Delhi High Court
Sardar Jagat Singh & Anr vs Ndmc & Ors. on 6 May, 2010
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ L.P.A 743-44/2005
% Reserved on: 15th February, 2010
Decided on: 6th May, 2010
SARDAR JAGAT SINGH & ANR ..... Appellants
Through: Mr. Amiet Andlay with Mr. Arun
Kumar Sharma, Advocates.
versus
NDMC & ORS. ..... Respondents
Through: Mr. Arvind Sah, Advocate for
Respondent No. 1-NDMC.
Mr. Sanjeev Sachdeva with Mr. Preet
Pal Singh and Mr. Chitranshul Sinha,
Advocates for Hotel Imperial.
+ LPA 745/2005
RAJINDER PAL SINGH ..... Appellant
Through: Mr. Amiet Andley and Mr. Arun
K.Sharma, Advocates.
versus
NDMC & ORS. ..... Respondents
Through: Mr. Arvind Sah, Advocate for NDMC
Mr. Sanjeev Sachdeva with Mr. Preet
Pal Singh and Mr. Chitranshul Sinha,
Advs. for Hotel Imperial.
+ LPA 1594/2005
SARANJEET KAUR ..... Appellant
Through: Mr. Kirti Uppal and Mohd. Amanullah,
Advocates
LPA Nos.743-44/05, 745/05, 1594/05, 1595/05 & 1596/05 Page 1 of 16
versus
N.D.M.C. & ANR. ..... Respondents
Through: Mr. Arvind Sah, Adv. for NDMC
Mr. Sanjeev Sachdeva with Mr. Preet
Pal Singh and Mr. Chitranshul Sinha,
Advs. for Hotel Imperial.
+ LPA 1595/2005
CHARANJEET SINGH ..... Appellant
Through: Mr. Kirti Uppal and Mohd. Amanullah,
Advs.
versus
N.D.M.C. & ANR. ..... Respondents
Through: Mr. Arvind Sah, Adv. for NDMC
Mr. Sanjeev Sachdeva with Mr. Preet
Pal Singh and Mr. Chitranshul Sinha,
Advs. for Imperial Hotel
+ LPA 1596/2005
MOHAN SINGH DHILLON ..... Appellant
Through: Mr. Kirti Uppal and Mohd. Amanullah,
Advs.
versus
N.D.M.C. & ANR. ..... Respondents
Through: Mr. Arvind Sah, Adv. for NDMC
Mr. Sanjeev Sachdeva with Mr. Preet
Pal Singh and Mr. Chitranshul Sinha,
Advs. For Imperial Hotel
LPA Nos.743-44/05, 745/05, 1594/05, 1595/05 & 1596/05 Page 2 of 16
Coram:
HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MS. JUSTICE MUKTA 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
3. Whether the judgment should be reported
in the Digest? Yes
MUKTA GUPTA, J.
1. The present appeals arise out of a common judgment dated 8th April,
2005 passed by the learned Single Judge dismissing the writ petitions of the
Appellants herein. All these appeals are being taken together as the facts and
legal issues arising in all the appeals are common, except one factual
difference, that is, the Appellant in LPA 743-45/2005 were granted
permission to occupy the rear portion of the telephone booth whereas the
other Appellants were not.
2. The Appellants were allotted masonry telephone booths on Janpath
outside Hotel Imperial. Vide agreement dated 30th March, 1968 license was
granted to the Appellants to occupy masonry telephone booth comprising of
an area of 6‟x14‟ on a monthly rent of Rs.75/- erected on the road-berm in
front of Hotel Imperial, Janpath at taxi stand approved by the Committee
under Section 173 of the Punjab Municipal Act, 1911 (in short „PM Act‟) by
the New Delhi Municipal Committee (hereinafter called as „Committee‟).
