Rajinder Singh vs Commissioner Of Police & Anr.
2012 Latest Caselaw 2392 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 W.P.(C) 17216/2004

                                           Date of Decision:13th April, 2012

IN THE MATTER OF:-
RAJINDER SINGH                                         ..... Petitioner
                         Through:      Mr. Arun Kumar Sharma, Adv.

                  versus


COMMISSIONER OF POLICE & ANR.                  ..... Respondents

Through: Mr. V.K. Tandon, Adv. for R-

1/Delhi Police.

Mr. Amit Mehra, Adv. for Mr.Ajay Verma, Adv. for R-3/DDA.

CORAM:

HON'BLE MS. JUSTICE HIMA KOHLI

:     HIMA KOHLI,J (Oral)

1. The present petition is filed by the petitioner praying inter alia

for quashing of the order dated 08.10.2004 passed by the respondent

No.1/Commissioner of Police (Traffic), Delhi, de-notifying and

cancelling the Taxi Stand opposite Panchsheel Club, New Delhi on the

ground that the said Taxi Stand was found to be causing obstruction to

the pedestrian movement and hindrance to the movement of traffic.

2. Notice was issued on the present petition vide order dated

01.11.2004, on which date, an interim order was passed staying the

operation of the impugned order dated 08.04.2004. The said interim

order has been continued from time to time. On 27.09.2010, it was

contended on behalf of the petitioner that the power to relocate and

remove the Taxi Stand vests with the District Magistrate under Rule 76

of the Delhi Motor Vehicles Rules, 1953 and thus respondent no.1/

Deputy Commissioner of Police, Traffic was not competent to pass the

impugned order. However, respondent no.1, averred in its counter

affidavit that the powers to be exercised by the District Magistrate are

now to be exercised by the Dy. Commissioner of Police. On 27.9.2010,

counsel for respondent no. 1 had stated that he would produce the

relevant documents to demonstrate that the Dy. Commissioner of

Police, Traffic was empowered to de-notify the Taxi Stand. After

completion of pleadings, on 19.04.2011, respondent no.1/Delhi Police

was directed to revisit the area along with the petitioner to assess the

traffic situation at the spot where the Taxi Stand exists.

3. Pursuant to the order dated 27.01.2012, an additional affidavit

had been filed by the respondent No.1/DCP, Traffic on 15.02.2012,

wherein, it is stated that the subject Taxi Stand was inspected on

13.02.2012 and it was found that it was causing an obstruction to the

free flow of traffic and to the free movement of pedestrians and was

therefore a bottleneck point.

4. On the last date of hearing on 17.02.2012, counsel for the

petitioner had submitted that while the petitioner did not claim a

vested right in the taxi stand in question in terms of the order dated

28.08.1975 passed by the District Magistrate notifying the subject taxi

stand, if this Court was inclined to accept the submission made by

respondent No.1/Delhi Police that the present location of the taxi stand

is a bottleneck point and is obstructing smooth flow of traffic,

respondent No.1/Delhi Police be called upon to identify alternate sites

in the vicinity that could be designated as parking bays for taxis for

the purpose of 'halt and go'.

5. Pursuant to the aforesaid order, an additional affidavit

dated 02.03.2012 has been filed by the respondent No.1/Delhi Police

wherein it is stated that a survey was conducted in the vicinity of the

subject taxi stand and four such parking bays for taxis for the purpose

of 'halt and go' are operating in the area and their exact locations have

been indicated in Annexure-A to the affidavit, alongwith the site map

enclosed therewith. Counsel for the respondent No.1/Delhi Police

states that it is now for the petitioner to select a location from the

aforesaid existing parking bays, but he cannot insist on operating from

the subject taxi stand at Panchsheel Park, Outer Ring Road, opposite

Panchsheel Club, as it was never allotted in his favour and in any case,

it has since been denotified in terms of the impugned order dated

08.10.2004, passed by the Deputy Commissioner of Police(Traffic).

6. Counsel for the petitioner refutes the aforesaid submission

and relies on a letter dated 03.10.1989 issued by the Deputy

Commissioner of Police (Traffic) and addressed to the petitioner

wherein he was informed that he had been allotted a taxi stand

No.7102 which number was directed to be displayed on a board at the

taxi stand and also mentioned in all correspondences to the Traffic

Police. He submits that the said letter clearly establishes the fact that

the petitioner had been allotted the subject taxi sand. The aforesaid

letter can, however, not be treated as a letter of allotment of a taxi

stand exclusively in favour of the petitioner. The same is only a

communication addressed to the petitioner informing him that the taxi

stand has been assigned a particular number by the Traffic police.

