Delhi High Court
Asha Chitkara vs North Delhi Municipal ... on 11 December, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th December, 2018
+ LPA 535/2016 & CM. No. 35819/2016
ASHA CHITKARA ..... Appellant
Through: Mr. R.K. Saini, Ms. Sonia Sharma,
Mr. Rishi Khanna, Ms. Neha Chugh,
Advs.
versus
NORTH DELHI MUNICIPAL COPRORATION
& ORS. ..... Respondents
Through: Ms. Mini Pushkarna, Standing Counsel
with Ms. Swagata Bhuyan, Ms. Shiva
Pandey and Ms. Neha Goel, Advs. for
NDMC.
Mr. Shailen Bhatia, Ms. Ekta Nayar
Saini, Ms. Neelam Pathak and
Ms. Vidushi Chandna, Advs.
AND
+ LPA 499/2018 & CM. Nos. 35389/2018 and 35390/2018
ARTI RANI ..... Appellant
Through: Mr. Viraj R. Datar, Adv. with
Mr. Rajeev Sirohi & Mr. Chetan
Lokur, Advs.
versus
NORTH D M C & ORS ..... Respondents
Through: Ms. Mini Pushkarna, Standing Counsel
with Ms. Swagata Bhuyan, Ms. Shiva
Pandey and Ms. Neha Goel, Advs. for
NDMC.
AND
+ LPA 612/2018 & CM. Nos. 44802/2018, 44803/2018, 44804/2018,
44805/2018 and 48777/2018
LPA 535/2016 and connected matters Page 1 of 28
ARTI RANI ..... Appellant
Through: Mr. Viraj R. Datar, Adv. with
Mr. Rajeev Sirohi & Mr. Chetan
Lokur, Advs.
versus
NDMC & ANR ..... Respondents
Through: Ms. Mini Pushkarna, Standing Counsel
with Ms. Swagata Bhuyan, Ms. Shiva
Pandey and Ms. Neha Goel, Advs. for
NDMC.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (ORAL)
CM. No. 44802/2018 in LPA 612/2018
Exemption allowed subject to all just exceptions.
Application stands disposed of.
CM. No. 44805/2018 (for condonation of 15 days delay in filing
the appeal) in LPA 612/2018
CM. No. 35390/2018 in LPA 499/2018
For the reasons stated in the applications, the delay is
condoned. Applications stand disposed of.
LPA 535/2016 & LPA 499/2018
1. These two appeals arises from the order dated March 02,
2016 whereby the learned Single Judge decided two writ petitions
being W.P.(C) No. 2347/2015 filed by Asha Chitkara and W.P.(C)
No. 3146/2015 filed by Arti Rani impugning the refusal of the
North Delhi Municipal Corporation to grant leasehold rights to them
in respect of shop Nos. 2 and 1 respectively in MCD Market, Karol
Bagh, New Delhi licensed to them and further seeking a restraint
against the North Delhi Municipal Corporation from taking any
coercive action for the eviction/dispossession of the appellants from
the said shops till leasehold rights therein are granted to them and
with the further relief of mandamus to the North DMC to grant
leasehold rights with respect to the shops licensed to each of them.
2. Suffice it to state, the learned Single Judge has noted the
facts from W.P.(C) No. 2347/2015, as the facts in both the writ
petitions are similar. The facts as noted by the learned Single Judge
are - (a) that the appellant was granted licence to the shop in
pursuance to a bid made by her in response to a notice dated March
26, 1997 inviting tenders; (b) that the said licence was for a period
of five years; (c) that the market in which the shop is situated was
constructed in the year 1976 by the Municipal Corporation of Delhi
(MCD) being the predecessor in interest of the respondent NrDMC;
(d) that the market initially comprised of 65 shops all of which were
given on licence basis; (e) however the MCD vide Resolution No.