3. In the agreement, there was a provision for prescription of fee at any
other rate by the Committee from time to time and thus the Committee vide its
various resolutions enhanced the license fee. The said enhancement of license
fee was challenged by the Association of the Appellants in a writ petition filed
before this Court being WP(C) No. 6603/1999 which was dismissed as
withdrawn.
4. In the meantime, during the course of years, the Respondents raised
unauthorized construction and thus there was a proposed demolition action.
Against this a writ petition being WP (C) No. 2174/1999 was filed seeking
restraint from demolishing the telephone booths which was disposed on 20th
April, 1999 by this Court with the observation that in view of the proviso to
Sec. 247(1) of The New Delhi Municipal Council Act, 1994 (in short "the
NDMC Act") no demolition order shall be made unless the person has been
given reasonable opportunity to show cause prior to any demolition order. It
was directed that the Respondents shall not demolish the premises in question
otherwise then in accordance with law.
5. The Appellants were served with a notice dated 8th September, 1999 to
which a reply was filed by them and immediately thereafter on 20th
September, 1999 a writ petition being WP (C) No. 5693/1999 challenging the
notice dated 8th September, 1999 of the Respondent was filed. The said writ
petition was disposed of by this Court with a direction to the NDMC, to
dispose of the matter after consideration of all the representations of the
Petitioners therein by a speaking order. After hearing the Appellants, the
Respondents passed a detailed order dated 16 th March, 2000. Vide order dated
16th March, 2000, the NDMC terminated the licenses of the Appellants and
directed removal of unauthorized encroachment in the telephone booth and
public passage and withdrawal of civic amenities and possession of the booth
and recovery of arrears as per the provisions of law. Hence as on date since
2000 the Appellants are neither licencees nor in possession of the telephone
booths at the taxi stand.
6. The Appellants filed writ petitions being WP(C) Nos.4001/2000;
4355/2000; 4356/2000; 4357/2000 and 4358/2008 challenging the order dated
16th March, 2000 of the Respondent, of which Civil Writ Petition No.
4001/2000 with the following prayers was treated as the lead matter:
" a) issue a writ in the nature of certiorari to quash and set
aside the impugned order dated 16.3.2000 (Annexure A)
issued by the respondents.
b) Issue a writ in the nature of mandamus directing the
respondents to restore the status quo ante in respect of the
premises bearing No. 7, 36, Janpath, New Delhi.
c) Issue a writ of mandamus or any other order or writ or
direction restraining the respondents from demanding the
payment as ask for in the impugned order dated 16.3.2000."
7. The above mentioned writ petitions were dismissed by the learned
Single Judge vide impugned order dated 8th April, 2005.
8. With regard to the issue of license fee it is submitted by learned counsel
for the Appellants that as per the directions of this Court, the Appellants have
already deposited Rs. 1 lakh without prejudice to the rights of the parties, at
the time of initial hearing of the writ petitions. Moreover, the calculation of
the Respondents with regard to the licence fee even as per the rates is
incorrect and the NDMC could not have revoked the licence on this ground.
9. According to the learned counsel for the Appellants Section 195 of the
PM Act was the only provision under which the Respondents could have
taken action and under the said provision no notice could have been issued
beyond a period of six months. Admittedly, the time of six months from the
unauthorized construction having lapsed, the Respondents were not
empowered to take any action against the Appellant. In the alternative it is
stated that at best Respondent could have removed the additional
constructions raised and could not have terminated the licenses and taken over
the possession from the Appellants. It is also submitted that the Appellants
could have been removed only after following the procedure prescribed under
the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (in short
PP Act). Reliance is placed on the decision of this Court in the case of
Municipal Corporation of Delhi v. Smt. Surjit Kaur, AIR 1973 Delhi 198
and H.K. Chaudhary vs. N.D.M.C. & Anr. 155 (2008) DLT 267 wherein this
Court held that as no notice of demolition was given within six months in
view of Section 195 of the PM Act, the building was saved and cannot be
demolished or sealed by the Respondent. It is also contended that at best the
Appellant could have been removed in accordance with the provisions of P.P.
