Sh. Surender Kumar Chawla vs Union Of India & Anr.
2011 Latest Caselaw 2691 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   W.P.(C) No. 1755/2006

 %                      Judgment delivered on: 19th May, 2011

Sh. Surender Kumar Chawla                      ...... Petitioner

              Through: Mr.Aviral Tiwari, Advocate

                        versus

Union of India & Anr..                         ..... Respondents

              Through: Mr.R.N.Singh and Mr.A.S.Singh,
                       Advocates for R-1 to R-3
                       Mr.H.S.Phoolka, Sr. Advocate with
                       Ms.Mansi Gupta, Advocate for MCD.
                       Mr.Prasoon Kumar, Advocate and Local
                       Commissioner.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

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

KAILASH GAMBHIR, J. Oral

*

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks to challenge the

orders dated 13.11.2001 and 6.11.2003 passed by the

learned Estate Officer and the order dated 05.10.2005 passed

by the learned Addl. District Judge.

2. The grievance raised by the petitioner in the

present petition is that the impugned orders passed by both

the courts below are clearly erroneous as both the courts

below failed to consider the basic issue raised by the

petitioner that the petitioner could not carry on the business

of running the meat shop as he was not granted the license

by the MCD on account of the fact that the size of the shop

did not conform to the size requirements as were laid down

by the MCD for running a meat shop. The petitioner has also

submitted that the Delhi Vidyut Board and the CPWD failed

to provide any basic amenities in the Vasant Vihar Shopping

complex where the shop in question was located. The

petitioner also submitted that he had applied for the grant of

license with the municipal authorities on 14.09.1998, but vide

their letter dated 21.09.1999 the said request of the

petitioner was rejected by the respondent-MCD and it is only

then the petitioner came to know that in order to run a meat

shop the minimum area as it was then required was 85 sq. ft.,

whereas the shop allotted to the petitioner by the Directorate

of Estates was only 61 sq. ft. The petitioner has further stated

that he made lot of efforts through various representations

made by him to impress upon the concerned authorities to

allot him some alternate shop which could conform to the

size requirement as laid down by the MCD, but all the said

efforts made by the petitioner did not yield any result. It is

further stated that because of the absence of basic amenities

in the said shopping complex, allottees of various shops had

earlier approached this Court by filing writ petition bearing

WPC No.2195/1999 and vide order dated 01.11.2000 this

Court by way of an interim order directed that the allottees

will pay only 50% of the license fee from the date of allotment

upto end February, 2000 and from 01.03.2000 they were

directed to pay the entire amount of license fee in terms of

their license deeds. It is also the case of the petitioner that

the petitioner could not pay the said amount of license fee as

the case of the petitioner was exceptional as he could not

operate the meat shop in the absence of a municipal license.

The petitioner has also stated that despite the fact that he

could not conduct any business in the said allotted shop, but

still the respondent No.2 cancelled his allotment and issued a

show cause notice under the provisions of Public Premises

Act to seek his eviction from the said shop. The petitioner

had appeared before the Estate Officer to contest the said

eviction proceedings, but the learned Estate Officer had

passed the eviction order dated 13.11.2001 without taking

into consideration the pleas raised by the petitioner. Being

aggrieved by the said order, the petitioner then approached

the learned Addl. District Judge by way of filing an appeal

under Section 9 of the Public Premises Act and vide order

dated 05.10.2005 the said appeal filed by the petitioner was

also dismissed by the learned trial court. Feeling aggrieved

by the said two orders the petitioner approached this Court

by way of filing the present writ petition.

3. Mr.H.S.Phoolka, learned senior counsel appearing

for the respondent-MCD very fairly submits that the

petitioner is now eligible for the allotment of the said shop

which was earlier allotted by the Union of India in favour of

the petitioner and could not be used by the petitioner

because the required size of the said shop did not conform to

the laid down requirements and as now the rules for running

a meat shop have been modified and as per the amended

rules, the petitioner can now be allowed to run the said meat

shop. Counsel also submits that the petitioner was given the

license for a period of three years and since the petitioner

could not obtain the license to run the said meat shop

because of the size problem, therefore, in fact, he could not

put to use the said shop for running the meat business.

4. I have heard learned counsel for the parties and

gone through the records.

