Bhajan Singh vs Lt. Governor Of Nct Of Delhi And ...
2013 Latest Caselaw 5026 Del

$~23
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 31.10.2013
+         LPA 182/2008, C.M. NO. 5530/2008 (for stay)
    BHAJAN SINGH                                ..... Appellant
                        Through : Sh. O.P. Saxena, Advocate.

                        versus

    LT. GOVERNOR OF NCT OF DELHI & ORS.
                                            ..... Respondents

Through : Ms. Ferida Satarawala, Advocate, for GNCTD/Resp. No.1.

Sh. Ajay Verma, Advocate, for DDA.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) %

1. This appeal challenges an order of the learned Single Judge dated 07.04.2008 in proceedings initiated under Article 226 of the Constitution; the appellant (who has since expired) had sought a direction against the Delhi Development Authority (DDA) that he be allowed to continue occupying a place measuring 4x4 located at Safdarjung Enclave, near Kamal Cinema, New Delhi for the purpose of carrying on the business of running taxis. The proceedings are being contested by the son of the late appellant.

LPA182/2008 Page 1

2. Briefly the facts are that the predecessor-in-interest - one Sh. Bhajan Singh relied upon a letter dated 17.04.1968 issued by the Superintendent of Police (Traffic), clearing the proposal for the setting-up of a Taxi Stand at the site which he subsequently continued to occupy. He was, by a letter dated 04.06.1990, given the permission to occupy the space subject to payment of license fee at `250/- per month for installation of wooden booth. The fourth clause of that letter - issued by the DDA was that allotment was only for one year, i.e. w.e.f. 01.04.1990 to 31.03.1991. Apparently, no formal allotment letter was issued and for the periods 1997-2005, no payments were made. In these circumstances, late Sh. Bhajan Singh approached this Court under Article 226 of the Constitution claiming that the DDA's imminent move to clear him from the site is arbitrary. Interestingly, just before he initiated the writ petition, Sh. Bhajan Singh sought to deposit amounts towards what he thought were arrears in the sum of `3,000/- and `9,000/-, in two instalments.

3. Learned Single Judge, by the impugned order, after considering the submissions of the DDA dismissed the writ petition. Learned Single Judge analysed the facts that there was no allotment letter and that the arrangement had come to an end in terms of the original allotment on 31.03.1991. He also noticed significantly that even the petitioner's submissions about his paying the license fee regularly was belied by his conduct in depositing certain amounts just before filing the writ

LPA182/2008 Page 2 petition. On the basis of these facts, the writ petition was dismissed.

4. It was argued by the learned counsel that the findings of the learned Single Judge are erroneous. He sought to rely upon the averments in appeal, which according to him, had been initially made even in the proceedings to say that others like him were allowed to continue in respect of spaces in Malviya Nagar, Saket and the Deer Park. No particulars, however, had been mentioned. Learned counsel emphasized upon the fact that the appellant was in continuous occupation of the premises for at least 23 years and in fact, the Taxi Stand had been in existence at least from 1968. In these circumstances, argued the learned counsel, the decision taken by the DDA denying the petitioner the right to continue to occupy the tiny space allotted to him, was untenable in law. Therefore, the impugned decision/order ought to be quashed. Learned counsel also sought to urge that the appellant's Fundamental Right to carry on trade and profession as as contained in Article 19(1)(g) of the Constitution of India may be adversely affected in the manner sought to be done by the DDA and that his proposed or imminent dispossession was without authority of law.

5. This Court has considered the submissions. The allotment letter - which is the bulwark of petitioner's right, if one may term it to be so, to occupy the premises - clearly shows that it is only an arrangement subject to payment of license fee. The arrangement was to be continued subject to the

LPA182/2008 Page 3 approval of the DDA on an annual basis. The letter of 04.06.1990 itself stated that the arrangement would be terminated on 31.03.1991. Concededly, there is no material on record to show that allotment letters were never issued by the DDA; the appellant does not dispute that formal allotment letter, in respect of the space, was ever issued by the DDA. In these circumstances, the only inference that can be drawn by the Court was that the arrangement was by way of license. Even if the appellant's arguments were to be accepted for a moment that he continued to pay regularly between 1991 and 1996 - for which there appears to be no evidence - yet, that alone did not mean that the arrangement crystallizes into anything more than what was originally envisioned by the DDA - as a license at best. Even this limited permissive user as licensee ended in 1996 with the appellant ceasing to deposit the license fee. The material on record, in the form of Challans relied upon by the appellant in this case as well as the observations of the Single Judge clarified that an attempt was made to pay some amounts at three periods of time. However, there is nothing on record to show that DDA ever accepted it unconditionally or those constituted a fresh license arrangement between the appellant and the DDA.

6. So far as the submission that the petitioner's right to carry on a taxi stand or taxi services goes, the letter of 17.04.1968 relied upon is a mere "No Objection" on the part of the Delhi Police, stating that a taxi stand could be located at the

LPA182/2008 Page 4 space, which was allotted later in 1990 till 31.03.1991 only. The terms of that letter nowhere confer any right to the appellant.

7. As far as the argument with respect to the evaluation of the right to carry on trade goes, there is no difficulty in holding that every citizen is possessed of such a right. However, that is not an issue in the present case. What is in fact an issue is that the petitioner's assertion of a right to occupy public spaces without any authority by the owner, i.e. the DDA, in the present instance. In view of the above discussion, the Court holds that the appeal is meritless. It is accordingly dismissed.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) OCTOBER 31, 2013/ajk

LPA182/2008 Page 5