Delhi High Court
Ajay Kumar vs N.D.M.C. on 5 March, 2012
Author: Sunil Gaur
* HIGH COURT OF DELHI : NEW DELHI
Reserved on : February 01, 2012
Pronounced on : March 05, 2012
+ (1) W.P.(C) 12954/2009
& CM No.13829/2009
AJAY KUMAR ..... Petitioner
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. ..... Respondent
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
+ (2) W.P.(C) 13949/2009
& CM No.15902/2009
P D DUGGAL ..... Petitioner
Through: Mr. Rajat Aneja, Advocate
versus
NEW DELHI MUNICIPAL COUNCIL
AND OTHERS ..... Respondents
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
Reserved on : February 02, 2012
Pronounced on : March 05, 2012
+ (3) W.P.(C) No. 8822/2009
& CM No.6114/2009
VIDYA KESWANI & ANR. ..... Petitioners
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. ..... Respondent
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
W.P.(C) No.8822/2009, 8823/2009, 8824/2009, 8829/2009, 12944/2009, 12954/2009, 13186/2009,
13187/2009, 13188/2009, 13189/2009, 13436/2009, 13438/2009, 13440/2009, 13441/2009, 13578/2009,
13581/2009, 13949/2009, 42/2010, 956/2010 Page 1
+ (4) W.P.(C) 8823/2009
& CM No.6116/2009
R.D.SHARMA ..... Petitioner
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. ..... Respondent
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
+ (5) W.P.(C) 8824/2009
& CM No.6118/2009
VIDYA KESWANI & ANR. ..... Petitioners
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. ..... Respondent
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
+ (6) W.P.(C) 8829/2009
& CM No.6125/2009
NAND LAL & ORS. ..... Petitioners
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. ..... Respondent
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
+ (7) W.P.(C) 12944/2009
& CM No.13815/2009
[email protected] FARID QURESHI ..... Petitioner
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. ..... Respondent
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
W.P.(C) No.8822/2009, 8823/2009, 8824/2009, 8829/2009, 12944/2009, 12954/2009, 13186/2009,
13187/2009, 13188/2009, 13189/2009, 13436/2009, 13438/2009, 13440/2009, 13441/2009, 13578/2009,
13581/2009, 13949/2009, 42/2010, 956/2010 Page 2
+ (8) W.P.(C) 13186/2009
& CM No.14341/2009
GOPAL KRISHNA DHIR ..... Petitioner
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. ..... Respondent
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
+ (9) W.P.(C) 13187/2009
& CM No.14343/2009
SUNIL KUMAR ..... Petitioner
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. ..... Respondent
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
+ (10) W.P.(C) 13188/2009
& CM No.14345/2009
SALAHUDDIN QUERSHI ..... Petitioner
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. ..... Respondent
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
+ (11) W.P.(C) 13189/2009
& CM No.14349/2009
RAJ KUMAR ..... Petitioner
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. ..... Respondent
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
W.P.(C) No.8822/2009, 8823/2009, 8824/2009, 8829/2009, 12944/2009, 12954/2009, 13186/2009,
13187/2009, 13188/2009, 13189/2009, 13436/2009, 13438/2009, 13440/2009, 13441/2009, 13578/2009,
13581/2009, 13949/2009, 42/2010, 956/2010 Page 3
+ (12) W.P.(C) 13436/2009
& CM No.14828/2009
RAJAN BHATIA ..... Petitioner
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. ..... Respondent
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
+ (13) W.P.(C) 13438/2009
AND
CM No.14830/2009 & CM No.14831/2009
INDERJEET SINGH CHADHA ..... Petitioner
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. & ANR ..... Respondents
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
+ (14) W.P.(C) 13440/2009
& CM No.14833/2009
DEPUTY WARDEN OF FISHERIES,
GUJARAT FISHERIES CENTRAL CO-OP.
ASSOCIATION LTD. ..... Petitioner
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. ..... Respondent
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
W.P.(C) No.8822/2009, 8823/2009, 8824/2009, 8829/2009, 12944/2009, 12954/2009, 13186/2009,
13187/2009, 13188/2009, 13189/2009, 13436/2009, 13438/2009, 13440/2009, 13441/2009, 13578/2009,
13581/2009, 13949/2009, 42/2010, 956/2010 Page 4
+ (15) W.P.(C) 13441/2009
& CM No.14835/2009
G.K. AND CO. ..... Petitioner
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. ..... Respondent
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
+ (16) W.P.(C) 13578/2009
& CM No.15202/2009
DEEPAK VIJ ..... Petitioner
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. ..... Respondent
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
+ (17) W.P.(C) 13581/2009
& CM No.15212/2009
KANCHAN RAJPAL ..... Petitioner
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. ..... Respondent
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
+ (18) W.P.(C) 42/2010
CM No.91/2010 & CM No.92/2010
VISHWA LOCHAN MADAN ..... Petitioner
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. & ANR. ..... Respondents
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
W.P.(C) No.8822/2009, 8823/2009, 8824/2009, 8829/2009, 12944/2009, 12954/2009, 13186/2009,
13187/2009, 13188/2009, 13189/2009, 13436/2009, 13438/2009, 13440/2009, 13441/2009, 13578/2009,
13581/2009, 13949/2009, 42/2010, 956/2010 Page 5
+ (19) W.P.(C) 956/2010
& CM No.1978/2010
SHAHBUDDIN QUERISHI ..... Petitioner
Through: Mr. V.L. Madan & Ms. K.K. Madan,
Advocates
versus
N.D.M.C. ..... Respondent
Through: Mr. Manoj K. Singh & Mr. Aman Deep
Singh, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
%
ORDER
05.03.2012
1. The common thread running in this batch of petitions is the
cancellation of the Licenses of the petitioners to run their shops in Gole
Market, New Delhi, on the ground of non-renewal of the License and the
additional ground in some of these matters is of sub-letting, with
exception in case of petitioner- Shahbudin Qureshi of Shop No.3, whose
eviction is on account of the absence of a valid Trade License. An effort
was made by learned counsel for the petitioners to put these bunch
matters into seven categories by tabulating as under:-
'Classification of Shopkeepers of Gole Market on the
basis of their nature of possession'
Table I: Individual original allottee, with
subsisting valid license, whose appeal
has been dismissed.
