Delhi High Court
Leela Veer Singh vs New Delhi Municipal Council & Ors on 6 December, 2016
$~8-13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment dated 06 thDecember, 2016
+ W.P.(C) 5277/2016 & C.M. No.22075/2016 (for stay)
JAGDISH ..... Petitioner
Through Mr.Kirti Uppal, Senior Advocate with
Ms.Aastha Dhawan & Ms.Wamika
Trehan, Advocates
versus
NEW DELHI MUNICIPAL COUNCIL & ORS ..... Respondents
Through Mr.Sri Harsha Peechara, ASC with
Mr.Mananjay Kr. Mishra, Ms.Vidhi
Jain, Mr.Shailja Nanda Mishra,
along with Mr.Narayan Kumar, ALO,
NDMC in person.
Mr.Rahul Sharma, Advocate with
Mr.C.K.Bhatt, Advocate for respondent
No.3.
+ W.P.(C) 5286/2016 & C.M. No.22119/2016 (for stay)
LEELA VEER SINGH ..... Petitioner
Through Mr.Kirti Uppal, Senior Advocate with
Ms.Aastha Dhawan & Ms.Wamika
Trehan, Advocates
versus
NEW DELHI MUNICIPAL COUNCIL & ORS ..... Respondents
Through Mr.Sri Harsha Peechara, ASC with
Mr.Mananjay Kr. Mishra, Ms.Vidhi
Jain, Mr.Shailja Nanda Mishra,
along with Mr.Narayan Kumar, ALO,
NDMC in person.
+ W.P.(C) 5287/2016 & C.M. No.22121/2016 (for stay)
MUMTAZ AHMED KASMI ..... Petitioner
Through Mr.Kirti Uppal, Senior Advocate with
Ms.Aastha Dhawan & Ms.Wamika
Trehan, Advocates
versus
NEW DELHI MUNICIPAL COUNCIL & ORS ..... Respondents
Through Mr.Sri Harsha Peechara, ASC with
Mr.Mananjay Kr. Mishra, Ms.Vidhi
Jain, Mr.Shailja Nanda Mishra,
along with Mr.Narayan Kumar, ALO,
NDMC in person.
Mr.Rahul Sharma, Advocate with
Mr.C.K.Bhatt, Advocate for respondent
No.3.
+ W.P.(C) 5290/2016 & C.M. No.22127/2016 (for stay)
RAM LAL ..... Petitioner
Through Mr.Kirti Uppal, Senior Advocate with
Ms.Aastha Dhawan & Ms.Wamika
Trehan, Advocates
versus
NEW DELHI MUNICIPAL COUNCIL & ORS ..... Respondents
Through Mr.Sri Harsha Peechara, ASC with
Mr.Mananjay Kr. Mishra, Ms.Vidhi
Jain, Mr.Shailja Nanda Mishra,
along with Mr.Narayan Kumar, ALO,
NDMC in person.
Mr.Sachin Nahar, Advocate for
respondent No.3.
+ W.P.(C) 5292/2016 & C.M. No.22131/2016 (for stay)
SHAFIQ ..... Petitioner
Through Mr.Kirti Uppal, Senior Advocate with
Ms.Aastha Dhawan & Ms.Wamika
Trehan, Advocates
versus
NEW DELHI MUNICIPAL COUNCIL & ORS ..... Respondents
Through Mr.Sri Harsha Peechara, ASC with
Mr.Mananjay Kr. Mishra, Ms.Vidhi
Jain, Mr.Shailja Nanda Mishra,
along with Mr.Narayan Kumar, ALO,
NDMC in person.
Mr.Rahul Sharma, Advocate with
Mr.C.K.Bhatt, Advocate for respondent
No.3.
