Nathia Devi v. New Delhi Municipal Council & Anr.

15. As per the facts on record, the Ministry of Home Affairs (MHA) vide its OM dated 25.05.2015 constituted a Three Member Committee for inquiry into acts of certain officials of NDMC. The MHA Committee submitted its report on 20.07.2015. The said Committee found that the License Deed dated 30.04.2015 in favour of the petitioner was executed illegally and in violation of the norms followed by the respondent, as the said kiosk was to be transferred by way of auction and not in such a manner, as in the present case. The Committee returned a finding that the kiosk had been regularised in favour of the petitioner in an arbitrary manner.

16. Acting upon the findings of the MHA Report dated 20.07.2015, the entire file was reviewed by the NDMC. Accordingly, respondent issued notice dated 15.12.2016 to the petitioner calling upon her to show cause why the license of the said kiosk should not be cancelled on account of unauthorised occupation and violation of trade, and also why recovery proceedings should not be initiated against her under Section 5 and 7 of the PP Act. Petitioner replied to the said Show Cause Notice by her letter dated 23.12.2016.

17. Eventually, vide order dated 24.01.2017, the allotment of the said kiosk in favour of the petitioner was cancelled by holding that the petitioner had got the said kiosk regularised by colluding with the officials of the Estate Department of the respondent. It was held that the regularisation was illegal because it was not covered under the general policy of transfer, as it was a license granted at a nominal license fee of Re.[1] to a handicapped person who showed exemplary courage and was not a commercial license.

18. The petitioner challenged the said cancellation order passed by the respondent before this Court by filing W.P.(C) 835/2017. The said petition was disposed of vide order dated 30.01.2017 with liberty to the petitioner to raise all the pleas in her defence before the Estate Officer in the eventuality of proceedings being initiated by the respondent against her.

19. Subsequently, on 06.02.2017 the respondent initiated proceedings for eviction and recovery of arrears of damages against the petitioner herein under Sections 5 and 7 of the PP Act. The petitioner filed reply thereto on 15.02.2017. On 17.02.2017, petitioner herein filed an application under Section 11 CPC before the Estate Officer praying for dismissal of petitions of respondent/ NDMC for eviction/recovery of damages pleading that the matter in issue before the Estate Officer was directly and substantially the same as had already been decided by the Estate Officer vide order dated 05.08.2013, which had attained finality, as the same was not challenged by NDMC. The said application was dismissed by the Ld. Estate Officer vide order dated 21.03.2017.

20. Petitioner herein had also filed an application under Order VI Rule 17 CPC before the Estate Officer seeking permission to amend her reply. The petitioner disputed that there were any admissions in her reply, which were sought to be withdrawn. The said application under Order VI Rule 17 CPC was dismissed by the Estate Officer vide order dated 21.04.2017, which was not challenged by the petitioner herein.

21. Against the order of the Estate Officer dated 21.03.2017 dismissing the application of the petitioner herein under Section 11 CPC, petitioner filed writ petition before this Court, WP(C) NO. 3263/2017. During the pendency of the said writ petition, NDMC filed an application under Order XII Rule 6 CPC read with Order VIII Rules 3,[4] and 5 CPC, praying for passing of order of eviction/recovery of damages on the basis of admissions made by petitioner in her reply before the Estate Officer. The Ld. Estate Officer allowed the said application vide order dated 26.05.2017, thereby directing eviction of the petitioner herein from the kiosk in question.

22. Against the aforesaid orders dated 21.03.2017 and 26.05.2017 passed by the learned Estate Officer, petitioner herein filed an appeal under Section 9 of the PP Act before the ld. District & Sessions Judge, Patiala House Courts, New Delhi. The appeal filed on behalf of the petitioner herein was dismissed by the impugned order dated 24.05.2018 by the ld. District & Sessions Judge, against which the present writ petition has been filed.

23. On behalf of the petitioner, it is submitted that the present proceedings as initiated for eviction and recovery of damages against the petitioner are barred by res judicata. The earlier proceedings under Section 5 of the PP Act were initiated against Ramesh Kumar and Nathia Devi, in which order dated 05.08.2013 was passed by the ld. Estate Officer. In the said proceedings, the NDMC itself withdrew all the allegations against the petitioner and stated that no violation of trade was found and license fee at market rate had been recovered. It is submitted that the earlier proceedings and the present proceedings are identical, as both the proceedings were for unauthorised occupation against the same property, whereby similar relief was sought. Even the allegations are pertaining to the alleged violation at that time and it is not the case of the respondent that there is any fresh violation by the petitioner. It is contended that the issue in the present case is directly and substantially the same which has already been decided by the court between the same parties.

