Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: May 17, 2012
Pronounced on: July 02, 2012
+ W.P.(C) 702/2009
&
CM No. 1480/2009
NDMC ..... Petitioner
Through: Mr. Manoj K.Singh, Mr. Nilava
Banerjee and Ms. Vandana,
Advocates
versus
PARVEEN KUMAR ..... Respondent
Through: Mr. Ravi Gupta, Senior Advocate
with Mr. Mohit Gupta, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
O R D E R
% 02.07.2012
th
1. By virtue of the License Deed of 11 March, 1992, respondent
was operating Fuel Depot at Sarojini Nagar, Delhi at a monthly
license fee. In proceeding under Section 5 and 7 of the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 , order of
th
15 October, 2008 was passed by the Estate Officer evicting the
respondent from the aforesaid public premises (hereinafter referred to
as the subject premises), as it was found that the license in respect of
th
the subject premises had expired on 17 March, 1997 and was not
renewed.
2. In the statutory appeal preferred by the respondent, appellate
th
forum vide impugned order of 5 December, 2008 (Annexure P-1)
had kept the eviction order in abeyance till respondent’s application
W.P.(C) No. 702/2009 Page 1
th
of 20 December, 1997 for the change of trade is not decided by the
petitioner herein.
3. At the hearing of this petition it was urged by petitioner’s
counsel with much vehemence that the appellate forum has exceeded
its jurisdiction in keeping the Eviction Order (Annexure P-1) in
abeyance because equity jurisdiction cannot be exercised by the
appellate forum. As regards the request of the respondent for
withdrawing the cancellation order alongwith respondent’s request for
change of trade , in view of the directions issued vide order (Annexure
st
P-13) of 31 January, 2000 in CW 5250/1999 is concerned, it is
contended by learned counsel for the petitioner that since the
respondent had not removed the unauthorised construction made on
the subject premises despite undertaking given to this Court in the
earlier proceedings/Order (Annexure P-13), therefore, respondent’s
request for restoration of the subject premises to the respondent could
not be acceded to.
4. Attention of this Court was drawn by learned counsel for the
th
petitioner to the Inspection Report of 17 July, 2000 (Annexure P-14)
indicating that the unauthorised construction was not removed despite
order (Annexure P-13) and so, there was no question of
restoration/renewal of the license deed in question. Thus, it was
contended on behalf of the petitioner that the impugned order stands
vitiated as the appellate forum has no power to direct the petitioner to
decide the application for change of trade, in proceedings under the
Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and
so the eviction order which has been ordered to be kept in abeyance,
be made operative.
5. In support of the aforesaid submissions, learned counsel for the
petitioner relies upon the decisions in ‘The Corporation of Calicut vs.
W.P.(C) No. 702/2009 Page 2
K.Sreenivasan’ , (2002) 5 SCC 361; W.P.(C) No.10931/2009, Shri
Tek Chand vs. Estate Officer, Delhi Jal Board and Anr. , decided on
6.12.2010; C.Sudhan Reddy vs. South Central Railway and Anr. ,
2006(3)ALD720; A.Thayal Nayagi vs. Union of India , (2005) 1 MLJ
453; Vijay Kumar vs. NDMC & Ors , 176(2011) DLT 453; Triloki
Nath Dhir vs. NDMC & Anr. , 171(2010) DLT 628; Uttam Parkash
Bansal and ors. vs. Life Insurance Corporation of India & Ors. ,
100(2002)DLT497; Civil Appeal No.8201/2010, Mumbai
International Airport Pvt. Ltd. vs. Golden Chariot Airport and Anr.
decided on 22th September, 2010; K.T.Corporation and ors vs. India
Tourism Development Corporation and Anr. , 165(2009)DLT65;
Jagat Talkies Distributors and Ors vs. MCD and Anr. ,
2008(102)DRJ733; Aggarwal and Modi Enterprises Pvt.Ltd. & Anr.
vs. New Delhi Municipal Council , (2007) 8 SCC 75; Jiwan Dass vs.