+ W.P.(C) 5294/2016 & C.M. No.22135/2016 (for stay)
SUDERSHAN JAIN ..... Petitioner
Through Mr.Kirti Uppal, Senior Advocate with
Ms.Aastha Dhawan & Ms.Wamika
Trehan, Advocates
versus
NEW DELHI MUNICIPAL COUNCIL & ORS ..... Respondents
Through Mr.Sri Harsha Peechara, ASC with
Mr.Mananjay Kr. Mishra, Ms.Vidhi
Jain, Mr.Shailja Nanda Mishra,
along with Mr.Narayan Kumar, ALO,
NDMC in person.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE VINOD GOEL
G.S.SISTANI, J (ORAL)
1. Pleadings in these matters are complete. With the consent of the
parties, the writ petitions are set down for final hearing and disposal.
2. Out of the innumerable pending writ petitions where street vendors are
agitating their rights for grant of licence and leave to squat, this is a rare
batch of writ petitions where the petitioners are allottees of tehbazari
whose tehbazaris have been cancelled by the orders passed by the Joint
Director (Enforcement), Enforcement Department, NDMC. We
propose to dispose of this batch of writ petitions by a common order, as
the legal issue which arises for consideration is common to all. The
facts of each case are being set out as under:
W.P. (C) No.5277/2016
3. As per the petition, the father of the petitioner was allotted a tehbazari
Space No. L/89 at R.K. Ashram Marg, New Delhi @ Rs.36/- per month
by a communication dated 26.02.1977, a copy whereof has been placed
on record.
4. The grievance of the petitioner is that an inspection was carried out by
the officials of the NDMC and since the petitioner was not found at the
site, a show-cause notice dated 23.02.2016 was issued to him. Reply to
the show-cause notice was given. In the reply, it was stated that the
petitioner had gone for lunch in the nearby Shankar Market. Finding
the reply not to be satisfactory, the tehbazari site of the petitioner was
cancelled by an order dated 03.05.2016.
W.P. (C) No.5286/2016
5. As per the petition, a tehbazari site bearing No.B-4, B-Block at
Connaught Place, New Delhi, measuring 6 ft. x 4 ft. was being operated
by the petitioner since the year 1981. Thereafter, an application filed
by the petitioner was allowed by the Committee headed by Sh. G.P.
Thareja on 19.01.1993 and the petitioner was allowed to squat from the
site in question subject to payment of charges to NDMC.
Subsequently, the Chaturvedi Committee in its order dated 22.06.1999
confirmed the allotment of the petitioner for the said tehbazari site.
6. A show-cause notice was issued to the petitioner on 23.02.2016
pursuant to an inspection carried out on 21.02.2016 when the petitioner
was not found at the site in question. As per the show-cause notice, it
was found that the site was occupied by one Manish Om Parkash,
grand-son of the petitioner. Reply to the show-cause notice was filed.
In the reply, the petitioner stated that she is a very old woman, suffering
from various diseases and has pain in both her knees and thus, she is
unable to squat. In these circumstances, she has requested her grand-
son to squat in view of her disability. This reply of the petitioner was
found to be unsatisfactory. Resultantly, by an order dated 03.05.2016,
the tehbazari site of the petitioner was cancelled.
W.P. (C) No.5287/2016
7. The petitioner was allotted a tehbazari site bearing No.132, M-12 „C‟
Block, Connaught Place, New Delhi, measuring 4 ft. x 3 ft. under the
orders of the Chaturvedi Committee. He was running the site in
question since the year 1985. The application filed by the petitioner
was allowed by the Committee headed by Sh. G.P.Thareja on
21.10.1992 holding that he would be entitled to squat at the site in
question subject to payment of charges to NDMC. Subsequently, the
allotment of the petitioner for the site in question was confirmed by the
Chaturvedi Committee on 22.06.1999.
8. On an inspection carried out on 21.02.2016, it was found that the
petitioner was not present at the site. Resultantly, a show-cause notice
was issued to the petitioner on 23.02.2016 calling upon the petitioner to
show cause as to why his tehbazari licence should not be cancelled. A
reply was filed on 24.02.2016 explaining his absence for the reason that
the petitioner recites Namaz five times in a day and he had left his
tehbazari site only for a limited period to recite Namaz. The petitioner
had also denied subletting in any manner. Being dissatisfied with the
explanation rendered, the tehbazari site of the petitioner was cancelled
by an order dated 03.05.2016.
