Sat Narayan vs Govt. Of Nct Of Delhi & Ors.
2014 Latest Caselaw 2748 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 28th May, 2014.

+            LPA No.354/2014 & CM No.8149/2014 (for stay).

       SAT NARAYAN                                         ..... Appellant
                          Through:     Mr. Parveen Dahiya, Adv.

                                     Versus

    GOVT. OF NCT OF DELHI & ORS.              .... Respondents

Through: Ms. Zubeda Begum, Standing Counsel for GNCTD.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the order dated 31 st March, 2014 of

the learned Single Judge of this Court of dismissal of W.P.(C) No.2103/2014

preferred by the appellant.

2. Notice of the appeal was issued. We have heard the counsels for the

parties.

3. The appellant, in the month of September, 1998 was allotted a kiosk /

stall situated at Lok Nayak Jai Prakash (LNJP) Hospital , New Delhi. The

appellant is physically handicapped with disability of more than 50% in both

the lower limbs. Though he claims that the aforesaid kiosk / stall was

allotted to him on account of his handicap but none of the documents of

allotment filed by him is indicative thereof. There is no document on record

containing the terms & conditions of allotment of the said kiosk / stall to the

appellant. From the documents on record it appears that the appellant was

initially paying Rs.1,500/- per month described as "rent charges" of the said

kiosk / stall; the rent was w.e.f. 1st July, 2001 fixed at Rs.2,000/- per month

besides water charges of Rs.50/- per month; vide office order dated 20th

October, 2004 the period for occupation of all kiosks / stalls in the hospital

was extended till 31st January, 2005; vide letter dated 8th February, 2005 of

the Hospital to the appellant, the appellant was permitted to occupy the kiosk

/ stall for further six months i.e. up to 31st July, 2005; again on request of the

appellant, the appellant was allowed extension for further one year i.e. up to

31st July, 2006; yet again on request of the appellant extension up to 31 st

December, 2009 was given to the appellant.

4. On further request of the appellant the respondents granted "extension

/ renewal of license deed of kiosk allotted" to the appellant for a further

period up to 31st March, 2013, on the following terms & conditions:-

"1. Rent of the kiosk is Rs.2000/- p.m. which is to be deposited to Account Officer, LNH through TR-5 by 10th of every month otherwise a penalty @ 1% per day will be imposed.

2. Electricity charges for the kiosk are Rs.1500/- & water charges are Rs.50/- p.m.

3. Only Cold drink / Coffee / Tea are allowed to sell in the kiosk and their rates must be mentioned on the notice board to be displayed on the kiosk. Sale of other items will be viewed seriously.

4. The area surrounding the kiosk should be kept neat & clean and no public nuisance will be allowed.

5. Security of the kiosk / stall will be on the owner's risk.

6. M.S., LNH has full right to terminate the said contract as and when required.

7. Kiosk / stall holders are directed to collect a copy of format of the new deed of license within 3 days of the receipt of this letter and submit the deed of license within 7 days.

This issues with the approval of Medical Superintendent, LNH."

5. A draft Deed of license was forwarded to the appellant, relevant terms

whereof were as under:-

"1. The allotment / renewal of the kiosk is made for a period of 3 months, commencing from 01.01.2013 to 31 st March, 2013. The licensee shall be deemed to be bare licensee and nothing contained herein shall be deemed to be demise at law of the kiosk or any part thereof as to give the licensee any interest thereof. After the expiry of the term of the licence, the licensee shall vacate the kiosk / stall, give up the sale of products there at and handover the peaceful and vacant possession of the kiosk / stall to the licensor.

2. The competent authority reserved the right to terminate the contract at any time without assigning any reason issuing one month notice.

4. The licensee shall use the kiosk / stall only for the sale of Cold drink / Coffee / Tea. Other activities will be viewed seriously.

8. The licensee shall sell those articles only at the kiosk for which it has been allotted.

9. The articles sold at the kiosk shall be of good quality and kind. The decision of the licensor as regards the quality and kind of articles shall be final and binding on the licensee.

11. The licensee shall keep open the kiosk on all working days during 7:00 A.M. to 10.00 P.M. during the summer season and 8:00 A.M. to 10:00 P.M. during the winter season.