Act. Section 195 of the PM Act reads as under:-
"195. Penalty for disobedience: - Should a building be
begun, erected or re-erected.
(a) without sanction as required by section189 (1); or
(b) without notice as required by section 189 (2); or
(c) when sanction has been refused;
the [committee] may by notice delivered to the owner within
six months from the completion of the building, require the
building to be altered or demolished as it may deem necessary
within the period specified in such notice; and should it be
begun or erected;
(d) in contravention of the terms of any sanction granted; or
(e) when the sanction has lapsed; or
(f) in contravention of any bye-law made under section190;
or in the case of a building of which the erection has been
deemed to be sanctioned under section 193(4), if it
contravenes any scheme sanctioned under section 192;
the [committee] may by notice to be delivered to the owner
within six months from the completion of the building require
the building to be altered in such a manner as it may deem
necessary, within the period specified in such notice:
Provided that the committee may, instead of requiring the
alteration or demolition of any such building, accept by way of
compensation such sum as it may deem reasonable:
Provided also that the committee shall require a building
to be demolished or altered so far as is necessary to avoid
contravention of a building scheme drawn up under section
192:
[Provided further that if any notice is issued by the
Executive Officer under this section on the ground that a
building has been begun or has been erected in contravention
of the terms of any sanction granted or in contravention of any
bye-law made under section 190 the person to whom the
notice is issued may, within fifteen days from the date of
service of such notice, appeal to the committee, and subject to
the provisions of sections 225, 232 and 236, the decision of the
committee shall be final."
10. Per contra the Respondents have stated that the agreement between the
parties is very clear and is under Section 173 of the PM Act which creates no
vested right in the Appellants to continue with the possession. The
Respondent could not only cancel the licence for violating the terms of the
condition but could terminate the said license at any point of time without
assigning any reason. According to them, Section 195 of the PM Act has no
application to the facts of the case. It is further submitted that in so far as
Section 195 is concerned, by the (New Delhi Amendment) Act, 1984, Section
195 of the PM Act stands amended by deletion of the words "six months". It
is further contended that even in view of the decision of the Hon‟ble Supreme
Court in the case of Municipal Committee, Karnal v. Nirmala Devi, AIR
1996 SC 892, the Municipality is empowered to remove unauthorized
construction on public street, if the encroacher does not voluntarily remove
the same, even after issuance of a notice for demolition.
11. We have heard learned counsel for the parties. We find from the
agreement dated 30th March, 1968 that the same was entered into under
Section 173 of the PM Act. The agreement dated 30th March, 1968 reads as:-
"Agreement
Whereas, I, Shri Jagat Singh S/o Shri Manohar Singh a Jat
Sikh by caste and a transporter by profession and resident of
H. No. 180, J.J. Colony, Moti Bagh II, Ring Road, N. Delhi
hereinafter called the „First Party‟ which expression shall
include all his heirs, successors, survivors, administrators, and
assignees, The first party has been accorded permission to
occupy a Telephone Booth erected on the road-berm of in F.O.
Imperial Hotel, Janpath road at Taxi Stand approved by the
Committee.
Whereas this permission has been granted vide Res. No.
35 dated 9.6.67 under Section 173 of the Punjab Municipal
Act, 1911 by the New Delhi Municipal Committee, the erector
and owner of the said Telephone Booth, hereinafter called the
"Second Party" which expression shall include all their
successors, assigns and administrators of the other part, and
And whereas the first party as a pre-condition for the
grant of permission by the Second party do hereby voluntarily
agree to abide by and bound by all the terms and conditions
incorporated in this agreement.
1) The first party hereby admits and declares that the site
underneath the Telephone booth is and shall continue to be
part of a public street and vests in the second party.
2) That the First party hereby agrees and undertakes to
surrender the said Booth as and when the permission to occupy
the Booth is cancelled and a demand to this effect is made by
the second party, even without assigning any reason
whatsoever.
