Nathia Devi v. New Delhi Municipal Council & Anr.

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 2017:DHC:567 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