Table II: Original allottees with deemed renewal
accorded by NDMC till 31-03-2005.
Table III: Shops under possession of sub-letees
W.P.(C) No.8822/2009, 8823/2009, 8824/2009, 8829/2009, 12944/2009, 12954/2009, 13186/2009,
13187/2009, 13188/2009, 13189/2009, 13436/2009, 13438/2009, 13440/2009, 13441/2009, 13578/2009,
13581/2009, 13949/2009, 42/2010, 956/2010 Page 6
Table IV: Individual case of deemed renewal with
subletting.
Table V: Individual case of multiple-subletting.
Table VI: Shops under possession of legal heirs/
legatees treated as sub-letting.
Table VII: Shops whose possession has been taken
over by NDMC, petitioner seeks
restoration of the possession.
2. To facilitate the hearing in these bunch matters, learned counsel
for the petitioners have tabulated the factual matrix which is required to
be looked into for an effective decision in these matters. The tabulation
is as under:-
TABLE - I
Original allottee with subsisting valid license, whose appeal has been
dismissed
Shop Particulars Remarks
No.
3 W.P.(C) No. 956/2010 : The original allottee is in
Shahbuddin Qureshi. possession of shop. His
application for renewal of
health license remained
pending since 2007 with
NDMC and no decision was
taken.
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of Appeal dismissed on account
verandah; unauthorized of absence of valid health
addition/alteration, license. Other violations not
unauthorized kitchen and no proved.
valid health license.
W.P.(C) No.8822/2009, 8823/2009, 8824/2009, 8829/2009, 12944/2009, 12954/2009, 13186/2009,
13187/2009, 13188/2009, 13189/2009, 13436/2009, 13438/2009, 13440/2009, 13441/2009, 13578/2009,
13581/2009, 13949/2009, 42/2010, 956/2010 Page 7
Shop Particulars Remarks
No.
2 W.P.(C) No. 13440/2009 : License deemed renewed
Deputy Warden of Fisheries, vide letter dated 23.01.2006.
Gujarat Fisheries Central
Co-op. Association Ltd.
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of
verandah. Violations not proved.
However, appeal dismissed
because of non renewal of
license.
5 W.P.(C) No. 13188/2009, : License deemed renewed
Salahuddin Qureshi. vide letter dated 10.02.2006
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of Violations not proved.
verandah; unauthorized However, appeal dismissed
amalgamation with shop because of non renewal of
No.4; unauthorized kitchen. license.
6 W.P.(C) No. 13441/2009, : License deemed renewed
G.K. and Co. vide letter dated 10.02.2006
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of Violations not proved.
verandah; unauthorized However, appeal dismissed
kitchen; absence of health because of non-renewal of
license; unauthorized license.
clubbing with shop no.7.
W.P.(C) No.8822/2009, 8823/2009, 8824/2009, 8829/2009, 12944/2009, 12954/2009, 13186/2009,
13187/2009, 13188/2009, 13189/2009, 13436/2009, 13438/2009, 13440/2009, 13441/2009, 13578/2009,
13581/2009, 13949/2009, 42/2010, 956/2010 Page 8
Shop Particulars Remarks
No.
7 W.P.(C) No. 13186/2009, : License deemed renewed
Gopal Krishna Dhir vide letter dated 10.02.2006
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of
verandah; unauthorized Violations not proved.
kitchen; no health license; However, appeal dismissed
unauthorized clubbing with because of non-renewal of
shop no.6; puncturing of roof license.
with stairs leading to shop
No.21.
16 W.P.(C) No. 13578/2009, : License deemed renewed
Deepak Vij. vide letter dated 23.01.2006
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of Violations not proved.
lobby; non-renewal of However, appeal dismissed
license. because of non-renewal of
license.
Kanchan Rajpal regularization/transfer on
subletting basis pending
since 20.06.2006
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of Appeal dismissed on account
verandah; unauthorized sub- of sub-letting and non-
letting; unauthorized renewal of license. Other
clubbing with shop no.9; violations not proved.
Unauthorised kitchen.
