises belonging to, or taken on lease
or requisitioned by, or on behalf of any State Government or the
Government of any Union Territory was included within the ambit of
"public premises" in the NCT of Delhi. The definition of the term
"public premises" contained in the P.P Act, in relation to the National
Capital Territory of Delhi after the aforesaid amendment reads as
follows:
"2. Definitions - In this Act, unless the context
otherwise requires-
(a) ...................................
(b) ...................................
(c) ...................................
(d) ...................................
(e) "public premises" means--
(1) ...................................
(2) ...................................
(3) in relation to the [National Capital Territory
of Delhi], -
(i) any premises belonging to the Municipal
Corporation of Delhi, or any Municipal
Committee or notified area committee,
(ii) any premises belonging to the Delhi
Development Authority, whether such
premises are in the possession of, or
leased out by, the said Authority;] [and]
(iii) any premises belonging to, or taken on
lease or requisitioned by, or an behalf of
any State Government or any Union
Territory."
5. The definition of the expression "Public Premises" is relevant,
since it is only in respect of "Public Premises" that the Estate Officer
has the jurisdiction to issue a notice to show cause against eviction
under Section 4; to pass an eviction order under Section 5; or, impose
damages against the unauthorized occupants under Section 7 of the
P.P. Act.
6. The submission of learned counsel for the petitioner Mr. V.C.
Madan is that even though the P.P Act was amended on 01.06.1994,
that is after the formation of the Municipal Council and cessation of the
NDMC, the Parliament continued to use the expression "Municipal
Committee" and did not use or include the expression "Municipal
Council" in Clause (i) of Section 2(e)(3) of the P.P Act. Since the NDMC
had ceased to exist, and the Municipal Council had taken over from the
NDMC, the omission to include the expression "Municipal Council" in
addition to, or in substitution of "Municipal Committee" in Section
2(e)(3)(i) at the time of amendment of the P.P Act on 01.06.1994
results in ousting the premises belonging to the Municipal Council from
within the definition of "Public Premises" under the P.P Act. Merely
because the premises belonging the NDMC fell within the definition of
"public premises" prior to the date of enforcement of Act 44 of 1994, it
is argued that it does not follow that the premises belonging to the
Municipal Council would get covered by the said definition as its
successor organization. Learned counsel submits that even if the
omission to include the premises belonging to "Municipal Council"
within the definition of "public premises" is a case of casus omissus on
the part of the legislature, the Court cannot, by resort to a process of
interpretation supply the omission. He submits that it is the duty of
the Court to interpret the laws on the assumption that the Legislature
did not make a mistake and that it did what it intended to do. The
Court should adopt a construction which will carry out the obvious
intention of the Legislature. If there is a defect or omission in the
words used by the Legislature, the Court would not go to its aid to
correct or make up the deficiency. The Court would not add words to a
Statute or read words into it which are not there, especially when the
literal meaning produces a intelligible result. The Court cannot aid the
Legislature's defective phrasing of Act or add or amend, and by
construction, make up deficiencies which are there. For this
proposition he relies on the Supreme Court decisions in AIR 2001 SC
2699 Dadi Jagannadham v. Jammulu Ramulu & Ors. and AIR 1992
SC 96 Union of India v. Devki Nandan Aggarwal. Counsel for the
petitioner submits that the use of the expression "means" while
defining the expression "public premises" shows that the definition is
exhaustive of what the said expression means, and nothing more can
be added to it. He also submits that if there is any ambiguity in a
statute which contains provisions which are penal in nature, or which
subject the citizens of taxation, the same should be construed strictly
against the State and in favour of the citizens. The purpose of the P.P.
Act is to deprive the citizens of their right to contest eviction or levy of
damages under the general civil law by subjecting them to a summary
procedure. Therefore, the provisions of the P.P. Act should be strictly
construed against the State and in favour of the subjects.
7. In response, learned counsel for the respondent Municipal
Council, Ms. Madhu Tewatia, submits that the P.P Act does not contain
a definition of the expression "Municipal Committee". The expression
"Municipal Committee" is, therefore, to be understood as it is used in
the common parlance. For this proposition she relies on S. Samuel,
M.D.Harrisons Malayalam & Anr. V. UOI & Others (2004) 1 SCC
256, which refers to principles of Statutory Interpretations by Justice
G.P.Singh 8th Edition page 279. She advocates the use of a contextual
interpretation of the expression "any municipal committee or notified
area committee" as used in clause (i) of Section 2(e)(3) of the P.P Act
and relies on Reserve Bank of India V. Peerless General Finance
and Investment Co.Ltd & Ors. (1987) 1 SCC 424 for that purpose.