982 dated March 05, 1979 decided to grant 99 years leasehold rights
to the licensees of shops in the said market and accordingly licences
of approximately 45 shops in the market were converted into
leasehold; (f) that inspite of the said resolution of 1979, the MCD in
the year 1997 allotted shop to the appellant on licence basis; (g) that
the licence of the appellant was renewed for a further period of five
years; (h) that the appellant vide application dated March 01, 2007
applied for conversion of the licence into leasehold; (i) MCD vide
letter dated April 02, 2007 called upon the appellant to make
payment of conversion charges of `30,28,410/- and which was paid
by the appellant on August 29, 2007; (j) MCD however did not
grant leasehold rights compelling the appellant to upon coming to
an end in October, 2007 of the second term of five years of the
licence, applied for renewal of the licence; (k) however the licence
was not renewed and on the contrary MCD vide letter dated August
13, 2009 cancelled its earlier letter dated April 02, 2007; (l)
however the amount of `30,28,541/- received from the appellant
was not refunded and it was merely stated that the same would be
adjusted against the outstanding dues of licence fee/overstay; (m)
that the MCD vide letter dated February 03, 2009 called upon the
appellant to vacate the premises; (n) that the respondent North DMC
is discriminating against the appellant in not converting the licence
of the appellant into leasehold though the same had been allowed
for other shops in the market.
3. Insofar as the counter affidavit filed by North DMC is
concerned, the learned Single Judge has taken out the defence as set
out in W.P.(C) No. 3146/2015. The facts as pleaded by the North
DMC are, (i) that the subject municipal market at Saraswati Marg,
Karol Bagh containing various Shops, Halls, Tharas, Kothries and
Office Spaces was inhabited on licence basis through auction
process after fixing reserve price, in terms of MCD Resolution
No.181 dated October 30, 1977; (ii) that various licence holders
were not regular in payment of licence fees, due to which huge dues
accumulated as arrears; (iii) representations were also received from
the Association of Allottees for allotment of shops to them on 99
years lease; (iv) MCD Resolution No.982 dated March 05, 1979
was passed agreeing to grant 99 years leasehold rights to existing
licencees of the market on fulfilment of certain conditions; (v) the
said Resolution applied only to "existing licencees" as is evident
from Commissioner's letter No.128/C&C dated January 05, 1979;
(vi) the genesis of the said Resolution was to earn more per month
by converting licences into leaseholds on the conditions stipulated;
(vii) on further demand of licencees of the said market, the
conditions were varied vide MCD Resolution No.1137 dated
February 18, 1980; (viii) that vide MCD Resolution No.1317 dated
March 23, 1987 it was resolved that extension of licences of 5 years
at a time, upto total of 10 years should be allowed in respect of
canteens, tourist sites, open air restaurants, office units, shops and
halls licenced by the MCD; (ix) that since the Resolution No.1317
dated March 23, 1987 provided for allotment only on licence basis,
subsequently a decision was taken vide MCD Resolutions No.494
dated November 29, 2005 and 495 dated November 29, 2005 to
allow conversion from licence to leasehold on certain conditions;
(x) that though the said Resolutions dated November 29, 2005 were
with the concurrence of the Commissioner MCD, there were certain
amendments by the Standing Committee and fresh proposals were
mooted by the Commissioner but which were not finally approved
and accepted - no Rules and Regulations in pursuance thereto were
formulated; (xi) no consensus having been reached between the
Commissioner and the Standing Committee of the MCD, which is
the sine qua non for disposal of immovable property of MCD under
Section 200-203 of the Delhi Municipal Corporation Act, 1957
(MCD Act), the policy adopted in the Resolution dated November
