Delhi High Court
Smt Arvinder Kaur Bedi And Anr. vs New Delhi Municipal Council And ... on 24 April, 2018
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24.04.2018
+ W.P.(C) No.1010/2018 & C.M. No.4291/2018
SMT ARVINDER KAUR BEDI AND ANR. ..... Petitioner
Through Ms.Shobhana Takiar, Adv.
versus
NEW DELHI MUNICIPAL COUNCIL
AND ORS. ..... Respondents
Through Mr.Sriharsha Peechara, Adv.
for NDMC.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. The Petitioners, who were licensees of Shop Nos. 36 &
37, Gole Market, New Delhi from 17th November, 1998 have
filed the present petition seeking quashing of order dated 29th
November, 2017, vide which the aforesaid shops have been
sealed. The Petitioners also seek quashing of order dated 20th
December, 2017, vide which the license in favour of the
Petitioners was cancelled.
2. Learned counsel for the Petitioners points out that the
Petitioners' licenses were being renewed from time to time and
the last renewal granted to the petitioners had expired on 31st
March, 2013. She submits that the Respondents had thereafter
carried out an inspection wherein certain violations, which were
common to the majority of the shops in the market, were found.
She contends that after the inspection, the Petitioners were
singled out by the Respondents at the behest of some employees
and were issued a show cause notice and, despite their detailed
representation, only their shops were sealed on 17th June, 2015
due to some extraneous reasons,.
3. Learned counsel for the Petitioners further submits that,
pursuant to a Resolution dated 27th June, 2015, the Respondent
No.1 directed de-sealing of the shops vide its order dated 22nd of
September, 2015 and a fresh policy relating to renewal of
licenses of the NDMC shops etc., was issued vide circular dated
16th August, 2016. Pursuant to the aforesaid policy, the
Petitioners had applied for renewal of the licenses in respect of
the aforesaid two shops, and also for change of trade to permit
the petitioners to run a restaurant there. The Petitioners had also
sought an amalgamation of both their shops.
4. Ms.Takiar submits that while the Respondent No. 1
renewed the licenses of about 200 shops in the same market, in
terms of its new policy dated 16th August, 2016, it did not
consider the Petitioner's aforesaid application. It is at this stage
that the Petitioners had approached this Court vide Writ Petition
(C) No.1192/2017, wherein the Petitioners had sought a
direction to the Respondent No. 1 to renew their licenses, permit
amalgamation of their 2 shops and allow their request for
change of trade. The aforesaid writ petition was disposed of by
this Court vide its order dated 18th July, 2017, by recording that
the Respondent No. 1 would consider the Petitioners' aforesaid
request after they remove the deficiencies pointed out in the
inspection report dated 29th March, 2017, which report was
drawn up pursuant to an inspection conducted by the
Respondent No. 1 after receiving the Petitioner's request. The
said deficiencies have been duly noted in the order dated 18th
July, 2017, and are reproduced hereinbelow:-
"(i) The loft which is at height of 6'10" has
resulted in shops having height of 6'10",
existing in violation of bye-laws and is non-
habitable. The minimum habitable height
required is 9'0" for the entire premises.
(ii) The clubbing of shops has to be
regularised as per policy dated 16.08.2016.
(iii) The parapet wall shall be reduced to the
permissible height i.e. 1.5 mtr. Or 5 feet from
the terrace now existing.
(iv) Staircase constructed has to be
removed."
5. Since it was the Petitioner's case that they had duly met
the Condition Nos. 1, 3 & 4 aforementioned and the only
deficiency was with regard to Condition No. 2, this Court, while
allowing WP (C) No. 1192/2017 with a direction to the
Respondents to re-consider the Petitioner's case, had granted
permission to the Respondents to conduct a fresh inspection of
the shops in question.
6. On the other hand, Mr. Peechara, learned counsel for the
Respondents, submits that pursuant to this Court's order dated
18.07.2017, a fresh inspection of the two shops was carried out,
wherein it was found that, as against the minimum habitable
height of 9 ft. required for the entire premises, the height of the
Petitioners' shops was found to be lesser in some places. He,
therefore, submits that the Respondent No. 1 had rightly not
considered the Petitioners' request for renewal of their licenses
and other consequential prayers. He also submits that, on a
further inspection, it was found that the Petitioners had illegally
and without permission of the Respondents, even sublet the
premises. In these circumstances, he submits, the Respondent
No. 1 had rightly passed the order dated 29th November, 2017,
for sealing of the two shops.
7. Having heard the learned counsels for the parties, I find
that, aggrieved by the Respondent No.1's inaction in not taking
steps to renew the Petitioners' licenses, the petitioners had
approached this Court on 27.11.2017 by way of C.M. No.
43448/2017 in WP (C) No. 1192/2017, which petition stood
disposed of vide order dated 18.07.2017. It is the contention of
the learned counsel for the Petitioners that, immediately upon
filing of the said application, the Respondent No. 1 malafidely
took steps to seal the shops, which allegation is vehemently
denied by the learned counsel for the Respondents. Upon filing
of the said application, this Court had vide its order dated 8th
January, 2018, appointed a Local Commissioner to inspect the
two shops, pursuant to which a report dated 31st January, 2018
was filed by the Local Commissioner. The Local
Commissioner, after inspecting the two shops in the presence of
the parties, came to the conclusion that, though the height of the
shops was found to be less than 9 ft. at some locations, there
was no construction of any kind made by the Petitioners
themselves. This position, that the shops were constructed by
the Respondent No. 1 itself and handed over to the licensees, is
not denied by the Respondents. It may also be noted that the
Local Commissioner had visited the two shops in the presence
of the officers of the Respondents, and did not find subletting of
any kind. Since none of the parties have filed any objection to
the Local Commissioner's inspection report, the Court is
inclined to accept the said report as unrebutted.
8. Thus, the admitted position is that the Respondent No. 1
had constructed the shops as they currently stand and had then
handed them over to the Petitioners. In my considered opinion,
once it is admitted that this deficiency of the height of the shops
being less than 9 feet at some places, is not at all attributable to
the Petitioners, the Respondents cannot refuse to renew the
Petitioners' licenses on the ground that the said shops have a
height of less than 9 ft. at some places. For the aforesaid
reason, the Respondent No. 1's order dated 29th November,
2017, whereby the Petitioners' shops were sealed, cannot be
sustained and the same is, accordingly, quashed. For the same
reasons, the order dated 20th December, 2017 cancelling the
Petitioners' licenses is also quashed.
9. The Respondents are now directed to immediately de-seal
the shops No.36 and 37, Gole Market, New Delhi and hand
over the possession thereof to the Petitioners within a period of
one week from today. The Respondents are also directed to
process the Petitioners' application for renewal of the licenses
and other ancillary prayers, including amalgamation and change
of use as per their policy, within 8 weeks.
10. It is made clear that the ground, that the height of the
shop is less than 9 ft. at some places, shall not be treated as a
bar or deficiency for considering the Petitioners' case for
renewal of their licenses positively.
11. The petition is disposed of in the aforesaid terms.
12. Copy of this order be given DASTI under signatures of
Court Master.
(REKHA PALLI)
JUDGE
APRIL 24, 2018/aa.f