By placing reliance on the meanings ascribed the terms "Municipal"
and "Committee" in dictionaries and on various decisions it is
submitted that a "Municipal Committee" has to be understood as an
institution constituted for the purpose of administering the local self-
government in a defined area. Learned counsel for the respondent has
also referred to various provisions of Act 44 of 1994 to submit that the
Municipal Council is an institution of local self-government. It is argued
that under Clause 2(ii) of Section 2(e) of the P.P Act, any corporation
established by or under a Central Act the premises belonging, or taken
on lease by or on behalf of any corporation established by or under a
Central Act or owned or controlled by the Central Government is also
defined to mean a public premises. However, from this category an
exception has been carved out in respect of a company defined in
Section 3 of the Companies Act or a local authority. "Local authority"
is not defined in the P.P Act. However, it is defined in the General
Clauses Act to mean a "Municipal Committee, district board, body of
port commissioners or other authority legally entitled to, or entrusted
by the Government with, the control or management of a municipal or
local fund". Consequently the premises belonging to a local municipal
self-government organization such as the New Delhi Municipal Council
is excluded by Clause 2(ii) from within the meaning of public premises.
However, the Parliament, in relation to National Capital Territory of
Delhi, has specifically included premises belonging to Municipal
Corporation of Delhi or any Municipal Committee or notified area
committee within the meaning of public premises.
8. The purpose of enacting the P.P. Act as stated in its
Objects and Reasons is to provide a speedy machinery for eviction of
unauthorized occupants of public premises. Definition of the
expression "public premises" shows that the Parliament has given a
very wide definition to the said expression. It covers within its sweep
premises not only belonging to, but taken on lease or requisitioned by
or on behalf of Central Government. It also includes premises placed
by the Central Government under the control of the Secretariat of
either House of Parliament for providing residential accommodation to
any member of the staff of the Secretariat of either House of
Parliament. Premises belonging to, taken on lease by or on behalf of a
company wherein the Central Government is having 51% or more
paid up share capital or a subsidiary thereof is also included within the
meaning of public premises. Premises belonging to any corporation
established by or under the Central Government which is owned or
controlled by the Central Government is also covered by the said
definition. From this category, a company defined in Section 3 of the
Companies Act is excluded, since it is already covered under the
immediately preceding category of companies wherein the Central
Government has paid up capital of 51% or more. Premises belonging
to a "local authority" are excluded from the aforesaid clause pertaining
to Corporation. From the definition of the term "Local Authority"
aforesaid, it is clear that premises belonging to a Municipality is not
covered by Clause (2) of Section 2(e) within the meaning of a "public
premises". However, in respect of the National Capital Territory of
Delhi, a specific provision has been made to say that any premises
belonging to the Municipal Corporation of Delhi or any Municipal
Committee or Notified Area Committee shall be a "public premises".
The words "Municipal Committee" or "Notified Area Committee" are
preceded by "or any". If the expression "Municipal Committee" as
used in the aforesaid provision only referred to NDMC, the said
expression would not have been preceded by the word "any". The use
of the expression "any" before the expression "Municipal Committee or
notified area committee" itself shows that the expression "Municipal
Committee" and "Notified Area Committee" have been used generally
and the P.P Act itself postulates that there can be a plurality of
Municipal Committee and Notified Area Committee in the NCT of Delhi.