29, 2005 was never communicated to the public and never put in
public domain and no applications invited thereunder for conversion
of licences into leasehold and no conversion carried out thereunder;
(xii) that the subsequent MCD Resolution No.894 dated March 05,
2007 related only to leasehold properties and has no applicability to
the subject shops; (xiii) that vide another MCD Resolution No.189
dated July 19, 2010 it was decided to allow extension of licence by
another 5 year on the terms and conditions contained thereunder and
it was specifically stated therein that the policy of 2005 (i.e. vide
Resolutions dated November 29, 2005) is not applicable in cases of
auction and that auction will only be for licence basis and there will
be no auction for conversion from licence to lease; (xiv) that in
terms of decisions taken in Resolution No.189 dated July 19, 2010
and Resolution No.5 dated May 27, 2011, a Circular dated July 22,
2013 was published and in which nonapplicability of Resolutions
No.494 and 495 dated November 29, 2005 and Resolution No.894
dated March 05, 2007 to properties such as those of the appellants
was retained; (xv) that the subject shop was auctioned for 5 years on
licence basis; extension of licence was granted for 5 years; no
further extension was done after December 11, 2007; eviction notice
dated February 26, 2009 was issued also stating that there were dues
of `79,85,994/- for the period from September, 2005 till February,
2009 and proceedings under PP Act commenced in the year 2011;
(xvi) that though as per existing policy contained in Circular dated
July 22, 2013, the present occupants of shops, halls, offices, spaces
etc. can continue as licencees subject to clearing dues upto date and
enhancement of licence fees as provided therein and the appellant
was also given option thereunder and the appellant initially
purported to avail but subsequently did not comply with terms and
conditions thereof and the case of the appellant was closed; (xvii)
that this petition has been filed concealing/misrepresenting facts;
and, (xviii) the appellant has no vested right of conversion to
leasehold.
4. The arguments of the counsel for the appellants before the
learned Single Judge were (i) that there are in all 65 shops in the
market and of which 50 were already converted into leasehold till
the year 2002; (ii) that the respondent NrDMC cannot discriminate
between different shops in the same market and cannot at its ipse
dixit give leasehold rights with respect to some, creating
permanency, and deprive others thereof by keeping them as
licencees i.e. on temporary basis; (iii) that as is evident from the file
noting dated February 14, 2005 of the MCD, the conversion of five
licenced shops including two of the petitioners was for
consideration - with respect to the other three, no proceedings under
PP Act also had been initiated till date, while the petitioners are
being sought to be evicted; (iv) that the petitioner in WP(C)
No.2347/2015 having been made to deposit over `30 lacs towards
conversion charges and which money is still lying with the MCD,
cannot be denied such conversion; (v) that the petitioners under
Resolution No.494 dated November 29, 2005 of the MCD are
entitled to conversion; (vi) that the petitioners under MCD
Resolution No.856 referred to in the noting dated February 14, 2005
are entitled to conversion; (vii) that it was the contention of the
counsel for the MCD and as recorded in Ashima Securities Pvt. Ltd
Vs. MCD 2010 (115) DRJ 161 that MCD has adopted in totality the
L&DO policy pertaining to conversion from licence to leasehold
and from leasehold to freehold basis, and that Resolution No.494
contemplated creation of MCD Price Fixation Committee and as per
resolution No.894, the detailed policy of the L & DO is to apply in
toto including the rates prescribed therein; (viii) that as late as of
February 20, 2015, MCD has been publishing advertisements
offering shops in the same market on leasehold basis and there is no
reason to deny conversion to the appellants.
