Gurmeet Singh And Ors vs N.D.M.C. And Anr
2016 Latest Caselaw 5629 Del

$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                   Date of Judgment : 29.08.2016

+      W.P.(C) 4263/2012, CM APPL Nos.              8841/2012,       826/2014,
       16281/2015, 16282/2015 & 23989/2015

       GURMEET SINGH AND ORS

                                                               ..... Petitioners

                         Through     Mr. Vimal Wadhawan and Mr. Vipin
                                     Kumar, Advocates

                         versus

       N.D.M.C. AND ANR

                                                            ..... Respondents

                         Through     Mr. Anuj Aggarwal, ASC with Ms.
                                     Niti Jain, Advocate for GNCTD



CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 There are seven petitioners before this Court. The case as set up is

that the petitioners had purchased seven shops in property No. 7, Ganesh

Market, Opposite B-Block, Ganda Nala, Moti Nagar, New Delhi from one

Jaspal Singh. Petitioner No. 1 had purchased his shop (7-E) on 08.08.1990.

Petitioners No. 2 & 3 had purchased their shops (7-F and 7-G) on

07.02.2000. Petitioner No. 4 had purchased his shop (7-A) on 28.04.2009.

Petitioner No. 5 had purchased his shop (7-B) in 2008. Petitioner No. 7 had

purchased his shop (7-D and 7-C) in 2003-2005. Further averments in the

writ petition disclose that the original owner of these shops was Amin Chand

who had executed a power of attorney dated 06.03.1987 for half his share in

favour of Jaspal Singh and for other half of the property to Surender Singh.

The aforenoted petitioners had purchased these shops from the share of

Jaspal Singh who had constructed seven shops on the said premises and sold

them to these seven petitioners. Additional submission is that the

Circular/Policy of the Department dated 06.07.2011 based on Resolution No.

874 dated 16.03.2011 and Resolution No. 10 dated 27.05.2011 is bad. The

petitioners have been forcibly evicted from the said shops vide orders dated

16.11.2011 and 11.07.2012 which is in terms of their Policy dated

06.07.2011 which is against their Resolutions dated 16.03.2011 and

27.05.2011; they being bad in law, the same should be set aside.

2 In the counter affidavit filed by the respondents, this position has been

disputed. Submission is that the original allottee was Amin Chand who had

only been granted a license and since he has violated the terms of the license,

the petitioners who are illegal occupants having purchased these shops from

the power of attorney holder of Amin Chand and being in contravention of

the terms of the license which had been granted to Amin Chand; they are

entitled to no relief.

3      Arguments have been heard. Record has been perused.


4      The averments in the writ petition disclose certain undisputed facts.

The undisputed fact is that all the seven petitioners had purachased seven

shops from one Jaspal Singh. Jaspal Singh had allegedly become the owner

of these shops (which he had constructed by virtue of an agreement to sell

which he had entered into with Amin Chand who was the original license

holder of this aforenoted land). This aforenoted land comprised of 100

square yards and had been granted to Amin Chand for the purpose of running

a coal depot. Amin Chand had executed a general power of attorney and

agreement to sell dated 06.03.1987 with Jaspal Singh and one Surender

Singh. Jaspal Singh had constructed these seven shops which had then been

sold to the present petitioners. All these facts stand admitted in paras 6 to 9

of the petition.

5 Thus what comes on record is that the original licensee was Amin

Chand but thereafter the rights in this property have passed on to the present

petitioners.

6 The stand of the Municipal Corporation in its counter affidavit is that

the Policy dated 06.07.2011 framed by the answering respondent is a Policy

of the Government which cannot be interfered with. The premises in

question was allotted on tehbazari basis to Amin Chand. He was allotted this

site for running a coal depot. Amin Chand had illegally sold the land in

question to Jaspal Singh who in turn constructed seven shops and thereafter

sold the same to the seven petitioners. Since the tehbazari rights granted to

Amin Chand stand violated, a show cause notice was issued to Amin Chand

on 11.11.2011 asking him as to why this site be not cancelled as there was a

violation of the tehbazari rights. The subsequent order dated 16.11.2011 was

passed. A further show cause notice dated 25.06.2012 was also issued to the

petitioners stating that the original allottee had created a third party right

which he could not do and since they were illegal occupants, they were liable

to be evicted. They were granted opportunity of personal hearing but they

did not appear. The contention of the respondents is that the land is a public

land and tehbazari does not confer any right over the land in question. At

best it is a permissive user and since the conditions of the license have been

violated, the petitioners are liable to tbe evicted.

7 Learned counsel for the petitioners in support of his claim has relied

upon a judgment of a Bench of this Court passed in W.P. (C) No.1005/2011

titled Kirori Mal and Others Vs. MCD. Submission is that in a similar

context where the petitioners were in settled possession and they were asked

to be evicted by the MCD, a Bench of this Court had noted that they can be

removed only under the provisions of Public Premises Act and not otherwise

and the proceedings before the Estate Officer had necessarily to be followed.