If the submission of learned counsel for the petitioner that "Municipal
Committee" only refers to the erstwhile New Delhi Municipal
Committee (NDMC) as it existed under the Punjab Municipal Act as
extended to New Delhi, and that it does not include the Municipal
Council, it would mean that the expression "any Municipal Committee
or notified area committee" is a surplusage. It is not the case of the
petitioner that there is any other body in NCT of Delhi, (apart from the
Delhi Municipal Corporation, the Municipal Council and the Cantonment
Board), which could be said to be a Municipal Committee within the
meaning of that term as used in Section 2(e)(3)(i). It is the generally
accepted principle of interpretation that effort should be made to give
meaning to each and every word used by the Legislature. Words in a
statute cannot be read as inapposite surplusage, if they can have
appropriate application in circumstances conceivably within the
contemplation of the statute (See Aswini Kumar Ghose V. Arbinda
Bose, AIR 1952 SC 369). It is incumbent on the Court to avoid a
construction, if reasonably permissible on the language, which would
render a part of the statute devoid of any meaning or application (See
Rao Shiv Bahadur Singh V. State of U.P, AIR 1953 SC 394). The
Court always presumes that the Legislature inserted every part thereof
for a purpose and the legislative intention is that every part of the
statute should have effect (See J.K.Cotton Spinning & Weaving
Mills Co.Ltd V. State of U.P, AIR 1961 SC 1170). The Legislature is
deemed not to waste its words or to say anything in vain (See
Quebec Railway, Light, Heat & Power Co. V. Vandry, AIR 1920 PC
181). The construction which attributes redundancy to the Legislature
will not be accepted except for compelling reasons (See
Ghanshyamdas V. Regional Assistant Commercial, Sales Tax,
AIR 1964 SL 766).
9. It is also a settled principle of judicial interpretation that
when more than one expressions are used, the general words must
be interpreted in the light of the specific words used in the same
provision (see Principles of Statutory Interpretation, 9th Edition 2004
by Justice G.P. Singh, page 415 under the heading "Noscitur A Sociis").
The general words "Municipal Committee" or "Notified Area
Committee" would, therefore, have to be understood in the light of the
earlier used specific expression "Municipal Corporation of Delhi". The
Municipal Corporation of Delhi is undoubtedly a municipality, i.e. an
institution constituted for self local government of the area falling
within its jurisdiction. "Municipal Committee" and "Notified Area
Committee" would also have to be seen in that light. The Parliament,
while generally excluding "local authorities" from the application of the
P.P Act, in relation to the NCT of Delhi (of which New Delhi area is a
part), specifically made the P.P Act applicable to premises belonging to
the Municipal Corporation of Delhi and "any Municipal Committee or
notified area committee". This is clearly indicative of the intention of
the Parliament not to exclude all local authorities from the application
of the Act. In the context in which the expression "any Municipal
Committee......" have been used, it also appears that the said
expression would cover a municipality, which includes the Municipal
Council. Why is it that the Parliament decided that, in respect of NCT
of Delhi, the premises belonging to the Delhi Municipal Corporation or
any Municipal Committee or notified area committee should be
included within the ambit of "Public Premises"? The answer is that
these are local self governmental bodies and it is in the larger public
interest and in the interest of their efficient functioning that these
bodies should be in a position to evict the unauthorized occupants and
recover damages from them in relation to premises belonging to them
in an expeditious manner by resort to a summary procedure. Viewed
in this light, it is difficult to accept that the Municipal Council, which is
also a Municipality like the MCD, should be left out of the ambit of the
P.P Act. In Reserve Bank of India (supra), the Supreme Court
observed
"37. Interpretation must depend on the text and the
context. They are the bases of interpretation. One
may well say if the text is the texture, context is
what gives the colour. Neither can be ignored. Both
are important. That interpretation is best which
makes the textual interpretation match the
contextual. A statute is best interpreted when we
know why it was enacted. With this knowledge, the
statute must be read, first as a whole and then
section by section, clause by clause, phrase by
phrase and word by word. If a statute is looked at, in
the context of its enactment, with the glasses of the
statute-maker, provided by such context, its scheme,
the sections, clauses, phrases and words may take
colour and appear different than when the statute is
looked at without the glasses provided by the
context. With these glasses we must look at the Act
as a whole and discover what each section, each
clause, each phrase and each word is meant and
designed to say as to fit into the scheme of the entire
Act. No part of a statute and no word of a statute can
be construed in isolation. Statutes have to be
construed so that every word has a place and
everything is in its place. It is by looking at the
definition as a whole in the setting of the entire Act
and by reference to what preceded the enactment
and the reasons for it that the Court construed the
expression 'Prize Chit' in Srinivasa and we find no
reason to depart from the Court's construction."
10. Various State enactments dealing with the subject to
eviction of unauthorized occupants have been produced by the
petitioners. Pertinently, practically all of them have made the State
enactments applicable to the local authorities within the States. There
is no reason to exclude the Municipal Council from the applicability of
the P.P. Act by an indirect and inferential manner of interpretation, and
by ignoring the meaning of the terms and expressions used in the
Statute.
