Delhi High Court
Kamal Kishore vs Muncipal Corporation Fo Delhi on 25 August, 2009
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: August 20, 2009
Date of Order: August 25, 2009
(1) +OMP 433/2009
% 25.08.2009
KAMAL KISHORE ..... Petitioner
Through: Mr. Rakesh Munjal, Sr. Adv. with Mr. Rakesh Kumar Garg, Advocates
versus
MUNICIPAL CORPORATION OF DELHI ..... Respondent
Through : Mr. H.S. Phoolka, Sr. Adv. with Ms. Minipushkarna and Mr. Kanwar
Faisal, advocates
(2) +OMP 434/2009
%
KAMAL KISHORE ..... Petitioner
Through: Mr. Rakesh Munjal, Sr. Adv. with Mr. Rakesh Kumar Garg, Advocates
versus
MUNICIPAL CORPORATION OF DELHI ..... Respondent
Through : Mr. H.S. Phoolka, Sr. Adv. with Ms. Minipushkarna and Mr. Kanwar
Faisal, advocates
(3) +OMP 435/2009
%
MRS. VEENA VERMA ..... Petitioner
Through: Mr. Rakesh Munjal, Sr. Adv. with Mr. Rakesh Kumar Garg, Advocates
versus
MUNICIPAL CORPORATION OF DELHI ..... Respondent
Through: Mr. H.S. Phoolka, Sr. Adv. with Ms. Minipushkarna and Mr. Kanwar
Faisal, advocates
(4) +OMP 436/2009
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DR. MUKHERJEE NAGAR RESIDENTS
WELFARE CLUB (REGD.) ..... Petitioner
Through: Mr. Rakesh Munjal, Sr. Adv. with Mr. Rakesh Kumar Garg, Advocates
versus
MUNICIPAL CORPORATION OF DELHI ..... Respondent
Through: Mr. H.S. Phoolka, Sr. Adv. with Ms. Minipushkarna and Mr. Kanwar
Faisal, advocates
(5) +OMP 437/2009
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SH. BHARAT MAHANA ..... Petitioner
Through: Mr. Rakesh Munjal, Sr. Adv. with Mr. Rakesh Kumar Garg, Advocates
Versus
MUNICIPAL CORPORATION OF DELHI ..... Respondent
OMP Nos. 433, 434,435,436, 437, 443 &451 of 2009 Page 1 Of 6
Through : Mr. H.S. Phoolka, Sr. Adv. with Ms. Minipushkarna and Mr. Kanwar
Faisal, advocates
(6) +OMP 443/2009
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RAVINDER KUMAR DUA ..... Petitioner
Through: Mr. J.S. Bhashin and Ms. Rashmi Priya, Advocates
Versus
MUNICIPAL CORPORATION OF DELHI ..... Respondent
Through : Mr. H.S. Phoolka, Sr. Adv. with Ms. Minipushkarna and Mr. Kanwar
Faisal, advocates
(7) +OMP 451/2009
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K L ARORA ..... Petitioner
Through: Mr. Rakesh Khanna, Mr. Saurabh Khanna, Advocates
versus
MUNICIPAL CORPORATION OF DELHI ..... Respondent
Through : Mr. H.S. Phoolka, Sr. Adv. with Ms. Minipushkarna and Mr. Kanwar
Faisal, advocates
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. These petitions have been filed by the petitioners under Section 9 of
the Arbitration & Conciliation Act, 1996 ("the Act", for short) with a prayer
that this Court should restrain the respondent or its servants from interfering
in peaceful possession, use and enjoyment of each of the community hall
under license of petitioners individually and direct the respondent to continue
bookings of the halls till the year 2014.
2. Each of the petitioners had entered into a license deed with respondent
whereby petitioners were allowed to use one community hall each for the
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specific purpose of developing, managing and operating the respective
community hall for a period of five years subject to the terms and conditions
as mentioned in lease deed. The respondent had reserved a monthly license
fee for allowing the petitioners to use the community halls. The license deeds
were executed in favour of petitioners in August/September, 2004. The initial
period of five years for which the license was granted has either expired or is
going to expire shortly. The request of the petitioners to renew the licenses
for a further period of five years, has been turned down by respondent and
that is the reason the petitioners have approached this Court.