5. Clearly, through an advertisement, the Directorate

of Estates, Govt. of India had called for the tenders for the

allotment of various shops situated in Vasant Vihar Shopping

Complex and the specified purpose against these shops in the

said advertisement was also indicated. In response to the said

advertisement the petitioner participated in the bidding

process to seek allotment of shop No.24 in the said shopping

complex for running a meat shop and after the petitioner was

declared successful for the allotment of the said shop,

allotment letter in his favour was issued by the Directorate of

Estates. The petitioner then completed all the required

formalities and he had also made the deposit of Rs.72,006/-

and Rs.19,749/-. Pursuant to the said deposit, a lease deed

was duly executed by the said department in favour of the

petitioner. The petitioner also took possession of the said

shop on 14.08.1998, but was shocked to find out that there

was no provision of electricity and water in the entire

shopping complex and it was also found by the petitioner that

the said shop fell outside the electrified zone of the DVB. The

petitioner made considerable investment so as to make his

said shop operational and simultaneously he had also made

an application to the MCD for the grant of municipal license

for running the said meat shop. The said application of the

petitioner was, however, rejected by the MCD through their

letter dated 21.09.1999 on the ground that the said shop did

not meet the space requirements in terms of Section 415 of

the DMC Act, as the area of the shop was 61 sq. ft whereas

the laid down requirements for running a meat shop at the

relevant time was 85 sq. ft. The petitioner thereafter made

various representations and requests and even made

personal visits, but with no result. Due to non-availability of

basic amenities in the said shopping complex, various

allottees had approached this Court by filing a writ petition

bearing W.P.(C) No.2175/1999 and in the said writ petition

this Court by way of an interim order gave directions that the

allottees of the shops will make only 50% payment of the

license fee from the date of allotment upto the end of

February, 2000 and from 01.03.2000 they were directed to

pay the entire amount of license fee in terms of their license

deeds. However, the petitioner did not pay the said amount

as the case of the petitioner was exceptional as he could not

run the meat shop in the absence of a municipal license.

6. The case in hand is a classic example of apathy

and nepotic behavior of the Government towards its citizens.

Through an advertisement, applications were invited by the

Directorate of Estates, Govt. of India to allow certain shops in

Vasant Vihar Shopping Complex with a specified purpose and

the petitioner had participated in the bid to seek allotment of

shop No.24, Vasant Vihar Shopping Complex for running a

meat shop. The space/area of the said shop was 61 sq. ft..

Vide letter dated 05.08.1998, the said shop was allotted by

the Directorate of Estates in favour of the petitioner and

thereafter vide letter dated 14.09.1998 the petitioner had

applied to the MCD for grant of a municipal license. The said

municipal license was not granted by the MCD to the

petitioner for running the meat shop on the sole ground that

the area of the shop was less than the laid down

requirements and since then the petitioner had been running

from pillar to post impressing upon the authorities either to

increase the area of the shop or to allot him some other shop

so that he could run his business of meat shop.

7. It is quite shocking that the Directorate of Estates,

Govt. of India had invited tenders for the allotment of the said

shop bearing No.24 for the specified purpose of running a

meat shop without bothering to find out that the area of the

said shop i.e. 61 sq. ft. was less than the laid down norms of

the MCD which permits minimum area of 85 sq. ft. for the

purpose of running the meat shop. Instead of coming to the

rescue of the petitioner to resolve his problem which was the

sole creation of the Government, it started eviction

proceedings against the petitioner before the Estate Officer

and simultaneously raised a demand of Rs.4,08,688/- and

Rs.1,56,078 towards the arrears of the license fee and

damages. The learned Estate Officer instead of acting in a

judicious manner passed the eviction order dated 13.11.2001

without taking pains to know the exact reasons behind non-

payment of license fee by the petitioner. The learned

appellate court also gave no redress to the grievance of the

petitioner except remanding the matter back to the learned

Estate Officer for fresh determination of the dues after giving

due opportunity to the petitioner and after taking note of the

directions given by the High Court in WPC No.2175/1999. It

is thus quite manifest that the petitioner was made to suffer

right from the date of allotment of the said shop for no fault

of his own and he has been deprived to run the said meat

shop for more than a decade. During this period, the

petitioner would have established his business but he was

deprived to establish himself and also to earn his livelihood

from the said shop for such a long period at the despotic

hands of the Government authorities. Instead of lending a

helping hand, huge demand towards license fee and damages

was raised by the respondents so as to bring more misery

and agony in the life of the petitioner. It is thus seen that the

petitioner is a victim of gross injustice at the hands of the

respondents. The Government did not bother that the said

shop No.24 allotted to the petitioner with the space of 61 sq.

ft. could not be allotted for running the meat shop.

8. Looking into the exceptional circumstances of the

present case, the impugned orders dated 13.11.2001 and

6.11.2003 passed by the learned Estate Officer and the order

dated 05.10.2005 passed by the learned Addl. District Judge

are hereby set aside. Since the petitioner has suffered a lot at

the hands of the respondents, therefore, the following

directions are given to the respondents for immediate

compliance:-

(a) The respondent-MCD shall waive off the entire licensee

fee/damages as have been levied by them on account of

the arrears of license fee payable by the petitioner in

terms of the license deed and the damages after the

termination of his license.

(b) It is also directed that the respondent-MCD shall

execute a fresh license in favour of the petitioner for a

period of three years commencing from the date of

execution of the license deed on the monthly license fee

in terms of the license fee charged by the Directorate of

Estates in the earlier license deed.

(c) The respondent-MCD shall also issue a municipal

license in favour of the petitioner for running the meat

shop within a period of one week from the date of his

moving an application in this regard subject to his

fulfillment of all other laid down/specified

requirements/norms.

(d) A cost of Rs.25,000/- is also imposed upon the

respondents for causing unnecessary harassment to the

petitioner.

9. With the above directions, the present petition

stands disposed of.

May 19, 2011                               KAILASH GAMBHIR, J
dc