Delhi District Court
Manoj Kumar Sharma vs Delhi Public School on 21 March, 2023
IN THE COURT OF SH. DEEPAK VATS
ACJCUMCCJCUMARC
DISTRICT: SOUTHEAST, SAKET COURTS, NEW DELHI
CS SCJ 52704/2016
Manoj Kumar Sharma
S/o Late Mahatam Ram Sharma,
Flat No.8, DPS Staff Quarters,
F Block, East of Kailash,
New Delhi 110065
........Plaintiff
VERSUS
1. Delhi Public School, Mathura Road
Through its Principal, Delhi Public School,
Mathura Road, New Delhi 110003
2. Delhi Public School Society,
Through its Chairman, Delhi Public School Society,
F Block, East of Kailash, New Delhi 110065
3. Shri Manohar Lal
Principal, Delhi Public School,
Mathura Road, New Delhi 110003
.......Defendants
SUIT FOR DECLARATION, PERMANENT AND
MANDATORY INJUNCTION
Date of institution of case : 22.09.2016
Reserved for judgment : 27.02.2023
Date of pronouncement of judgment : 21.03.2023
JUDGEMENT
1 By this order, I shall dispose of the present suit for declaration, __________________________________________________________________________________________ CS SCJ 52704/2016 Digitally signed Manoj Kumar Sharma V/s Delhi Public School Mathura Road & Ors. DEEPAK by DEEPAK VATS VATS Date: 2023.03.21Page no. 1 of 16 16:16:53 +0530 permanent and mandatory injunction PLEADINGS OF PLAINTIFF 2 Briefly stated the case of plaintiff is that he is a school teacher on permanent post since 01.02.2002 under the employment of defendant no. 1 i.e. Delhi Public School, Mathura Road, New Delhi and is teaching physics in the school for the class XI and XII.
The defendant no. 1 had allotted Flat no. 8, DPS Staff Quarters, F-block, East of Kailash, New Delhi (hereinafter referred to as 'suit property') to the plaintiff with effect from 01.04.2003 through an allotment agreement.
It is averred that the suit property belongs to Delhi Public School Society (Regd) i.e. respondent no.2. The suit property was allotted for the purpose of "increasing efficiency of staff member" of the school and "for better performance of" duties towards the school."
3- The plaintiff had been staying in the suit property since the execution of allotment agreement and had been paying all the statutory charges i.e. HRA, Licence fees and income tax perquisites. The plaintiff's two daughters Ms. Paridhi Sharma and Ms. Kompal Sharma have been studying in defendant no. 1 school. It is averred that the plaintiff did not indulge in any breach of the terms of the allotment and there has been no allegation of default in making payments or any breach of terms of allotment.
4 It is further alleged that some disputes/differences cropped up between the plaintiff and the Principal of the defendant no.1 school __________________________________________________________________________________________ CS SCJ 52704/2016 Digitally signed Manoj Kumar Sharma V/s Delhi Public School Mathura Road & Ors. DEEPAK by DEEPAK VATS VATS Date: 2023.03.21 Page no. 2 of 16 16:17:03 +0530 as the plaintiff was elected as Teacher's Representative to the Managing Committee of the school for two consecutive terms i.e. 201415 and 201516. The plaintiff wrote letters to the school authorities, thereby complaining about the installation of CCTV cameras in girls hostel of the school. He also filed complaint against the alleged adulteration/ contamination of food being sold in canteen of the school. He also filed complaint regarding the nonadherence of the CBSE guidelines, illegality in staff appointment/ recruitment, unauthorized construction in the school premises, etc. All these complaints filed by the plaintiff created animosity between him and the Principal of the school, due to which the latter became biased against the plaintiff.