5. It was also argued on behalf of the North DMC (i) that the
matter is purely contractual and writ petitions are not maintainable;
(ii) that the claim in the petitions is barred by time; (iii) that the
MCD Resolution No.982 dated March 05, 1979 was only for the
then "existing licencees" and the appellants are not covered thereby
as they were not "existing licencees"; (iv) thereafter vide Resolution
No.1317 dated March 23, 1987 it was decided to make allotments
on license basis only; (v) the said Resolution No.1317 dated March
23, 1987 was in force at the time of allotment of the shops in the
year 1997 to the appellants; (vi) that the Resolution 494 dated
November 29, 2005 was merely a proposal and which never
fructified; (vii) that the manner of disposal of the property of the
MCD is provided in Section 59 r/w Section 200 of the MCD Act;
(viii) that though Resolutions no.494 and 495 dated November 29,
2005 entitling the Commissioner MCD to convert licences into
leases were passed but the same were not operationalised by the
Commissioner; (ix) that the appellant in WP(C) No.2347/2015 in
collusion with some officials of MCD got the letter dated April 02,
2007 issued in her favour but which was withdrawn subsequently;
(x) that the prevalent policy with respect to MCD properties is
contained in the circular dated July 22, 2013 and under which the
appellants are not entitled to the conversion to the leasehold as
claimed; (xi) L&DO has a scheme for conversion of licences to
leases and conversion of leasehold rights into freehold; (xii)
however that policy with respect to the L&DO properties which has
been adopted by the MCD vis-a-vis L&DO properties under its
management cannot be made applicable to the MCD's own
properties; (xiii) that more than `3 crores are due from each of the
appellants; thus, the question of refunding the amount about `30
lacs to the petitioner in WP(C) No.3146/2015 does not arise; (xiv)
that the reference by the counsels for the appellants to the current
mode of disposition of property by MCD is misconceived; (xv) the
properties are now being disposed of only through open tender on
leasehold basis; (xvi) reliance is placed on - (a) Judgment dated
October 29, 2014 of the Supreme Court in Civil Appeal
No.9951/2014 titled HUDA Vs. Kedar Nath; (b) Judgment dated
March 08, 2013 of the Division Bench of this Court in LPA
742/2012 titled Suresh Chand Gupta Vs. MCD; (c) Union of India
Vs. Charak Pharmaceuticals (India) Ltd. (2003) 11 SCC 689; (d)
Bharti Cellular Ltd. Vs. UoI (2010) 10 SCC 174; and (e) M.P.
Mathur Vs. D.T.C. (2006) 13 SCC 706.
6. During the course of the submissions it was represented by
the North DMC that action has been taken against the Officers who
in collusion with the appellant issued the letter dated April 02, 2007.
7. The learned Single Judge has rejected the writ petitions on a
finding that the appellants are not entitled to the relief in terms of
his findings in para 14 of the impugned order. In gist, the findings
are:-
"A. The petitioners came into possession of the shops on
allotment thereof in favour of petitioners on licence basis
in an open tender process. The petitioners at that time did
not contend that since MCD had converted the shops
granted on licence basis at the time of establishment of
the market into leasehold, the tenders invited by the MCD
for allotment of remaining shops in the market on licence
basis were faulty or that the MCD was discriminating
between the shops in the same market by allotting the
same on different terms.
B. The petitioners were then happy to enter the market
and have a shop therein as a licensee for a period of five
years only.
C. There may have been a large number of other persons
who may not have responded to the notice inviting tender,
being not desirous of acquiring shop on licence basis for
a period of five years only and with no permanency
therein. Thus the petitioners, in bidding for the said
shops, competed only with those who were willing to take
the shops on licence basis and being the highest bidder,
were allotted the shops. In my view, the petitioners
having come into possession of the shops through open
bidding tender process and as per the terms whereof the
rights being created in the shops were of a licencee for a
period of five years only, may be with a renewal for five
years, cannot demand conversion of the licence into
leasehold and the MCD cannot convert the said licence
into leasehold.
D. It cannot be forgotten that the subject shops are public
property, the disposal whereof has to be in public interest
and for public purpose and yielding the maximum
possible price therefrom. It is well nigh possible that if
the MCD in the Notice Inviting Tender for the subject
shops had provided that the shops once taken on licence
would entitle the licencees to have the same converted to
leasehold, the shops may have fetched a much higher
price than that paid by the petitioners. To allow a person
who enters into possession as a licencee to have his
licence converted into a lease would amount to allowing
a backdoor entry into the premises, to the detriment of the
public interest and public exchequer.
E. If such a procedure is given a stamp of approval by the
Court, it would allow vested interest in public authorities
to first induct persons of their choice into occupation of
public premises at throwaway prices by initially framing
the tender conditions so, as to not fetch the best price and
to thereafter convert the terms into more favourable for
the persons so inducted into public premises at
throwaway prices.
