Delhi District Court
vs Princes Park Hostel Executive ... on 30 March, 2011
IN THE COURT OF MS MANISHA KHURANA, CIVIL JUDGE, TIS
HAZARI COURTS, DELHI
Suit no. 571/2006
Case ID No. C0920732003
Sh. Satish Kumar,
S/o Lt. Shri Paras Ram
R/o D61, Ram Prastha
Distt. Ghaziabad (UP)
Plaintiff.
Versus
1. Princes Park Hostel Executive Committee,
Through its Honorary President,
Princes Park, Copernicus Marg,
New Delhi.
2. Major General H.V. Bhalla,
President, Princes Park Hotel Executive Committee,
R/o 37, Princes Park, Hostel,
Princes Park, Copernicus Marg, New Delhi
3. Lt. Col. Ravi Prinja,
Honorary Secretary,
Princes Park Hotel Executive Committee,
R/o Princes Park, Copernicus Marg New Delhi,
4. Cdr. U.C. Saxena,
Honorary Trade Member,
Suit no. 571/2006 Page no. 1/20
5. Princes Park Hostel Executive Committee,
Princes Park, Copernicus Marg, New Delhi
Defendants.
SUIT FOR DECLARATION AND INJUNCTION
Date of Institution : 29.09.2003
Date of reserving judgment : 29.03.2011
Date of pronouncement : 30.03.2011
JUDGMENT
This is a suit for declaration and injunction filed by the plaintiff against the defendants.
2. The brief facts of the case are as follows : the plaintiff is the legal heir of Late Sh. Pars Ram who expired 02.06.1998 and after his demise the plaintiff became the legal occupant of the shop no. 3 Princes Park Hotel, New Delhi as per agreement dated 1st January, 1985 executed between the President of India and Late Sh. Pars Ram, proprietor Sokari Brothers, it is further stated that the successor in interest, the legal heirs and heirs have also been included in the said agreement.
3. The plaintiff states that the information regarding the demise of Suit no. 571/2006 Page no. 2/20 his father was also given to the chief administrative officer, Ministry of Defence which is the authority receiving the lease amount of the premises. It is further stated the the defendants with ulterior motive illegally locked the suit shop and affixed a notice for sealing of the shop as well as directing the plaintiff to meet the executive committee honorary trade member to vacate the premises. It is further stated that the plaintiff deposited a sum of Rs. 500/ on 17.03.2003 and a sum of Rs. 500/ on 03.09.2003 as rebate amount to which the defendants were not entitled. It is further stated that the defendant no. 1 has no locus standi to lock the suit premises in which the plaintiff is carrying out the business of Grocery and General Items.
4. It is further stated that there were number of litigations between the father of plaintiff and Union of India regarding the suit premises and that the father of the plaintiff had filed a civil suit against the defendant no. 1 in 1987 that the defendants were not entitled to receive the rebates/mess bills. The said matter was referred to the Arbitrator by the court order dated 16.04.1990. However, the arbitration award could not become the rule of law as the proceedings against the father of the plaintiff had abated on his demise. It is further stated that in a litigation between the father of the plaintiff and the Union of India in the year 1991, the defendants had given the statement that the defendant shall not take possession of the suit Suit no. 571/2006 Page no. 3/20 property without due process of law and the defendant shall accept the license fee from the plaintiff without affecting the right and obligation of the parties under the award pronounced on 07.01.1991.
5. It is further stated that the plaintiff has been in occupation for the last 41 years and the CAO has been accepting the lease amount of the suit premises even after the death of the plaintiff's father. However, the pay orders which were sent by the plaintiff in the year 2002 were returned back by the concerned authority with the remarks "returned due to administrative reasons which may be deposited by the plaintiff as and when informed by the office of CAO, Ministry of Defence, New Delhi." It is further stated that even after the deposition of the rebate amount by the plaintiff the defendants have not removed their locks from the suit premises. Hence, the present suit.
6. In the WS filed by the defendant no. 1 to 4, the said defendants have taken the preliminary objection that defendant no. 1, 2 and 4 are only adhoc society framed by the Resident officers of the Princes Park Hostel and the said defendants are only responsible for the upkeep, maintenances, welfare and for providing basic amenities to the residents. It is further stated that the shops are alloted by the Chief Administrative Suit no. 571/2006 Page no. 4/20 Officer of Ministry of Defence, Government of India and the mess committee has no concern with the said allotment. It is further stated that the plaintiff failed to pay the monthly rebate charges to the defendant as per lease agreement. Therefore, as per the court order the matter was referred to the Ld. Arbitrator and a award was passed on 07.01.1991 directing Sh. Paras Ram the original allottee of the suit property to pay the rebate amount to the defendant. However, Sh. Paras Ram failed to pay the said amount and a total amount of Rs. 94,607 is due. It is further stated that the plaintiff is a illegal occupant of the shop no. 3 belonging to Union of India. Therefore, it is prayed that the suit be dismissed.