W.P.(C) No.8822/2009, 8823/2009, 8824/2009, 8829/2009, 12944/2009, 12954/2009, 13186/2009,
13187/2009, 13188/2009, 13189/2009, 13436/2009, 13438/2009, 13440/2009, 13441/2009, 13578/2009,
13581/2009, 13949/2009, 42/2010, 956/2010 Page 9
Shop Particulars Remarks
No.
Sunil Kumar regularization/transfer on
subletting basis pending
since 19.07.2006
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of Appeal dismissed on account
verandah; unauthorized sub- of sub-letting. Other
letting; unauthorized violations not proved.
clubbing with shop no.8;
unauthorised kitchen.
Raj Kumar regularization/transfer on
subletting basis pending
since 24.12.1992
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of Appeal dismissed on account
verandah; unauthorized sub- of sub-letting and non-
letting; non-renewal of renewal of license. Other
license violations not proved.
Vishwa Lochan Madan. regularization/transfer on
subletting basis pending
since 11.06.2004
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of Appeal dismissed on account
lobby; unauthorized sub- of sub-letting and non-
letting; non-renewal of renewal of license. Other
license and change of trade. violations not proved.
W.P.(C) No.8822/2009, 8823/2009, 8824/2009, 8829/2009, 12944/2009, 12954/2009, 13186/2009,
13187/2009, 13188/2009, 13189/2009, 13436/2009, 13438/2009, 13440/2009, 13441/2009, 13578/2009,
13581/2009, 13949/2009, 42/2010, 956/2010 Page 10
Shop Particulars Remarks
No.
P.D.Puggal. regularization/transfer on
subletting basis pending
since 19.07.2006
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of Appeal dismissed on account
lobby; unauthorized sub- of sub-letting and non-
letting; non-renewal of renewal of license. Other
license violations not proved.
Rajan Bhatia regularization/transfer on
subletting basis pending
since 07.04.1993
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of Appeal dismissed on account
lobby; unauthorized sub- of sub-letting and non-
letting; non-renewal of renewal of license. Other
license violations not proved.
11 W.P.(C) No. 13438/2009, : License of original allottee,
Inderjeet Singh Chadha Mohd. Sharif deemed
renewed till 31.03.2005.
Thereafter, he sub-let the
shop to present occupant.
Application for
regularization moved on
20.03.2006. No orders
passed on the application by
NDMC
Violation Alleged by NDMC Impugned Order:
:
Unauthorised coverage of Appeal dismissed on account
verandah; unauthorized of sub-letting and non-
addition/alteration; renewal of license. Other
unauthorized sub-letting; violations not proved.
non-renewal of license
W.P.(C) No.8822/2009, 8823/2009, 8824/2009, 8829/2009, 12944/2009, 12954/2009, 13186/2009,
13187/2009, 13188/2009, 13189/2009, 13436/2009, 13438/2009, 13440/2009, 13441/2009, 13578/2009,
13581/2009, 13949/2009, 42/2010, 956/2010 Page 11
Shop Particulars Remarks
No.
18 W.P.(C) No. 12954/2009, : Original allottee, Shri
Ajay Kumar N.C.Keswani died on
1.1.2000. His widow applied
for substitution on basis of
legal heir on 19.5.2004.
Widow sub-let the shop to
Sewa Ram. Sewa Ram, in
turn, sub-let the shop to
present occupant.
Application moved for
regularization on the basis of
multiple subletting on
16.07.2007 processed till
20.12.2007.
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of Appeal dismissed on account
lobby; change of trade; of sub-letting and non-
unauthorized sub-letting; renewal of license. Other
non-renewal of license violations not proved.
13 W.P.(C) No. 12944/2009, : He moved an application on
Faridddun Qureshi. 8.10.2007 for substitution on
the basis of legatee of Smt.
Ashia Begum‟s Will dated
19.4.1998.
NDMC dubs them as sub-
lettees.
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of Appeal dismissed on account
verandah; premises locked; of sub-letting and non-
no valid health license; renewal of license. Other
unauthorized sub-letting; violations not proved.
non-renewal of license
W.P.(C) No.8822/2009, 8823/2009, 8824/2009, 8829/2009, 12944/2009, 12954/2009, 13186/2009,
13187/2009, 13188/2009, 13189/2009, 13436/2009, 13438/2009, 13440/2009, 13441/2009, 13578/2009,
13581/2009, 13949/2009, 42/2010, 956/2010 Page 12
Shop Particulars Remarks
No.
Vidya Keshwani regularization/transfer on
subletting basis pending
since 24.12.2004
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of Appeal dismissed.
lobby; unauthorized sub- Possession has been taken
letting; non-renewal of over by NDMC immediately
license on the date of dismissal of
appeal by DJ i.e. 30.3.2009.
19 W.P.(C) No. 8822/2009, : License deemed renewed till
Vidya Keswani 31.03.2005 vide letter dated
10.02.2006.
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of Appeal dismissed.
lobby; non-renewal of license Possession has been taken
over by NDMC immediately
on the date of dismissal of
appeal by DJ i.e. 30.03.2009
22 W.P.(C) No. 8829/2009 : Nand Lal, Ram Lal, Sunil
Nand Lal & Ors. Khemani and Dharam Dass
were joint allottees. Dharam
Dass expired on 21.11.99.
