Full Text
HIGH COURT OF DELHI
ARTI RANI .....Appellant
Through: Mr. Chetan Lokur and Mr. Vaibhav Kaul, Advocates.
Through: Ms. Namrata Mukin, SC
HON'BLE MR. JUSTICE OM PRAKASH SHUKLA
JUDGMENT
1. This Letters Patent Appeal assails judgment dated 15 July 2019 passed by a learned Single Judge of this Court in WP (C) 4899/2019[1]. The dispute emanates from a license issued by the Municipal Corporation of Delhi[2], the predecessor- and successor-in-interest of the respondent North Delhi Municipal Corporation[3], consequent on Arti Rani v. North Delhi Municipal Corproation “MCD”, hereinafter “the North DMC” hereinafter tenders invited by the MCD on 26 March 1997, for operating a shop bearing Hall X-10 I, Municipal Market, Karol Bagh[4]. A License Deed dated 6 October 1997 was executed between the MCD and the appellant, allowing the appellant to run the shop at a monthly license fee of ₹ 53,020/- for a period of 5 years. On 10 February 2003, license was renewed for a further period of 5 years at 100% enhancement of the license fee i.e., at a monthly license fee of ₹ 1,06,040/-.
2. On 28 January 2009, the MCD cancelled the license of the appellant in respect of the shop and further asserted that outstanding dues of ₹ 79,85,994/- were required to be paid by the appellant for the period from 2005 to 2009.
3. Proceedings were also instituted against the appellant under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971[5]. The proceedings culminated in order dated 27 January 2016 of the Estate Officer, directing eviction of the appellant from the shop. The said order was upheld in appeal by the learned District Judge by order dated 7 August 2018 and, thereafter, by a learned Single Judge of this Court vide judgment dated 10 September 2018 in WP (C) 9334/2018[6] and by a Division Bench of this Court vide judgment dated 11 December 2018 in LPA 612/2018[7].
4. A separate writ petition, being WP (C) 3146/2015, was also “the shop”, hereinafter “PP Act”, hereinafter Arti Rani v. North Delhi Municipal Corporation Arti Rani v. NDMC instituted by the appellant, which was dismissed by order dated 2 March 2016, and carried in appeal by the appellant in LPA 499/2018.
5. By judgment dated 11 December 2018, the Division Bench of this Court dismissed the aforesaid LPAs, holding in conclusion as under: “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 Rides, 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.”
6. The appellant represented yet again on 17 December 2018 to the North DMC seeking de-sealing of her shop, permission to pay pending dues and restoration of occupation. The said representation was rejected by the Land and Estate Department of the North DMC by communication dated 25 April 2019, the concluding paragraph of which reads thus: “The above said representations has been examined and it has been observed that the possession of the Hall No.1, Mpl. Market, Saraswati Marg, has already been taken over by the North DMC on 09.08.2018 and you have not shown any inclination to deposit the outstanding govt. dues amounting to ₹ 7,01,74,820/- (Seven Crore One Lac Seventy Four Thousand Eight Hundred Twenty Only upto Sep 2018,) after making the adjustment to the payment made by you causing financial losses to the Mpl. Corporation. Hence, your representation for re-consideration under MCD Policy of the year 2013 relating to allotment of Shop/Halls etc. on license fee has been rejected by the Competent Authority.”
7. Aggrieved by the aforesaid communication dated 25 April 2019, the appellant instituted WP (C) 4899/2019 before this Court, praying that the decision communicated to her on 25 April 2019 be set aside and that her license in respect of the shop existed at Hall 1, Municipal Market, Karol Bagh be extended in terms of Circular dated 22 July 2013.
8. By judgment dated 15 July 2019, a learned Single Judge of this Court dismissed the writ petition.
9. Aggrieved thereby, the appellant has filed the present LPA.
10. When the present LPA came up for preliminary hearing before a Coordinate Division Bench of this Court on 7 August 2019, the appellant submitted, through counsel, that she was not challenging the cancellation of the license issued to her in respect of the shop and was only aggrieved by the demand for outstanding license fees, as raised by the MCD.
