Sridhar Gupta vs N.D.M.C. & Another
2010 Latest Caselaw 270 Del

33.
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+    W.P.(C) 985/2008

       SRIDHAR GUPTA                          ..... Petitioner
                             Through Mr. Harish Malhotra, Sr. Advocate with
                             Mr. Tanuj Khurana, Advocate.
                   versus
       N.D.M.C. & ANR.                    ..... Respondents
                           Through Mr. Rajesh Mahajan, Advocate for
                       NDMC.
       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA

               ORDER

% 19.01.2010

1. The petitioner, Mr. Sridhar Gupta, by way of present writ petition has challenged eviction order dated 17th June, 2004 passed by the Estate Officer and the order dated 29th January, 2008 passed by learned Additional District Judge dismissing his appeal under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (the Act, for short).

2. In 1969 the petitioner was allotted space in Yashwant Place, Chanakyapuri, New Delhi for a period of five years on monthly licence basis. It is accepted and admitted that the said licence has expired and has not been renewed. The petitioner was defaulter in payment of licence fee and the licence was cancelled with effect from 18th March, 1970. Eviction proceedings initiated against the petitioner under the Act were set aside by learned Additional District Judge on account that President, NDMC was not empowered by any resolution of the Municipal Committee to order cancellation.

3. After the licence term had expired by afflux of time, the respondent- NDMC again initiated eviction proceedings before the Estate Officer on 6th January, 1982. While these eviction proceedings were pending, some of the traders operating from Yashwant Place, Chanakyapuri, New Delhi approached the Supreme Court by way of a writ petition. Eventually, these proceedings were closed in July, 1996. On 8th December, 1998, the respondent-NDMC issued a

W.P (C) No. 985/2008 Page 1 notice calling upon the petitioner to pay a sum of Rs.3,30,059.42 as arrears towards damages and Rs.5,45,535/- as interest. This was followed by an eviction notice. Subsequently on 19th November, 1999, the amounts claimed were reduced. The petitioner deposited the said amounts as demanded in the first part of the year 2000. However, NDMC did not renew the licence of the petitioner. The petitioner thereupon filed a writ petition in this Court, which was disposed of with a direction to the respondents to consider the representation of the petitioner for extension/renewal of the licence by way of a speaking order.

4. On 25th June, 2001 the respondent-NDMC rejected the request of the petitioner for restoration of electricity connection and for issue of health licence. The petitioner has enclosed copy of the letter dated 25th June, 2001 without enclosing therewith the order passed by the Chairman of the respondent Committee dated 20th April, 2001. Copy of the said order was produced in Court and taken on record. The said order records that as per the terms and conditions of allotment the petitioner could not carry any additions/alternations in the premises without permission of the Municipal Committee. Further, no structure of any kind was permitted and cooking of any kind was not allowed in the plaza. It was observed that the petitioner was not abiding the said terms and conditions and the petitioner had made unauthorized construction and encroachments. The said unauthorized construction and encroachments had continued to exist as was admitted by the petitioner at the time of personal hearing before the Chairman.

5. The petitioner challenged the said order by way of Writ Petition (C) No. 4330/2001. Court Commissioner was appointed to verify facts and ascertain true factual position and she had submitted a report dated 29th May, 2002. The report substantiated the contention of the respondent that the petitioner was carrying on cooking and other activities under unhygienic conditions. The petitioner was called upon to furnish undertaking that he would use the kitchen for cooking food articles and would use kitchen for washing utensils. The respondents filed affidavits in the said case that the petitioner had continued to violate the undertaking. This writ petition was disposed of vide order dated 12th

W.P (C) No. 985/2008 Page 2 December, 2007 with the learned single Judge recording as under:-

"7. The respondents in an additional affidavit filed on 19.8.2003 alleged that despite the undertaking, the petitioner had violated the conditions and had been challaned on several occasions, i.e. 16.10.2002, 21.11.2002, 13.2.2003, 27.5.2003, 24.6.2003 and finally on 25.7.2003. Under orders of Court, several other inspections were carried out including those on 20.11.2003, 11.2.2004, 12.3.2004 and 26.4.2004 All these had disclosed some deficiencies in the functioning of the petitioner Unit. Eventually, this Court directed that further inspections would not be conducted at the petitioner's request and imposed costs upon it by its order dated 3.2.2005. One last inspection of the premises was carried out on 17.2.2005. In the light of this inspection, a further direction was issued by this Court, (after considering the report stating that since there were no violations in the functioning of the unit so far as cooking and cleaning of utensils were concerned), a request for issuance of health licence should be considered appropriately. The health licence was granted for the year 2005-06.

8. Learned counsel for the petitioner contended that with payment of all the arrears demanded by NDMC, and the fact that no further challans have been issued, the respondents ought to be directed to renew the licence. It is submitted that the petitioner cannot be called violator of any condition and the effort to evict him from the premises is arbitrary and would also impede on his livelihood.