11. Article 243P of the Constitution, inter alia, defines
"Municipality" to mean "an institution of self-government constituted
under Article 243Q". Article 243Q states that there shall be
constituted in every State, inter alia, "a Municipal Council for a smaller
urban area" and "a Municipal Corporation for a larger urban area".
Therefore, both a Municipal Council and Municipal Corporation are
municipalities, constituted as institutions of self-government. The
character and attributes of a Municipal Corporation and a Municipal
Council are the same, and both are Municipalities, but the Constitution,
for the purpose of distinguishing a larger municipality from a smaller
one calls the former a Municipal Corporation and the later Municipal
Council.
12. The expression "Committee" is defined in the Black's
Law Dictionary as "a group of people appointed for special function
by (and usually out of) larger body". "Municipal" is defined as "a
municipality or its self-government". "Municipality" is defined as
"town or district or local self-government; its government body". The
expression "Committee" as defined in the Oxford English
Dictionary, inter alia, means "a person, or an assembly or board of
persons, to whom the consideration, determination, or management of
any matter is committed or referred, as by a court or legislature. An
individual or body to whom others have delegated or committed a
particular duty, or who have taken on themselves to perform in it the
expectation of their act being confirmed by the body they profess to
represent or act for."
13. The expression "Municipal Committee", therefore, is
generally understood as an assembly or board of persons constituted
for the purpose of administration of a local self government. It is
understood as a "Municipality".
14. In MCD v. Birla Cotton, Spinning and Weaving Mills
(1968) 2 SCR 251, the Supreme Court observed:
"Local bodies are subordinate branches of
governmental activity. They are democratic
institutions managed by the representatives of
the people. They function for public purposes
and take away a part of the government affairs
in local areas. They are political sub-divisions
and agencies which exercise a part of State
functions. As they are intended to carry on
local self-government the power of taxation is
a necessary adjunct to their other powers.
They function under the supervision of the
Government."
15. In Union of India v. R.C. Jain (1981) 2 SCC 308 the
Supreme Court observed:
"What then are the distinctive attributes and
characteristics, all or many of which a
Municipal Committee, District Board or Body or
Port Commissioners shares with any other local
authority? First, the authorities must have
separate existence as corporate bodies. They
must not be mere governmental agencies but
must be legally independent entities. Next,
they must function in a defined area and must
ordinarily, wholly or partly, directly or
indirectly, be elected by the inhabitants of the
area. Next, they must enjoy a certain degree
of autonomy, with freedom to decide for
themselves questions of policy affecting the
area administered by them. The autonomy
may not be complete and the degree of the
dependence may vary considerably but, an
appreciable measure of autonomy there must
be. Next, they must be entrusted by statute
with such governmental functions and duties
as are usually entrusted to municipal bodies,
such as those connected with providing
amenities to the inhabitants of the locality, like
health and education services, water and
sewerage, town planning and development,
roads, markets, transportation, social welfare
services etc. etc. Broadly, we may say that
they may be entrusted with the performance of
civil duties and functions which would
otherwise be governmental duties and
functions. Finally, they must have the power to
raise funds for the furtherance of their
activities and the fulfillment of their projects
levying taxes, rates, charges, or fees. This
may be in addition to moneys provided by
Government or obtained by borrowing or
otherwise. What is essential is that control or
management of the fund must vest in the
authority."
16. In the light of the aforesaid decisions, I now proceed to
consider the question whether the Municipal Council is a municipality.
17. The Statement of Objects and Reasons appended to the
New Delhi Municipal Council Bill, inter alia, states:
"This Act purports to replace the Ordinance
through which NDMC area has been
provided a new law for its local self
governance. The New Delhi Municipal
Committee was constituted under the Punjab
Municipal Act, 1911 which has become an
archaic piece of legislation. The Committee on
the Reorganisation of Delhi set-up had
recommended that a fresh law governing NDMC
should be passed by the Parliament for proper
organization and functioning of the New Delhi
Municipal Council. Consequent upon
enforcement of Constitution (Seventy fourth
Amendment) Act, several provisions in Punjab
Municipal Act, 1911 had to be brought in tune
with Part IXA of the Constitution before 31st May,
1994. ................................................. The
following are the more important objectives of
the Act: -
(i) to provide New Delhi Municipal Council
area with a new legislation repealing the
Punjab Municipal Corporation Act, 1911.