W.P. (C) No.5290/2016
9. In this petition, a tehbazari site bearing No.134, M-26 „F‟ Block, Opp.
D-Mansion & Co., Connaught Place, New Delhi, measuring 4 ft. x 3 ft.
was being operated by the petitioner since the year 1980. Thereafter,
an application filed by the petitioner was allowed by the Committee
headed by Sh.G.P. Thareja on 14.05.1993 and the petitioner was
allowed to squat from the site in question subject to payment of charges
to NDMC. Subsequently, the Chaturvedi Committee in its order dated
22.06.1999 confirmed the allotment of the petitioner for the said
tehbazari site.
10. A show-cause notice was issued to the petitioner on 23.02.2016
pursuant to an inspection carried out on 16.02.2016 when the petitioner
was not found at the site in question. As per the show-cause notice, it
was found that the site was occupied by some unauthorized person.
Reply to the show-cause notice was filed. In the reply, the petitioner
stated that he had gone to the washroom for a short time and had asked
his helper to take care of the site. This reply of the petitioner was
found to be unsatisfactory. Resultantly, by an order dated 03.05.2016,
the tehbazari site of the petitioner was cancelled.
W.P. (C) No.5292/2016
11. As per the petition, the petitioner was allotted a tehbazari site bearing
No.134, M-11 „C‟ Block, Connaught Place, New Delhi, measuring 4 ft.
x 3 ft. under the orders of the Chaturvedi Committee. He was running
the site in question since the year 1984. Thereafter, the application
filed by the petitioner was allowed by the Committee headed by Sh.
G.P.Thareja on 21.10.1992 holding that he would be entitled to squat at
the site in question subject to payment of charges to be paid to the
NDMC. Subsequently, the allotment of the petitioner for the site in
question was confirmed by the Chaturvedi Committee on 22.06.1999.
12. On an inspection carried out on 16.02.2016, it was found that the
petitioner was not present at the site as he has sublet the same to an
unauthorized person named Shivam. Resultantly, a show-cause notice
was issued to the petitioner on 23.02.2016 calling upon the petitioner to
show cause as to why his tehbazari licence should not be cancelled on
account of violation of the terms and conditions of the licence. A reply
was filed on 26.02.2016 explaining his absence for the reason that the
petitioner had left his tehbazari site only for a limited period to recite
Namaz. Being dissatisfied with the explanation rendered, the tehbazari
site of the petitioner was cancelled by an order dated 03.05.2016.
W.P. (C) No.5294/2016
13. A tehbazari site bearing No.134, near A & Z Bank, E-Block at
Connaught Place, New Delhi, measuring 6 ft. x 4 ft. was being operated
by the petitioner since the year 1991. Thereafter, an application filed
by the petitioner was allowed by the Committee headed by Sh. G.P.
Thareja on 28.01.1994 and the petitioner was allowed to squat from the
site in question subject to payment of charges to be paid to the NDMC.
Subsequently, the Chaturvedi Committee in its order dated 22.06.1999
confirmed the allotment of the petitioner for the said tehbazari site.
The possession slip was also handed over to the petitioner.
14. A show-cause notice was issued to the petitioner on 23.02.2016
pursuant to an inspection carried out on 16.02.2016 when the petitioner
was not found at the site in question. As per the show-cause notice, it
was found that the site was sublet to an unauthorized person. Reply to
the show-cause notice was filed. In the reply, the petitioner stated that
there was bereavement in family on the day of the inspection and he
rushed to attend the funeral place requesting his neighbour to take care
his site. This reply of the petitioner was found to be unsatisfactory.