9. Learned counsel for the respondent submitted that the history of this litigation discloses that despite the petitioner approaching this Court and even furnishing undertaking both in terms of the conditions of the licence as well as in the matter of hygene which is so essential for running on snacks bar, unhygenic functioning by

W.P (C) No. 985/2008 Page 3 petitioner in cooking the food articles and the general cleanliness of the place, was noticed. These persisted for more than four years after this petition was filed. It was contended that the amount i.e. Rs.1,34,213.42 towards licence fee and Rs.1.26,122.10 on account of interest demanded on 19.11.1999, was in error and an affidavit dated 30.11.2005 was relied on to say that a sum of Rs.5,30,147/- calculated upto June, 2005 is due and payable.

10. It was contended by the respondent that during the pendency of these proceedings, an eviction order has been made directing the petitioner to hand over vacant possession of the premises, on 17.6.2004, that order has been challenged.

11. Learned counsel for the petitioner submitted that in view of the payment position and also the fact that health licence was issued and renewal of the request is pending, the respondent should be directed to consider his application for renewal of the licence in respect of the premises.

12. The factual narrative shows that the eviction order is not premised merely on the hygene aspects, but also other violations as to the existence of unauthorized structures which were an impediment to extending the license.

Therefore, mere payment of amounts demanded been the only concern, the issue could have been different. Here, however, the repeated inspections showing unhygenic conditions, despite furnishing of an undertaking to the court and the eviction order having been made in June 2004, in my opinion, point to the fact that the directions sought for would not be appropriate in this case, under Article 226.

13. At this stage, learned counsel for the petitioner seeks liberty to withdraw this petition and approach the

W.P (C) No. 985/2008 Page 4 respondents with a representation to extend the licence upon such terms and conditions as may be agreeable.

Liberty granted. In case a representation is made, the respondents shall consider the same in the light of all the facts and circumstances and pass an appropriate order in accordance with law." (emphasis supplied)

6. Thus, it is apparent that the petitioner inspite of the undertaking given to the Court and repeated inspections had continued to operate and cook food in unhygienic conditions. There were also violation of the terms and conditions in form of unauthorized construction. When the Court was about to dismiss the writ petition, the petitioner withdrew the writ petition. The Court has made several observations, which have been quoted above with regard to the conduct of the petitioner in respect of unhygienic conditions and unauthorized structures constructed by the petitioner.

7. Even after the present writ petition was filed, the respondents have conducted inspection and have filed photographs on record. The photographs show that the status of the kitchen continues to be unhygienic and the petitioner has encroached upon open areas by putting plastic sheets and has barricaded the said encroachment by putting bamboo railings. The photographs show that the petitioner has been cooking outside the kitchen from the counters. Thus, in spite of the observation made by the learned single Judge in his order dated 12th December, 2007, the petitioner with impunity has been consistently violating the terms and conditions, showing scant regard of rules. In these circumstances, I do not think the petitioner deserves any sympathy or indulgence. In fact, sympathy will be misplaced and will encourage the petitioner to continue with his illegal activity of encroaching upon public area, unauthorized construction and violation of the terms of original licence. The facts of the present case reveal that right from the beginning itself, the petitioner has violated the terms of the licence.

8. Faced with the aforesaid circumstances, learned senior counsel for the petitioner submits that the Estate Officer had initiated proceedings vide letter

W.P (C) No. 985/2008 Page 5 dated 7th July, 1999 on the ground that the original licence/allotment had expired with effect from 30th November, 1974. He submitted that the petitioner had thereafter paid the enhanced licence fee in the year 2000 and in terms of letter dated 19th November, 1999 written by the respondent. It is accordingly submitted that the proceedings under the Act were rendered infructuous. It is not possible to accept the said contention. Letter dated 7th July, 1999 written by the Estate Officer not only refers to expiry of the term of the original licence but also refers to unauthorised subletting and unauthorized construction. Further, the Chairman of the respondent Committee vide order dated 20th February, 2001, which was communicated to the petitioner vide letter dated 25th June, 2001 had rejected the petitioner's request for extension of the term of the licence. The same was made subject matter of challenge in W.P. (C) No. 4330/2001. I have already quoted order dated 12th December, 2007 passed by a single Judge of this Court disposing of the said writ petition recording several findings. In this order learned single Judge had observed that the eviction proceedings under the Act were premised not only on the hygiene aspect but for several violations including existence of unauthorized construction.

9. In these circumstances, I do not find any merit in the present writ petition and the same is dismissed with cost of Rs.20,000/-. At the request of the counsel for the petitioner, who states that they want to file an appeal against this order, the respondents will not evict the petitioner for a period of 15 days. It is clarified that this Court has not examined the question whether letter dated 19th November, 1999 was issued by a duly authorized and a competent officer of the respondent- NDMC and the said plea raised by the respondent.

SANJIV KHANNA, J.

       JANUARY 19, 2010
       VKR




W.P (C) No. 985/2008                                                             Page 6