The First party shall not be entitled to any compensation for
any resultant loss or injury.
3) The First party hereby agrees to pay @ Rs. 75/- P.M. and
also undertakes to pay fee at any other rate, which may be
prescribed by the Committee from time to time.
4) The First party hereby undertakes not to damage the
Telephone Booth erected by the second party.
5) In witness whereof the First party sets his hand
this____day of 30.3.1968 at New Delhi."
12. It would be seen that the terms of the agreement are in consonance with
the provision of Section 173 of the PM Act, which is reproduced herein under:
173. Power to permit occupation of public street and to
remove obstruction: - [(1) The committee may grant
permission in writing, on such conditions as it may deem fit
for the safety or convenience of persons passing by, or
dwelling or working in the neighbourhood, and may charge
fees for such permission, and may at its discretion withdraw
the permission, to any person to -
(a) place in front of any building any movable encroachment
upon the ground level of any public street or over or on any
sewer drain or water-course or any movable overhanging
structure projecting into such public street at a point above the
said ground level.
(b) take up or alter the pavement or other materials for the
fences or posts of any public street, or
(c) deposit or cause to be deposited building materials, goods
for sale, or other articles on any public street, or
(d) make any hole or excavation on, in or under any street, or
remove materials from beneath any street, so to cause risk of
subsidence, or
(e) erect or set up any fence, post, stall or scaffolding in any
public street.
(2) Whoever does any of the acts mentioned in sub-section
(1) without the written permission of the committee shall be
punishable with fine which may extend to five hundred rupees
and the committee or the secretary of the committee or the
Medical Officer of Health or any person authorized by the
committee may -
(i) after reasonable opportunity has been given to the owner
to remove his material and he has failed to do so, remove
or cause to be removed by the police, or any other
agency, any such movable encroachments or overhanging
structures and any such materials, goods or articles, of
merchandise and any such fence, post, stall, or
scaffolding.
(ii) and take measures to restore the street to the condition it
was in before any such alteration, excavation or damage."
13. As per the agreement dated 30th March, 1968 between the parties the
license of the Appellants were terminable without assigning any reason.
Pursuant to the directions of this Court dated 20th April, 1999 in WP (C) No.
2174/1999 a show cause notice dated 8th September, 1999 was issued to which
the Appellant filed a reply and it is only thereafter that the order dated 16 th
March, 2000 was passed by the Respondent in conformity with the principles
of natural justice. In the present case, the reason for which the license was
revoked and possession taken over by the Respondent No. 1, are fully
justified. Clause 4 of the agreement clearly stipulates that the first party
undertakes not to damage the telephone booth erected by the second party,
however, the Appellants made unauthorized constructions of an additional
structure besides encroachments over the telephone booth, which were
permanent in nature. Secondly the Appellants were duty bound to pay the fee
at the rates prescribed by the committee from time to time and having not paid
the same the committee is entitled to recover the same from the Appellants.
14. We are of the opinion that Section 195 of PM Act has no application to
the facts of the case. The agreement was entered into under Section 173 of
PM Act which provides a complete mechanism for granting permission and
withdrawal thereof. Moreover even if Section 195 of PM Act was to apply to
the present case in view of the Punjab Municipal (New Delhi Amendment)
Act, 1984 (hereinafter called the Amendment Act, 1984) which came into
force on the 28th May, 1984, whereby the words "six months" in Section 195
stood deleted, the Respondent was not barred from taking the action beyond a
period of six months. The decision of this Court in the case of MCD vs. Smt.
Surjit Kaur has no relevance as the same was rendered prior to coming in
force of the Amendment Act, 1984. In the decision rendered by this Court in
the case of H.K. Choudhary vs. N.D.M.C. and others wherein reliance is
placed on the decision in the case of Jor Bagh Association (Regd.) and
others vs. Union of India and others, AIR 2004 Delhi 389, it is apparent that
the Amendment Act, 1984 was not brought to the notice of this Court.