11. A mere three months’ after notice had been issued in the present appeal on 7 August 2019, the Land and Estate Department of the North DMC issued a communication to the appellant with respect to certain queries raised by her. We may reproduce the said communication, to the extent relevant, as under: “NORTH DELHI MUNICIPAL CORPORATION LAND & ESTATE DEPARTMENT 7th FLOOR, CIVIC CENTRE, MINTO ROAD NEW DELHI-110002 No. DA(KB)/L&E (N)/2019/D-846 Date:-7/11/19 Smt. Arti Rani R/o 34, New Rajinder Nagar, DDA Site No. 1, Delhi-110060 Subject: Reply to the queries raised by Smt. Arti Rani and her representatives. In compliance of directions of Hon'ble High Court of Delhi dated 07/08/2019 in Court case No. LPA No. 514/2019, a hearing was convened in the Chamber of ADC/L&E on 26/08/2019 and during the course of hearing certain queries were raised by your side which are replied as under:- • What is the Policy, any which comes the case of Hall No. 1, Karol Bagh Saraswati Market, New Delhi. That Hall No. 1, Municipal Market, Saraswati Marg, Karol Bagh had been allotted on license fee basis in favour of M/s Balaji & Company, partner Smt. Arti Rani. The M/s Balaji & Company, partner Smt. Arti Rani had been allotted the said shop/hall for a period of 5 years in terms of auction, vide allotment letter dated 17-09-1997. The auction by means of which, she had been allotted the Hall, was in terms of Resolution No. 1317 of 1987. That after the expiry of 5 years initial license period in the year 2002, as per prevailing policy & in terms of Resolution No. 1317 of 1987 an extension was granted for a period of further 5 years vide letter dated 18-09-2002, upto 11-12-2007. • What are the dues, and the accompanying calculation covering the case of Hall No. 1, Karol Bagh Market, New Delhi. As the extension of license period in respect of Hall in question was done in terms of the Resolution No. 1317 of 1987 which inter-alia reproduced as under:- "That the Commissioner's recommendations as contained in para 2(iv) be approved with the modification that the benefit of extension be given on lump-sum payment of 100% enhanced license fee calculated on the rates of damages as proposed, recoverable for the unauthorized occupations." In the above approved recommendations of the Commissioner the benefit of extension be given on lump-sum payment of 100% enhanced license fee calculated on the rates of damages, thus the ground of calculations by enhancing the payment of 100% enhanced license fee be considered as correct as the extension was expired on 2007. Hence, cancellation cum eviction notice dated 26-02-2009 was issued to vacate the said premises immediately and cleared the pending balance License fee/damage charges due on account of unauthorized occupancy of Hall No. 1 after expiry of license period to the tune of Rs. 79,85,994/-. That since the license had already expired in the year 2007 and further cancellation/eviction notice had been issued in the year 2009, proceedings were initiated by the Municipal Corporation under PP Act in the year 2011. Thus, the grounds of calculations has been done in compliance to the Resolution No. 1317 of 1987 (Clause 2, Sub Clause IV) treating the period after expiry of license as the unauthorized occupant of Public Premises & recovery of Damages. • What are the payments that have already been made towards Hall No. 1, Karol Bagh Market, New Delhi. Statement showing the receipt of License fee/Damage charges towards payment made by Smt. Arti Rani on account of pending outstanding license fee/damages levied for unauthorized occupation upto 09-09-2018 (after the adjustment towards last payment deposited by Smt. Arti Rani vide G[8] No. 87856 dated 03- 09-2018 carried out in pursuance to the Order of Hon'ble High Court) of Public Premises in question till the expiry of license fee/damage charges is attached herewith. Sd/- Admn. Officer-II/L&E”
12. The appellant contended that her case fell under Resolution 9 dated 21 January 1986 of the Ad hoc (RP) Committee of the MCD, which read thus: “Resolved that having considered the proposal of the Commissioner as contained in the letter No. F.33/RPC/1867/C&C dated 28.3.85 and recommended by the Adhoc (Remunerative Project) Committee vide resolution.No.9 dated 21.1.86, extension of the licence period in respect of kiosks shops, show windows open thada and koiki to the present licensees upto a maximum period of five years be approved provided they agree to pay an enhanced rate of 40%, of the present licence fee-in lumpsum with the stipulation that of rebate of 10% be allowed to these licensees who have been regular in making payments as per terms and conditions.”