Application for substitution
of basis on legal heirs moved
on 24.12.2003.
NDMC dubs them as sub-
lettees.
W.P.(C) No.8822/2009, 8823/2009, 8824/2009, 8829/2009, 12944/2009, 12954/2009, 13186/2009,
13187/2009, 13188/2009, 13189/2009, 13436/2009, 13438/2009, 13440/2009, 13441/2009, 13578/2009,
13581/2009, 13949/2009, 42/2010, 956/2010 Page 13
Shop Particulars Remarks
No.
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of Appeal dismissed.
lobby; unauthorized sub- Possession has been taken
letting; non-renewal of over by NDMC immediately
license on the date of dismissal of
appeal by DJ i.e. 30.03.2009
25 W.P.(C) No. 8823/2009 : License deemed renewed till
R.D.Sharma 31.03.2005 vide letter dated
23.01.2006.
Violation Alleged by NDMC : Impugned Order:
Unauthorised coverage of Appeal dismissed.
lobby; non-renewal of license Possession has been taken
over by NDMC immediately
on the date of dismissal of
appeal by DJ i.e. 30.03.2009
3. It is not in dispute that petitioners were served to Show Cause
Notice in November, 2007, and were afforded an opportunity to respond
to it and the petitioners had responded to it and thereafter, order
cancelling the License Deeds in question was passed in December, 2007
and March/April, 2008 and thereafter, proceedings under the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 were initiated
against the petitioners, which culminated in the passing of the eviction
order by the Estate Officer, which was challenged by the petitioners by
preferring statutory appeal and the dismissal of the petitioners' appeal by
the Appellate Authority is impugned in these petitions.
4. Upon hearing learned counsel for the parties in these matters, what
emerges is that the grounds urged to assail the impugned order,
W.P.(C) No.8822/2009, 8823/2009, 8824/2009, 8829/2009, 12944/2009, 12954/2009, 13186/2009,
13187/2009, 13188/2009, 13189/2009, 13436/2009, 13438/2009, 13440/2009, 13441/2009, 13578/2009,
13581/2009, 13949/2009, 42/2010, 956/2010 Page 14
upholding the eviction order, are over-lapping, therefore, I am of the
considered view that these bunch matters can be conveniently disposed
of by this common order.
5. Mr. Rajat Aneja, learned counsel for petitioner- Mr. P.D. Puggal,
had strenuously urged that the shops in question were let out to the
allottees/ licnesees about four decades ago and on account of continued
commercial activity, the same has resulted into accrual of precious rights
in their favour and they could not be evicted by invoking the provisions
of Public Premises (Eviction of Unauthorised Occupants) Act, 1971, as
they have become legitimate tenants and so respondent- NDMC ought to
have invoked the civil jurisdiction to establish its right to seek their
eviction.
6. The principle ground urged is that despite non-renewal of the
License Deed, the licensees had continued to run their business from the
shops in question in consonance with the terms and conditions of the
policy of the respondent- NDMC and they had been regularly paying the
license fee to the respondent- NDMC and in reply to the Show Cause
Notice, it was explained that the purported grounds of eviction are
arbitrary and mala fide. It was pointed out that after the purported expiry
of License Deed in question by efflux of time, there was no
correspondence from the respondent- NDMC to even remotely suggest
that there was succession of relationship of licensor and licensee and
infact, the respondent- NDMC had granted deemed renewal of the
License in some of these cases and the application for regularization /
transfer on sub-letting basis was pending with the respondent- NDMC
and instead of deciding those applications moved in the year 2006-2007,
respondent- NDMC had malafidely proceeded to evict the petitioners
W.P.(C) No.8822/2009, 8823/2009, 8824/2009, 8829/2009, 12944/2009, 12954/2009, 13186/2009,
13187/2009, 13188/2009, 13189/2009, 13436/2009, 13438/2009, 13440/2009, 13441/2009, 13578/2009,
13581/2009, 13949/2009, 42/2010, 956/2010 Page 15
from the shops in question while acting contrary to its own Resolution
No.6 of 18th March, 1999 and Resolution No.14 of 26th August, 2004.
Infact, it was urged by learned counsel for the petitioners that as per
provisions of NDMC Act, 1994, if the respondent- NDMC does not
communicate the refusal to renew the License, there is a deemed renewal
and transfer of the shop in question is to be freely allowed as per the
policy of the respondent- NDMC.
7. It is vehemently urged that the aforesaid vital aspect has been
completely over-looked by the Estate Officer as well as by the Appellate
Authority and therefore, the impugned order as well as the order of the
Estate Officer deserve to be quashed. To support of the afore-noted
submissions, reliance has been placed upon decisions in 'P.S.Gupta Vs.
NDMC' 70 (1997) DLT 124; 'Sudhir Goel Vs. MCD' 112 (2004) DLT
249; „C.M. Beena P. Anr. Vs. P.N. Ramachandra Rao' (2004) 3 SCC
595.