7. The second document relied upon by the counsel for the

petitioner is a letter dated 14.07.1971 addressed by the respondent

No.3/DDA to the petitioner wherein he had been informed that the

department had no objection to the allotment of a taxi stand to him at

Panchsheel Club upon payment of tehbazari fee of `100/- per month.

The said letter also called upon the petitioner to submit an undertaking

that he would abide by the terms of allotment and would execute an

agreement stipulating the conditions that may be laid down by the

authority as and when called upon to do so.

8. The aforesaid communication is an intimation issued by the

respondent No.3/DDA informing the petitioner that DDA had no

objection to the allotment of a taxi stand in his favour. However, the

actual allotment of a taxi stand was not made by DDA. In fact, DDA

had only intimated to the petitioner the fact that he would have to pay

tehbazari fee of `100/- per month for occupying the area in question.

9. Counsel for the petitioner also relies on a letter dated

09.04.1981 addressed by the Superintending Engineer, DDA to the

Financial Advisor, DDA on the subject of construction of a permanent

taxi booth for taxi stand and tea stall opposite Panchsheel club and

informing that the costing details of the taxi stand and the tea stall did

not include the cost of land, administrative charges, development

charges etc. It is contended that the taxi booth at the site was

constructed by the petitioner from his own funds.

10. The submission made by learned counsel for the petitioner

that the cost of construction of the taxi stand was borne by the

petitioner runs contrary to the averments made in the writ petition,

particularly para-2(ii) thereof wherein the petitioner has averred that

possession of the subject taxi stand had been handed over to him by

respondent No.3/DDA on 22.09.1971 and thereafter construction of

the taxi stand was undertaken by the DDA and the built up structure of

the taxi stand was handed over to him under cover of a letter dated

09.04.1981.

11. The aforesaid documents clearly establish that apart from

paying `100/- per month as tehbazari fee to the respondent

No.3/DDA, the petitioner has not paid a penny towards cost of

construction of the permanent booth at the subject taxi stand or for

that matter deposited any amount towards the cost of land,

administrative charges, development charges etc. Further, from the

documents placed on record, the petitioner has not been able to

establish the fact that the order dated 28.08.1975 passed by the

District Magistrate for the establishment of a class 'B' taxi stand at

specified sites was passed in respect of the subject taxi stand at

Panchsheel Club as well. Taking the case of the petitioner at the

highest, even if it is assumed that the said order was passed in respect

of the subject taxi stand, the order reveals that it was a general order

and it can certainly not be treated as one allotting a taxi stand

exclusively in favour of the petitioner. Even the general order of

establishing taxi stands at various sites was confined to a period of

three years from the date of issuance thereof and the inevitable

conclusion is that the tenure of allotment of the taxi stand had to be

renewed thereafter from time to time. The proof of renewal of the

subject taxi stand is however not placed on record.

12. The last and the most important document relied upon by

the counsel for the petitioner is the order dated 28.08.1975 passed by

the District Magistrate (Annexure-A). The said order was issued by

the District Magistrate under Rule 7.12 and 7.16 of the Delhi Motor

Vehicles Rules, 1940, for establishing Class 'B' taxi stands at various

sites as per the list enclosed with the order, for a limited period of 3

years from the date of issuance of the order, and subject to fulfillment

of all the conditions prescribed in the Acts and Rules. But the same

cannot be treated as an allotment made in favour of the petitioner.

13. Although the list of sites mentioned in the order dated

28.08.1975 has not been enclosed with the order, but the second page

of the order shows that a copy of the same had been forwarded not

only to the Manager/Proprietor of the taxi stand, but also to various

government authorities including District Magistrate, DDA, MCD, Traffic

Police, NDMC.

14. In the impugned order dated 08.10.2004, it was observed

that a site for Class 'B' taxi stand at Panchsheel Park, Outer Ring Road,

Opposite Panchsheel Club was notified vide order dated 28.08.1975

and it was further noted that the said order was issued for a period of

three years from the date of its issuance and that the notifying

authority had reserved the right to cancel the notification

subsequently, if warranted in public interest. The aforesaid first

paragraph of the order dated 08.10.2004 when read in conjunction

with the order dated 28.08.1975 issued by the District Magistrate,

completes the chain as far as identifying the location of the subject

taxi stand is concerned as the same is common in both the documents.