Submission is that this judgment has been upheld in LPA No. 481/2011

decided on 25.07.2011.

8 The facts of the case of Kirori Mal (supra) have been perused. In that

case there was a decree enuring in favour of the said petitioners which was a

decree which was 15 years old. This was noted in the order of the Single

Bench which had in this context said that since the petitioners already had a

decree in their favour and the respondent-MCD had been restrained from

dispossessing them in terms of that decree dated 23.01.1995 (15 years old),

they being in settled possession, they could not be evicted unless the

Department resorted to the provisions of Public Premises Act. This aspect

was considered by the Division Bench and the Division Bench had reiterated

the position that since a decree had been passed in favour of the petitioners

in the year 1995 to which the MCD was also a party and the suit having been

filed in the year 1978 and not having been challenged, the respondent

Corporation could not evict the petitioner then as so stated by the Single

Judge i.e. by taking recourse of the Public Premises Act. The facts of that

case were clearly different and would not be applicable to the facts of the

instant case.

9 What has come on record in the instant case is that the seven

petitioners had purchased the aforenoted shops in 1990 to 2007 from the

illegal and unauthorized holder Jaspal Singh who also had no legal right in

the tehbazari rights of Amin Chand and who was admittedly the original

allottee.

10 A Bench of this Court while dealing with a similar factual matrix as

also the Circular of the Government dated 06.07.2011, Resolution No. 874

dated 16.03.2011 and Resolution No. 10 dated 27.05.2011 in W.P.

3455/2012 titled Smt. Shanti Devi Vs. Government of NCT of Delhi and

Others had noted herein as under:-

"Insofar as the first contention is concerned, i.e. that the impugned policy lacks bona fide, there is no material to substantiate this contention.

.........

In view of the above, the contention that the impugned policy was framed only to sustain a statement made before a Division Bench of this court, cannot be accepted."

11 The Policy was upheld. The Court went ahead to state that a license

when granted by the Corporation is only for a permissive user and does not

confer any right in respect of the said property.

12 In this case also, admittedly the original allottee Amin Chand had been

granted a license which stood cancelled by the show cause notice dated

11.11.2011; since he had violated the terms of the license, that license had

been cancelled. This judgment passed by the Single Judge was upheld by

the Division Bench in LPA No.542/2015 titled Rajiv Narula Vs.

Governments of NCT of Delhi and Others [including the case of Shanti Devi

Vs. Governments of NCT of Delhi Thr Its Chief Secretary and others (LPA

No.595/2015)] wherein before the Division Bench a re-argument on the

policy dated 06.07.2011 was heard and decided in favour of the Corporation.

The said order reads herein as under:-

"11 The challenge of the appellants to the policy dated July 06, 2011 cannot be sustained on the reasons urged. The appellants claim that the policy needs to be struck down for the reason the Division Bench of this Court in LPA No.240/2006 did not direct MCD to frame the policy rather recorded the statement of the counsel. Vide the amendment dated July 06, 2011 the expression "Hon'ble High Court of Delhi passed an order in LPA No.240/2006 titled MCD Vs Sadhna Grover vide which MCD was directed

to frame a policy with regard to the Coal Depots. Pursuant to the above said orders of the Hon'ble High Court of Delhi..." appearing in para-1 of the Circular No.AO/CL&EC/2011/87 dated 06.07.2011" has been deleted in the policy and thus the challenge on this ground does not survive.

12. Nothing has been placed on record to show that the policy as framed is arbitrary, illegal or that the MCDs have no authority to lay down the policy. No doubt coal as a utility has lost its value in day-to-day life of man. Except being used in hotels, restaurants etc. the coal is not being used as a commodity in the household on day-to-day basis and the storage spaces for LPA Nos.542/2015 & connected matters Page 36 of 40 the coal depots as required earlier are not required in the present scenario. The use of coal is further prohibited by the various orders passed under the Air (Prevention and Control of Pollution) Act, 1981. Thus we find no reason to strike down the policy dated July 06, 2011 of the respondent MCDs as arbitrary and illegal."

13 The second aspect regarding the re-possession of the property (as is

argued in the present case) was also discussed and while extracting a portion

of the order passed by the Single Bench in that matter, the Division Bench

being in agreement with that order had extracted it as under:-

""1. The petitioners in these petitions are claiming rights to occupy premises which had been allotted as coal depots to their respective predecessors. Some of the petitioners are third parties who have allegedly acquired occupancy rights pertaining to the respective premises occupied by them, from the original allottees of those premises. Some of the petitioners are claiming to be the heirs of the original allottees...."

14 Needless to state that this Policy would apply only to tehbazari holders

who are entitled to tehbazari rights; the petitioners who are the alleged

successors in interest of the original allottee Amin Chand have no tehbazari

rights.

15 This writ petition is without any merit. Dismissed.

INDERMEET KAUR, J AUGUST 29, 2016 A