8. Mr. Madan, learned counsel for the remaining petitioners had
proceeded to invoke the principle of legitimate expectation, doctrine of
election and had urged that resort by the respondent- NDMC to the
Public Premises (Eviction of Unauthorised Occupants) Act, 1971, is not
only mala fide but is also discriminatory. To apply the doctrine of
election, learned counsel relied upon the decisions in 'Purshottam Dass
Tandon & Ors. Vs. State of U.P. Lucknow & Ors.' AIR 1987 Allahabad
56 & 'P.S. Gupta Vs. N.D.M.C.' 70 (1997) DLT 124 and it was asserted
that in spite of purported lapse of the License Deeds in question by
afflux of time, the licensor/ respondent- NDMC did not re-enter the
shops in question and therefore, the deemed renewal of the License
Deeds is in consonance with Resolution No. 6 of 1999 of the respondent-
W.P.(C) No.8822/2009, 8823/2009, 8824/2009, 8829/2009, 12944/2009, 12954/2009, 13186/2009,
13187/2009, 13188/2009, 13189/2009, 13436/2009, 13438/2009, 13440/2009, 13441/2009, 13578/2009,
13581/2009, 13949/2009, 42/2010, 956/2010 Page 16
NDMC.
9. To urge the ground of legitimate expectation, reliance was placed
upon decision in 'P.T.R. Exports (Madras) Pvt. Ltd. & Ors. Vs. Union
of India & Ors.' (1996) 5 SCC 268 and it was contended that Resolution
No. 6 of 1999 of the respondent- NDMC is binding and in terms thereof,
petitioners are entitled to regularization of the allotment of the shops in
question. Alleging that the respondent- NDMC is adopting double
standards, it was pointed out by learned counsel for petitioners that in
March, 2009 pertaining to Shop No.7, at Mohan Singh Place,
respondent- NDMC had applied Resolution No. 6 of 1999, but has not
malafidely applied the same to the case of petitioners who have been
singled out for en-mass eviction from the shops in question in
November, 2007, as they had not agreed to shift to an alternate place on
account of renovation of the Gole Market area. Thus, it is contended that
the exercise of power by the respondent - NDMC resident to initiate the
eviction proceedings under the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971, is a colourable exercise of power,
which is contrary to the Guidelines to prevent arbitrary use of powers to
evict genuine tenants from public premises under the control of Public
Sector Undertakings/Financial Institutions. Thus, it is contended that not
only the impugned order but also the eviction order of the Estate Officer
deserves to be quashed.
10. Learned counsel for respondent- NDMC to support the impugned
order had contended that the License granted to the petitioners cannot
possibly operate in perpetuity and since the Licenses in question had
expired by afflux of time, therefore, there could be no legitimate
expectation by the petitioners and the doctrine of election would not
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come into play. It was vehemently denied that the eviction of the
petitioners was vitiated by any mala fides or was discriminatory, as the
impugned eviction is a natural consequence of the expiry of License
Deeds in question. To urge so, reliance was placed upon decision of the
Apex Court in „Aggarwal and Modi Enterprises (Cinema Project) Vs.
New Delhi Municipal Corporation' (2007) 8 SCC 75. Reliance was
also placed upon Apex Court decision in 'Jiwan Dass Vs. Life
Insurance Corporation of India & Anr.' 1994 Supp (3) SCC 694 to
contend that the doctrine of livelihood cannot be discriminately extended
to the area of commercial operation, and so the Guidelines of the year
2002, relied upon by the petitioners would not apply. Thus, it was urged
that the plea of discrimination raised by the petitioners remains
unsubstantiated and the provisions of NDMC Act do not provide for
deemed regularization/ renewal and on account of non-renewal of
License Deeds of the petitioners, passing of the eviction orders is
justified in law and on facts as well.
11. Having deliberated upon the submissions advanced by learned
counsel for the parties and on perusal of the impugned order as well as
material on record and the decisions cited, I proceed to first deal with the
case of petitioner - Shahbuddin Qureshi, as the eviction of this petitioner
who is selling meat from the Shop No. 3 in question, at the round-about
of Gole Market, New Delhi, is on account of lapse of Trade/Health
License, as noted in the impugned order.
12. Although it is asserted by petitioner - Shahbudin Qureshi that vide
application of 21st June, 2007 (Annexure P-6) he had sought renewal of
the Trade/Health License, and respondent- NDMC had not taken any
decision thereon, but it has not been disclosed by the petitioner as to
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upon receiving of Show Cause Notice, what steps he had taken to seek
his remedy on account of purportedly pending renewal application.
Though petitioner's License to run the shop in question was valid, but in
the absence of Trade/Health License, petitioner- Shahbuddin Qureshi
cannot possibly be permitted to sell the meat from the shop in question,
as he has failed to disclose as to whether he had possessed a valid
Trade/Health License after 31st March, 2007.
13. The relevant Clauses of the License Deed of 9th October, 2002
which have been invoked are Clause - 8 & 12, which are as under:-
"8. That it shall be the responsibility of the licensee to
secure necessary License or permission, if any, from the
competent authority in order to run the trade in the Shop but
in no circumstances the delay in the issue of such License or
permission or refusal to issue the same shall exonerate the
licensee from paying the License fee for the entire period of
the License. In this regard, the licnesee, if asked by the
Medical Officer of Health, NDMC or any other competent
authority to satisfy certain requirements shall provide any or
all such requirements at his own cost. In the event of the
License for running a particular trade is not granted or is
refused for any reasons whatsoever the licensee shall apply
for change of trade and shall run only such trade as may be
permitted by the licensor and for which License, if any, is
granted by the competent /appropriate authority under
provisions of rules/law.