15. The observation made in the impugned cancellation order

was that in the course of a survey that had been conducted at the

aforesaid taxi stand, it was found that the same was causing

obstruction to the pedestrian movement as well as hindrance to the

smooth flow of traffic, that a flyover was under construction at the

Outer Ring Road near Panchsheel Club and the taxi stand was coming

in the way of the flyover. As a result, the Deputy Commissioner of

Police/Traffic (Head Quarters), Delhi in the exercise of powers

conferred on him under Section 3 of the Delhi Control of Vehicular and

Other Traffic on Roads and Street Regulation, 1980 and in terms of the

guidelines issued vide circular dated 15.06.1998, had ordered that the

taxi parking site in question be de-notified and the same was cancelled

with immediate effect in public interest.

16. The first leg of the argument of the counsel for the

petitioner is that as the aforesaid taxi stand had been notified by the

District Magistrate, the order of de-notification could have been passed

by the same authority, i.e., District Magistrate and not by the Deputy

Commissioner of Police as done in the present case. The second leg of

his argument is that till date, respondent No.3/DDA has not cancelled

the tehbazari site allotted to the petitioner and that he has been

regularly depositing a sum of `100/- with the DDA as tehbazari fee,

which DDA has been duly accepting and therefore respondent

No.1/Delhi Police could not displace him in the manner sought to be

done.

17. Undoubtedly, the order dated 28.08.1975 notifying the taxi

stand in question was issued by the District Magistrate. As per Rule

76(5) of the Delhi Motor Vehicle Rules, 1993 all orders of a District

Magistrate sanctioning the establishment of a stand or revoking or

modifying an order permitting the establishment of a stand, are

appealable to the State Government, whose orders thereon shall be

final. On 18.07.2003, the Divisional Commissioner, Govt. of NCT of

Delhi had intimated the Principal Secretary, Transport as also the Joint

Commissioner of Police (Traffic), that the Divisional Commissioner of

Delhi is the District Magistrate for the Union Territory of Delhi and that

the Deputy Commissioners in the nine districts had been conferred

with the powers of Additional District Magistrates (Territorial) and they

could exercise all or any of the powers vested in the District Magistrate

except those restricted only to the District Magistrate. A copy of the

aforesaid letter dated 18.07.2003 is handed over by learned counsel

for the petitioner and taken on record.

18. In view of the aforesaid document, it is clear that the

impugned order dated 08.10.2004 passed by the Deputy

Commissioner of Police, Traffic (Head Quarters) denotifying the taxi

stand in question is invalid for the reason that only that authority who

had passed the order notifying the taxi stand, namely, the District

Magistrate, was empowered to denotify the taxi stand in question. If

the Traffic Police was of the opinion that the location of the taxi stand

in question was objectionable as it was causing an obstruction to the

pedestrian and traffic movement, it ought to have approached the

Divisional Commissioner/Deputy Commissioner of the District in terms

of the aforesaid letter dated 08.07.2003, recommending de-

notification of the taxi stand. Admittedly, the aforesaid procedure was

not followed by the respondent No.1/Delhi Police.

19. Respondent No.3/DDA has also not denied the fact that the

taxi booth constructed at the site in question had been allotted to the

petitioner on tehbazari basis and the said tehbazari has not been

cancelled by the said authority till date. The submission made by

counsel for the respondent No.3/DDA that DDA had only provided the

site/land and it is for the Traffic Police to issue a licence for the

purpose of establishing a taxi stand thereon may not be enough to

oust the petitioner as on its part, DDA has not denied having allotted

the taxi booth at the site in question to the petitioner on tehbazari

basis which allotment continues to subsist in his favour till date.

20. In view of the aforesaid facts and circumstances, it is

deemed appropriate to allow the present petition and quash the

impugned order dated 08.10.2004 passed by the Deputy

Commissioner of Police/Traffic (HQ), Delhi de-notifying and cancelling

the taxi parking site in question. At the same time, liberty is granted

to the respondent No.1/Delhi Police to approach the Divisional

Commissioner/Deputy Commissioner of the concerned district with a

recommendation for de-notifying the taxi stand in question after

reviewing the traffic position at the spot, if considered necessary. If

such a recommendation is made by the Delhi Police as per the

procedure prescribed in that regard, the same shall be considered by

the concerned authorities and a decision shall be taken in accordance

with law. Respondent No.3/DDA shall also be at liberty to conduct a

survey of the present location of the taxi stand in question and if

deemed necessary, take a decision as to whether it proposed to

continue with the tehbazari site allotted to the petitioner herein, after

obtaining the views of the concerned authorities, including the Traffic

Police.

21. The petition is disposed of while leaving the parties to

bear their own costs.

(HIMA KOHLI) Judge APRIL 13, 2012 'anb'/mk