Ram Piyari vs New Delhi Municipal Council & Anr
2011 Latest Caselaw 1443 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 11th March, 2011.

+                            W.P.(C) 14196/2006

         RAM PIYARI                                            ..... Petitioner
                            Through:      Mr. Ravi Gupta, Sr. Advocate with
                                          Ms. Swaty Malik & Mr. Swastik
                                          Singh, Advocates.

                                       Versus

         NEW DELHI MUNICIPAL COUNCIL
         & ANR                                 ..... Respondents
                     Through: Mr. Arjun Pant, Advocate for R-1.
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.

CM No.2823/2011 (for restoration of the writ petition dismissed in default on 15th February, 2011).

The counsel for the respondent NDMC has been heard. For the

reasons stated in the application the same is allowed and the writ petition is

restored to its original position.

CM No.2824/2011 (for exemption).

Allowed, subject to just exceptions.

W.P.(C) No.14196/2006.

1. The counsels have been heard.

2. This writ petition was filed impugning the order dated 4 th September,

2006 of Director (Enforcement) of the respondent NDMC

cancelling/withdrawing the tehbazari permission granted for putting up a

taxi booth at Laxmi Bai Nagar, New Delhi. Notice of the petition was issued

and the parties directed to maintain status quo. The said order has continued

in force till now and whereunder the taxi stand continues to exist.

3. The cancellation aforesaid was effected for the reason of breach of the

tehbazari permission. The breach as borne out from the show cause notices

dated 9th June, 2006 & 6th July, 2006 preceding the cancellation, was of the

petitioner herein namely Smt. Ram Piyari being the illegal and unauthorized

occupant of the tehbazari site for taxi stand originally granted to one Sh.

Harbans Lal.

4. The arguments in the writ petition were heard partly on 13 th July,

2010. It was then enquired from the counsels as to till when the license with

respect to the said taxi booth was valid in as much as it was felt that if the

term of the license had expired, there is no need to go into the question of

breaches. The counsels had sought adjournment to report back.

5. The counsel for the respondent NDMC on 2nd February, 2011

informed that the license granted to the petitioner had expired as far back as

in the year 2000 and had not been renewed thereafter.

6. The senior counsel for the petitioner has today contended -

(i) that the permission for setting up a taxi stand is granted by the

District Magistrate and not by the respondent NDMC and the

respondent NDMC was concerned only with granting

permission for erection of a booth at the site allotted by the

District Magistrate;

(ii) thus the question of expiry of the license granted by the

respondent NDMC did not arise;

(iii) that the respondent NDMC had not taken it as a ground in the

show cause notice or in the cancellation order impugned in this

petition;

(iv) that even in the counter affidavit no such plea has been taken

and the license if any expiring in the year 2000 has not even

been placed before this Court;

(v) that the District Magistrate had vide order dated 29th August,

1975 allotted the taxi stand to one Sh. Harbans Lal; that the said

Harbans Lal had first entered into partnership with Sh. Om

Prakash and thereafter partnership dated 30th December, 1995

with one Shri Vinod Kumar; that the said partnership was

dissolved on 23rd March, 1996 and Sh. Harbans Lal withdrew

from the partnership and released all his rights in the

partnership including the taxi booth aforesaid in favour of Sh.

Om Prakash and Sh. Vinod Kumar; that the respondent NDMC

vide letter dated 20th August, 1997 regularized the taxi stand in

the name of Sh. Om Prakash and Sh. Vinod Kumar and thus

had recognized Sh. Vinod Kumar with respect to the said taxi

stand; that Sh. Om Prakash retired from the partnership and Sh.

Vinod Kumar continued to carry on the business of a taxi stand;

that upon demise of Sh. Vinod Kumar, his widow i.e. the

petitioner herein applied for substitution in her name.

(vi) Upon it being put to the senior counsel for the petitioner that

even the order dated 29th August, 1975 of the District

Magistrate makes allotment of the taxi stand for a period of

three years only, he contends that the respondent

NDMC/District Magistrate has a Policy of continuing with the

allottee unless cancelled, though the same is not available with

the petitioner.

(vii) It is further contended that after the demise of Sh. Vinod

Kumar a change of location of the taxi stand was also allowed.

It is thus contended that the reason given in the show cause notice and

cancellation order of unauthorized transfer of the taxi stand is bad.

7. The counsels have placed before this Court judgment dated 30 th

January, 2006 in W.P.(C) No.2651/2005 titled Shri Hari Om v. NDMC

wherein this Court held that tehbazari sites with respect to the taxi stand

could not be transferred and the subsequent judgment dated 10 th March,

2006 in W.P.(C) No.2053/2006 titled Shri Uttam Singh v. NDMC where

notwithstanding the earlier judgment, when partnership had been

recognized, the transferee by way of such partnership was allowed to

continue. The senior counsel for the petitioner contends that the latter

judgment applies on all fours to facts of present case.

8. The counsel for the respondent NDMC has contended that the

respondent NDMC has never recognized anybody else other than

Sh. Harbans Lal. It is stated that the letter dated 20th August, 1997 (supra) of

Sh. M.L. Kapoor, Assitt. Secretary (Enforcement) of the respondent NDMC

relied upon by the petitioner is a nullity in as much as the same was issued

by the said Sh. M.L. Kapoor without any authority and action was taken by

the respondent NDMC against Sh. M.L. Kapoor for issuing the said letter.

Attention is drawn to page 68 of the paper book where the petitioner has

also referred to the Vigilance Inquiry. He contends that though in the file

sent to him there is a draft of the License Deed executed and in the note

forwarded to him also it has been informed that the taxi booth in question

was allotted in the joint name of Sh. Om Prakash and Sh. Vinod Kumar in

the year 1997 for a period of three years but the License Deed is not

contained in the file sent to him.

9. Prima facie it appears that the respondent NDMC would definitely

have a role in any kind of encroachment on the pavements in as much as the

streets and the pavements vest in the respondent NDMC. It thus appears

unlikely, as contended by the senior counsel for the petitioner that the

respondent NDMC would have no role in determining the period for which a

taxi stand can continue. The senior counsel for the petitioner has also drawn

attention to judgment dated 24th August, 2004 in W.P.(C) No.6603/1999

titled New Delhi Taxi Operators Association v. NDMC dealing with the

said aspect.

10. I have also enquired from the senior counsel for the petitioner as to

who is carrying on the business of the taxi stand today. It is informed that it

is the petitioner only who is carrying on the said business. I have enquired

whether the taxis/vehicles belong to the petitioner. It is stated that a taxi

stand is intended to provide parking facility to any of the taxis and the

taxis/vehicles are not required to belong to the person to whom the taxi

stand has been allotted.

11. Since all the aforesaid aspects have not been considered, it is deemed

expedient that a proper inquiry including on all the aspects be conducted

not only by the respondent NDMC but also by the District

Magistrate/successor official and a reasoned decision be taken.

12. The petitioner to appear before the Director (Enforcement) of NDMC

on 25th March, 2011 at 1500 hours and on such subsequent dates as may be

fixed. The Director (Enforcement) to, in consultation with the office of the

District Magistrate/successor office, give a reasoned order on or before 30 th

June, 2011. If the petitioner remains aggrieved by the decision, the petitioner

shall have remedies in law. Till then the petitioner be not disturbed from the

taxi stand aforesaid.

The petition is disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) MARCH 11th , 2011 pp