13. As against this, the learned counsel for the MCD submitted that the case fell under Resolution 6 dated 24 November 1986. We are informed that Resolution 6 read thus: “Having considered the proposals of the Commissioner as contained in his letter No. F.33/RPC/5426/C&C dated 17.10.86 it be recommended to the Corporation that approval to the following be accorded:
(i) That extension of licence period in respect of canteen, tourist, camping sites, open air restaurants and office-units licensed by the R.P. Cell to the present licensees upto a period of 5 years be also granted provided they agree to pay an enhanced rate of 100% of the present licence fee in lump-sum subject to clearance of any unauthorised construction, encroachment or unauthorised shops or commercial ventures;
(ii) That a period of 5 years extension on enhanced licence fee to the present licensees shall count from the date of expiry of the last/current period of licence;
(iii) That in partial modification of resolution no. 391 of the Corporation dated 27.6.86, the recommendation of the Commissioner as contained in sub-para (iii) of para 2 of the letter aforesaid, be accepted;
(iv) That the Commissioner's recommendations as contained in para 2(iv) be approved with the modification that the benefit of extension be given on lump-sum payment of 100% enhanced licence fee calculated on the rates pf damages, as proposed, recoverable for the unauthorised occupation;
(v) That the recommendation of the Commissioner as contained in sub-para (v) 2 of the letter aforesaid, be not approved.”
14. The order dated 7 August 2019 records the rival stands of the parties and returns certain observations in that regard:
may be permitted to examine the issue in the light of Resolution No.9 dated 21.01.1986 and if the same is applicable to the instant case, recalculate the licence fee/damages payable by the appellant with effect from February 2008, till actual physical possession of the shop was taken over by the respondent/Nr.DMC i.e., 09.08.2018.”
15. Learned counsel for the parties are ad idem that Resolution 6 and Resolution 9 were both merely in the nature of recommendations by the Adhoc Committee and not conclusive decisions of the MCD. These resolutions, however, reached fruition in a meeting of the Committee of the MCD, which took place on 23 March 1987, resulting in Resolution 1317 of the said date.
16. Before us, learned counsel for the parties are ad idem that the amount of license fees chargeable from the appellant would have to be determined on the basis of the aforesaid Resolution 1317.
17. We deem it appropriate to reproduce the afore-noted Resolution 1317, dated 23 March 1987, to the extent relevant, thus: “MUNICUIPAL CORPORATION OF DELHI Copy of Resolution No. 1317 of the Ord. March 87 Item Meeting of the Corporation Committee held on 23.3.87. Urgent Business No.781 Subject: Extension of licence period in respect of Kiosks/Shops/Stalls etc. (1) Commissioner's letter No. F.33/RPC/5426/C&C dated 17.10.86. The Corporation vide its Resolution No. 391 dated 27.6.86 on the recommendations of the Ad-hoc (R.P. Committee) vide its Resolution No.9 dated 21.1.86 had resolved as under: "Resolved that having considered the proposal of the Commissioner as contained in the letter No. F.33/RPC/1867/C&C dated 28.3.85 and recommended by the Adhoc (Remunerative Project) Committee vide resolution No.9 dated 21.1.86 extension of the licence period in respect of kiosks shops, show windows oper thada and kolki to the present licensees upto a maximum period of five years be approved provided they agree to pay an enhanced rate of 40% of the present licence fee in lumpsum with the stipulation that of rebate of 10% be allowed to these licensees who have been regular in making payments as per terms and conditions."
