Surender Malhotra vs Agricultural Products Market ...
2011 Latest Caselaw 3742 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 4th August, 2011.

+                                W.P.(C) 5538/2011

       SURENDER MALHOTRA                                   ..... Petitioner
                  Through:              Mr. Javed Ahmad & Mr. Eram Khan,
                                        Advocates.

                                 Versus

    AGRICULTURAL PRODUCTS MARKET COMMITTEE
    & ORS                                    ..... Respondents
                 Through: Ms. Avnish Ahlawat with Ms. Latika
                           Choudhary, Advocates.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may              Not necessary
       be allowed to see the judgment?

2.     To be referred to the reporter or not?             Not necessary

3.     Whether the judgment should be reported            Not necessary
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The father of the petitioner is claimed to have been the owner of built

up property bearing No.356 in Block-A comprising the basement, ground

and first floor in New Sabzi Mandi, Azadpur, Delhi. The counsel for the

petitioner states that the perpetual lease deed of the land underneath the said

property had been granted to the father of the petitioner by the DDA. It is

stated that the said property is situated in the New Sabzi Mandi which is

being managed by the respondents no.1 & 2 APMC.

2. It is further admitted by the petitioner that his father executed and

registered a General Power of Attorney dated 20th December, 1995 with

respect to the said property in favour of the respondent no.3 Sh. Harbhajan

Singh and the said Sh. Harbhajan Singh since then is in possession of the

property.

3. The petitioner claims that his father died on 10 th June, 2007 and the

other natural heirs of his father have relinquished their rights in the aforesaid

property in favour of the petitioner. It is further the claim of the petitioner

that in spite of his representations to the respondents no.1 & 2 APMC not to

renew the license with respect to the said property in favour of the

respondent no.3, respondents no.1 & 2 APMC has been renewing the license

in favour of the respondent no.3. This writ petition has been field seeking

mandamus to the respondents no.1 & 2 APMC to cancel the license issued to

the respondent no.3 with respect to the aforesaid property.

4. The sole ground on which the petitioner is claiming to be entitled to

the said relief is that since the GPA executed by his father in favour of the

respondent no.3 has come to an end on the demise of his father, the

respondent no.3 on the basis of the said power of attorney is now not entitled

to the renewal of license from the respondents no.1 & 2 APMC.

5. Though the petitioner in the petition has pleaded that the GPA was

granted to the respondent no.3 only to use the property but a perusal of the

GPA shows that all possible powers which could be exercised with respect

to the property were vested in the respondent no.3 under the said deed

including of sale, letting, realization of consideration etc.

6. The petitioner in the petition has not stated any reason as to why the

power of attorney aforesaid was executed. There is no statement in the

petition that the power of attorney was without consideration.

7. I have enquired from the counsel for the petitioner whether the

respondent no.3 was related in any manner to the father of the petitioner.

The answer is in the negative. The counsel for the petitioner is also not able

to state that what was the reason for the execution of the said power of

attorney. On enquiry it is stated that the original perpetual lease is in

custody of the petitioner though has not been filed along with the petition.

The counsel for the petitioner at this stage states that the respondent no.3

was the servant of the father of the petitioner.

8. The sole premise on which the petition was filed i.e. of the GPA

coming to an end on the demise of the father of the petitioner, is contrary to

law i.e. Section 202 of the Indian Contract Act, 1872. The power of

attorney, from a reading thereof appears to be for consideration. The

Division Bench of this Court in Asha M. Jain Vs. The Canara Bank

MANU/DE/1304/2001 has also held that judicial notice has to be taken of

the transaction of sales in the guise of power of attorney prevalent in the

city.

9. The public law remedy of Article 226 cannot be allowed to be used to

arm twist the respondent no.3, as appears to be the case here and if the

petitioner has any bona fide dispute as to the title with the respondent no.3,

the remedy therefor is by way of civil suit and/or arbitration if possible and

not in the manner sought.

10. There is thus no merit in the petition; the same is dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 04, 2011 bs