5 It is further alleged that the Principal declared the candidature of the plaintiff invalid for elections of Teacher's Representative to Managing Committee of the school for the year 201617. Further that, due to the aforesaid, the Principal of the school vide letter dated 24.08.2016, malafidely revoked the said allotment agreement dated 01.04.2003 and asked the plaintiff to vacate the suit property within one month of the said letter. Further that, vide letter dated 19.09.2016, the representation of plaintiff against the letter dated 24.08.2016 was rejected and the plaintiff was again asked to vacate the suit property. It is claimed that the Principal did not have authority to cancel the allotment agreement hence, the same is illegal. On refusal of the plaintiff to vacate the suit property, an amount of Rs.81,606/ __________________________________________________________________________________________ CS SCJ 52704/2016 Manoj Kumar Sharma V/s Delhi Public School Mathura Road & Ors. Digitally signed DEEPAK by DEEPAK VATS Date: 2023.03.21 Page no. 3 of 16 VATS 16:17:11 +0530 was deducted from his salary as user charges. It is alleged that the said deduction from the salary of the plaintiff was also illegal. Due to deduction of exorbitant amount from his salary, the plaintiff vacated the suit property on 27.02.2017 without prejudice to his rights and contentions.
Accordingly, the present suit praying a declaration decree that the letters dated 24.08.2016 and 19.09.2016 are arbitrary and null & void, a mandatory injunction decree thereby directing the defendants to restore the plaintiff status quo ante i.e. in same status in which the plaintiff was before the letters dated 24.08.2016 and 19.09.2016, a permanent injunction decree against the defendants thereby restraining them from charging market rate of rent from the plaintiff and for refund of Rs.81,606/ has been filed on behalf of the plaintiff.
PLEADINGS OF DEFENDANTS 6 Defendants contested the suit and filed their written statement, wherein it is stated that the suit property was alloted to the plaintiff purely for the purposes of the school and to maintain the efficiency of the staff. The plaintiff was inducted in the suit property only as a licensee and had no right or interest in the same. As per Clause 5 of the allotment agreement dated 01.04.2003, the license was terminable without assigning any reason whatsoever. It is further averred that the allotment agreement dated 01.04.2003 was in operation only for five years and the same stood expired on __________________________________________________________________________________________ CS SCJ 52704/2016 Digitally signed Manoj Kumar Sharma V/s Delhi Public School Mathura Road & Ors. DEEPAK by DEEPAK VATS VATS Date: 2023.03.21 16:17:19 +0530 Page no. 4 of 16 30.03.2008, but the plaintiff was graciously permitted to continue to reside in the suit property.
The allegations of bias of the Principal against the plaintiff have been denied and it is averred that the vacation notice was issued due to administrative reasons. It is contended that since the plaintiff did not vacate the suit property despite receiving a notice to this effect, the rent at market rate was deducted from his salary. Further that, the termination notice dated 24.08.2016 was validly issued and the plaintiff cannot have any grievance against the same. It is also claimed that the suit is barred under Section 25 read with Section 10 (1) of the Delhi School Education Act, 1973. It is thus prayed that the suit be dismissed with cost.
ISSUES 7 After the completion of pleadings, following issues were framed on 11.09.2018:
1. Whether the plaintiff is entitled to a decree for declaration as prayed for ?OPP.
2. Whether plaintiff is entitled to a decree for mandatory injunction as prayed for? OPP.
3. Whether the plaintiff is entitled to a decree for permanent injunction as prayed for? OPP.
4. Whether the plaintiff is entitled to refund of Rs. 81,606/- deducted from his salary? OPP.
5. Whether there is no cause of action in favour of plaintiff to institute the present suit? OPD.
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6. Whether this Court does not have any jurisdiction to entertain or try the present suit in view of section 25 r/w section 1091) of the Delhi School Education Act, 1973? OPD.
