Vijay Kumar vs Ndmc & Ors.
2009 Latest Caselaw 3139 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI
                          W.P. (C ) No. 11069/2009

                                  Judgment delivered on: 12.08.2010

Vijay Kumar                                    ..... Appellant
                                Through: Ms. Babita Seth, Advocate

                                Versus

NDMC & ors.                                     ..... Respondents
                                Through: Mr. Manoj K. Singh, Advocate
                                       with Mr. Nilava Banerjee, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may Yes
   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?
KAILASH GAMBHIR, J. Oral:
*

1. By this petition filed under Article 226 of the Constitution

of India, the petitioner seeks quashing of the order dated 15.11.07

passed by the learned Estate Officer and order dated 29.7.2009

passed by the learned District Judge-IV.

2. Brief facts as per the petitioner and relevant for deciding the

present petition are that the petitioner was allotted a shop bearing

no. UG-40, Pallika Place, R.K Ashram Marg, New Delhi by the

respondent on 9.9.92 for a period of five years on the basis of a

Deed of Licence. That on the expiry of the said five years, the

respondent called upon the petitioner vide letter dated 15.10.98 for

renewal of the licence subject to completion of all the formalities.

Due to the fact that the petitioner failed to pay the amount due

towards rent and hence was in huge arrears, proceedings were

initiated against him by the respondent before the learned Estate

Officer under section 5 & 7 of the Public Premises (Eviction of

Unauthorized Occupation) Act, 1971 whereby vide order dated

15.11.07 an eviction order was passed against the petitioner.

Aggrieved with the said order, the petitioner preferred an appeal

under section 9 of the PP Act before the District Judge which vide

judgment dated 29.7.2009 upheld the order of the Estate Officer.

Feeling aggrieved with the abovesaid two orders, the petitioner has

preferred the present petition.

3. Counsel for the petitioner contends that the petitioner be

given another opportunity to represent his case before the Estate

Officer. Counsel further submits that the petitioner in fact had

appeared and made some payment during the pendency of the

proceedings before the Estate Officer but still the Estate Officer

proceeded in the matter to pass an eviction order against the

petitioner. Counsel for the petitioner further submits that under the

one time policy of 1997 the petitioner had applied for the

regularization of his licence in respect of the shop in question but

the said request of the petitioner has yet not been considered by the

respondent. Counsel also submits that the said policy is still in force

and has not been superseded by any subsequent policy of the

respondent. Counsel also submits that in similar cases, the

respondent has already condoned the breaches committed by the

licensees but the petitioner is being discriminated against. Counsel

for the petitioner has invited attention of this court to some of the

cases referred by the petitioner in his rejoinder. In support of her

argument, counsel for the petitioner further contended that the

respondent being an instrumentality of the State cannot adopt the

pick and choose policy. Counsel for the petitioner further submits

that the petitioner has already made almost the entire payment

towards rent/damages till the month of May, 2010 and therefore on

having received the said payment the license of the petitioner can

be renewed by the respondent. Counsel for the petitioner also

submits that the respondent has not disclosed any basis for charging

the exorbitant rate of interest and the penalty on the alleged over

due amount.

4. Opposing the present petition, Mr. Manoj K. Singh,

counsel for the respondent submits that the license of the petitioner

was not renewed on account of non-payment of license fee although

the petitioner was called upon by the respondent vide their letter

dated 15.10.1998 to get his licence renewed. Counsel thus submits

that the license of the petitioner got expired by efflux of time on

8.9.1997. Counsel further submits that the petitioner was a habitual

defaulter in making payments of the rent/damages and as on the

date of the notice issued by the Estate Officer under sub-section (3)

of Section 7 of the Public Premises Act, the petitioner was in arrears

of damages to the tune of Rs.1,32,431/- and calculating the interest

thereon, an amount of Rs.1,94,809/- was due to the respondent.