2. While implementing this decision, the department has come across certain difficulties and guidance of the Committee/Corporation is solicited thereupon.
(i) In the proposal submitted to the
Committee/Corporation canteens and tourist camping sites, open air restaurants, office units licenced by the R.P> Cell were included. It is felt that in the resolution of the Committee as well as of the Corporation, these have been perhaps inadvertently omitted. It is suggested that these may also be covered under this resolution.
(ii) During the discussion in the Committee it was felt that the licence period can be extended twice for a period of five years each, a total of (15 years including initial licence period of five years. The resolution, however, permits extension only upto a maximum of five years on enhancing of licence fee. This need to be clarified and our recommendations will be to permit two extensions of 5 years each on 40% enhanced rates..
(iii) The resolution permits renewal on enhanced rates of
40% and a further rebate of. 10% is allowed to such licencees, who have been regular in payment. It is however, felt that this stipulation of rebate is discriminatory and will also result in creating confusion as it is likely to give rise to complaints against the officials because an element of discretion will be Involved. It is, therefore, proposed that this rebate may not be permitted and all licensees be treated equally while treating their cases for renewal of licences and should be required to pay 40% enhanced rates.
(iv) There are certain shops viz. Ambedkar Stadium shops near Indian Express Building and certain other kiosks where licence period had expired in 1978-79 onwards and cases were also filed under the P.P. Act or Ex-licensees filed Court cases and obtained stay orders restraining Corporation from taking back, possessing of their shops/kiosks. These cases are still pending. It is for guidance if the benefit of extension of licence is to be extended for these cases as well. It may be suggested in this connection, that for the sake of administrative convenience and practical approach as well as to generate revenue for the Corporation (as none of these ex-licensee is paying anything to the Corporation during the pendency of anything to the Corporation during the pendency of Court/P.P. Act cases), we may treat the period, after expiry of the original licence, as that of unauthorised occupation and recover damages at the rate double the original licence fee. The ex-licensee may however, agree to it, only if they are given the benefit of five years extension on 40% enhanced licence fee calculated in their case not on the original rate of licence but on the rates of damages recoverable for the unauthorised occupation.
(v) Since the period of licence differ in a most all cases.
It will be administratively inconvenient to keep an account and a check of every case. It is, therefore, suggested that we may renew the licence of all shops/kiosks, office units, canteens, tharas, camping sites, show windows etc. etc. upto 31.3.92. The Guidance of the Committee and the Corporation is solicited on the above points. This may be placed before the Ad-hoc R.P. Committee/Corporation and be treated as an item of Urgent Business. ***** ii. Resolution No. 6 of the Ad hoc (Remunerative Project) Committee dated 24.11.86. Having considered the proposals of the Commissioner as contained in his letter No. F.33/RPC/5426/C&Cl dated 17.10.86 it be recommended to the Corporation that approval to the following be accorded:- (1) That extension of licence period In respect of canteen, tourist camping sites, open air restaurants and office units licensed by the R.P. Cell to the present licensees upto a period of 5 years be also granted provided they agree to pay an enhanced rate of 100% of the present licence fee in lump-sum subject to clearance of any unauthorised construction, encroachment or unauthorised shops or commercial ventures;
(ii) That a period of 5 years extension on enhanced licence fee to the present licensees shall count from the date of expiry of the last/current period of licence;
(iii) That in partial modification of resolution no. 391 of the Corporation dated 27.6.86, the recommendation of the Commissioner as contained in sub-para (iii) of para 2 of the letter aforesaid, be accepted;
(iv) That the Commissioner's recommendations as contained in para 2(iv) be approved with the modification that the benefit of extension be given on lump-sum payment of 100% enhanced licence fee calculated on the rates of damages as proposed, recoverable for the unauthorised occupation;
(v) That the recommendation of the Commissioner as contained in sub-para (v) 2 of the letter aforesaid, be not approved.”