7. Relief.
PLAINTIFF'S EVIDENCE 8 In support of his case, plaintiff got himself examined as PW1. The witness reiterated and reaffirmed the facts mentioned in the plaint on oath. Certain documents were also exhibited which are as under : Mark 'A' (True copy of the Flat allotment agreement), Mark 'B' (True copy of the Election card and Ration card), Mark 'C' (true copy of the letter dated 06.09.2016), Mark 'D' (true copy of the letter dated 22.02.2012), Mark 'E' (true copy of the letter dated 29.03.2016 and 12.04.2016), Mark 'F' (copy of the letter dated 22.03.2016 and 30.03.2016), Mark 'G' (copy of the appointment letter dated 06.11.2015), Mark 'H' (copy of letter dated 30.12.2015), Mark 'I' (true copy of the complaint to the Principal dated 04.04.2016), Mark 'J' (true copy of the complaint no. CD/4T/2016 S.N 6397 dated 01.02.2016) and Mark 'K' (copy of the letter dated 07.06.2016).
The witness was duly crossexamined by Ld. Counsel for the defendant.
DEFENDANT'S EVIDENCE 9 In support of his case, defendants examined Mr. P.K. Mahajan as DW1. The witness reiterated and reaffirmed the facts __________________________________________________________________________________________ CS SCJ 52704/2016 DEEPAK Digitally signed by DEEPAK VATS Manoj Kumar Sharma V/s Delhi Public School Mathura Road & Ors.
VATS Date: 2023.03.21 16:17:36 +0530 Page no. 6 of 16 mentioned in the WS on oath. DW1 exhibited only one document i.e. his evidence affidavit as DW1/A. The witness was duly crossexamined by Ld. Counsel for the plaintiff.
10 Final arguments have been heard on behalf of the parties. The pleadings as well as evidence and all the annexed & exhibited documents have been carefully perused. All the issues are decided as follows: ISSUEWISE FINDINGS 11 Issue No. 1,2 ,3 & 4 are taken up together as they involve similar questions of law and facts. Onus to prove issues No.1,2,3 and 4 was upon the plaintiff.
12 The genesis of right of plaintiff in the suit property is the allotment agreement Mark PW1/1 by virtue of which he was allowed to use the suit property. This agreement and its contents are not disputed by either of the parties and hence the question of mode proof of the document need not be gone into. The agreement Mark PW1/1 is between the Principal, defendant no.1 school and the plaintiff as licensor and licensee respectively. The agreement clearly states that the suit property has been provided " to the licensees for permissive use". Thus the right of plaintiff in the suit property was that of a licensor.
__________________________________________________________________________________________ CS SCJ 52704/2016 DEEPAK Digitally signed by DEEPAK VATS Manoj Kumar Sharma V/s Delhi Public School Mathura Road & Ors.
VATS Date: 2023.03.21 16:17:44 +0530 Page no. 7 of 16 13 Before proceeding further it is necessary to discuss the law of license. The term license has been defined in Section 52 of the Indian Easements Act, 1882. Section 52 reads as follows :
52 "License" defined. Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.
14 In the case of Laxman Singh & Ors. Vs. Urmila Devi and Ors., CS(OS) no. 3275/2012, decided 28.03.2014, Hon'ble High Court of Delhi while explaining the law of license observed as follows:
"14. To elaborate the requirements of the above Statutory provision, reference may be had to the Full Bench judgment of the Bombay High Court in the case of Prabhudas Damodar Kotecha and Anr v. Smt. Manharbala Jeram Damodar and Ors.
MANU/MH/0692/2007 where the Court elaborated on the expression "Licensee" as follows:
43. As opposed to this, the expression "license", as defined under Section 52 of the Indian Easement Act, provides that where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to easement or an interest in the property, the right is called a license.
Section 52 does not require any consideration, material or nonmaterial, to be an element of the definition of license, __________________________________________________________________________________________ CS SCJ 52704/2016 DEEPAK Digitally signed by DEEPAK VATS Manoj Kumar Sharma V/s Delhi Public School Mathura Road & Ors. VATS Date: 2023.03.21 16:17:52 +0530 Page no. 8 of 16 nor does it require that the right under the license must arise by way of contract or as a result of a mutual promise. Thus, license as defined in Section 52 of the Indian Easement Act can be a unilateral grant and unsupported by any consideration. The Supreme Court in State of Punjab v. Brig. Sukhjit Singh MANU/SC/0540/1993: [1993]3SCR944 has observed that, "payment of license fee is not an essential attribute for subsistence of license".