Life Insurance Corporation of India and Anr. , 1994 Supp(3)SCC694;
Chandigarh Administration and another vs. Jagjit Singh and another ,
(1995) 1 SCC 745; CM(M) No.981/2010, Prominent Hotels Ltd. vs.
th
The New Delhi Municipal Council , decided on 10 August, 2010.
6. Learned senior counsel for the respondent contends that in the
face of the categoric admission of petitioner’s witness – Shri Prasadi
Lal, Deputy Director (Estates) (PW-1), regarding there being no
encroachment upon the road by the respondent and of there being no
other construction or encroachment in the subject premises,
petitioner’s refusal to decide respondent’s application for change of
trade is patently illegal and thus, the impugned order is eminently
justified, requiring dismissal of this petition. To emphasise the
concept of fairness in the proceedings like the instant one, reliance is
placed upon Apex Court decision in ‘New India Assurance Company
Ltd. vs. Nusli Neville Wadia and Anr.’ (2008) 3 SCC 279 .
W.P.(C) No. 702/2009 Page 3
7. Upon consideration of the rival submissions advanced and on
perusal of the impugned order, the cited decisions and the material on
record, I find that petitioner’s insistence upon non-consideration of
respondent’s application for change of trade in view of the Inspection
Report (Annexure P-14) is hardly justified, as there is no whisper of
the aforesaid Inspection Report (Annexure- P-14) in the deposition of
petitioner’s witness – PW-1 who rather admits in cross-examination
th
that as per petitioner’s note of 24 February, 1998, respondent’s case
for change of trade was found to be fit and that there was no
encroachment on the road by the respondent and there was no
unauthorised construction on the subject premises.
8. In the face of the aforesaid evidence, petitioner cannot turn
around to technically urge that the license in respect of the subject
premises came to an end by efflux of time. The decisions relied upon
by the petitioner’s counsel are of no avail as in earlier proceedings
between the parties, vide order (Annexure P-13) the petitioner was
directed to withdraw the order cancelling the license in question
subject to respondent herein removing the unauthorised construction.
It is evident from the deposition of petitioner’s witness- PW-1 that
there is no unauthorised construction in the subject premises and so
the eviction order against the respondent cannot be upheld.
9. The Appellate Forum instead of setting aside the eviction order,
has given an opportunity to the petitioner to decide as to whether
unauthorised construction/ encroachment still exists and till then,
eviction order has been kept in abeyance. Infact, Appellate Forum has
exercised the equity jurisdiction in favour of the petitioner. Strictly
speaking it is not within the domain of the Appellate Forum to
exercise the equity jurisdiction to put the eviction order on hold.
However, it is very well within the purview of this Court to exercise
W.P.(C) No. 702/2009 Page 4
the equity jurisdiction and while doing so, this Court puts the eviction
order on hold till the petitioner decides respondent’s application for
change of trade.
10. It would be pertinent to note that the Inspection Report
(Annexure P-14) strongly relied upon by the petitioner does not
disclose the nature and extent of addition/ alteration made in the
subject premises or about the nature of the encroachment made by the
petitioner on the municipal land. Therefore, petitioner would be at
liberty to carry out fresh inspection of the subject premises and
thereafter would decide respondent’s application in the light of the
order of this Court (Annexure P-13). Needless to say, respondent
would be granted an effective opportunity of hearing to meet the fresh
Inspection Report before petitioner takes a decision on respondent’s
application for change of trade . It is expected that the needful would
be done by the petitioner with expedition and till then, eviction order
be not implemented.
11. With aforesaid directions, this petition stands disposed of. The
pending application does not merit consideration as the same has been
made while being oblivious of the Inspection Report (Annexure P-14)
and is thus rejected.