18. Ms. Mukim’s contention is that (i) Resolution 9, though earlier approved by the MCD, was modified by Resolution 1317, (ii) Resolution 6 sought approval for modification of Resolution 9 inter alia in terms of para 2(iv) of Resolution 1317, and (iii) Resolution 6 was approved by Resolution 1317. Ergo, submits Ms. Mukim, Resolution 9 stood modified in terms of para 2(iv) of Resolution 1317, which increased the enhanced licence fee chargeable from persons occupying kiosks, who sought extension of their licence, from the erstwhile 40% to 100%.
19. To the extent of her contention that (i) Resolution 1317 ultimately approved Resolution 6, as put up, (ii) Resolution 6 envisaged approval of the recommendations in para 2(iv) of Resolution 1317, with the modification of increase in the enhanced license fee to 100% instead of 40%, and (iii) modification of Resolution 9 in terms of para 2(iv) was approved in Resolution 1317, Ms. Mukim appears to be correct.
20. Mr. Lokur, appearing for the appellant, seeks the benefit of Resolution 9, as noted in the order dated 11 December 2018. Ms. Mukim submits that Resolution 9 stood modified by Resolution 1317, in terms of para 2(iv) thereof, modifying the enhanced licence fee from 40%, as suggested in para 2(iv), to 100%. That, really, is the nub of the controversy.
21. On its plain terms, para 2(iv) in Resolution No.1317 is not appliable to the petitioners. The para is specific with respect to “certain shops” viz. Ambedkar Stadium shops near Indian Express Building and certain other kiosks where license period had expired in 1978-1979 onwards and in respect of which cases were also filed under the PP Act, or where the ex-licensees had filed court cases and obtained stay orders restraining the Corporation from recovering possession of their shops/kiosks.
22. In respect of these “certain shops”, para 2(iv) of Resolution No.1317 envisaged grant of 5 years’ extension to the persons running the kiosks or shops on 40% enhanced license fee. This proposal was approved in Resolution No.1317 subject to increasing the enhanced license fee from 40% to 100%. This increase also, therefore, only applied to the “certain shops” covered by para 2(iv).
23. The appellant’s shop was not one of the shops to which para 2(iv) of Resolution No.1317 alludes, for the simple reason that the appellant was granted a license to run her shop only in 1997, which was cancelled in 2009 and PP Act proceedings instituted against the appellant in 2011. Para 2(iv) of Resolution No.1317, therefore, clearly did not apply to the appellant.
24. The modification of Resolution No. 9, as effected by Resolution 1317, therefore, also did not apply to the appellant.
25. Resultantly, the appellant was covered by the original Resolution No. 9, which squarely applied to her, and under which, she was required to pay enhanced license fee only at the rate of 40% and not 100%.
26. The invocation of the modified para 2(iv) of Resolution No.1317 against the appellant was obviously unjustified, as we have held above. The MCD was not justified, therefore, in requiring the appellant to pay enhanced license fee at the rate of 100%. The maximum liability of the appellant, in so far as the enhanced licence fee was concerned would only be at the rate of 40% as correctly contended by the appellant before this Court on 7 August 2019.
27. As this was the only issue on which notice was issued by this Court in the present matter, we dispose of this appeal by clarifying that the enhanced license fee chargeable from the appellant for extension of the license in respect of the shop bearing Hall X-10 I, Municipal Market, Karol Bagh was not 100% but 40% of the license fee earlier being paid by her.
28. The appeal stands disposed of in the aforesaid terms with no orders as to costs.
C. HARI SHANKAR, J.
OM PRAKASH SHUKLA, J. JANUARY 14, 2026/yg/aky