24. It is further contended that there was no admission made by the petitioner in her reply to the proceedings under the PP Act. The Estate Officer acted in undue haste in passing the judgment on admission without appreciating that the provisions of Order XII Rule 6 CPC were not attracted, as the facts were seriously in dispute. It is submitted that the petitioner had made no such admission as claimed by the NDMC. Thus, it is contented that the order for eviction on the basis of so called admission made by the petitioner, was clearly erroneous. However, the ld. District & Sessions Judge in appeal failed to look into the same.

25. It is further contended that there was no violation of Section 7 of PP Act by the petitioner, as NDMC had demanded market rent from the date of partnership, i.e., an amount of Rs.9,60,963/-, which was duly paid by the petitioner. Further, the petitioner has not violated the existing policy of the respondent NDMC or any terms and conditions of License Deed, justifying fresh initiation of Sections 5 and 7 proceedings under the PP Act.

26. It is further submitted that the case of the petitioner is covered by the policy dated 16.04.2015 of the respondent NDMC, which was specially passed by NDMC to regularise the transfer in cases where the licencee entered into partnership with incoming partner, without prior authorisation or permission of NDMC. Thus, the kiosk was regularised in the name of the petitioner under the said one time scheme and a License Deed was executed in favour of the petitioner with due approval of the Chairman, NDMC.

27. The petitioner further denied that there was any connivance of the petitioner with the officials of NDMC. It is submitted that kiosk was regularised by the respondent after following its procedure with the approval of the Chairman, Competent Authority of the NDMC. Thus, it is prayed that the impugned order dated 24.05.2018 passed by the ld. District & Sessions Judge, Patiala House Courts be set aside.

28. On the other hand, on behalf of the respondent it is contended that the regularisation in favour of the petitioner was in blatant violation of the Rules, Regulations, Procedure and Policy of the respondent. It is submitted that the submissions made before the ld. Estate Officer, which led to dismissal of the earlier proceedings, were without the approval of the competent authority. The action of regularisation was done by the respondent in complete contravention of its policy and thus, the said action cannot be used by the petitioner to establish any right over the said kiosk against the respondent.

29. It is submitted that the Ministry of Home Affairs (MHA) conducted a detailed inquiry with respect to allegations against officials of the respondent, including allotment of the kiosk in favour of the petitioner. The allotment in favour of the petitioner was found to be irregular. It is, thus, contended that Show Cause Notice was rightly issued to the petitioner and cancellation order dated 21.01.2017 was passed. It is the case on behalf of the NDMC that respondent has always been an unauthorised occupant of the kiosk in question.

30. It is further submitted that the original License Deed in favour of Ramesh falls under the „Reserved Category‟ and the same cannot be transferred. Not only did the petitioner obtain possession of the kiosk in a manner which was against the policy, the petitioner was further carrying on the trade which was impermissible. It is submitted that the petitioner was operating a beverage business from the kiosk, as is evident from the inspection conducted on 17.08.2017, wherein it was found that the petitioner and her husband were acting as wholesale distributors for entire Connaught Place area for beverages and a consignment worth Rs.1.[5] Lakh was recovered from the spot.

31. Thus, it is submitted on behalf of the respondent that the present petition is liable to be dismissed.

32. I have heard ld. Counsels for the parties and have perused the record.

33. The undisputed facts that emerge are that the kiosk in question was initially allotted to Ramesh Kumar for a period of five years @ Re.[1] per month as a license fee for the trade of flower or such other non-licensable trade in view of the National Bravery Award given to him in 1982 for showing exemplary courage in saving the life of an old woman. The allotment letter dated 12.03.1983 in favour of the petitioner is reproduced herein below: “NEW DELHI MUNICIPAL COMMITTEE TOWN HALL: NEW DELHI No. 513/Estate/____/P Dated: 12.03.1983 Shri Ramesh Kumar S/o Shri Rattan Lal (Guardian) H.No. 686, H-II Jahangirpuri, Delhi. Subject: Allotment of Kiosk near Palika Bazar, Connaught Place, New Delhi Dear Sir, With reference to your application dated nil on the subject mentioned above. I am desired to inform you that kiosk near Palika Bazar is allotted to you on licence basis at a nominal licence fee of Re.1/- plus its 5% i.e. Rs.1.05 per month for running the trade of flower kiosk or such other non-licenceable trade as may be approved by the Administrator. You are requested to complete the following formalities of allotment within 3 days from the date of receipt of this letter.