12. That allotment of the Shop in favour of the licensee is
purely temporary one and the same shall be treated as bare
license which is revocable at any time without assigning any
reasons and in the event of the revocation of the License on
account of breach of any of the terms and conditions of the
License, the licensee shall be bound to quit and vacate the
premises within one week of the notice of revocation of the
License by the licensor and shall not claim any compensation
for any resultant injury thereof."
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14. Since afore-noted Clause- 8 of the License Deed of 9th October,
2002 (Annexure P-5), stood violated for want of valid Trade/Health
License, therefore, cancellation of the License Deed (Annexure P-5) to
run the shop in question by resorting to Clause-12 thereof, is eminently
justified.
15. So far as the plea of petitioner- Shahbuddin Qureshi, regarding
deemed renewal of the License to run the shop in question is concerned,
it really does not fall for consideration as this petitioner had a subsisting
License to run the shop but because his Trade/ Health License had
lapsed therefore, he could not have sold meat from the shop in question
w.e.f. 1st April, 2007.
16. The plea of deemed renewal of License stands negated by Sub-
Clause 4 of Section 339 of The New Delhi Municipal Council Act,
1994, which reads as under:-
"339.
(1) xxx
(2) xxx xxx
(3) xxx xxx xxx
(4) When any such License or written permission is
suspended or revoked, or when the period for which the
same was granted has expired, the grantee shall, for all
purposes of this Act or any bye-law made thereunder, be
deemed to be without a License or written permission until
such time as the order suspending or revoking the License
or written permission is rescinded or until the License or
written permission is renewed."
17. The plea of promissory estoppel raised by this petitioner, stands
rightly negated in the impugned order due to the absence of any Trade/
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Health License to run the shop in question. Although it was urged at the
hearing by the learned counsel for this petitioner that he had been paying
regular license fee to respondent- NDMC and so, promissory estoppel
instantly became applicable but this plea was not taken before the
Appellate Authority and so it cannot be raised for the first time in the
writ petition. Therefore, this plea is out-rightly rejected.
18. At the cost of repetition, it required to be highlighted that the
reference by learned counsel for this petitioner to the Resolutions of the
respondent- NDMC is of no avail, in the absence of a valid and
subsisting Trade / Health License. Even the afore-referred Guidelines of
the year 2002, relied upon by this petitioner, would be of no avail
because this petitioner was unable to obtain renewal of the Trade/ Health
License to run the shop in question and thus, selling of meat by this
petitioner from the shop in question is impermissible, which warrants the
cancellation of the License to run the shop in question as he had not
sought change of trade even after receipt of Show Cause Notice. Thus,
the eviction of this petitioner from the shop in question, is justifiable and
the reliance placed by the counsel for this petitioner upon decisions in
P.S.Gupta vs. NDMC, 70(1997) DLT 124; Sudhir Goel vs. MCD, 112
(2004) DLT 249; C.M.Beena & Anr. vs. P.N.Ramachandra Rao,
(2004) 3 SCC 595; Kailash Singh & Sons vs. UOI & Anr., 2003 VI AD
(Del) 357 is clearly misplaced.
19. Eviction of petitioner- Sunil Kumar from Shop No. 9 in question,
has been upheld on account of sub-letting, as Clause- 9 of the License
Deed had placed absolute restriction upon the original allottee/ licensee
to permit the allotted premises or any part thereof, to be used by any
other person for any other purpose whatsoever, without the previous
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consent in writing of the licensor and in default thereof, the original
allottee/ licensee shall be liable for ejectment. Afore-noted Clause -12 of
the License Deed empowered respondent- NDMC to revoke the License
of the allottee on account of breach of terms and conditions of the
License Deed. It stands noted in the impugned order that petitioner-
Sunil Kumar was not the original allottee and was not even recognized
as lawful occupant by respondent- NDMC and in the absence of any
legal authority to occupy the premises in question, petitioner- Sunil
Kumar had no locus standi.
20. Plea of petitioner- Sunil Kumar of inaction of respondent to take
decision on his application for regularization of sub-letting of the shop in
question in his favour, is noted only to be rejected in view of the finding
in the impugned order regarding the original allottee never taking
permission from respondent- NDMC in writing before entering into a
partnership with the petitioner and thereby violating Clause- 9 of the
License Deed remains unassailable.
21. Plea of Resolution No. 6 of 1999 of the respondent- NDMC freely
permitting transfer, has to be considered in its proper perspective. If any
such transfer is in violation of the terms and conditions of the License
Deed, like in the instant case, i.e. for want of prior permission from the
respondent- NDMC, then sub-letting cannot be valid one. This aspect
has been considered in detail in the impugned order, to which there is no
worthwhile challenge from this petitioner. The finding returned against
this petitioner in the impugned order, is as under:-
'32. The device to transfer the property in question from
one hand to another without written consent or permission of
the NDMC by execution of partnership deed and thereafter
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executing dissolution deed after some duration without
actually acting upon the same is a gross abuse of public
policies. There is nothing on record to show if any of the
parties ever carried any partnership business in the premises
in question.