(ii) ...........
(iii) to harmonise the law with the Constitution
(Seventy-fourth Amendment) Act, 1992
with necessary exemptions and
modifications under article 243ZB of the
Constitution wherever departure has had
to be made from the constitutional
provisions............
2. The National Capital Territory of Delhi
(NCT) comprises three local bodies, MCD, NDMC
and Cantonment Board....................................
In respect of New Delhi Municipal Council, which
consists of only 3 per cent of the area and 3 per
cent of the population of National Capital
Territory of Delhi, it was felt that a different kind
of legal system had to be structured which took
into account special characteristics of the New
Delhi Municipal Council area. The New Delhi
Municipal Council area comprises the territory
that has been described as Lutyens' Delhi and
which has historically come to be regarded as a
seat of central authority in Union of India. It
comprises important buildings like Rashtrapati
Bhavan, Parliament House, Supreme Court,
North and South Blocks and buildings abutting
Central Vista and also all diplomatic missions
which function as territorial entities under the
sovereign jurisdiction of their Flag States. The
Government of India are nearly the sole
landowners and also own about eighty per cent
of the buildings in the New Delhi Municipal
Council area. Private ownership of property in
this area is marginal. On account of these
special characteristics, it was felt that any
scheme for the governance of this area based on
conventional pattern of representative local self-
government, would be unworkable and out of
place since the pre-eminent character of this
area is that of the seat of the Central
Government.
3. Accordingly, a special legislation has been
structured for New Delhi Municipal Council
area."(emphasis supplied)
18. Section 3 of Act 44 of 1994 states that with effect from
such date as the Central Government may appoint, there shall be a
Council charged with the municipal Government of New Delhi, to be
known as the New Delhi Municipal Council. The Council shall be a body
corporate with the name aforesaid having perpetual succession and a
common seal with power, subject to the provisions of this Act, to
acquire, hold and dispose of property and may by the said name sue
and be sued. Section 4 deals with the composition of the Council. The
Council, inter alia, has the representation of the local population of the
New Delhi area, inasmuch as, three members of the Legislative
Assembly of Delhi representing constituencies which comprises wholly
or partly of the New Delhi area are a part thereof. The member of
Parliament representing the constituency which comprises wholly or
partly the New Delhi area is a special invitee for the meetings of the
Council, but without a right to vote. Section 10 of the said Act states
that subject to the provisions of the Act and the rules, regulations and
bye-laws made thereunder, the Municipal Government of New Delhi
shall vest in the Council. Section 11 lays down the various obligatory
functions of the Council which are as follows:
"(a) the construction, maintenance and cleansing of drains
and drainage works and of public latrines, urinals and
similar conveniences;
(b) the construction and maintenance of works and means
for providing supply of water for public and private
purposes;
(c) the scavenging, removal and disposal of filth, rubbish
and other obnoxious or polluted matters;
(d) the construction or purchase, maintenance, extension,
management for--
(i) supply and distribution of electricity to the public;
(ii) providing a sufficient supply of pure and wholesome
water;
(e) the reclamation of unhealthy localities, the removal of
noxious vegetation and generally the abatement of all
nuisances;
(f) the regulation of places for the disposal of the dead and
the provision and maintenance of places for the said
purpose;
(g) the registration of births and deaths;
(h) public vaccination and inuoculation;
(i) measures for preventing and checking the spread of
dangerous diseases;
(j) the establishment and maintenance of hospitals,
dispensaries and maternity and child welfare centres and
the carrying out of other measures necessary for public
medical relief;
(k) the construction/ and maintenance of municipal markets
and regulation of all markets;
(l) the regulation and abatement of offensive or dangerous
trade or practices;
(m) the securing or removal of dangerous buildings and
places;
(n) the construction, maintenance, alteration and
improvements of public streets, bridges, culverts,
causeways and the like;
(o) the lighting, watering and cleansing of public streets and
other public places;
(p) the removal of obstructions and projections in or upon
streets bridges and other public places;
(q) the naming and numbering of streets and premises;
(r) the establishment, maintenance of, and aid to, schools
for primary educations subject to such grants as may be
determined by the Central Government from time to time;
(s) the maintenance of municipal offices;
(t) the laying out or the maintenance of public parks,
gardens or recreation grounds;
(u) the maintenance of monuments and memorials vested
in any local authority in New Delhi immediately before the
commencement of this Act or which may be vested in the
Council after such commencement;
(v) the maintenance and development of the value of all
properties vested in or entrusted to the management of the
Council;
(w) the preparation of plans for economic development and
social justice;
(x) the maintenance including the expansion and
upgradation of facilities of the hospitals existing on the date
of the commencement of this Act;
(y) sanction or refuse erection or re-erection of buildings;
and
(z) the fulfilment of any other obligation imposed by or
under this Act or any other law for the time being in force."