17. The allottee will not use the kiosk / stall for the purpose other than specified in the agreement. Violation of this term & condition will lead to cancellation of allotment of kiosk / stall."

The appellant has not controverted having executed the same. The

other documents filed by the appellant show that the appellant has been

tendering license fee to the respondents at the rate of Rs.3,550/- per month.

6. The respondents vide letter dated 27th February, 2014 informed the

appellant that new allotment of the kiosks / stalls had to be made, as per the

direction of the Public Grievances Commission and Health & Family

Welfare Department, Govt. of NCT of Delhi, on revised rents and hence

asked the appellant to vacate the kiosk / stall within one month. The

appellant filed the writ petition from which this appeal arises, challenging

the notice dated 27th February, 2014 asking the appellant to vacate the kiosk

/ stall. The contention of the appellant was that the respondents have not

been following a uniform policy of extension of license deeds and have been

extending the license for terms varying from five months to a year. It was

also his contention that having been allowed to occupy the kiosk / stall from

the year 1998 till the year 2014, the appellant could not be dispossessed

therefrom without having a policy for rehabilitation of the appellant.

7. The learned Single Judge dismissed the writ petition holding that the

appellant having executed the License Deed for a specific period, cannot

claim a perpetual right to run and manage the kiosk / stall and extensions

from time to time including for variable terms, did not confer any right on

the appellant to claim that his license should be granted / continued forever.

It was yet further held that the mere fact that the appellant had continued as a

licensee for over a decade did not impose any obligation on the respondents

to rehabilitate the appellant. The learned Single Judge further held that

allotment of shops / kiosks by way of tender process is the norm, as it

promotes transparency and raises revenue for the State and needs to be

encouraged. Accordingly the writ petition was dismissed.

8. The counsel for the appellant before us, besides emphasizing the

handicap of the appellant, has relied on Gainda Ram Vs. Municipal

Corporation of Delhi (2010) 10 SCC 715 and Maharashtra Ekta Hawkers

Union Vs. Municipal Corporation, Greater Mumbai JT 2013 (12) 507.

9. Per contra the counsel for the respondents has referred to the

judgment dated 1st April, 2014 of the learned Single Judge of this Court in

W.P.(C) No.1754/2013 titled Smt. Chander Kanta Vs. Govt. of NCT of

Delhi and to the order dated 31st March, 2014 of this Court in W.P.(C)

No.1914/2014 titled Shamsher Ali Vs. Govt. of NCT of Delhi, both relating

to the kiosks in the same hospital;

10. As far as the contention of the handicap of the appellant is concerned,

as already observed above, there is no document whatsoever to show that the

appellant was allotted the said kiosk / stall or allowed to continue as a

licensee with respect thereto on account of his handicap or in pursuance to

any policy or scheme for handicapped persons. It is also not the case of the

appellant that the said kiosk / stall is reserved for handicapped persons only.

It is yet further not the case of the appellant that the appellant is entitled to

any priority in the category of handicapped persons also. In this view of the

matter, we cannot extend any benefit to the appellant on account of his

handicap.

11. Else, the position in law is clear. The appellant had rights, merely as a

licensee, qua the said kiosk / stall and which license is terminable at any

time. It is not even the case of the appellant that his license qua the said

kiosk / stall is valid for any further period. The mere fact that the license has

been so renewed / continued from time to time would also not vest any

defence in the appellant against the termination of his license and against his

dispossession.

12. As far as the judgments relied upon by the counsel for the appellant

are concerned, the same have no applicability to the question before us. The

said judgments are concerned with rights of street hawkers and not with

licensees or tenants of Government / Public Bodies. The appellant cannot be

called or equated with a street / vendor. If the protection as offered by the

said judgments to street hawkers / vendors were to be extended to tenants /

occupants / licensees of premises / kiosk / stalls as well, no owner / landlord

shall be entitled to terminate the tenant / licensee / occupant notwithstanding

the term of occupation having lapsed.

13. We also find merit in the contention of the counsel for the respondent

that owing to the failure of the appellant to vacate the kiosk / stall, the

person in whose favour the said kiosk / stall has already been allotted, is

suffering.

14. There is thus no merit in the appeal which is dismissed. Even though

the case of the appellant is frivolous, we refrain from imposing any costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE

MAY 28th , 2014 pp..