Delhi High Court
New Delhi Municipal Council vs Ashok Kumar Gupta & Anr on 21 February, 2013
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 96/2013 & C.M.No.3000/2013 (stay)
NEW DELHI MUNICIPAL COUNCIL .... Appellant
Through: Mr.Arvind Sah, Adv.
Versus
ASHOK KUMAR GUPTA & ANR. ..... Respondents
Through: Mr.B.B.Sawhney, Sr.Adv. with
Mr.Lawkesh Sawhney, Mr.Sunil Kumar, Advs. for
Respondent No.1.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V.K. JAIN
ORDER
% 21.02.2013
Caveat No.152/2013
Since learned counsel for the respondent/caveator has entered
appearance, the caveat is discharged.
C.M.No.3001/2013(exemptions)
Exemptions allowed subject to all just exceptions.
LPA No.96/2013
The respondent No. 1 Shri Ashok Gupta was granted a licence by the
appellant for running a kiosk at the gate of Kidwai Bhawan, Janpath Road,
Connaught Place, New Delhi. The respondent No.2--Delhi Metro Rail
Corporation asked respondent No. 2 to close down the kiosk since a Metro
LPA 96/2013 page 1 of 4
Station was planned in the area. Initially, a site towards Church Road was
identified for temporary relocation of respondent No. 1, but had to be
cancelled. Another site was then identified at Dr. Rajendra Prasad Road,
which also had to be cancelled on account of possible security risk to Shastri
Bhawan and neighboring offices. Yet another site, situated behind Bank of
Baroda at Janpath Lane, was then identified for respondent No. 1.
2. Since there was delay by DMRC in construction of the temporary
kiosk of respondent No.1, he filed a writ petition, seeking a direction to
DMRC to construct a temporary stall for him at the site behind Bank of
Baroda at Janpath Lane. It transpired that the site near Bank of Baroda
required prior permission from ASI for construction of a kiosk. It was,
therefore, suggested that respondent No.1 may be shifted to a location near
Eastern Court, as was proposed in an earlier letter dated 02.08.2011. The
said suggestion was accepted by NDMC and accordingly a letter was issued
by NDMC to DMRC for temporary construction of a kiosk at the aforesaid
site. The writ petition was disposed of on 01.06.2012, with a direction to
DMRC to undertake construction of kiosk at the location near the Eastern
Court.
LPA 96/2013 page 2 of 4
3. A Review Petition was then filed by respondent No.1, informing the
Court that the site near the Eastern Court was not suitable since the stretch
of road between Tolstoy Marg and Windsor Place had been closed down due
to ongoing construction activity. Respondent No. 1 also claimed to have
received a letter from ASI granting permission for construction of a kiosk at
Janpath, New Delhi. The learned Single Judge vide impugned order dated
20.12.2012 observed that the kiosk at the location identified in the order
dated 01.06.2012 would hardly attract customers and, therefore, running of
kiosk at that place would be unviable for respondent No.1. The appellant
was, therefore, directed to relocate respondent No.1 behind Bank of Baroda,
Janpath Lane, New Delhi.
4. The learned counsel for the appellant submits that there are three
other kiosks on the road, where the site, subject matter of the order dated
01.06.2012, is situated and those stalls are doing good business. He further
submits that Janpath Lane being a 'No Hawking Zone', it would not be
practicable to construct a temporary kiosk at the aforesaid place.
5. In our opinion, it is for the NDMC and not for the Court to decide as
to which would be the appropriate site for temporary relocation of
LPA 96/2013 page 3 of 4
respondent No.1. The Court, therefore, should not interfere with the decision
taken by NDMC with respect to the site, to be allotted to respondent No.1.
It is for the appellant to decide, on consideration of all the relevant facts and
circumstances, as to where the licensee, seeking relocation should be
relocated and it would not be appropriate for the Court to substitute its own
decision with the decision of the licensor in this regard. Therefore, in our
opinion, the impugned order, passed by the learned Single Judge, cannot be
sustained. We, therefore, allow the appeal and direct the appellant to take a
decision, after considering all the facts and circumstances, including such
documents as the respondent No.1 may like to submit to it, as to where
respondent No. 1 should be temporarily relocated. An appropriate decision
in terms of this direction shall be taken by the appellant and communicated
to respondent No.1, within four weeks from today. We permit respondent
No.1 to submit such documents as he may deem appropriate to the appellant
NDMC, within a week from today.
The appeal stands disposed of accordingly.
CHIEF JUSTICE
V.K. JAIN, J
FEBRUARY 21, 2013
BG
LPA 96/2013 page 1 of 4