F. A licence does not create any interest or right in the
property and merely allows the licensee a right to enter
and use the property. On the contrary, lease for a period
of 99 years, as the petitioners are claiming, is a valuable
property right in the property and there is a sea of a
difference between the price fetched while offering a
licence for 5 years and the price fetched by offering a
lease for 99 years.
G. We have to see the claim of the petitioners in the said
light. Seen in the said light, the petitioners are clearly
disentitled from the relief.
H. Merely because the respondent NrDMC is now again
allotting shops in the market on leasehold basis would
not entitle the petitioners who entered the shops as a
licencee, to conversion of their licences obtained by
concessional rates into leasehold.
I. The petitioners, even if desirous of the same premises,
have to first vacate the premises and to thereafter when
the bids are invited for allotment thereof on leasehold
basis, participate in the competition and if successful,
then re-enter the premises on leasehold basis.
J. Further seen in this light, the Resolution dated 5th
March, 1979 i.e. of a date much prior to the petitioners
coming into occupation of the premises, cannot create
any right in favour of the petitioners.
K. Supreme Court In Re: Natural Resources Allocation
(2012) 10 SCC 1 though touched upon the extension of
doctrine of public trust to property but chose not to
expound thereon. However, in the discussion under
Article 14 of the Constitution of India while relying on the
decision in Bennett Coleman Vs. Union of India (1972) 2
SCC 788 it was reiterated that the only norm which the
Constitution furnishes for distribution of material
resources of the community is elastic norm of common
good and observed that the achieving goal of common
good under Article 39(b) of the Constitution is part of the
Directive Principles. It was further held that the manner
in which common good is best subserved would depend
on the economic and political philosophy of the
Government and revenue maximization is not the only
way in which the common good can be subserved. It was
further clarified that where "revenue maximization is the
object of a policy, being considered qua that the resource
at that point of time to be the best way to subserve the
common good, auction would be one of the preferable
method, though not the only method".
L. It is not the case of the petitioners that they are
entitled to continue in the subject shops for any other
consideration. It has thus but to be held that the common
good in the matter of disposal of the subject shops by the
respondent NrDMC is by revenue maximization and
which can be achieved only by auction, especially when
Supreme Court has repeatedly held that the method of
securing public interest in the matter of disposal of
property is to sell by public auction or by inviting
tenders.
M. Reference may also be made to Rashbihari Panda Vs.
State of Orissa (1969) 1 SCC 414 cited with approval by
the Supreme Court in the judgment aforesaid, laying
down that the scheme of offering to enter into contracts
with the old licensees and to renew their terms is open to
grave objection since it arbitrarily excludes many
persons. It was held that the right to make offers to the
persons with whom contracts had been made earlier,
shutting out new entrants, is ex facie discriminatory and
imposes unreasonable restrictions upon the right of
persons other than existing contractors to carry on
business and gives rise to monopoly. It was further held
that exclusion of all persons interested in the trade who
were not the previous year licensees, is ex facie arbitrary;
the scheme adopted by the Government, first of offering
to enter into contracts with certain licensees and later
inviting tenders from licensees who had in the previous
year carried out their contracts satisfactorily, was held to
be void on the ground of unreasonably excluding others.
N. Supreme Court in Aggarwal and Modi Enterprises
Pvt. Ltd.Vs. New Delhi Municipal Council (2007) 8 SCC
75, interpreting Section 141 (2) of the New Delhi
Municipal Council Act 1994 held that the mandate
thereof is that any immovable property belonging to
NDMC is to be sold, leased, licensed or transferred on
consideration which is not to be less than the value at
which such immovable property could be sold, leased, or
transferred in fair competition. It was further held that
NDMC is obligated to adopt the procedure by which it
can get maximum possible return/consideration for such
immovable property and that public auction not only
ensures fair price and maximum return, it also militates
against any allegation of favouritism on the part of the
Government authorities while giving grant for disposing
of public property. It was also held that disposal of public
property partakes the character of trust and it should be
for public purpose and in public interest. Pertinently, the
claim in that case of the existing licensee to develop the
property or a preferential treatment was negated.