44. Let us see as to how the expressions "license" and "licensee" are understood, used and spoken in common parlance. It is often said that a word, apart from having the meaning as defined under different statutes, has ordinary or popular meaning and that a word of everyday usage it must be construed in its popular sense, meaning that sense which people conversant with the subject matter with which the statute is dealing would attribute to it. A "license" is a power or authority to do some act, which, without such authority, could not lawfully be done. In the context of an immovable property a "license" is an authority to do an act which would otherwise be a trespass. It passes no interest, and does not amount to a demise, nor does it give the licensee an exclusive right to use the property. [See Puran Singh Sahani v.Sundari Bhagwandas Kriplani MANU/SC/0541/1991:
[1991]1SCR592]. Barron's Law Dictionary has given the meaning of word "licensee" to mean "the one to whom a license has been granted; in property, one whose presence on the premises is not invited but tolerated. " [Emphasis supplied] 15 From the above pronouncement it is clear that an agreement of license does not create any interest of the licensee in a property. It only creates a right to enjoy/use the property. Thus in the present case __________________________________________________________________________________________ CS SCJ 52704/2016 DEEPAK Digitally signed by DEEPAK VATS Manoj Kumar Sharma V/s Delhi Public School Mathura Road & Ors. VATS Date: 2023.03.21 16:18:00 +0530 Page no. 9 of 16 also the plaintiff did not have any right / interest in the suit property and his rights were confined only to enjoy the suit property within the limits of allotment agreement Mark PW1/1 and the same could be revoked in terms of the said agreement.
16 The contention raised by the plaintiff is that the notice of termination of license dated 24.08.2016, Mark PW1/13 was not as per clause no.5 of the allotment agreement Mark PW1/1 and thus the same is invalid and has not resulted in revocation/termination of the license. Here, it may noted that there is no dispute regarding the termination notice dt. 24.08.2016 Mark PW1/13 or regarding its contents, hence the question of mode of proof of the said notice is not looked into.
17 The real question to be determined by this court is whether the termination notice Mark PW1/13 has been issued in terms of allotment agreement Mark PW1/1. The contents of termination notice Mark PW1/13 are as follows: "You were allotted a Teachers' Staff Flat No 8 located at East of Kailash on 1.4.2003 for the period of five years. The Clause No. 5 of the agreement states that the Working Committee of the Society and the Licenser are fully entitled to revoke the license at any time without assigning any reason whatsoever and take possession from the Licensee. It is also stated in the clause, that the Society will remain in legal possession and control of the allotted flat and the member of the staff of the school will reside in so long as the license subsists. Hence you are hereby advised to vacate the flat by 23.9.2016 failing which; you will be liable to pay the current market rent rate. This letter may be treated as one months' notice to __________________________________________________________________________________________ CS SCJ 52704/2016 DEEPAK Digitally signed by DEEPAK VATS Manoj Kumar Sharma V/s Delhi Public School Mathura Road & Ors.
VATS Date: 2023.03.21 16:18:07 +0530 Page no. 10 of 16 vacate the said flat."
18 The termination notice Mark PW1/13 has been issued by the principal wherein clause no. 5 of the allotment agreement Mark PW1/1 has been invoked. It is contended on behalf of plaintiff that the principal of the defendant no. 1 school was not empowered to terminate/revoke the license and the same has been done unauthorizedly by the principal only to settle his personal score with the plaintiff.
19 To find whether the principal was empowered to revoke the license we need to turn to the allotment agreement Mark PW1/1. It is settled law that while interpreting a document the real intention of the parties is to be seen. Thus, in the present case it has to be determined whether at the time of entering allotment agreement Mark PW1/1, the principal was intended to be given the power to revoke the license agreement.
