Delhi High Court
Smt. Kamla Bajaj vs Sh. Rakesh Bansiwal & Ors. on 11 August, 2010
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
CM (M) No. 1024/2010 & CM No. 14260/2010 (stay)
% Judgment reserved on: 10th August, 2010
Judgment delivered on: 11th August, 2010
Smt. Kamla Bajaj
W/o Sh. Satish Bajaj
D/o Late Sh. Sohan Lal Bansiwal,
R/o D-15/291, Sector-3, Rohini
Delhi-110085 ....Petitioner.
Through: Mr.Gaurav Bahl & Mr.Tarun
Sharma, Advocates.
Versus
1. Sh. Rakesh Bansiwal
S/o Late Sh. Sohan Lal Bansiwal,
R/o 104, Mount Building, Andheri West
Mumbai.
2. Sh. Mahesh Bansiwal
S/o Late Sh. Devi Lal Bansiwal
R/o 8772, Roshnara Road,
Subzi Mandi,
Delhi-110007
3. Sh. Mohan Lal Bansiwal
S/o Late Sh. Sohan Lal Bansiwal
R/o Du-163, Pitam Pura,
Vishakha Enclave, Delhi
4. Sh. Ashok Kumar Bansiwal
S/o Late Sh. Sohan Lal Bansiwal
R/o 8772, Roshnara Road,
Delhi
Also at Bansiwal Ice Factory, Lal Saut Road,
Distt. Dausa, Rajasthan
CM(M) No.1024/2010 Page 1 of 6
5. Sh. Gopinath Bansiwal
S/o Late Sh. Sohan Lal Bansiwal
R/o 8772, Roshnara Road,
Delhi
6. Sh. Jiya Lal Bansiwal
S/o Late Sh. Sohan Lal Bansiwal
R/o 31, Jai Jawan Colony,
Jaipur, Rajasthan
7. Sh. Nand Lal Bansiwal
S/o Late Sh. Sohan Lal Bansiwal
C/o Bansiwal Ice Factory
Lal Saut Road, Distt. Dausa, Rajasthan
8. Sh. Radhey Shyam Bansiwal
S/o Late Sh. Sohan Lal Bansiwal
R/o 4T 3, Jawahar Nagar
Near Monolac Hospital
Jaipur, Rajasthan
9. Sh. Dilip Bansiwal
S/o Late Sh. Devi Lal Bansiwal
R/o 8772, Roshanara Road,
Delhi
10. Sh. Jaynish Sethi
S/o Not known
Shop No. 7, Indian Oil Bhawan
Janpath, Connaught Place
New Delhi-110001 ....Respondents
Through: None
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
CM(M) No.1024/2010 Page 2 of 6
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
1. This petition under Article 227 of the Constitution of India has
been filed by petitioner challenging order (undated), passed by Additional
Senior Civil Judge, Delhi, vide which application of the petitioner under
Order 1 Rule 8A & 10 of Code of Civil Procedure (for short as „Code‟), has
been dismissed.
2. Brief facts are that Shop No.7, Indian Oil Bhawan, New Janpath
Market, New Delhi was allotted to late Sh. Sohan Lal Bansiwal on licence
basis in the year 1970. On 8.11.1982, Sohan Lal Bansiwal being the
original allottee expired, leaving behind number of legal heirs including
petitioner. Respondents No.1 to 3, filed a suit for possession, mesne profit,
permanent and mandatory injunction in respect of that shop against
Respondents No.4 to 10. During pendency of the suit, petitioner filed an
application under Order 1 Rule 8A & 10 of the Code for impleading her as
one of the defendants.
3. It is contended by learned counsel that petitioner is the married
daughter of late Sh. Sohan Lal Bansiwal and she being class-I legal heir,
has a equitable right in the suit property and is entitled to be impleaded as a
party to the suit.
4. Other contention is that, the trial court relied heavily on the policies
of New Delhi Municipal Council when validity and applicability of such
policies were not even in question nor New Delhi Municipal Council was a
party to the suit and as such the same was not even required to be looked
into at this stage.
5. In support, learned counsel cited following judgments;
(i) Om Parkash Charaya vs. M/s Ashok Kamal Capital
Builders Pvt. Ltd & Ors. 2000 VII AD (DELHI) 67;
(ii) S.S Bakshi and Ors. vs. P.M. Mathrani 2005 IV AD
(DELHI) 75 and;
(iii) Harbhajan Singh & Ors. vs. Malook Singh & Anr. 2000 (2)
CCC 416 (P & H)
6. Present petition has been filed under Article 227 of the Constitution
of India. It is well settled that jurisdiction of this Court under this Article is
limited.
7. In Waryam Singh and another vs. Amarnath and another, AIR
1954, SC 215, the court observed;
"This power of superintendence conferred by Article
227 is, as pointed out by Harries, C.J., in - „Dalmia
Jain Airways Ltd. V. Sukumar Mukherjee‟, AIR 1951
Cal 193 (SB) (B), to be exercised most sparingly and
only in appropriate cases in order to keep the
Subordinate Courts within the bounds of their
authority and not for correcting mere errors."
8. In light of principles laid down in the above decision, it is to be seen
as to whether present petition under Article 227 of the Constitution of India
against impugned order is maintainable or not.
9. In Y.Duraisamy vs. The Commissioner, Corporation of Chennai,
Chennai and others, AIR 2002 Madras 276, court observed that:-
"A licence is only a right to do or continue to do
something which, in the absence of such right be
unlawful. In general licence is only a personal privilege
as such it is neither transferable or heritable. A licence is
not annexed to the property in respect of which it is
enjoyed nor is it a transferable or heritable right but is a
right purely personal between the grantor and licencee."
10. It is an admitted case of the petitioner herein, as well as of the
plaintiffs before the trial court that Sohan Lal Bansiwal was the licencee of
shop in question. Since, Sohan Lal was a licencee, the question of
inheritance of the shop in question by his legal heir does not arise, as
licence is only a personal privilege and is neither transferable or heritable.
Thus, no legal right vest in the petitioner. Hence, petitioner is neither a
necessary nor proper party in this case.
11. Various judgments cited by learned counsel for petitioner are not at
all applicable to the facts of the present case.
12. Under these circumstances, present petition under Article 227 of
Constitution of India is not maintainable and same is hereby dismissed.
+ CM No.14260/2010 (stay)
13. Dismissed.
11th August, 2010 V.B.GUPTA, J.
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