Counsel further submits that the petitioner became unauthorized

occupant as the licence of the petitioner was not renewed and

therefore notice under sub-section (2) (b) (ii) of Section 4 of the

Public Premises Act was issued and the ground for declaring the

petitioner unauthorized occupant was disclosed in the said notice

stating that license granted in favour of the petitioner in respect of

the shop in question had expired on 8.9.1997 and in the absence of

any further renewal the petitioner will become unauthorized

occupant. Counsel further submits that the petitioner remained in

arrears of payment of rent/damages for a period of more than a

decade. Inviting attention of this court to the statement of account

placed on record by the petitioner himself, the counsel points out

that the same would show that the petitioner was most irregular in

making the payment of the rent/damages. Counsel thus submits

that this court while exercising equitable jurisdiction under Article

226 of the Constitution of India would not come to the rescue of such

a person. Counsel also submits that under the policy of 1997 only

those licensees could have been given the benefit of the scheme the

validity of whose licenses was still in existence. Counsel further

submits that the eviction order against the petitioner has already

been passed and the same was confirmed by the Appellate Court as

well. Counsel for the respondent submits that benefit of 1997 policy

was available to only those evictees against whom eviction orders

were passed by the Estate Officer prior to the date of policy and

where the eviction orders were not yet executed in terms of para 5

of the said policy. Counsel thus states that the petitioner cannot

take advantage of the 1997 policy in the year 2009. Counsel further

submits that in fact the said policy of 1997 also stands superseded

by a subsequent policy of the year 1999. Counsel also submits that

the petitioner cannot claim negative equality so as to set up a case

of discrimination. In support of his argument counsel for the

respondent placed reliance on the following judgments :-

1. Chandigarh Administration & Anr. Vs. Jagjit Singh & Anr. AIR 1995 SC 705

2. Sanjeev Kumar Vs. NDMC, W.P. (C ) No. 11354/2009

3. Ashit Kumar Jain Vs. NDMC, W.P. (C ) No. 1239/2010

4. Kuldeep Sood Vs. NDMC W.P. (C ) No. 1783/2010

5. Ashit Kumar Jain Vs. NDMC, LPA No. 205/2010

6. Kuldeep Sood Vs. NDMC, CM (M) No. 325/2009

5. I have heard learned counsel for the parties and given

my careful consideration to the arguments advanced by them.

6. Indisputably, there was no renewal of the license in

respect of the shop in question after the expiry of the initial period

of five years and the said five years period came to an end on

8.9.97. No doubt the petitioner had pleaded renewal of the said

license but no documentary evidence in this regard has been placed

by the petitioner to prove such renewal. Rather the petitioner

himself has placed on record a copy of letter dated 15.10.1998

through which the petitioner was called upon to seek renewal of the

license for another period of five years. The petitioner also has not

disputed the fact that he did not clear the outstanding dues which

was the prerequisite condition to seek renewal of the license deed.

In this background of the facts, it is difficult to accept the argument

of the counsel for the petitioner that the renewal of the license in

fact had taken place but without there being any proper execution

of the license deed. Once the petitioner was in huge arrears then

without the payment of the same the respondent certainly would not

have agreed to grant renewal. The petitioner has placed on record

photo copy of the format of the license deed which only contains

signatures of the petitioner. This format of the license deed

unilaterally signed by the petitioner can neither bind the respondent

nor through the said document renewal of the license can be

inferred.

7. It is also a matter of record that the petitioner did not

contest the proceedings before the learned Estate Officer, even after

causing appearance before the Estate Officer. The testimony of the

witnesses examined by the respondent remained unchallenged and

therefore, once the petitioner himself did not set up the defence of

the renewal of license before the Estate Officer the same has

rightly not been accepted by the Appellate Court. Thus, this plea of

the counsel for the petitioner merits outright rejection.

