Delhi District Court
Maha Rana Pratap Market Association ... vs Municipal Corporation Of Delhi on 1 October, 2011
IN THE COURT OF SH. GAUTAM MANAN:
ASCJJSCCGJ: (CENTRAL) DELHI.
Civil Suit No.483/08 of 2003
Maha Rana Pratap Market Association (Regd.)
Through Sh Shiv Dutt Dhyani
VicePresident
G65, Behind Tibia College
Karol Bagh, New Delhi110005 .......Plaintiff
V e r s u s
1. Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk
Delhi 110006
2. The Zonal Deputy Commissioner
Municipal Corporation of Delhi
Karol Bagh Zone, New Delhi
3. The Zonal Superintendent
Licensing Department
Municipal Corporation of Delhi
Anand Parbat, Karol Bagh,
New Delhi110005 .......Defendants
SUIT FOR PERMANENT INJUNCTION & DECLARATION
Institution of Suit : 01.04.2003
Order Reserved on : 30.09.2011
Judgment pronounced on : 01.10.2011
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JUDGMENT
1. By present order I will dispose off an issue framed on 08.07.2009.
2. The plaintiff is a resigtered association of shopkeepers having 117 members, who are tehbazari holders adjacent to Tibia College, Karol Bagh, New Delhi since 197071. By way of present suit, the plaintiff association has challenged a notice dated 27.03.2003 in which defendants have claimed recovery of outstanding dues of license fee for Rs.54,300/ in default of payment the tehbazari rights of the members of the plaintiff association may be revoked and their premises may be sealed. The plaintiff has sought the relief of injunction seeking to restrain the defendants from making any recovery of enhanced rate on the basis of impunged demand notices served upon them and further sought a declaration that the resolution no.73, 659 & Circular no.941 be declared as illegal and ultravires of the provision of MCD.
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3. The plaintiff association vide Orders dated 24.01.2011 withdrew their claim in respect of declaration and now suit of the plaintiff is only in respect of the relief of permanent injunction.
4. The defendants, MCD has resisted the claim of the plaintiff on the ground that this Court has no jurisdiction to try and entertain this suit as the revise rates of tehbazari have been implemented after passing in the standing committee/corporation and after approval of the proposal. It has been stated that the rates of tehbazari were increased vide resolution no.73 dated 10.05.99 under Section 321 of DMC Act and thus, the plaintiff has no right to challenge the said increase.
5. On pleadings of the parties, the issues were framed on 08.07.2009 and issue no.2 was treated as preliminary issue which reads as under:
Whether this Court has no jurisdiction to entertain the suit in view of the preliminary objection no.2 of the WS? OPD :3: CS No.483/08 of 2003
6. Although the matter was stated to be listed for plaintiff evidence but it was submitted on behalf of parties that the matter can be heard on the preliminary issue and only then parties be called upon to lead evidence as such the arguments have been heard on behalf of parties to the suit.
The written arguments filed on behalf of plaintiff association has also been perused.
7. The plaintiff has contended that about 117 members of the plaintiff association, who came to India after parition were allotted an alternative site under scheme " Gadgil assurance scheme" which was formulated by the Government of India to rehabitate the persons, who migrated to India. It has been stated that an irrovacable license was granted to them which cannot be cancelled in view of Section 60 of the Indian Easement Act 1882. It has been stated that the MCD was charging Rs.102.75 & Rs68.25 per month as ground rent according to the size of the sites from these sites and the allottee were paying land use charges from year to year but :4: CS No.483/08 of 2003 in the demand notices dated 27.03.2003 issued on the basis of the circular no.26.04.2001 is illegal. The demand notices neither disclose the rate of enhance rent per month nor it discloses on the basis of which the impunged demand is raised. It is stated that a fresh resolution for increasing the ground rate of rent has been passed w.e.f. 01.11.2000 but the impugned notices were given without any legal basis and even if it is admitted that the circular is applicable to the case of the plaintiff even then it cannot be enforced that retrospectively.
8. It has been submitted that fee chargable under Section 321 of DMC Act must have been levied on the basis of services rendered by the defendants but no special services were provided by the defendants which authorized them to enhance the rent Under Section 321 DMC Act as such the enhance of the rent is illegal and is not applicable as such the suit of the plaintiff is maintainable and should be decided on merits.
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9. On the other hand, it has been argued on behalf of MCD that the plaintiff has already dropped the relief of declaration from the present suit and in facts of the case where the plaintiff has challenged the resolution/circular issued by MCD and has sought declaration to declare them null and void the simplicitor suit of injunction is not maintainable. It has been submitted that in terms of the Section 430, DMC Act MCD is within its rights to increase the fee and the plaintiff association being merely licency are bound to pay the fee.
10.I have heard the Ld Counsels for the parties and have gone through the written submissions filed on behalf of the plaintiff.
11.It is a matter of record that on 24.01.2011 the plaintiff has withdrawn the prayer which challenged the vires and legalilty of resolutions no. 73 & 659 and of circular no. 941/CL&EC01 dated 26.04.2001. Thus, once the vires of the circular is no more a subject matter of the suit then the :6: CS No.483/08 of 2003 members of plaintiff association are bound by it. Once the plaintiff has dropped the relief of declration as such in facts of the case the injunction to restrain the MCD to recover the license fee on the basis of the said circular cannot be given. Thus, I find force in the arguments of the Ld Counsel for MCD that mere simplicitor suit of injunction is not maintainable.
12.Even otherwise also Section 430 DMC Act empowers the MCD to levy a fee which can be revised from time to time. Under Section 430 DMC Act it is provided that for every license or written permission granted under the Act afee shall be charged from time to time to be fixed by the Commissioner with the sanction of the corporation and such a fee shall be payable by the person to whom the such license or written permission is granted.
13.On perusal of the aforesaid section it is evident that the MCD has the power to levy licence fee and to increase it from time to time. Once, the MCD has excersied it's authority of revising fee, the plaintiff association cannot :7: CS No.483/08 of 2003 claim any resistance from not paying the same unless the said increase is otherwise is held to be ultravires of the Act. But in the present case there is no challenge to the impugned circular/resolution. Thus, the relief claimed by the plaintiff in the present suit cannot be granted to it.
14.Accordingly, the preliminary issue stands decided in favour of the defendants and against the plaintiff and it is held that the suit of the plaintiff is not maintainable on the above stated grounds. Accordingly, the suit stands dismissed with no orders as to costs.
Decree Sheet be drwan.
File be consigned to Record Room.
Announced in open Court on 01st October, 2011.
Gautam Manan
JSCCASCJGJ
:8: CS No.483/08 of 2003
CS No.483/08 of 2003
Maha Rana Pratap Market Vs MCD & Ors.
01.10.2011
Present: None.
Vide separate orders the preliminary issue decided in favour of the defendants and against the plaintiff and it is held that the suit of the plaintiff is not maintainable on the above stated ground. Accordingly, the suit stands dismissed with no orders as to costs.
Decree Sheet be drawn.
File be consigned to Record Room.
(Gautam Manan)
JSCCASCJGJ
01.10.2011
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