15. It is also contended by learned counsel for the Appellants that the place
where the telephone booth was erected was not a "public street", hence
Section 173 of the PM Act has no application and reference in this regard is
made to definition of public street under Section 3 (13) (b), PM Act and it is
stated that without a declaration, the place cannot be treated as a public street.
16. The contention of learned counsel for the Appellants that the same is
not a "public street", is also fallacious in view of the definition of the same
under Section 3 (13) (b) of the PM Act and the terms of the agreement dated
30th March, 1968 wherein the place has been clearly mentioned as a public
street. Section 3 (13) (b) is reproduced as under:
"3 (13) (b) "public street" shall mean any street -
(i) heretofore leveled, paved, metalled, channelled, swerved,
or repaired out of municipal or other public funds, unless
before such work was carried out there was an agreement
with the proprietor that the street should not thereby
become a public street, or unless such work was done
without the implied or express consent of the proprietor;
or
(ii) which under the provision of section 171, is declared by
the committee to be, or under any other provision of this
Act becomes, a public street."
Thus it would be seen that the clauses 1 and 2 are disjunctive and thus
streets which are levelled, paved, metalled, channelled, swerved or repaired
out of municipal or other public funds are public streets and besides that the
Committee also had the power to declare other streets also as public streets.
17. The reliance of the learned counsel for the Appellant to the decision
rendered in the case of Rame Gowda vs. M. Varadappa Naidu & Anr 2004 1
SCC 769, is of no avail as in the said decision the Hon‟ble Supreme Court
held that in case of "settled possession" even the rightful owner may only
recover it by taking recourse to law. In the present case Section 173 PM Act
provides a complete mechanism even for removal of the possession and thus
action of the Respondents was in accordance with law as held by the Hon‟ble
Supreme Court. The contention of the learned counsel for the Appellant that
the removal could have been only after taking recourse to PP Act is also
misconceived in view of the provisions of Section 173 PM Act.
18. Learned counsel for the Appellant also places reliance on the decision
of this Court in the case of Panchkuian Road Refugee Vyapar Sangh & Ors.
vs. Delhi Metro Rail Corporation & Ors reported as 2006 VI AD (Delhi)
573. In our view the said decision has no application to the facts of the present
case. In the said decision, this Court came to the conclusion that the
Petitioner‟s therein possessed legal rights for continued possession of their
shops which can be brought to an end only through pursuit of due process of
law. In the present case the Respondent has taken recourse to due process of
law before terminating the license of the Appellants.
19. With regard to the issue of license fee, the New Delhi Taxi Operators
Association of which the Appellants are members, filed a writ petition being
W.P. (C) No. 6603/1999, wherein this Court vide order dated 24th August,
2004 held:
"22. During the pendency of the petition, interim orders were
passed that on depositing of a sum of Rs. 1 lac by tax stand
operators, impugned resolutions would not be enforced. Since,
the writ petition is being disposed of on the petitioner not passing
the issue pertaining to license fee charged by NDMC for the
kiosk created at the stand. It is directed that each of the taxi
stand allottee would pay the entire license fee payable after
adjusting the sum of Rs. 1 lac deposited under orders of this
Court within a period of eight weeks from today without any
interest. If the arrears are not paid within the aforesaid period,
same shall be recoverable by NDMC with interest at the rate of
12% per annum for the period post eight weeks from the date of
the present order."
Thus the issue qua license fee having become final in the said writ
petition, we are not inclined to interfere in the same. The Respondents would
be entitled to recover the arrears in accordance with law after adjusting the
amounts already paid.
20. For the reasons stated above we find no merit in the appeals. Hence the
same are dismissed.
(MUKTA GUPTA)
JUDGE
(MADAN B.LOKUR)
ACTING CHIEF JUSTICE
MAY 06, 2010
vn