33. Moreover, even if the parties had entered into any
business in partnership, that did no confer any right in the
„property‟ in question to the other partner with whom
partnership deed was executed. Mere execution of the
partnership deed could not confer any legal status upon the
other partner regarding the transfer of premises in question.‟
22. It goes without saying that if any application for the transfer
moved under Resolution No. 6 of 1999 of the respondent- NDMC is
pending, then mere issuance of Show Cause Notice on another ground
would not render, petitioner's application for transfer of the shop in
question in his name redundant. So, this petitioner ought to have pursued
his application and having not done so, he has rightly suffered eviction
from the shop in question on account of infringement of Clause-9 of the
License Deed. In this view of the matter, reliance placed upon decisions
in Purshottam Dass Tandon & Ors., vs. State of U.P. & Ors., AIR 1987
Allahabad 56; P.S.Gupta vs. N.D.M.C., 70(1997) DLT 124;
P.T.R.Exports (Madras) Pvt. Ltd. & Ors. vs. Union of India & Ors.,
(1996) 5 SCC 268 is of no avail as the doctrine of election, plea of
legitimate expectation would not be applicable to the instant case.
23. To allege discrimination, no foundation has been laid by the
petitioners to indicate that in what context Resolution no.6 of 1999,
respondent- NDMC would apply to shop No. 7 at Mohan Singh Place.
Regarding malafides, merely because prior to initiation of the eviction
proceedings, re-location of the shops in question at Gole Market, New
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Delhi was contemplated by the respondent- NDMC, as is evident from a
Communication of 23rd August, 2007 (Annexure P-9), it would not give
rise to an inference that the initiation of the eviction proceedings is a
colourable exercise of power, vitiating the eviction proceedings. Though,
learned counsel for petitioner- Sunil Kumar relies upon the cross-
examination of respondent's witness (Annexure P-13) but upon going
through the same, I find that no foundation has been laid by the
petitioner to establish that the Show Cause Notice to evict the petitioner
from the premises in question was mala fide. By merely suggesting to
respondent's witness that it is mala fide, it does not become mala fide.
24. It has to be shown as to how it is mala fide. Such a view is being
taken because vide Annexure P-9 respondent- NDMC had offered
twenty seven vacant shops, located in different NDMC markets, which
were to be allotted to the petitioners on the basis of draw of lots in lieu
of the existing shops and an assurance was given vide this
Communication (Annexure P-9) that petitioners would be permitted to
continue with their existing trade in the new shops to be allotted to them.
It is the petitioners who in their own wisdom had not accepted the said
option, which was being given to them as the respondent- NDMC was
contemplating renovation of Gole Market. This Court cannot smell any
mala fides in the Communication (Annexure P-9) offering re-location of
the petitioners. Since eviction of this petitioner from the shop in question
is found to be justified in view of infringement of Clause-9 of the
License Deed, as afore-noted, therefore, petitioner's eviction cannot be
faulted on the ground of mala fide without laying foundation to establish
it.
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25. In the case of the remaining petitioners, the principle ground for
eviction is non-renewal of the License Deed. It remains undisputed that
prior to the cancellation of the License Deed in March/ April, 2008, the
petitioners or their predecessor in interest i.e. original allottees were in
possession of the shops in question for a period of more than a decade.
26. It needs no reiteration that such like License Deeds cannot operate
in perpetuity. The term of the license, as indicated in the License Deeds
in question is of specific period of one year. The relevant Clause of
Resolution No. 6 of 1999 of respondent- NDMC dealing with the
renewal of the License Deed places an upper limit of ten years upon
renewals. This is evident from Clause-4 and Clause-6 of aforesaid
Resolution of 1999, which reads as under:-
"4. Renewals
In the case of shops/stalls/kiosks/tharas/office units/
restaurants etc. for the license will be renewed for a period
of 10 years on year-to-year basis subject to enhancement in
license fee at the uniform rate by 7% per annum.
6. Succession
This is not permitted as it is a license and renewable for 10
years on year-to-year basis and the ownership vests in the
NDMC."
27. The subsequent Resolution No.14 of 2004 of respondent- NDMC
does not modify or dilute renewal Clause No.4 of Resolution No.6 of
1999 of the respondent- NDMC nor any subsequent Resolution thereto
has been referred to, whereby afore-noted renewal Clause has been
modified.
28. Finding that the allotment of the shops in question was more than
ten years prior to their cancellation, it has to be held that the License
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Deeds in question had come to an end by afflux of time, with no further
renewals, rendering applications of petitioners for renewal meaningless.
Such an eventuality was anticipated as Petitioners themselves avers that
Gole Market was conceived in the 1920s as an inward looking market to
act as a subsidiary market of Connaught Place and the original allottees
were the licensees in the shops in question for last many decades. With
the passage of time, need arose for renovation of Gole Market.
Redevelopment/renovation of Gole Market round about shopping
complex as heritage building necessitated relocating the petitioners, as is
evident from Communication of 23rd August, 2007 (Annexure P-9) of
the respondent, as already noticed above.