3. It is submitted by the petitioners that clause 1 of the license deed
provides that the license was being granted for a period of five years,
renewable for another five years, ten years in all, from the date of entering
into the license deed for the first time. It is submitted by counsel for
petitioners that they have a right to get the license deeds renewed for
another term of five years. The license deeds were granted through tender
system. The community halls were in shabby condition and the petitioners
brought the community halls to a situation that they are now nice looking and
could be used by the community. It is submitted that the petitioners had
made investments in community halls and the same were now being used for
marriages etc, apart from other uses and in case the use of respective
community hall by the petitioners was prohibited, the petitioners would suffer
irreparable loss. It is submitted that petitioners intend to raise the dispute
regarding right of the petitioners to have the license renewed for another
terms of five years before the arbitrator in terms of arbitration contract
between the parties as contained in the license deed.
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4. Learned counsel for respondent submitted that the terms of license
deed were clear and leave no ambiguity. The licenses were granted for a
period of five years. Though it could have been renewed for another period of
five years but the renewal of the license deed was not at the discretion of the
petitioners but it was at the discretion of respondent. The licenses were even
otherwise terminable during its currency of five years by merely giving a
notice of one month in view of clause 35 of the lease deed. He submitted that
the petitioners have no right to get the license deed renewed for another
period of five years and allowing the petitioners to continue to occupy the
community halls shall in fact amount to granting license by the Court which is
not permissible under Section 9 of the Act. It is also submitted that Section 9
cannot be used for specific performance of the contract. Even if it is assumed
for the sake of arguments that there was an agreement with respondent for
another term of five years, this agreement cannot be specifically got enforced
under Section 9.
5. In order to grant relief under Section 9, the Court has to ensure that the
petitioners have a good prima facie case and the petitioners seek to protect
the subject matter of dispute during arbitral proceedings.
6. A perusal of the license deed executed between the parties would show
that the very recital of the license deed states that license was being granted
for a period of five years on a particular license fees. There is no doubt that in
clause 1(a), it is provided that the licensee was being authorized to use the
community halls for a period of five years renewable for another terms of five
years, ten years in all, from the date of entering into the license deed but is
not stated in the license deed that this renewal of the license could be
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without the consent of licensor (respondent herein) and could be a unilateral
act at the option of licensee (petitioners herein).
7. It is contended by counsel for petitioners that clause 1 of the recitals is
to be interpreted in a meaningful manner and if the license was not to be
renewed for another terms of five years, there was no necessity of clause 1
being there. It is true that clause 1 contains recital that license could be
renewed for another term of five years, but no other clause of the license
deed provides that this recital was mandatory for the licensor/respondent.
Rather clause 35 of license deed provides that the licensor shall have right to
terminate the license with one month's prior notice without assigning any
reasons therefor. In view of clause 35, and in view of recitals granting the
license for a period of five years and a joint reading of other clauses prima
facie shows that the licensee was allowed to use the community hall on
license basis only for a period of five years. The extension for another five
years was at the option of licensor and ten years cannot be treated as a lock-
in-period for licensor and it cannot be inferred that a second renewal for five
years was mandatory for the licensor. I, therefore, consider that prima facie
the licensee/petitioners have no right to continue in the possession of the
community halls after expiry of five years license period, neither prima facie
there is an obligation on MCD to renew the license for another period of five
years. Under these circumstances, I consider that this Court cannot issue an
injunction restraining respondent from taking charge of the community halls
and not interfering with the enjoyment of the community halls by the
licensees. However, in order to see that non renewal of license was not a ploy
or a tactic used by MCD officials to give the license to its own persons instead
of petitioners, it is ordered that the respondent/ MCD shall not grant licenses
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of these community halls for any term to any other persons. In the
eventuality of again giving these halls on license, MCD has to give licenses of
these community halls to the petitioners only. Thus, MCD is restrained from
re-licensing the community halls to any third person after the petitioners'
license coming to an end, during pendency of arbitration proceedings.
8. With above directions, these petitions stands disposed of.
August 25, 2009 SHIV NARAYAN DHINGRA J.
rd
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