7. In the WS filed by the defendant no. 5 it is stated that father of the plaintiff Sh. Paras Ram was a licensee by virtue of the license granted by the Ministry of Defence to run a grocery shop in the suit premises and the said license being a right personal to the grantee did not devolve on the plaintiff being the Legal Heir of Sh. Paras Ram. It is further stated that the suit premises was alloted to Sh. Paras Ram i.e. father of the plaintiff on "leave and license" basis and as per the terms and conditions mentioned therein, license agreement was executed on 01.01.1985 for a period of one year which ended on 31.12.1985 and thereafter, it was never renewed, therefore, the plaintiff is an unauthorised occupant of the suit property and Suit no. 571/2006 Page no. 5/20 plaintiff had not paid any further rebate charges. It is further stated that the defendant no. 5 was not involved in the act of putting the locks on the suit shop and that the hostel committee has rightly put the locks on the shop as the plaintiff. It is further stated that the plaintiff has no locus standi to file the present suit as he was never the allottee of the said shop. Therefore, it is prayed that the suit be dismissed.
8. In the replication filed by the plaintiff to the WS filed by the defendants, the plaintiff has denied the averments made by the defendants in the WS and has reiterated the averments made in the plaint.
9. On the basis of the pleadings of the parties following issues were framed by the Ld. Predecessor on 12.05.2010 : 1 Whether the plaintiff has no locus standi to institute the present suit ? OPD.
2 Whether plaintiff is unauthorised occupant in respect of the suit property? OPD.
3 Whether there is no cause of action against the defendant no. 1 to 4 ? OP on defendant no. 1 to 4.
4 Whether the PPH Executive committee (Defendant no. 1 to 4) illegally locked the shop no. 3, Princes Park Hostel Suit no. 571/2006 Page no. 6/20 Complex of the plaintiff? OPP.
5 Whether the plaintiff is entitled to the relief claimed for ? OPP.
6 Relief.
10. Thereafter, the matter was listed for plaintiff evidence. In the plaintiff evidence, plaintiff examined Sh. K. Chandrashekhran, UDC from the office of the J. S. Training and CAO as PW1. In his examinationin chief PW1 has placed on record: 1 Intimation dated 27.10.89 send to Smt. Bhagwati Devi from the Chief Administrative Officer regarding her application for renewal of license for shop no. 10 as EX PW 1/A. (OSR) 2 Letter written by Smt. Bhagwati Devi to CAO regarding death of Sh. Parashram Prop./Licensee of Shop no. 3 as EX PW 1/B. (OSR) 3 Letter dated 30.08.89 issued on behalf of CAO to written by Smt. Bhagwati as EX PW1/C. (OSR) 4 Letter dated 21.08.89 written by Smt. Bhagwati Devi to CAO as EX PW 1/D. 5 Special certificate of death of Sh, J, N, Garg as EX PW Suit no. 571/2006 Page no. 7/20 1/E. 6 Letter dated 13.04.1983 alongwith application from Sh. Shyam Lal regarding change of ownership as EX PW 1/F. (OSR) and accompanied letter as Ex. PW1/F and EX PW 1/G (OSR) respectively.
7 Photocopy of death certificate of Sh. Harbans Lal as MarkA. 8 Application dated 28.1.1986 and letter dated 04.02.1986 as EX PW 1/H and EX PW 1/I. (OSR) Thereafter, PW1 was cross examined by the counsel for defendant.
11. Thereafter, PW2 Sh. Devi Dayal was produced by the plaintiff. In his examinationinchief PW2 deposed that he is running a tailoring shop in shop no. 2 Princes Park Hostel and previously it was allotted to my elder brother Sh. Ram Sahai and the same was transferred in his name by the office of CRO after the death of his brother according to the terms and conditions of the agreement. Thereafter, PW2 was cross examined by the counsel for the defendant.
12. Thereafter, plaintiff produced himself as PW3. In his Suit no. 571/2006 Page no. 8/20 examination in chief, PW3 mostly reiterated the averments made in the plaint. PW3 placed on record:
1. Agreement dated 01.01.1985 as EX PW 3/A.
2. Letter dated 07.10.1998 as EX PW 3/B.
3. Six receipts of license fee as EX PW 3/C.
4. Certified copy of order dated 16.04.1990 as EX PW 3/D.
5. Certified copy of the order dated 30.03.1993 as EX PW 3/E.
6. Duly received copy of complaint to SHO dated 21.09.2003 as EX PW 3/F.
7. Photocopy of notice issued by the orders of PPH, Executive Committee alongwith two photographs as Mark A.
8. Photocopy of order dated 02.11.1987 as Mark B.
9. Photocopy of receipt dated 22.09.03 for a sum of Rs. 1000/ as Mark C.
10.Receipt dated 22.09.03 as EX PW 3/G.