29. In this view of the matter, the plea of petitioners of discrimination
being meted out by respondent- NDMC, by drawing reference to other
shop keepers of Yashwant Place, New Delhi etc. is of no avail.
Respondent- NDMC in its counter affidavit has brought it on record that
once project of renovation of Gole Market is complete the same will not
be put to commercial use and its proposed use is for building a museum
at Gole Market, which will depict development of New Delhi area.
Shifting of the shops in question from the Gole Market area is also well
justified in view of the traffic congestion around it, as stands highlighted
by the traffic police in its Communication of 15th November, 2007
(Annexure R-1) of the counter affidavit, which deserves notice. It reads
as under:-
"From traffic point of view, it is imperative that the flow of
traffic within the rotary should be uninterrupted, so that
there is proper entry from and exit into the feeder roads.
There should not be any parking around the roundabout,
which is very common at present owing to a lot of
commercial activities around the Gole Market area. No
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commercial activity should be allowed in the rotary as it
leads to a lot of parking on the main carriageway of the
roundabout and also generates movement of pedestrians as
well as entry of heavy/light commercial vehicles. Thus, it is
important that there should not be any movement of
pedestrians across the main rotary for the sake of safety of
pedestrians and the flow of traffic should be uninterrupted
in the rotary."
30. In the scenario as noted above, plea of the petitioners of legitimate
expectation, mala fides and invocation of doctrine of election is rendered
meaningless and the decisions relied upon by the petitioners become
inapplicable to the facts of the instant matters.
31. Having concluded that there could not have been renewal of the
License Deeds beyond the period of ten years, petitioners except
Shahabuddin Qureshi and Sunil Kumar cannot be heard to say that there
is any violation of the Guidelines of the year 2002, as the arbitrary use of
powers to evict genuine tenants is clearly ruled out in these matters.
Rather in all fairness, relocation of the shops in question was offered to
the petitioner who had not consented to it but later on during the
pendency of these matters, many of the petitioners vide Resolution of 2nd
December, 2009, had expressed willingness to accept the alternate site
offered by the respondent- NDMC. Be that as it may. This aspect cannot
be subject matter of consideration in these matters arising out of
proceedings under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971.
32. Taking the case of petitioners at its best, even if it is assumed that
petitioners had subsisting right of renewal of License Deeds, when their
licenses were cancelled, still they had lost it on account of their failure to
seek remedy to enforce it. Section 61 of The Indian Easements Act, 1882
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mandates that License can be determined expressly or impliedly. Terms
of License deeds in question specifically provided that License is
terminable at any time and licensor is under no obligation to justify the
termination of License deeds in question. The ground reality which
cannot be lost sight of, is that termination of License deeds in question
was otherwise also justified to make way for setting up of museum at
this site i.e. for public interest and so private interests have to yield to the
public interest. Petitioners cannot plead ignorance about it as they were
well aware of their re-location and when they had refused, respondent-
NDMC was left with no option except to termination of the licenses in
question. If this is not disclosed in the notice under Public Premises
(Eviction of Unauthorized Occupants) Act, 1971, petitioner suffers no
prejudice and impugned eviction cannot be faulted with, on this account.
33. In the preceding paragraphs, it already stands concluded that
eviction of petitioners - Shahabuddin and Sunil Kumar is justified, so
their petitions merit dismissal. Regarding remaining petitioners also,
conclusion arrived at in afore-going paragraphs is that termination of
their License Deeds was neither vitiated by discrimination nor any
arbitrariness or colorable exercise of power under the Public Premises
(Eviction of Unauthorized Occupants) Act, 1971.
34. In the ultimate, the only conclusion which can be reasonably
drawn is that there is no manifest lacuna or palpable error in the
impugned order, which is indeed reasoned one i.e. sound on facts and
law. Consequentially, while upholding the impugned order, I dismiss
these petitions with no order as to costs. Consequently, pending
applications are disposed of as rendered infructuous.
35. Before parting with this order, in the retrospect, I do find that the
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petitioners had been short sighted in not accepting respondent's offer of
re-location. Respondent-NDMC is called upon to sympathetically
consider petitioners' case for re-location in terms of its Communication
of 23rd August, 2007 (Annexure P-9) if vacant shops are available in the
different NDMC markets including DMRC shopping complex located
close to Dwarka Mor Metro Station, (as per affidavit of 10th December,
2009 of the General Manager of Delhi Metro Rail Corporation Ltd. on
record). This is being so said in view of the willingness to accept
alternate sites expressed through Resolution of 2nd December, 2009 by
most of the petitioners, as its copy has somehow come on record
alongwith Index bearing date of 3rd December, 2009.
36. These petitions are disposed of with liberty to the petitioners to
seek re-location from the respondent- NDMC within a period of two
weeks and if it is so done, then it is expected that the respondent- NDMC
would take decision thereon within a period of four weeks. In the
peculiar circumstances of this case, the execution of the impugned
eviction order be kept in abeyance by respondent- NDMC till such
applications received from the petitioners are dealt with promptitude. In
case no applications are received from the petitioners for re-location
within two weeks from today, then the respondent- NDMC shall execute
the eviction orders forthwith.
(SUNIL GAUR)
JUDGE
March 05, 2012
rs/pkb
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