Resultantly, by an order dated 03.05.2016, the tehbazari site of the
petitioner was cancelled.
Submissions of the learned counsel for the petitioners
15. Mr. Uppal, learned senior counsel, appearing on behalf of the
petitioners submits that the petitioners had replied to the show-cause
notices issued to them and had given valid and genuine reasons for
their absence. However, the explanations did not find favour with the
respondents resulting in cancellation of the sites.
16. Learned senior counsel further submits that the respondent council has
failed to consider the replies of the petitioners/allottees and passed the
cancellation orders dated 03.05.2016 is a pre-decided manner. It has
also been alleged that the principles of natural justice have been
violated as no hearing was granted to the allottees prior to the harsh
action of cancellation of tehbazaari licences and removal of the
petitioners. It is submitted that the respondent council has failed to take
into account that the order so passed has far reaching consequences
including loss of livelihood. It is also argued that by the impugned
order dated 03.05.2016, sites of genuine vendors have been cancelled
whereas illegal encroachers are being allowed to squat.
Submissions of the learned counsel for the respondents
17. Mr. Sri Harsha Peechara, learned Addl. Standing Counsel on behalf of
NDMC, submits that as per the settled allotment norms, no person can
be allowed to squat other than the original allottee. In all the petitions,
persons other than the allottees were found vending at the sites and
thus, there is no infirmity in the orders passed by the Joint director
(Enforcement), Enforcement Department, NDMC.
18. Further in the case of Jagdish (W.P.(C) No.5277/2016), learned
standing counsel submits that the documents placed on record would
show that the father of the petitioner was allotted a site at R.K. Ashram
Marg, New Delhi. However, the father of the petitioner thereafter
applied for change of trade and also in a clever manner himself
changed the site to M.T. No.25, D-Block, Near Odeon Cinema,
Connaught Place, New Delhi, which site was never allotted to him.
Mr. Harsha further submits that additionally, the name of the petitioner
has still not been substituted upon the death of his father which is
evident upon the address in the show-cause notice and tehbazari
challans in question.
Findings of the Court
19. We have heard the learned counsel for the parties. The basic facts are
not in dispute in all the writ petitions. The petitioners were granted
tehbazari rights except in the case of W.P. (C) No.5277/2016 where the
tehbazari rights were granted in favour of the father of the present
petitioner. The father of the petitioner has died and the petitioner has
sought substitution of his name.
20. In all these cases, show-cause notices were issued to the petitioners on
23.02.2016. All the petitioners had filed their replies. But, by stereo-
type orders, the respondent/NDMC cancelled the tehbazari licences of
the petitioners by merely stating that the reasons explaining the absence
of the petitioner were "not found satisfactory."
21. The short question which arises for consideration is whether the
licences of the petitioners could have been cancelled without passing a
reasoned order. The law on the subject is well-settled. It has been
repeatedly held that even a quasi-judicial authority must record reasons
in support of its conclusion, more particularly, in cases where the order
would have far reaching consequences.
22. The petitioners who have approached this Court hold tehbazari licences
and by passing the orders of cancellation, their only source of
livelihood has been taken away. In our view, the orders so passed have
far reaching consequences.
23. The Supreme Court has from time to time held that failure to give
reasons amounts to denial of justice. In the case of Union of India
(UOI) v. Mohan Lal Capoor and Ors., AIR 1974 SC 87, the Apex
Court has emphasized the importance of giving reasons and held as
under:
"52. ...Reasons are the links between the materials on which
certain conclusions are based and the actual conclusions.
They disclose how the mind is applied to the subject matter for
a decision whether it is purely administrative or quasi-judicial.
They should reveal a rational nexus between the facts
considered and the conclusions reached. Only in this way can
opinions or decisions recorded be shown to be manifestly just
and reasonable. ..."