8. Counsel for the petitioner laid much emphasis on the

one time policy of the respondent announced in the year 1997 which

allegedly gave right to the petitioner to seek regularization and

renewal of the license deed. The contention of the counsel for the

petitioner is that the petitioner had applied under the said scheme

vide his letter dated 6.8.2009, but the respondent had not taken

any decision on the said request of the petitioner despite the fact

that the petitioner had already paid the entire amount as was

demanded by the respondent towards the arrears. This argument of

the learned counsel for the petitioner looked attractive at the first

blush, but the same falls face down after examining the controversy

in depth. The said policy of the NDMC was announced in the year

1997 and the same was applicable to all those cases where the

eviction orders were already passed but not executed for one reason

or the other. Further, all such evictees were called upon to clear all

their violations within a period of 30 days and on doing so their

cases of allotment were to be regularized by the respondent NDMC.

It would be useful to refer to para 5 of the said policy as under:

".....(a) In all such cases, where eviction orders have been passed by E.O. and the orders could not be executed for one reason or the other, we may give them one time exemption from implementation of the orders of the Estate Officer & provide them 30 days time to clear all violation. If they come forward and remove all violations unconditionally and clear the dues as prescribed/applicable, their cases may be regularized.

                      (b)  Where the occupant fails to comply with
             the above decision, we may resort         to eviction
             straightway."

9. Clearly, the petitioner did not approach the respondent

NDMC for taking the benefit of the said policy and it is only after a

lapse of 12 years, through letter dated 6.8.2009 the petitioner

sought regularization of his possession. The benefit of said policy

could not have been extended to all those who did not approach the

respondent within the stipulated time given in the policy or at least

within the reasonable period. The petitioner has not disputed the

fact that he remained in arrears throughout the period of his

occupation except certain payments were made by him during the

course of proceedings before the Estate Officer and the District

Judge. The petitioner being a chronic and habitual defaulter cannot

take advantage of the said one time policy. This plea of the

counsel for the petitioner is also devoid of any merit and thus

rejected.

10. Another contention raised by the counsel for the

petitioner was that in certain other cases the respondent has

condoned the breach and regularized the possession of the

defaulters. Undoubtedly, the respondent being an instrumentality

of the State is expected to treat all the licensees at par without

creating any kind of discrimination. Nevertheless, the petitioner

has not brought to the notice of this court any case which stands

identical to the facts of the present case, where the respondent has

renewed the license or regularized the allotment. The license of the

petitioner expired on 8.9.1997 and the petitioner did not take any

steps to seek renewal of the said license despite an offer in this

regard been made by the respondent vide their letter dated

15.10.1998. The petitioner was also in the arrears of the damages

to the tune of Rs.1,32,431/- upto January 2006. Perusal of the

statement of account filed by the petitioner himself shows that the

petitioner was a habitual defaulter in the payment of

rents/damages and thus consequently no amount of discretion can

be exercised by this court under Article 226 of the Constitution of

India in favour of the petitioner who has been a habitual defaulter.

Every licensee or allottee and even an unauthorized occupant is

obliged to pay the monthly license fee/damages so long as he is

using the premises under authorized or unauthorized occupation

and no undue sympathy can be shown to those who willfully and

contemptuously commit persistent defaults in the payment of

periodical rents/damages. The petitioner in the present case even

failed to take advantage of one time policy announced by the

respondent in the year 1997 and now at this stage he cannot claim

negative equality on the basis of alleged discrimination or pick and

choose policy of the respondent. The petitioner has not brought to

the notice of this court any identical case where the respondent has

taken a different decision while adopting a discriminatory approach

in the case of the petitioner. Some of the instances given by the

petitioner may not be of much help to him as there are many more

cases where the respondent must have succeeded in evicting

such unauthorized occupants similar to the case of the petitioner.

12 . In the light of the above discussion, there is no merit in

the present petition, and the same is hereby dismissed.

13. The respondents are directed not to execute the eviction

order for a period of 15 days.

August 12, 2010                                   KAILASH GAMBHIR, J
pkv