O. I see no reason why the principle enunciated in the
judgment aforesaid should not apply to respondent
NrDMC. Section 200(d) of the MCD Act governing
respondent NrDMC also provides that the consideration
for which the immovable property may be sold, leased or
otherwise transferred shall not be less than the value at
which such immovable property could be sold, leased or
otherwise transferred in normal and fair competition.
P. It is also a settled principle of law (See Monarch
Infrastructure (P) Ltd.Vs.Commissioner, Ulhasnagar
Municipal Corporation (2000) 5 SCC 287) that if a term
of the tender is deleted after the players entered into the
arena, it is like changing the rules of the game after it
had began and therefore, if the Government or the
Municipal Corporation was free to alter the conditions,
fresh process of tender is the only alternative permissible.
Q. Applying the said principle here, if it were to be held
that after inviting tenders for occupation of shops as a
licensee, the licence can be converted into leasehold, it
would amount to changing the rules of the game after it
had begun.
R. Supreme Court, as far back as in Ramana Dayaram
Shetty Vs. International Airport Authority of India (1979)
3 SCC 489 negatived the contention that those who had
not participated in the tender process cannot challenge
the same. It was held that they are entitled to challenge
on the ground that if it were known that non-fulfilment of
condition of eligibility would be no bar to consideration,
they would also be entitled to apply and would have
applied
S. Similarly here, if it was known that licence can be
converted into leasehold, others could have participated
in the tender process through which the petitioners
initially came into possession of the premises.
T. The petitioners have not been able to controvert the
chronology of resolutions of MCD as set out in the
counter affidavit filed in WP(C) No.3146/2015 and as
detailed by me hereinabove. The petitioners cannot derive
any benefit of the lacunas if any in the counter affidavit
filed in WP(C) No.2347/2015 especially when the two
petitions are being considered together. The petitioners
on the basis of the MCD Resolution of 23rd March, 1987
i.e. of a date prior to their occupation of the premises
cannot claim any right. The only right which the
petitioners could have claimed and claim was under the
MCD resolutions No. 494 and 495 dated 29th November,
but which resolutions according to the NrDMC were
never operationalized and did not come into effect. It is
not the case of the petitioner that the benefit thereof
was/has been given to any other person. In the light of the
position of law as discussed by me hereinabove, the said
resolutions were in any case contrary to law and
discriminatory and arbitrary and cannot be enforced. The
only other Resolution on which the counsels for the
petitioners can possibly rely and rely is the Resolution
No.856 referred to in the note dated 14th February, 2005.
However I need not go further into the said aspect as the
reference by the counsel for NrDMC in WP(C)
No.2347/2015 on Anuradha Sharma supra is apposite in
this context. The Division Bench of this Court therein was
also concerned with a claim for conversion of a licence
granted by the MCD in respect of an open air restaurant
into leasehold. Reference therein was also placed on the
Resolution No.856 (dated 17th February, 2004) and on
Resolution No.494 (dated 29th November, 2005) but the
claim was negated relying inter alia upon Nirmal Kumar
Jain supra. It would thus be seen that the question is no
longer res integra. Else, the controversy is also squarely
covered by M.P. Mathur supra relied upon by the counsel
for NrDMC in WP(C) No.3146/2015.
U. It also follows from the judgments cited by the
counsels for the respondent NrDMC and referred to in
the preceding paragraph that the question of any estoppel
by acceptance of the sum of about Rs.30 lacs from the
petitioner in WP(C) No.2347/2015 does not arise. The
demand for the said amount vide letter dated 2nd April,
2007 was clearly unauthorised and had no sanction of the
authority of the respondent NrDMC/MCD empowered to
dispose of immovable property and cannot create any
rights in favour of the petitioner.
V. Similarly, the arguments of the counsel for MCD noted
in Ashima Securities Pvt. Ltd cannot create any rights in
favour of the petitioners.