11.Letter dated 05.09.02 and 09.09.02 issued by Government of India, Ministry of Defence as EX PW 3/H and EX PW 3/I respectively.
12.Certified copy of order dated 24.05.1999 passed by Sh. Ramesh Kumar, Ld. Sr. Civil Judge, Delhi as EX PW 3/J. Thereafter, PW3 was cross examined by the counsel for the Suit no. 571/2006 Page no. 9/20 defendant. The plaintiff evidence was thereafter closed and the matter was listed for DE.
13. In the defendant evidence, Sh. G.V. Singh, Joint Director and CAO, Ministry of Defence was produced as DW1. In his examinationin chief DW1 mostly reiterated the avements made in the written statement. DW1 placed on record:
1. Copy of agreement dated 01.01.1985 already exhibited as EX PW 3/A.
2. Copy of the order dated 16.04.1990 already exhibited as EX PW 3/D.
3. Copy of the statement made by the representative on behalf of the department as EX DW 1/A.
4. Letter dated 20.06.1986 as Mark A.
5. Copy of judgment dated 10.04.03 as Mark B. Thereafter, DW1 was cross examined by the counsel for plaintiff. The defendant evidence was thereafter closed.
14. Thereafter, the suit was listed for final arguments. I have heard the arguments of all the counsel for the parties and have carefully gone through the case file. The suit qua defendant No. 3 had already abated as Suit no. 571/2006 Page no. 10/20 per Order dated 28.7.2008 passed by the Ld. Predecessosr. My issue wise findings are as follows:
15. Issue no. 1.
The onus of proving the present issue is upon the defendant. The defendant no. 1, 2 and 4 have taken a plea in the WS that the plaintiff has no locus standi to file the present suit as he is the illegal occupant of the shop no. 3 belonging to Union of India. It is stated by defendant no. 1, 2 and 4 as well as defendant no. 5 in the WS that the suit property was allotted to Sh. Paras Ram, father of the plaintiff on "leave and license"
basis vide agreement executed on 01.01.1985 for a period of one year. However, the said license was never executed in favour of the plaintiff. Therefore, the plaintiff is unauthorised occupant in the suit premises and has no locus standi to file the present suit. The plaintiff has stated in the plaint that agreement executed between the President of India and Sh. Paras Ram in respect of the suit shop it is mentioned that the expression "Licensee" shall include his successor in interest, legal representatives and heirs and the plaintiff has been duly paying the license fee to the Chief Administrative Officer, Ministry of Defence and rebate to the Princes Park Hostel Committee. However, it is stated that the defendant no. 1, 2 and 4 had still put lock on the plaintiff shop in an arbitrary manner on 20.09.2003.
Suit no. 571/2006 Page no. 11/20 The possession of the suit property was with the plaintiff before it was locked and the same has not been denied by the defendants. It is well settled principle of law that a person in possession of the suit property cannot be evicted from the same without due process of law even if he is a trespasser. Thus, the plaintiff has a right to protect his possession and consequently to institute the present suit.
In view of the above discussion the present issue is thus decided in favour of the plaintiff and against the defendants.
16. Issue no. 2.
The onus of proving the present issue is upon the defendant. The suit of the plaintiff is that the plaintiff has been occupying the suit premises for the last 41 years and the CAO has been accepting the lease amount of the suit premises even after the death of the plaintiff's father. PW1 has further deposed that the plaintiff had paid the rebate amount of Rs. 500/ on 03.09.03 and Rs. 500/ as rebate amount on 18.03.03. It is further deposed by the plaintiff that similar shop i.e. shop no. 5 Princes Park Hostel were transferred in the name of Sh. Shyam Sunder LR of the original allottee i.e. Sh. Harban Lal in the year 1989 in view of the provisions of a similar agreement executed between Sh. Harbans Lal and the Ministry of Defence in support of his contentions. Similarly PW1 has deposed that Suit no. 571/2006 Page no. 12/20 another shop no. 10 Princes Park Hostel was transferred by the Chief Administrative Officer, Ministry of Defence in the name of LR i.e. Smt Bhagwati Devi after the demise of original allottee i.e. Sh. J. N. Gupta and to prove the same the plaintiff had produced PW2 Sh. Devi Dayal. The defendant no. 5 has on the other hand, relied upon the same documents as produced by the plaintiff.
The defendant no. 5 has also relied upon the agreement executed between the original allottee Sh. Paras Ram as well as the President of India dated 01.01.1985 and DW1 has further deposed in his examinationinchief that a similar petition filed by similar shopkeepers in Panna Lal & Ors. Vs. Union of India & Ors., CW 4685 & CM. 7989/02 passed by Hon'ble Justice Sh. Manmohan Sarin before the Hon'ble High Court, it was held in the judgment dated 10.04.03 that licenses having been expired by efflux of time and not having been renewed the petitioner would be unauthorized occupant.