24. It would also be useful to refer to Siemens Engineering &
Manufacturing Co. of India Ltd. v. The Union of India (UOI) and
Anr., AIR 1976 SC 1785, wherein it was held that:
"6. ...If courts of law are to be replaced by administrative
authorities and tribunals, as indeed, in some kinds of cases,
with the proliferation of Administrative law, they may have to
be so replaced, it is essential that administrative authorities
and tribunals should accord fair and proper hearing to the
persons sought to be affected by their orders and give
sufficiently clear and explicit reasons in support of the orders
made by them. Then alone administrative authorities and
tribunals exercising quasi-judicial function will be able to
justify their existence and carry credibility with the people by
inspiring confidence in the ad judicatory process. The rule
requiring reasons to be given in support of an order is, like the
principle of audi alteram partem, a basic principle of natural
justice which must inform every quasi-judicial process and this
rule must be observed in its proper spirit and mere pretence of
compliance with it would not satisfy the requirement of
law...."
(Emphasis Supplied)
25. The Courts in India have repeatedly relied upon the observations of
Lord Denning in Breen v. Amalgamated Engineering Union And
Others, (1971) 2 Q.B. 175, wherein it was held as under:
"Then comes the problem: ought such a body, statutory or
domestic, to give reasons for its decision or to give the person
concerned a chance of being heard? Not always, but
sometimes. It all depends on what is fair in the circumstances.
If a man seeks a privilege to which he has no particular claim
-- such as an appointment to some post or other -- then he
can be turned away without a word. He need not be heard. No
explanation need be given: see the cases cited in Schmidt v.
Secretary of State for Home Affairs [1969] 2 Ch. 149, 170-
171. But if he is a man whose property is at stake, or who is
being deprived of his livelihood, then reasons should be given
why he is being turned down, and he should be given a chance
to be heard. I go further. If he is a man who has some right or
interest, or some legitimate expectation, of which it would not
be fair to deprive him without a hearing, or reasons given,
then these should be afforded him, according as the case may
demand. The giving of reasons is one of the fundamentals of
good administration...."
(Emphasis Supplied)
26. In Alexander Machinery (Dudley) Ltd. v. Crabtree, 1974 ICR 120
(NIRC), it was observed that:
―"Failure to give reasons amounts to denial of justice".
Reasons are live links between the mind of the decision-taker
to the controversy in question and the decision or conclusion
arrived at". Reasons substitute subjectivity by objectivity. The
emphasis on recording reasons is that if the decision reveals
the "inscrutable face of the sphinx", it can, by its silence,
render it virtually impossible for the Courts to perform their
appellate function or exercise the power of judicial review in
adjudging the validity of the decision. Right to reason is an
indispensable part of a sound judicial system; reasons at least
sufficient to indicate an application of mind to the matter
before Court. Another rationale is that the affected party can
know why the decision has gone against him. One of the
salutary requirements of natural justice is spelling out reasons
for the order made; in other words, a speaking out. The
"inscrutable face of a sphinx" is ordinarily incongruous with a
judicial or quasi-judicial performance.
27. In Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC
496, the Supreme Court while dealing with appeals from decisions of
the National Consumer Disputes Redressal Commission, after
considering a conspectus of judgments upon the subject, had concluded
as under:
"47. Summarising the above discussion, this Court holds:
(a) In India the judicial trend has always been to record
reasons, even in administrative decisions, if such decisions
affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support
of its conclusions.
(c) Insistence on recording of reasons is meant to serve the
wider principle of justice that justice must not only be done it
must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on
any possible arbitrary exercise of judicial and quasi-judicial
or even administrative power.
(e) Reasons reassure that discretion has been exercised by the
decision-maker on relevant grounds and by disregarding
extraneous considerations.
(f) Reasons have virtually become as indispensable a
component of a decision-making process as observing
principles of natural justice by judicial, quasi-judicial and
even by administrative bodies.
(g) Reasons facilitate the process of judicial review by
superior courts.