W. Reference may lastly be made to the Union of India
Vs. Hotel Excelsior Ltd MANU/DE/4222/2010 where a
Division Bench of this Court speaking through the
undersigned was concerned with a claim for conversion
of leasehold rights granted by the L&DO into freehold. It
was held that a lessee has no right to claim conversion of
the leasehold into freehold or to compel the lessor to so
grant conversion. Finding the policy floated by the
L&DO for such conversion to be not providing for
conversion of the properties qua which the conversion
was claimed, the claim was denied. The contention for
discrimination was also negatived observing that the
properties for which conversion had been allowed
constituted a different class. It was also observed that
such policies/claims are enunciated in the exercise of
executive function and it is upto the appellant L&DO as
lessor of the land to grant or not to grant freehold
conversion and once it is found that the L&DO had not
discriminated arbitrarily, the question of the Court
interfering in policy matters did not arise. The said
observations of the Division Bench are also apt to the
present controversy."
LPA 612/2018
8. The challenge in this appeal is to an order passed by the
learned Single Judge in W.P.(C) No. 9334/2018 dated September
10, 2018 wherein the challenge was to an order dated August 07,
2018 passed in PPA Appeal No.30150/2016 of the Court of District
Judge (Headquarters) acting as an Appellate Officer under Section 9
of the Public Premises (Eviction of Unauthorized Occupants) Act,
1971of dismissal of appeal preferred by the appellant against the
order dated January 27, 2016 of respondent no.2 Estate officer of
respondent no.1 North Delhi Municipal Corporation in exercise of
powers under Section 5(1) of the PP Act, of eviction of the
petitioner from Hall No.1, MCD Market, Saraswati Marg, Karol
Bagh, Delhi. Suffice it to state, that the learned Single Judge has
dismissed the writ petition. Since the issue involved is connected
with two aforesaid appeals, this appeal was also heard along with
LPA Nos. 535/2016 and 499/2018 and as such is also being
disposed of with the aforesaid two appeals.
9. Mr. Rakesh Saini, learned counsel for the appellant would
reiterate the submissions as made by him before the learned Single
Judge. He heavily relied upon the judgment of the Division Bench
in the case of Anuradha Sharma v. Municipal Corporation of
Delhi FAO (OS) No. 140/2010 decided on October 08, 2010 and of
this Court in the case of Ashima Securities Pvt. Ltd. v. Municipal
Corporation of Delhi 2010 (115) DRJ 161 to contend that the
Division Bench has, in clear terms concluded about the passing of
the Resolution No. 494. He has taken us through various
documents in support of his contention to say that the appellant
having acted on the communication of the respondent No.2 dated
April 02, 2017 and deposited the amount, the respondents could not
have resiled out of their own promise.
10. Alternatively, he argued that in terms of the Circular dated
July 22, 2013, the respondents need to consider afresh the allotment
and renewal of license of shops on five yearly basis with an
enhancement of license fee by 50% after every five years period,
after expiry of the extended period by 100% enhanced license fee
for five years. He also states, that the request of the appellant for
consideration of her case also was rejected vide letter dated October
15, 2018, a copy of the same was produced in the Court and the
same reads as under:-
"This is with reference to your representation dated
27.08.2018 for consideration of further extension of
license of Hall No.2, MCD Market, Saraswati Marg,
Karol Bagh, New Delhi-05 in pursuance to the North
DMC's Circular No.DA(Misc.)/L&E/2013-13/D-4688
dated 22.07.2013.
In this connection, it is informed that your similar request
has already been rejected vide letter No. DA/KB/L&E
(N)/2014/D-1986 dated 08.12.2014 and the said fact is
also reflected at Page 4 and 5 of the Order dated
27.01.2016 passed by the Estate Officer, North DMC in
PPA Case No. 1336/2011. (Copy of the rejection letter is
attached for ready reference).
It is further, informed that the outstanding dues payable
by you as on 31.07.2018 were to a tune of
Rs.7,66,28,138/- and the copy was furnished before the
Hon'ble High Court in consonance to the orders of
Hon'ble High Court dated 05.07.2018 you have deposited
1 Crore (Rs.50 Lac each deposited on 13.07.2018 and
14.08.2018) and the balance of dues as 31.07.2018
remained Rs.6,66,28,138/-.
