Dheeraj Kumar vs N.D.M.C. & Another
2010 Latest Caselaw 3891 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of decision: 20th August, 2010.

+                           W.P.(C) No.3071/2008
%

DHEERAJ KUMAR                                                 ..... Petitioner
                            Through: Mr. Sarvesh Bisaria with
                            Mr. Prakash Chandra Sharma, Advocate.

                                   Versus

N.D.M.C. & ANOTHER                                            ..... Respondents
                            Through: Mr. Manoj K. Singh, Mr. Nilana
                            Banerjee and Mr. Pradyuman Sevar, Advocates.



CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                      No

2.       To be referred to the reporter or not?               No

3.       Whether the judgment should be reported              No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner was a licencee under the respondent no.1 NDMC for

running a snack bar at the water fall in Talkatora Garden, New Delhi. The

petitioner was removed/evicted from the said site. The said removal/eviction

was inter alia the subject matter of WP(C) 10644/2006 before this court

which was disposed of on 7th January, 2008. This court did not find the order

cancelling the licence of the petitioner to be suffering from the vice of

arbitrariness or irrationality. The cancellation of the licence was thus

upheld. During the course of hearing, it has emerged that proceedings under

the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 were

instituted against the petitioner thereafter and the petitioner was evicted in

pursuance to the order therein.

2. The petitioner, at the time of dismissal of the writ petition WP(C)

10644/2006 aforesaid, contended that he was entitled to be considered for an

alternative allotment. This court in the order dated 7 th January, 2008 (supra)

left it open to the petitioner to approach the respondent no.1 NDMC for

alternative allotment in terms of their policy, if any, and further directed that

if any such request was to be made, the same shall be considered

sympathetically in accordance with law.

3. The request of the petitioner for alternative site was rejected by the

respondent no.1 NDMC on 11th March, 2008 on the ground that no

alternative site can be provided to any occupant against the tender space. It

is not in dispute that the site at Talkatora was licenced to the petitioner

pursuant to an open tender.

4. The petition came up for hearing before this court yesterday when at

the outset it was enquired from the counsel for the petitioner as to on what

ground the petitioner was claiming a right to alternative site. The counsel

for the petitioner contended that the licence of the petitioner for Talkatora

site was w.e.f. the year 2002 and for an initial period of ten years with a

right of renewal and thus the petitioner was entitled to an alternative site for

the balance period of the licence term. Having not found any copy of such

licence / agreement on the file, it was enquired from the counsel as to on

what basis the said argument was made. The counsel stated that the licence

deed has not been placed on record. He did not even have the licence deed

with him. The matter was however adjourned for today. The counsel for

the petitioner has today handed over a copy of the deed of the licence dated

31st July, 2002 which is "for an initial period of ten years in the first

instance". It was enquired from the counsel for the petitioner whether the

same had any clause for prior determination. The counsel draws attention to

clause 36 which permits prior determination for the reason of breach of

licence condition. The counsel for the respondent no.1 NDMC intervenes at

this stage and draws attention to clause 24 of the licence deed which is as

under:

"24. That the allotment of the licensed premises in favour of the license would be purely temporary one and the same shall be treated as a bare licence which would be revocable at any time without assigning any reasons and in the event of revocation of the licence, the licensee shall be bound to quit the premises within a week of the issue of the notice of revocation of the licence by the licensor and shall not claim any compensation for any resultant injury thereof."

5. In view of the aforesaid clause permitting the respondent no.1 NDMC

to terminate the licence at any time without any right of compensation or

otherwise to the petitioner, and also in view of Section 64 of the Indian

Easements Act, 1882 providing that if a licencee for a consideration is

evicted before he has fully enjoyed the term of the licence, he is entitled

only to recover compensation from the grantors of the licence, it was

enquired from the counsel for the petitioner as to how, on the basis of the

said licence deed also, the petitioner had a claim for relocation. The counsel

then contended that the respondent no.1 NDMC has been allotting

alternative site to others similarly situated as the petitioner and have

wrongfully denied the same to the petitioner. Attention in this regard is

drawn to the representation of the petitioner to the respondent no. 1 NDMC

for alternative site, giving instances of such alternative allotment and blanket

denial thereof in the counter affidavit of the respondent. It is further stated

that the petitioner in his rejoinder gave details of the alternative sites allotted

by the respondent no.1 NDMC to others. It is further contended that owing

to the said facts the respondent no.1 NDMC was directed to file a

further/additional affidavit and in response whereto the respondent no.1

NDMC has admitted having granted alternative sites to those also who had

been granted licences pursuant to open tenders. The counsel for the

petitioner contends that the respondent no.1 NDMC is not only guilty of

false pleadings but has been, without any policy in this regard and at the

whims and fancy of its officers, granting alternative sites to some while

denying to others. Reliance in this regard is placed on Zenit Mataplast

Private Ltd Vs. State of Maharashtra (2009) 10 SCC 388, particularly to

para 27 thereof laying down that every action of the State or its

instrumentalities should not only be fair, legitimate but should be without

any affection or aversion and in accordance with rule of law. I have

enquired from the counsel for the petitioner that even if it were to be so, how

could the petitioner in the face of his express contract, whereunder he is not

entitled to any relocation and in view of the position in the Indian Easements

Act assert a right of relocation. The counsel has no answer.

6. In my opinion, grant of any alternative site to the petitioner would not

be in accordance with rule of law i.e., the contract under which the petitioner

occupied the original site as well as under the Indian Easements Act. In

fact, it appears that the grant of any alternative site to the petitioner would

fortify the allegation of arbitrariness inasmuch as the petitioner without

being entitled to any alternative site would be awarded one. The counsel for

the respondent no.1 NDMC also draws attention to the judgments of this

court in Brahampal Vs. UOI 124(2005) DLT 35 and to the order dated 28th

August, 2009 in WP(C)9251/2009 titled L.C. Mahendru Vs. NDMC but the

same are not found relevant. The petitioner is therefore not entitled to the

relief claimed.

7. Finding from the affidavit of the respondent no.1 NDMC that in the

matter of allotment of alternative site, there is no policy and decisions are

being taken on a case to case basis, during the course of hearing it was

offered to the counsel for the petitioner that inspite of dismissal of the

petition the matter can be placed before the PIL Bench as a Public Interest

Litigation and to which the counsel for the petitioner had agreed. However,

on further consideration it is felt that it will be expedient that the petitioner,

if desirous in public interest, of challenging the action of the NDMC of

allotting the alternative sites without any policy in that respect, should make

a composite petition with all the pleas rather than the pleas being spread out

over several pleadings. The counsel for the respondent NDMC has

controverted the case of arbitrariness and has contended that none of the

recent evacuees owing to the Commonwealth Games have been allotted any

alternative site.

8. In the aforesaid circumstances while dismissing the petition, liberty is

granted to the petitioner to if so desirous in accordance with law take up the

matter of arbitrariness in allotment of alternative sites as a Public Interest

Litigation. No order as to costs.

RAJIV SAHAI ENDLAW, J AUGUST 20, 2010 M.