1. Deposit a sum of Rs.4.20 as Security equivalent to four months licence fee in the Municipal Treasury.

2. Deposit one month advance lincence fee of Rs.1.00 in the Municipal Treasury.

3. Execute a licence fee in triplicate on non judicial stamp paper of Rs.1.50 as per specimen copy to be supplied by this office.

4. Furnish an affidavit in the proforma on a nonjudicial stamp paper worth Rs.3/- to be supplied by this office. Licence fee in respect of the said kiosk will commence with effect from 23.03.1983. Yours faithfully, (R.K. Kapur) Asstt. Director (Estate)”

34. Thus, it is seen that the allotment to the original licensee was based upon special consideration of him being a National Bravery Award holder. The subject premises were allotted to the original licensee on gratuitous basis @Re.[1] per month, while, as per the case put forward by the NDMC, the existing license fee for three other adjoining flower kiosks in Palika area at that time in 1983 was Rs.110/- per month. Thus, as per the case of the respondent NDMC, allotments made in „Reserved Category‟ are not freely transferable. Further, ld. Counsel appearing for NDMC relied upon the policy with respect to „Reserved category units‟ which categorically stipulates that no „Reserved category units‟ may be transferred to „General Category‟. The policy on transfers as relied upon on behalf of NDMC, as contained in Resolution No.6 dated 18.03.1999 is reproduced as below: “Resolution No.6 dated 18.03.1999 xxx xxx

3. Policy on transfers

(i) To be freely allowed (except in case of reserved categories).

(ii) On date of entry/deletion of partnership 30% enhancement in licence fee.

After amalgamation with the original amount annual enhancement 7% (iii)Policy at Annexure, in case of rehabilitation markets as the base rate with annual increase @7%

(iv) Dependent family members to be permitted without any enhancement in licence fee. Other blood relations allowed with 30% enhancement.

(v) Legal heirs only after death without any cost.

(vi) Multiple transfers in cases where the request of the transfer of allotment from the first allottee is not regularised and the subsequent subletting is made, the same should also be regularised by forfeiting the amount of security deposits required to be deposited by sub-lettee at the time of each subletting and the entire amount as payable at each partnership would be payable by the present sub-lettee on its regularisation. xxx xxx

7. Permissibility in change of trade

(i) No trade in the negative list shall be permitted. Negative list to be notified within a month after approval of the Chairman.

(ii) List where licence is required under may prevail legislation to be permitted only after licence is legally obtained and additionally NDMC‟s permission is taken on availability of space and safety factor. (iii)Where Council has decided in public interest that a market or a portion of a market is meant for any specific trade, no change will be allowed. (iv)Change will be freely permitted amongst the trades, which are not listed in the notified negative list or where licence is not mandatory. xxx xxx

10. Reserved category units No reserved category units meant for SC/ST/Handicapped/War Widows/Ex-Servicemen may be transferred to General Category if it changes hands through partnership or any other method, then principles as at para 3(ii), 3(iii) as the case be may apply..........”

35. By relying upon the said policy, it has been contended on behalf of NDMC that the said kiosk which had been allotted under a special category, cannot be transferred in favour of the petitioner as a „General Category‟. It is further the case on behalf of NDMC that the change of hands through partnership or any other method as applicable to „Reserved category units‟, refers to transfer under the „Reserved Category‟ itself, as there is a bar to transfer of „Reserved category units‟ to „General Category‟.

36. The aforesaid position has been denied on behalf of the petitioner by stating that the policy of the respondent NDMC itself envisages change of hands through partnership or any other method, even in cases of „Reserved category units‟.

37. Petitioner has relied upon circular dated 16.04.2015 of the NDMC, which has been reproduced in the impugned judgment dated 24.05.2018, as below: “ CIRCULAR This to bring to the notice of the Licensees and Occupants of licence markets of NDMC Estate-I Deptt, That subsequent to passage of Council Reso.No.l5(L-04) dt.27.8,2014 it has been decided that the transfer of licence will be governed by the above said resolution and all other previous resolutions stand modified to the following extent;a…. b. For pending past cases of transfer-Show cause notices may be issued to both the licensee/occupant and incoming partner on account of violation of Clause No.9 of the Licence Deed if they entered into partnership during the valid term of licence, If they now seek the I permission of the NDMC at this belated stage, such transfer cases may be regularized after forfeiting the earlier security deposit by the licensee and subject to enhancement of the existing licence fee by 50% and completion of other required formalities like deposit of fresh security deposit, etc. c…. d. It is also recommended that the Para 3 in the Estate Policy/guidelines passed vide Reso. No.6 dt. 18.3.1999 and para 14 of Reso. No.9(L-l) dt.30.09.2004 are proposed to be amended as under:

1. Transfers are freely allowed (except in case of reserve category) in the above manner only…." ”

38. The contentions raised on behalf of the petitioner regarding allowing change of hands qua allotments made under reserve category, has to be rejected. Plain reading of the aforesaid Circular dated 16.04.2015 and Resolution No. 6 dated 18.03.1999 make it evident that the policy of the NDMC regarding transfers dealt with the licenses generally granted by NDMC on payment of license fees. Clause (b) of the Circular dated 16.04.2015 itself mentions that transfers may be regularized after forfeiting the earlier security deposit by the licensee and subject to the enhancement of the existing license fee by 50%. Needless to state that in the present case, allotment made to Shri Ramesh Kumar, the original allottee, was a special gesture by the State to honour the bravery award winner. It was a gratuitous allotment at a token license fee of Re.1. It was not a commercial license granted in ordinary course by NDMC for a license fee at market rate or subject to security deposit.

39. The respondent NDMC has made its policy with respect to transfers under the „General category units‟ and the „Reserved category units‟. The respondent NDMC being the author of the said policy, the policy has to be read in the manner as enacted by the NDMC. Supreme Court has held time and again that restraint be exercised in matters of contract involving state instrumentalities. The authority which has authored the contract or tender, is the best judge as to how the documents have to be interpreted. If two interpretations are possible, then the interpretation of the author must be accepted.

40. Further, the Report dated 20.07.2015 submitted by the team as constituted by the Ministry of Home Affairs, Government of India categorically held that the kiosk in question was not covered under the policy of the NDMC as contained in Resolution No.6/99, since the kiosk in question was not licensed at market rates. Thus, it was held that the file for regularisation of the kiosk in question was processed contrary to established laws and procedures.

41. The aforesaid policy of the NDMC stipulates in clear terms that no „Reserved category units‟ may be transferred to the „General category units‟. It is the contention on behalf of NDMC that the gratuitous allotment as made in the present case, also constitutes part of „Reserved category units‟. Thus, it is apparent that the regularisation of the kiosk in the name of the petitioner was clearly contrary to the policy of the NDMC itself. It is undisputed that the allotment in the present case was made to the original licensee on gratuitous basis @Re.[1] per month based upon special consideration that the original licensee was a National Bravery Award holder. Thus, the said allotment was certainly not an allotment under General category on market rates. Therefore, since kiosks under the Reserved category could not be converted into General category as per the policy of the NDMC as contained in Resolution No.6 dated 18.03.1999, the regularisation in favour of the petitioner was clearly illegal and against the policy of the NDMC.

42. Reliance by the petitioner upon the policy as detailed in Circular dated 16.04.2015 as issued by the respondent NDMC, also does not in any manner enure to the benefit of the petitioner. The said Circular dated 16.04.2015 reiterates the policy of the NDMC in Resolution No.15 (L-04) dated 27.08.2014. The Circular dated 16.04.2015 as well as Resolution No. 15 dated 27.08.2014 issued by the NDMC categorically stipulate that transfers are freely allowed in the manner as given in the said policy, except in cases of Reserved category. Thus, the very policy as relied upon by the petitioner itself disallows transfer in cases of Reserved category. Therefore, no benefit of the said policy can be derived by the petitioner.

43. Besides, the License Deed which had earlier been executed in favour of the petitioner was cancelled vide order dated 24.01.2017, after following due process of law. The petitioner was found to be running a beverage wholesale distribution business upon inspection of the kiosk on 17.08.2017. The petitioner along with her husband was found to be acting as wholesale distributors for entire Connaught Place area and beverages consignment worth Rs.1.[5] Lakh was recovered from the spot. Moreover, the regularisation in favour of the petitioner was also found to be against the policy of the NDMC, as per detailed discussion herein above. Thus, post the cancellation of the licence, the petitioner is an unauthorised occupant of the kiosk in question.