20 Here, at the outset, it is the first that is pertinent to note that the principal has been referred to as "the licensor" in the allotment agreement. The power to revoke the license has been granted in para no. 5 of the agreement. Para no.5 & 6 of the allotment agreement Mark PW1/1 are relevant which are reproduced herein below "5. That the Working Committee of the Society and the Licenser are fully entitled to revoke this licence at any time without assigning any reason whatsoever and take possession of the same from the Licensee. The Society will __________________________________________________________________________________________ CS SCJ 52704/2016 Manoj Kumar Sharma V/s Delhi Public School Mathura Road & Ors. DEEPAK Digitally signed by DEEPAK VATS VATS Date: 2023.03.21 16:18:16 +0530 Page no. 11 of 16 remain in legal possession and control of the said flat and will have the right to enter and inspect the same through its authorised representative without prior notice to the Licensee. It is again clarified that no interest in the said flat is created in favour of the Licensee except that being a member of the staff of the school will reside in so long as the licence subsists.
6. That the Licensee shall vacate the said flat, upon expiry of five years or sooner on revocation of licence by the Licenseror or the society or the services of the Licensee in the school are terminated for any reason, or comits breach of any of the terms and conditions of the agreement, and/or licensee leave the services of the school whichever is earlier. In case the Licensee fails to vacate the flat as aforesaid, i.e. either upon expiry of this Licence or earlier, determination as aforesaid, the Licensor/ Society shall have full right to take possession of the flat from the Licensee and the Licensee will suffer legal action entirely at his cost and also pay damages at the market rate for unauthorised use and occupation of the premises till Licensee is evicted from the flat in question." [Emphasis Supplied] 21 Thus, as per para no.5 of the allotment agreement Mark PW1/1, the Working Committee of the society and the licensor were fully entitled to revoke the license at any time without assigning any reason whatsoever. Further para no. 6 of the agreement also provided that the plaintiff would vacate the suit property "upon expiry of 5 years or sooner on revocation of license by the licensor or the society .....". From the cumulative reading of the aforesaid two paras of the allotment agreement Mark PW1/1 it appears that the parties intended that the license agreement could be revoked either by the principal or by the Working Committee and there was no intention that the license could be revoked only by a joint notice by both the principal and the __________________________________________________________________________________________ CS SCJ 52704/2016 Digitally signed Manoj Kumar Sharma V/s Delhi Public School Mathura Road & Ors. DEEPAK by DEEPAK VATS VATS Date: 2023.03.21 16:18:23 +0530 Page no. 12 of 16 working committee. Thus there was no intention to curb the powers of the principal to revoke the allotment agreement. This view of the court is supported by the phraseology of para no. 6 also.
22 The ground taken by the plaintiff that the revocation notice Mark PW1/13 is illegal because the same was issued by the principal to settle his personal score or to punish the plaintiff for raising his voice against the alleged misdeeds of the principal are without any merits because so long as the principal was empowered to revoke the license and exercised his power within the fourcorners of allotment agreement Mark PW1/1, the revocation cannot be faulted only on the grounds of alleged malafide exercise of power and no enquiry regarding the reasons for exercise of powers can be conducted. Accordingly in the opinion of this court the principal was empowered to revoke the license of the plaintiff and revocation notice dt. 24.08.2016 Mark PW1/13 was validly issued and thus the license of the plaintiff to use suit property stood revoked on 23.09.2016 i.e. on expiry of one month of the said notice and thus any rent on market rate charged by the defendant no.1 for the use of the suit property by the plaintiff is also not illegal.
22 In the light of the above discussion issue no.1 to 4 are decided against the plaintiff and in favour of the defendant.
DEEPAK Digitally signed by DEEPAK VATS VATS Date: 2023.03.21 16:18:32 +0530 __________________________________________________________________________________________ CS SCJ 52704/2016 Manoj Kumar Sharma V/s Delhi Public School Mathura Road & Ors.