(SUNIL GAUR)
JUDGE
July 02, 2012
pkb/rs
W.P.(C) No. 702/2009 Page 5
W.P.(C) No. 702/2009 Page 6
Reserved on: May 17, 2012
Pronounced on: July 02, 2012
+ W.P.(C) 702/2009
&
CM No. 1480/2009
NDMC ..... Petitioner
Through: Mr. Manoj K.Singh, Mr. Nilava
Banerjee and Ms. Vandana,
Advocates
versus
PARVEEN KUMAR ..... Respondent
Through: Mr. Ravi Gupta, Senior Advocate
with Mr. Mohit Gupta, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
O R D E R
% 02.07.2012
th
1. By virtue of the License Deed of 11 March, 1992, respondent
was operating Fuel Depot at Sarojini Nagar, Delhi at a monthly
license fee. In proceeding under Section 5 and 7 of the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 , order of
th
15 October, 2008 was passed by the Estate Officer evicting the
respondent from the aforesaid public premises (hereinafter referred to
as the subject premises), as it was found that the license in respect of
th
the subject premises had expired on 17 March, 1997 and was not
renewed.
2. In the statutory appeal preferred by the respondent, appellate
th
forum vide impugned order of 5 December, 2008 (Annexure P-1)
had kept the eviction order in abeyance till respondent’s application
W.P.(C) No. 702/2009 Page 1
th
of 20 December, 1997 for the change of trade is not decided by the
petitioner herein.
3. At the hearing of this petition it was urged by petitioner’s
counsel with much vehemence that the appellate forum has exceeded
its jurisdiction in keeping the Eviction Order (Annexure P-1) in
abeyance because equity jurisdiction cannot be exercised by the
appellate forum. As regards the request of the respondent for
withdrawing the cancellation order alongwith respondent’s request for
change of trade , in view of the directions issued vide order (Annexure
st
P-13) of 31 January, 2000 in CW 5250/1999 is concerned, it is
contended by learned counsel for the petitioner that since the
respondent had not removed the unauthorised construction made on
the subject premises despite undertaking given to this Court in the
earlier proceedings/Order (Annexure P-13), therefore, respondent’s
request for restoration of the subject premises to the respondent could
not be acceded to.
4. Attention of this Court was drawn by learned counsel for the
th
petitioner to the Inspection Report of 17 July, 2000 (Annexure P-14)
indicating that the unauthorised construction was not removed despite
order (Annexure P-13) and so, there was no question of
restoration/renewal of the license deed in question. Thus, it was
contended on behalf of the petitioner that the impugned order stands
vitiated as the appellate forum has no power to direct the petitioner to
decide the application for change of trade, in proceedings under the
Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and
so the eviction order which has been ordered to be kept in abeyance,
be made operative.
5. In support of the aforesaid submissions, learned counsel for the
petitioner relies upon the decisions in ‘The Corporation of Calicut vs.
W.P.(C) No. 702/2009 Page 2
K.Sreenivasan’ , (2002) 5 SCC 361; W.P.(C) No.10931/2009, Shri
Tek Chand vs. Estate Officer, Delhi Jal Board and Anr. , decided on
6.12.2010; C.Sudhan Reddy vs. South Central Railway and Anr. ,
2006(3)ALD720; A.Thayal Nayagi vs. Union of India , (2005) 1 MLJ
453; Vijay Kumar vs. NDMC & Ors , 176(2011) DLT 453; Triloki
Nath Dhir vs. NDMC & Anr. , 171(2010) DLT 628; Uttam Parkash
Bansal and ors. vs. Life Insurance Corporation of India & Ors. ,
100(2002)DLT497; Civil Appeal No.8201/2010, Mumbai
International Airport Pvt. Ltd. vs. Golden Chariot Airport and Anr.
decided on 22th September, 2010; K.T.Corporation and ors vs. India
Tourism Development Corporation and Anr. , 165(2009)DLT65;
Jagat Talkies Distributors and Ors vs. MCD and Anr. ,
2008(102)DRJ733; Aggarwal and Modi Enterprises Pvt.Ltd. & Anr.
vs. New Delhi Municipal Council , (2007) 8 SCC 75; Jiwan Dass vs.