19. Section 44 of Act 44 of 1994 constitutes the New Delhi
Municipal Fund. The said fund consists of, inter alia, all moneys
received by way of taxes, rates and cesses levied for the purposes of
the Act and all fees collected and all funds levied under the Act or
under any Rule, Regulation or Bye-Law made thereunder. The New
Delhi Municipal Fund is required to be credited to the New Delhi
Municipal Fund General Account and payments out of the said fund
cannot be made unless the expenditure for the same is covered by
current budget grant, subject to various exceptions carved out in the
proviso to the Section. Under Section 55, on or before 31st March of
every year the Council is required to adopt for the ensuing year the
budget estimate. The Council has the power to levy the following
taxes, namely, (a) property tax, (b) the tax on vehicles and anomalies
(c) theater tax, (d) the tax on advertisement other than advertisement
published on newspaper, (e) a duty on the transfer of property, and (f)
a tax on building payable along with application for sanction of building
plan. The Council may also levy (a) an education cess, (b) tax on
professions, trades, callings and employment, (c) tax on the
consumption, sale and supply of electricity, (d) a betterment tax on the
increase of urban land values cost by the execution for any
development or employment work, and (e) tolls. The Council has the
power to raise a demand of the taxes and to recover the same, if
necessary, by resort to coercive means. The Council also has to power
to effectively enforce its rules, regulations and bye-laws.
20. All these provisions clearly show that the Municipal Council
has been constituted to carry out the local self-government of the
areas falling within the area known as New Delhi, boundaries whereof
are described in the first schedule to the said Act. It is, therefore, a
municipality.
21. The Municipal Council is the successor body of the NDMC,
as is evident from the provisions of Act 44 of 1994, particularly Section
416 thereof. All the properties earlier vested in NDMC stand vested in
the Municipal Council. All legal proceedings instituted or which might
have been instituted by or against the NDMC may be continued or
instituted by or against the Municipal Council. When, admittedly, the
provisions of the P.P.Act were applicable to the premises belonging to
the NDMC, it is even otherwise not reasonable to construe that the
applicability of the P.P Act was excluded upon the Constitution of the
Municipal Council. There is no provision introduced in the P.P.Act upon
its amendment on 1.6.1994 to oust its application to the premises
belonging to the Municipal Council. In my view the expression "any
Municipal Committee or notified area Committee" has to be generally
construed to include any municipality. However, even if it were to be
accepted that two views are possible in the matter, that view has to be
preferred which advances the object of legislation i.e the P.P.Act and
Act 44 of 1994, and the other interpretation has to be discarded. (See
Bhatia International V. Bulk Trading S.A & Anr., (2002) 4 SCC
105 (para 15). If the expression "any Municipal Committee or notified
area Committee" did not include the Municipal Council, there was no
reason why the Parliament would not have amended the language
used in Section 2(e)(3)(i) of the P.P Act on 1.6.1994 to include the
expression "Municipal Council", since the purpose of the Public
Premises (Eviction of Unauthorised Occupants) Amendment Act, 1993
(7 of 1994) primarily was to expand, and not to narrow, the scope of its
application. Since in my view the expression "any Municipal Committee
or Notified Area Committee" has to be generally understood as
including a Municipality, the submission of the petitioner that the
present is a case of casus omissus is rejected. There is no question of
any ambiguity in the meaning of the aforesaid expression.
22. For the aforesaid reasons, I dismiss these writ petitions and
vacate the interim orders in each one of them. Considering the fact
that the proceedings have not been finalized due to the interim orders
of the Court, I direct the Estate Officer to conclude the proceedings as
expeditiously as possible. The petitioners are granted one week's time
to submit all their contentions and documents before the Estate
Officer, if they wish to. The petitioners may appear for making their
submissions before the Estate Officer on 24.9.2008.
(VIPIN SANGHI)
JUDGE
September 18, 2008
aj/rsk