44. A licencee has no interest over the land or property in question. Licence in the present case is with respect to a kiosk on public land under the jurisdiction and ownership of NDMC. After termination of the licence, the petitioner is merely an encroacher on the public premises. Licence can be revoked at any time, as it does not create any interest in the property to which it relates. Thus, this Court in the case Chandu Lal etc. Vs. Municipal Corporation of Delhi, 1977 SCC OnLine Del 130, held as follows:

45. Further, defining the expression „unauthorised occupation‟ qua the PP Act, Supreme Court in the case of Ashoka Marketing Ltd. and Another Vs Punjab National Bank and Others, (1990) 4 SCC 406, has held as follows:-

46. Apropos the contention on behalf of the petitioner that the present proceedings are barred by res judicata, the said contention is found to be without any justification. Section 11 of CPC has no applicability to the facts of the present case, as the earlier order dated 05.08.2013 passed by the ld. Estate Officer in the earlier proceedings, was not passed on merits. The application of the NDMC under Section 5 of the PP Act was dismissed as infructuous in view of the submissions made on behalf of NDMC that the unauthorised occupant had paid due amount as per the market rates. Thus, it is evident that the Estate Officer had dismissed the application of the NDMC under Section 5 of the PP Act without going into merits of the case to adjudicate upon the issues involved.

47. Even otherwise, the earlier eviction proceedings were initiated against the original allottee pursuant to cancellation of his allotment vide order dated 22.11.2007. The petitioner herein had been made a party in the said proceedings in view of the fact that she had made an application for regularisation of licence in her favour. At that point of time, there was no licence in favour of the petitioner and she had occupied the kiosk on the basis of her partnership deed with the original licencee. Whereas, the present proceedings are totally distinct, as the same emanate from cancellation of the licence in favour of the petitioner herein vide Cancellation Order dated 24.01.2017. Therefore, the present proceedings are totally distinct and different from the earlier proceedings that were initiated by NDMC on the basis of cancellation letter dated 22.11.2007 issued against the original licencee.

48. In view of the above, it is clear that a fresh cause of action arose in favour of NDMC in view of the cancellation of Licence Deed of the said kiosk in favour of the petitioner herein, on re-examination of the matter pursuant to the findings of the inspection team of the Ministry of Home Affairs.

49. Besides, it is relevant to note that Clause 8 of the Licence Deed dated 12.04.1983 in favour of the original licencee Ramesh Kumar clearly stipulated that he shall not enter into any partnership/part with possession of the said kiosk. It was further specified that in default, the licencee Ramesh Kumar was liable to ejection. Clause 8 of the Licence Deed in favour of the original licencee, Ramesh Kumar, as reproduced in the impugned judgment dated 24.05.2018 passed by the Ld. District & Sessions Judge, reads as follows:

50. Perusal of the aforesaid makes it clear that the original licencee was not entitled to introduce any partner or transfer the possession of the premises. Therefore, the petitioner cannot draw any benefit from the partnership deed with the original licencee on the basis of which possession was taken by the petitioner, when the said partnership deed itself constituted violation of the terms of the licence in favour of the original licencee. Therefore, on this ground also, the petitioner cannot seek any right over the premises in question.

51. In view of the aforesaid, it cannot be held that the allotment in favour of the petitioner was cancelled illegally. At this stage, it would be profitable to refer to Para 8 of the impugned judgment, which reads as under: “8.0 The appellant drew her authority to occupy the said kiosk only pursuant to regularization of the allotment/ execution of License Deed dated 30.04.2015 in her favour. Said allotment was cancelled vide order/ letter dated 24.01.2017. Thus, her authority to occupy the said kiosk stood terminated. It is a settled proposition of law that the onus is upon the occupant to show his authority to occupy the government property (UOI vs S.M. Agarwal & Ors., 1995(11) AD(Delhi) 293 (Division Bench). The appellant has failed to demonstrate her authority to occupy the said Kiosk after cancellation of its allotment. In view of the same, I find no infirmity in the findings of the Estate Officer that the appellant became unauthorized occupant of the said kiosk w.e.f. 24.01.2017, the date of cancellation.”

52. As regards the contention on behalf of the petitioner that there was no admission on her part and that eviction order could not be passed against her on the application of the respondent herein, the same is again found without any merits. The petitioner herein did not dispute the fact that Shri Ramesh Kumar had been allotted the kiosk in question at a nominal license fee of Re.[1] per month as award for his bravery. The facts which led to cancellation of the license of the petitioner herein also remain undisputed. The facts and documents on record clearly established the unauthorized occupation of the petitioner. The Estate Officer, being a quasi-judicial authority was not bound by the strict judicial rules of procedure and evidence. The Ld. Estate Officer rightly recorded its satisfaction about the unauthorized occupation of the petitioner on the basis of facts and documents on record.

53. No merit is found in the present writ petition.

54. Accordingly, the present writ petition is dismissed.

JUDGE JULY 04, 2023 au/sc