Life Insurance Corporation of India and Anr. , 1994 Supp(3)SCC694;
Chandigarh Administration and another vs. Jagjit Singh and another ,
(1995) 1 SCC 745; CM(M) No.981/2010, Prominent Hotels Ltd. vs.
th
The New Delhi Municipal Council , decided on 10 August, 2010.
6. Learned senior counsel for the respondent contends that in the
face of the categoric admission of petitioner’s witness – Shri Prasadi
Lal, Deputy Director (Estates) (PW-1), regarding there being no
encroachment upon the road by the respondent and of there being no
other construction or encroachment in the subject premises,
petitioner’s refusal to decide respondent’s application for change of
trade is patently illegal and thus, the impugned order is eminently
justified, requiring dismissal of this petition. To emphasise the
concept of fairness in the proceedings like the instant one, reliance is
placed upon Apex Court decision in ‘New India Assurance Company
Ltd. vs. Nusli Neville Wadia and Anr.’ (2008) 3 SCC 279 .
W.P.(C) No. 702/2009 Page 3
7. Upon consideration of the rival submissions advanced and on
perusal of the impugned order, the cited decisions and the material on
record, I find that petitioner’s insistence upon non-consideration of
respondent’s application for change of trade in view of the Inspection
Report (Annexure P-14) is hardly justified, as there is no whisper of
the aforesaid Inspection Report (Annexure- P-14) in the deposition of
petitioner’s witness – PW-1 who rather admits in cross-examination
th
that as per petitioner’s note of 24 February, 1998, respondent’s case
for change of trade was found to be fit and that there was no
encroachment on the road by the respondent and there was no
unauthorised construction on the subject premises.
8. In the face of the aforesaid evidence, petitioner cannot turn
around to technically urge that the license in respect of the subject
premises came to an end by efflux of time. The decisions relied upon
by the petitioner’s counsel are of no avail as in earlier proceedings
between the parties, vide order (Annexure P-13) the petitioner was
directed to withdraw the order cancelling the license in question
subject to respondent herein removing the unauthorised construction.
It is evident from the deposition of petitioner’s witness- PW-1 that
there is no unauthorised construction in the subject premises and so
the eviction order against the respondent cannot be upheld.
9. The Appellate Forum instead of setting aside the eviction order,
has given an opportunity to the petitioner to decide as to whether
unauthorised construction/ encroachment still exists and till then,
eviction order has been kept in abeyance. Infact, Appellate Forum has
exercised the equity jurisdiction in favour of the petitioner. Strictly
speaking it is not within the domain of the Appellate Forum to
exercise the equity jurisdiction to put the eviction order on hold.
However, it is very well within the purview of this Court to exercise
W.P.(C) No. 702/2009 Page 4
the equity jurisdiction and while doing so, this Court puts the eviction
order on hold till the petitioner decides respondent’s application for
change of trade.
10. It would be pertinent to note that the Inspection Report
(Annexure P-14) strongly relied upon by the petitioner does not
disclose the nature and extent of addition/ alteration made in the
subject premises or about the nature of the encroachment made by the
petitioner on the municipal land. Therefore, petitioner would be at
liberty to carry out fresh inspection of the subject premises and
thereafter would decide respondent’s application in the light of the
order of this Court (Annexure P-13). Needless to say, respondent
would be granted an effective opportunity of hearing to meet the fresh
Inspection Report before petitioner takes a decision on respondent’s
application for change of trade . It is expected that the needful would
be done by the petitioner with expedition and till then, eviction order
be not implemented.
11. With aforesaid directions, this petition stands disposed of. The
pending application does not merit consideration as the same has been
made while being oblivious of the Inspection Report (Annexure P-14)
and is thus rejected.
(SUNIL GAUR)
JUDGE
July 02, 2012
pkb/rs
W.P.(C) No. 702/2009 Page 5
W.P.(C) No. 702/2009 Page 6