(h) The ongoing judicial trend in all countries committed to
rule of law and constitutional governance is in favour of
reasoned decisions based on relevant facts. This is virtually
the lifeblood of judicial decision-making justifying the
principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be
as different as the judges and authorities who deliver them. All
these decisions serve one common purpose which is to
demonstrate by reason that the relevant factors have been
objectively considered. This is important for sustaining the
litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial
accountability and transparency.
(k) If a judge or a quasi-judicial authority is not candid
enough about his/her decision-making process then it is
impossible to know whether the person deciding is faithful to
the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and
succinct. A pretence of reasons or ―rubber-stamp reasons‖ is
not to be equated with a valid decision-making process.
(m) It cannot be doubted that transparency is the sine qua non
of restraint on abuse of judicial powers. Transparency in
decision-making not only makes the judges and decision-
makers less prone to errors but also makes them subject to
broader scrutiny. (See David Shapiro in Defence of Judicial
Candor [(1987) 100 Harvard Law Review 731-37] .)
(n) Since the requirement to record reasons emanates from the
broad doctrine of fairness in decision-making, the said
requirement is now virtually a component of human rights and
was considered part of Strasbourg Jurisprudence. See Ruiz
Torija v. Spain [(1994) 19 EHRR 553] EHRR, at 562 para 29
and Anya v. University of Oxford [2001 EWCA Civ 405 (CA)],
wherein the Court referred to Article 6 of the European
Convention of Human Rights which requires,
―adequate and intelligent reasons must be given for
judicial decisions‖.
(o) In all common law jurisdictions judgments play a vital role
in setting up precedents for the future. Therefore, for
development of law, requirement of giving reasons for the
decision is of the essence and is virtually a part of ―due
process‖."
(Emphasis Supplied)
28. Applying the law to the facts of the present cases, it may be noticed that
in all these matters, the respondent council has passed almost similar or
stereo-type orders uniformly holding that the replies were not found
satisfactory. The respondent has completely lost sight of the fact that
the orders are devoid of any reasons. The orders do not show as to
whether replies so filed by each of the petitioners to the show-cause
notices were actually verified or tested.
29. We may also notice that in all these cases, the case of the respondents is
that on an inspection carried out, the tehbazari holder was not found at
the site. But in none of the cases, the respondents have returned a
finding or even reading of the show-cause notices would show that it
has not been alleged that these are cases of subletting or cases where
the tehbazari holders have sold their rights illegally. The consistent
stand of NDMC in all these cases is that when the inspection was
carried out, the tehbazari holder was not present at the site. The replies
to the show-cause notices, as noticed in the paragraphs aforegoing with
respect to each case, would show that in two cases the tehbazari
holders have stated that they have gone to recite Namaz; in one case,
the petitioner has pleaded her physical disability; in Ram Lal‟s case, he
had gone to answer the call of nature; in another case, the petitioner
Jagdish had gone for lunch; and finally, the petitioner Sudershan Jain
had gone to attend a funeral.
30. Accordingly, in our view, the orders in the aforesaid matters cannot be
sustained. Resultantly, the impugned orders dated 03.05.2016 are
quashed.
31. In the case of Jagdish (W.P.(C) No.5277/2016), the statement of
Mr.Uppal, learned Senior counsel, on instructions, was recorded to the
effect that the present petitioner undertakes to carry out his tehbazari at
the site which was initially allotted to his father; he would not exceed
the area of 6 ft. x 4 ft. and would continue with the trade which has
been recognized by the respondents and he would also pay the
necessary fee and comply with the norms as per the Act. He further
submits that the case of the petitioner may be considered by the Town
Vending Committee.
32. In the said case, the Vending Committee would consider the application
for substitution, provided the petitioner vends at the site allotted to his
father, the original allottee, i.e. Space No. L/89, at R.K. Ashram Marg,
New Delhi.
33. The writ petitions are accordingly disposed of.
34. All pending applications also stand disposed of.
G.S.SISTANI, J.
VINOD GOEL, J.
DECEMBER 06, 2016
// /ka