In the light of above, your request dated 27.08.2018 for
consideration under the circular of North DMC dated
22.07.2013 is rejected by the Competent Authority as
your similar previous request stands rejected on
08.12.2014 for non-extension of license period and non-
deposit of outstanding Municipal dues."
11. Mr. Viraj R. Datar, learned counsel appearing for the
appellants in LPA 499/2018 and LPA 612/2018 conceding the legal
position as has been concluded by the learned Single Judge, would
submit that insofar as LPA 612/2018 is concerned, the appellant
under a wrong legal advice was pursuing the appeal but in effect in
terms of Circular dated July 22, 2013, the respondents are required
to consider the case of the appellant. He concedes that there is an
issue raised by the respondents on computation as the North DMC
is claiming an exorbitant amount, which the appellant is disputing
and they have also not adjusted the amount already paid by the
appellant in the interregnum. He has also drawn our attention to a
communication received from the North DMC dated December 04,
2018 wherein the North DMC inter alia stated as under:-
"This is with reference to your letter dated 29/10/2018
requesting for clearance of pending dues / desealing /
restoration / occupation of Hall No.1, Mpl. Market,
Saraswati Marg, Karol Bagh Delhi.
It is informed that the representation has been examined
and it has been observed that the possession of the
subject Public Premises was taken over by the North
DMC on 09.08.2018 in compliance to the judgment and
Order dated 07.08.2018 passed by t4he Hon'ble Distt.
Judge in PPA No. 1337/2011. It is further, informed that
your request for re-consideration as per MCD's policy
dated 22.07.2013 was also examined and the Competent
Authority vide order dated 03.12.2018 has rejected the
same as you have not shown any inclination to deposit the
outstanding dues amounting to Rs.7,29,01,924/- (Seven
Crore Twenty Nine Lac One Thousand Nine Hundred
Twenty Four Only) after making the adjustments of the
payments made by you causing financial losses to the
Mpl. Corporation and remained engaged in un-necessary
litigations since 2009."
CONCLUSION:-
12. Having heard the learned counsel for the parties, we find no
infirmity in the order of the learned Single Judge, which we have
already reproduced which is well considered Judgment both on facts
and in law. The submission made by Mr. Saini by placing reliance
on the judgment of the Division Bench of this Court in the case of
Anuradha Sharma (supra) and of this Court in the case of Ashima
Securities Pvt. Ltd. (supra) were interlocutory orders. Initially the
learned Single Judge has vacated the interim protection in favour of
the plaintiff therein and in the appeals filed thereof, the protection
was granted by the Division Bench. Suffice it to state, the Division
Bench in its order dated October 08, 2010 has clearly stated that the
view taken by it is only a prima facie view and has no bearing on
the trial. If that be so, the said conclusion is not final. We have
been told that the suit is still pending consideration before this
Court. Be that as it may, as concluded above, the learned Single
Judge was justified in its conclusion, as noted above, we do not see
any reason to interfere with the impugned orders, except noting the
submissions made by Mr. Saini and Mr. Datar that the case of the
appellants be considered in terms of Circular dated July 22, 2013
and observing that if representations are made by the appellants, the
Competent Authority shall consider the same in terms of the Rules,
Policies and such other material as deem fit, without being
influenced by the fact that the appellants were pursuing the remedy
of appeal before this Court. We may clarify that it is for the
Competent Authority to take a decision. The appeals are dismissed,
except with the aforesaid observations.
CM. No. 35819/2016 in LPA 535/2016
CM. Nos. 35389/2018 in LPA 499/2018
CM. Nos. 44803/2018, 44804/2018 and 48777/2018 in LPA 612/2018
Dismissed as infructuous.
V. KAMESWAR RAO, J
CHIEF JUSTICE
DECEMBER 11, 2018/ak
