Shri Mohan Singh vs Union Of India & Ors.
2011 Latest Caselaw 5624 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                 Date of decision: 22nd November, 2011.
+                               LPA 967/2011

%     SHRI MOHAN SINGH                                   ....Appellant
                   Through:           Mr. Neeraj Kishan Kaul, Sr. Adv.
                                      with Mr. Rajendra Singhvi, Mr.
                                      K.K.L. Gautam & Mr. Anil A. Batra,
                                      Adv.

                           Versus
    UNION OF INDIA & ORS.                      ..... Respondents
                  Through:    Mr. R.V. Sinha & Mr. A.S. Singh,
                              Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                               JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. The appellant had filed W.P.(C) No.4179/2007 impugning the order

dated 11th May, 2007 of the Director of Estates, Govt. of India revoking the

license earlier granted to the appellant in respect of Quadrangle No. IV,

Mohan Singh Market, INA, New Delhi. The learned Single Judge has vide

impugned judgment dated 10th August, 2011 dismissed the writ petition

holding:-

i. That there was no illegality, irrationality or arbitrariness

in the decision of revocation of license;

ii. That the earlier W.P.(C) No. 17550/2004 preferred by the

appellant impugning the show cause notice issued before

the order of cancellation had been dismissed and the

appeal being LPA No.393/2006 preferred by the

appellant thereagainst had also been dismissed vide order

dated 21st September, 2007 and reasons given therein

were also applicable to the challenge to the order

ultimately passed of revocation of licence;

iii. That the petitioner as a licencee in any case had no right

to the Quadrangle No. IV and the licence by its very

nature was revocable.

Aggrieved therefrom the present appeal has been preferred.

2. We may notice that Mohan Singh Market is in the shape of a

quadrangle with the shops opening in covered verandah all around the

market and with their rear towards a "small central quadrangle". The

appellant is a licencee of shop No.207 in the said market. He/his father were

given licence with respect to the "small central quadrangle" known as

Quadrangle No. IV behind their shop and which licence of the quadrangle

alone has now been cancelled. The lincence with respect to the shop No.207

subsists. It is not in dispute that the said quadrangle contains all drainage

including gully traps and manholes with underground drainage pipelines

from where the waste water is taken out to the Municipal drains. The order

dated 21st September, 2007 dismissing the LPA No.393/2006 (earlier

preferred by the appellant challenging the show cause notice and seeking a

direction for grant of ownership rights in the said quadrangle) records that

the quadrangle was in fact a service area for all the shops in the market and

if the ownership rights with respect thereto are given to one person or if the

same is blocked from all sides, the quadrangle area will not be available for

maintenance when it was a common area for circulation/ventilation.

3. The licence earlier granted to the appellant of the said quadrangle has

been cancelled on the ground that though the appellant as a term of the

licence was required to provide access through his shop to the said

quadrangle for carrying out of the common maintenance but had blocked the

entire area of quadrangle in such as way that the maintenance and cleaning

work thereof could not be carried out.

4. The senior counsel for the appellant has vehemently contended that

the ground for revocation of the licence is erroneous; the appellant never

deprived access to the said quadrangle for maintenance, cleaning etc. and

has rather repeatedly offered and undertaken that he is willing therefor. It is

urged that the appellant even now is willing to give an undertaking in this

regard as may satisfy this Court and/or the respondents. It is contended that

the learned Single Judge has not noticed the said aspect and has wrongfully

dismissed the writ petition.

5. The senior counsel for the appellant with respect to the observations

aforesaid in the order dated 21st September, 2007 in LPA No.393/2006

earlier preferred by the appellant contends that the said LPA was concerned

with the show cause notice then issued and any observations therein would

have no relevance to the final order of cancellation. It is further contended

that the appellant was then, also claiming ownership rights with respect to

the said quadrangle in accordance with the policy of the respondents but is

now not claiming any ownership rights and is confining the claim only to the

continuance of the licence and which has been revoked for wrongful

reasons. It is further contended that the Division Bench had categorically

observed in the order dated 21st September, 2007 that the observations

therein would not influence final order passed pursuant to the show cause

notice then under challenge.

6. As far as the latter of the aforesaid submissions is concerned, though

undoubtedly the Division Bench towards the end of the order dated 21st

September, 2007 had clarified that the observations would not come in the

way of a decision pursuant to the show cause notice but the fact remains that

what was observed therein remains relevant in the decision pursuant to the

show cause notice also. The reply by the appellant to the show cause notice

does not contain anything for what was observed earlier to be not relevant

today. We have examined the sketch plan of the market. The location of the

subject quadrangle is undoubtedly as of a common area within the meaning

of the Delhi Apartments Ownership Act, 1986. The senior counsel for the

appellant has of course contended that the licence has not been revoked for

the said reason and we, not to be guided by the reasons which did not

prevail with the respondents for revoking the licence. However this Court

while exercising powers under Article 226 of the Constitution of India

cannot give any direction or relief contrary to the law. Once the nature of the

said quadrangle is found to be as of a common area, over which all the

occupants/users of the market have a right, then this Court cannot confer any

exclusive right in the appellant who is occupant of the one of but several

shops in the market and vesting of which rights would definitely have an

impact on the rights of the other occupants thereof. We are rather surprised

at the grant of exclusive licence by the respondents with respect to the said

common area.

7. Though in view of the above, the grounds for which the licence was

revoked are irrelevant but we may observe that considering common nature

of the said quadrangle and the implicit need for 24 hour access thereto to all

the occupants of the market, grant of exclusive licence with respect thereto

to one or two occupants only is bound to interfere with the needs of others.

This Court would not grant such an order which cannot be enforced and/or

which may cause prejudice to others. The Court is not in a position to

supervise the uninterrupted access by the appellant as is sought to be

undertaken before this Court and imposing any such condition is likely to

lead to multiplicity of litigation.

8. The licence of the said quadrangle cannot also be equated to the

licence with respect to a shop. Though the appellant may be correct in

contending that the appellant in the matter of grant of a licence with respect

to the shop cannot be discriminated qua others similarly placed but the

licence with respect to the quadrangle stands on a different footing. The

beneficiaries of the said licence were not all shopkeepers but only a select

few. For this reason also we are of the view that no error can be found in the

action of revocation of such a licence.

9. There is no merit in the appeal; the same is dismissed.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE NOVEMBER 22, 2011 pp