Delhi High Court
Nathia Devi vs New Delhi Municipal Council & Anr. on 30 January, 2017
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 835/2017 & CMs No.3810 & 3811/2017
NATHIA DEVI ..... Petitioner
Through: Mr. Kirti Uppal, Senior Advocate,
Ms. Wanika Trehan, Ms. Gari P. Desai,
Ms. Aastha Dhawan, Advocates.
versus
NEW DELHI MUNICIPAL COUNCIL & ANR. ..... Respondents
Through: Mr. Sri Harsha Peechara, ASC for
NDMC.
Mr. Naryana Kumar, ALO, NDMC.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
ORDER
% 30.01.2017
1. The petitioner has assailed the cancellation order dated 24.1.2017
passed by the respondent/NDMC cancelling the allotment of a Flower Kiosk
near gate No.6, Palika Bazar and restraining it from initiating any
proceedings against her under Section 5 of The Public Premises (Eviction of
Unauthorised Occupants) Act,1971 (hereinafter referred to as 'the PP Act').
2. Mr. Uppal, learned Senior Advocate appearing for the petitioner
submits that prior to issuing the show cause notice dated 15.12.2016, the
respondent/NDMC had initiated proceedings against the petitioner under
Sections 4,5 and 7 of the PP Act, and in his order dated 05.8.2013, the
Estate Officer had recorded the statement of the NDMC that full payment in
respect of the subject kiosk had been received by the Department on
18.7.2013 and no violation of trade was found at the kiosk. As a result, the
petition filed by the respondent/NDMC under Section 5 of PP Act was
disposed of as infructuous.
3. Subsequently on receiving a complaint from a private party about the
irregular transfer of the kiosk, the Ministry of Home Affairs, Govt. of India
had conducted an enquiry and asked the respondent/NDMC to take action.
The respondent/NDMC had issued a notice dated 15.12.2016 to the
petitioner calling upon her to show cause as to why the licence of the kiosk
be not cancelled and it be sealed for unauthorizedly occupying the same, on
account of unauthorized construction and for violation of trade, besides
initiation of action for disconnection of electricity and eviction proceedings.
The said notice had mentioned that the kiosk was licensed to the original
allottee, @ Rs.1/- per month and not at market rates and only for sale of
flowers and other non-licensable trade and that it cannot be transferred nor
can a partnership be entered into by the allottee as it is not covered under the
regular policy of the NDMC for transfer of shops, kiosks, etc. licensed on
market rates.
4. The petitioner had submitted a reply to the notice to show cause on
23.12.2016. After considering the said reply, vide order dated 24.1.2017, the
respondent/NDMC cancelled the allotment of the kiosk by holding that the
same had been regularised in favour of the petitioner by violating the extant
policy and Council Resolutions with respect to the licensed shops of the
Estate Department of the NDMC. It was further stated in the impugned
order that the submissions made before the Estate Officer were without the
approval by the Competent Authority. Aggrieved by the aforesaid order, the
petitioner has filed the present petition.
5. Having regard to the fact that the present petition raises several
disputed facts, this court is not inclined to entertain the present petition. In
any event, it is not as if the petitioner can be dispossessed by the NDMC
without following the due process of law. The respondent/NDMC shall
have to invoke the provisions of the PP Act for seeking the eviction of the
petitioner from the kiosk.
6. Mr. Uppal, learned Senior Advocate submits at this stage that the
petitioner does not wish to press the present petition and as and when the
NDMC approaches the Estate Officer against her, she reserves her right to
take all the pleas in defence, both on facts and in law.
7. Leave as prayed for is granted. The petition is disposed of along with
the pending applications.
HIMA KOHLI, J
JANUARY 30, 2017
ap/mk
