N.D.M.C. vs Avat Ram Mamtani
2009 Latest Caselaw 1957 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   LPA 397/2007 & CM No. 7910/2007


        N.D.M.C.                                       ..... Appellant
                          Through: Mr. Rajesh Mahajan, Advocate.

                    versus


        AVAT RAM MAMTANI                           ..... Respondent
                       Through: Mr. Anil Mittal, Advocate.
        CORAM:
         HON'BLE THE CHIEF JUSTICE
         HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL
                       ORDER

% 11.05.2009

1. The appellant (original respondent in the writ petition) is

aggrieved by the decision of the learned Single Judge dated 30th April,

2007. Briefly stated the facts of the present case are as follows:-

2. A shop was allotted to the respondent (original petitioner in

the writ petition) in 1950. In 1992, the respondent requested that

the shop be transferred in the name of his son. Two years later, the

respondent was asked to confirm that he had given his „No Objection‟

for transfer of allotment in favour of his son. The respondent gave his

confirmation by letter dated 22nd March, 1994. By a letter dated 4th

May, 1994, the son of the respondent was informed that he should

visit the office of the New Delhi Municipal Corporation (in short

„NDMC‟) within 7 days for executing fresh licence deed, affidavit to

the effect that he did not own any shop in Delhi, to make a fresh

security deposit and pay municipal charges from 30th March, 1993

onwards. The respondent‟s son made security deposit and signed the

licence deed. He also deposited the amount as demanded towards

monthly charges and interest. Despite all this, no fresh licence deed

was issued in favour of the respondent‟s son. Reminders were sent

by the respondent but to no avail. In 2001, the respondent received

a demand notice for payment of certain amounts. The respondent

protested against this demand. However, the demand was not

withdrawn and the respondent accordingly wrote on 14th February,

2002 stating that he was no longer interested in getting the allotment

transferred exclusively in favour of the son and that the name of the

son be added along with his name. Thereafter demands were raised

on the respondent towards licence fee/damages which were

outstanding. The respondent again wrote on 22nd April, 2003

withdrawing his request for transfer of shop exclusively in the name

of his son and requested that his son's name be added with his name

without enhancing the licence fee. Nothing happened thereafter.

Correspondence was exchanged between the parties and certain

challans issued to the respondent by the NDMC towards arrears and

damages including interest. By a letter dated 20th July, 2004, the

respondent was informed that the NDMC had turned down his

request for renewal of licence fee in his name along with the name of

the son without enhancement of the fee. The reason for this was

stated to be the failure of the respondent and his son to complete

formalities for execution of licence deed and making payment

pursuant to the earlier demand letters of NDMC. The respondent

clarified vide his letter dated 22nd July, 2004, that he had made all

payments and had handed over the signed licence deed to the NDMC.

The matter was also referred to the Lok Adalat. However, ultimately

when the respondent received the impugned demand notice dated

18th January, 2005, the appellant filed the writ petition out of which

the present appeal arises.

3. Essentially, the case of the NDMC in the writ petition was that

the respondent having conveyed his „No Objection‟ and having

handed over possession could not withdraw his request for transfer of

the licence to his son. In the reply filed by the NDMC in the writ

petition, it nowhere denied that the respondent had made an

application for transfer of the allotment in the name of his son, the

fact that the son of the respondent made the security deposit, signed

the licence deed and paid the municipal charges. It was simply

stated that these were "matter of record". It was not even denied that

although the son of the respondent had handed over the licence deed

to the NDMC for their counter signatures and execution, the NDMC

did not do anything about the same. There was no justifiable

explanation forthcoming for the unconscionable delay on the part of

the NDMC in considering the request of the respondent. Since the

respondent did not hear anything from the NDMC even after NDMC

framed its policy for transfer of stalls on 18th March, 1999, he wrote a

letter on 14th February, 2002 stating that he was not interested in

getting the allotment transferred in favour of his son.

4. The learned Single Judge has correctly, in our view, held that

the NDMC was not justified in its stand that the respondent could

not withdraw his request particularly when it failed to complete its

part of the transaction and communicate to the respondent its

decision one way or the other for over 11 years. The learned Single

Judge also took note of the fact that as per 18th March, 1999 policy, if

the said policy were to be applied to the respondent, then the request

of the respondent for transfer of allotment in the name of his son

ought to have been permitted in the category of „non-dependent

family members‟ with 30% enhancement. It appears that even prior

to this date, transfers were being permitted. There seems to be no

reason why NDMC kept sitting on the respondent‟s application

without doing anything till 2002. Nowhere does the NDMC, in its

affidavit in the writ petition, states that it has, in fact, recorded the

change of such allotment in favour of the respondent‟s son. In those

circumstances, the learned Single Judge rightly held that for the

NDMC to insist on enhanced fee as if the respondent had parted with

possession and allotment stood transferred to his son, was entirely

without basis and unreasonable. The learned Single Judge correctly

observed that the respondent having withdrawn his request for

transfer in favour of his son, the NDMC was no longer justified in

persisting with raising bills for the enhanced licence fee. There was,

admittedly, no formal transfer of the allotment in favour of

respondent‟s son and viewed from any angle, the respondent was

justified in withdrawing his request for transfer in favour of his son.

5. We see no infirmity in the finding of the learned Single Judge

that the demand of enhanced fee on the footing that the licence stood

transferred to the respondent‟s son was, in the circumstances,

unjustified. The respondent was entitled to seek refund of the

amount of enhanced licence fee paid by him. The learned Single

Judge was absolutely right in holding that since no transfer took

place, no enhanced fee was payable and the NDMC was bound to

calculate all the amounts paid by the respondent towards enhanced

licence fees and refund it to him. The allotment of shop/stall No. 46,

Janpath, was correctly held by the learned Single Judge to be treated

as standing in the exclusive name of the respondent.

6. During the course of arguments, the counsel for the appellant

sought to place reliance on the relinquishment deed executed by the

respondent on 4th April, 1996 in favour of his son. As per the

respondent the relinquishment deed was executed by the respondent

in aid of his application for transfer of allotment which never

fructified. Nowhere did the NDMC, in its affidavit in the writ petition,

ever say that it had, in fact, recorded the change of such allotment in

favour of the respondent‟s son. It did not indicate any fresh licence

deed that had been executed in favour of the respondent‟s son. For

the NDMC, to now insist, relying on the relinquishment deed and

reading it completely out of context, to suggest that the respondent

had parted with possession and thus the allotment stood transferred

to his son was entirely without basis and unreasonable. The action

of every instrumentality of the State has to be informed by reason.

There has to be fair play in action. Arbitrariness is the anti-thesis of

equality as enshrined in Article 14 of the Constitution of India. The

actions of the NDMC and the stand taken by them clearly reflect non-

application of mind and a completely unreasonable and arbitrary

approach. It was, in fact, the NDMC which failed to discharge its

duties and failed to complete its part of the transaction and

communicate to the respondent its decision one way or the other for

over 11 years. The stand of the NDMC and their reliance on the

relinquishment deed is completely misplaced and of no relevance

whatsoever.

7. In the light of what is stated hereinabove, we find no infirmity

in the findings of the learned Single Judge and the appeal is

accordingly dismissed. The pending application also stands disposed

of.

CHIEF JUSTICE

NEERAJ KISHAN KAUL, J.

MAY 11, 2009 sb