Page no. 13 of 16 Issues No. 5 and 6 23 The onus to prove both the issues no. 5 and 6 was upon the defendant. Issue no. 6 is taken up first. The defendants have claimed that the present suit is barred under Section 25 of the Delhi School Education Act, 1973 (henceforth 'DSE Act'). This issue does not require detailed deliberation as an application under Order VII Rule 11 of CPC, 1908 was filed on behalf of the defendants on the same ground which came to be dismissed vide order dated 28.11.2017 though, thereafter an issue was framed on this ground suffice it to say that in the judgment titled as Presiding Officer Delhi School Tribunal V Govt. of NCT of Delhi, O.Ref 1/2010 decided on 27.08.2010, the three Judge Bench of Hon'ble High Court of Delhi had examined in detail the scope of Section 25 of DSE Act and held that any question regarding dismissal, removal or reduction in rank of an employee of a school can be appealed against before the tribunal constituted under the DSE Act. Hon'ble High Court of Delhi further held that the Delhi School Tribunal has no jurisdiction to deal with all the grievances of school teacher and employees. The relevant abstract of the judgment is as follows:
31. In view of our preceding analysis, we answer the question No.(i) that Delhi School Tribunal has no jurisdiction to deal with all the grievances of the school teachers and employees including minor penalties as defined in Rule 120(3) of the Rules. That apart a matter of suspension or a prolonged suspension cannot be a matter of challenge before the tribunal as that has not been so envisaged or in the provision of appeal. In the absence of such engrafting, it is difficult to clothe the appellate __________________________________________________________________________________________ CS SCJ 52704/2016 Digitally signed DEEPAK by DEEPAK VATS Manoj Kumar Sharma V/s Delhi Public School Mathura Road & Ors. VATS Date: 2023.03.21 16:18:41 +0530 Page no. 14 of 16 tribunal with such jurisdiction.
31. In view of the aforesaid analysis, we are disposed to think that the decision in Khathuria Public Shcool (supra) does not lay down the law correctly and the observations made in Sonica Jaggi (supra) explaining the decision in Kathuria Public School (supra) is also not correct. We are disposed to think that the decision in Servants of People Society and others (supra) correctly states that law.
24 In view of the above observation, it is crystal clear that all the disputes between the employees/teachers and the school are not to be dealt with under the DSE Act. The DSE Act is meant to deal with the pay, penalties etc. of the employees of a school. The present dispute is completely different. In the present case, an accommodation was provided to the plaintiff by the school on license basis which was revocable and which was eventually revoked vide the letter dated 24.08.2016. The grant of license to the plaintiff to use the suit property though ancillary to his service but its revocation cannot even remotely be termed as a penalty punishment. Thus, in the considered opinion of this Court, this suit is not barred under Section 25 of DSE Act and accordingly, issue no. 6 is decided against the defendants.
25 So far as issue no.5 is concerned, since issue no.1 to 4 are decided against the plaintiff, it can be safely concluded that the plaintiff had no cause of action to file the present case. Accordingly, issue no.5 is decided in favour of the defendants and against the plaintiff.
__________________________________________________________________________________________ CS SCJ 52704/2016 Digitally signed by DEEPAK Manoj Kumar Sharma V/s Delhi Public School Mathura Road & Ors. DEEPAK VATS VATS Date:
2023.03.21 16:18:48 +0530 Page no. 15 of 16 RELIEF 26 In view of the above discussions, as the issues no. 1 to 5 are decided in favour of the defendants and against the plaintiff, the present suit stands dismissed.
27 File be consigned to Record Room. Digitally signed DEEPAK by DEEPAK VATS VATS Date: 2023.03.21 16:18:56 +0530 (DEEPAK VATS) ACJcumCCJcumARC (SouthEast) Saket Courts, New Delhi Announced in the open Court On 21.03.2023
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