In his cross examination PW3/plaintiff has admitted that the license fees of the suit property has been paid only up to January, 2002 and thereafter, from February, 2002 to December, 2002, pay order was sent to the Chief Administrative Officer, Ministry of Defence, however, the same were returned on the ground of the Administrative reasons. The plaintiff has further admitted in his cross examination that monthly rebate has not Suit no. 571/2006 Page no. 13/20 been paid to the defendant no. 1 by the plaintiff since October, 1998 till April, 2003. The plaintiff has further acceded that defendant no. 5 has not granted any license in writing to him.
Section 52 of the Indian Easements Act, 1882 provides that: "Licence" defined - Where one person grants to another, or to a 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 licence."
Section 56 of the Indian Easements Act, 1882 provides that: "Unless a different intention is expressed or necessarily implied, a licence to attend a place of public entertainment may be transferred by the licensee; but, save as aforesaid, a licence cannot be transferred by the licensee or exercised by his servants or agents."
Thus, it is well settled that a license is a personal right granted to a person to do something upon the immovable property of the guarantor and does not amount to creation of interest in the property itself. Further, it is purely permissive right and is personal to the grantee.
Further, it is a well settled principle of law that a license is neither transferable or a heritable right.
Further, it is the case of the plaintiff that in view of the the Licence agreement as executed between the father of the plaintiff Sh. Paras Ram and the President of India on 1.1.1985 after the death of his father, the Suit no. 571/2006 Page no. 14/20 plaintiff has now become the licencee.
In Union of India Vs Hindustan Development Corporation (1993) 3 SCC 499, Doctrine of legitimate expectation has been discussed and it was held : "The doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does not give scope to claim relief straightway from the administrative authorities as no crystallized right as such is involved".
In Almitra H Patel and another Vs. Union of India and others JT 2000 (2) SC 341 Hon'ble Supreme Court has held : " However, in the present writ petitions at hand, it may be noted that though petitioners claim that their predecessorintitle were the original allottee of the shops or sites on licence basis, but in some of the cases, the present occupants are transferees/purchasers from original allottees. While the status of the petitioners is not that of rank encroaches on public land, nevertheless with the licenses having expired by efflux of time and not having been renewed, the petitioners would be unauthorised occupants under the Act. "
In view of the aforesaid judgment passed by the Hon'ble Supreme Court of India it can be said that the plaintiff at best has a legitimate expectation that after demise of his father Sh. Paras Ram, the defendant no. 5 shall execute a renewed license in favour of the plaintiff which admittedly has not been executed. The plaintiff has also produced Suit no. 571/2006 Page no. 15/20 PW2 Sh. Devi Dayal to show that defendant no. 5 had been renewing the license in favour of the LRs of the original allottee after the demise of the original allottee. However, in the absence of any such license in favour of the plaintiff and the earlier licenses having been expired by efflux of time, the status of the plaintiff is that of an unauthorised occupant in the suit premises as no crystallized right accrued in favour of the plaintiff.
As per the agreement dated 1.1.1985 executed between late Sh. Paras Ram and the defendant No. 5, it is mentioned that the word 'licence' shall include successorsininterest, legal representatives and heirs, however, in the absence of the renewal of the agreement, after is expiry, the licence cannot be said to have automatically devolved upon the plaintiff. Perusal of the statement made by the Union of India and its Administrative Officer in the suit filed by Sh. Paras Ram against the Union of India and its Administrative Officer, Ex. DW1/A, it has been mentioned that licence fee had been accepted without affecting the right and obligation of the parties to take possession of the suit premises in due course of law. Thus, in view of the aforesaid discussion, it cannot be said that the plaintiff is an unauthorized occupant in the suit premises therefore, this issue is decided in favour of the defendants and against the plaintiff.
Suit no. 571/2006 Page no. 16/20 17. Issue no. 3.
The onus of proving the present issue is upon the defendant no. 1, 2 and 4. The defendant no. 1, 2 and 4 has alleged in the WS that they are only the custodian in respect of the suit property and there responsibility is to manage the day to day affairs of the said property as well as to collect rebate as prescribed under the rules of Government of India and has therefore, nothing to do with the allottment of the suit property. The defendant no. 1, 2 and 4, therefore, stated that there is not cause of action against them. However, defendant no. 1, 2 and 4 failed to lead any evidence in support of their contentions and therefore, evidence of defendant no. 1, 2 and 4 was therefore, closed vide order of the Ld. Predecessor. The defendant no. 1, 2 and 4 have not denied in their written statements that the locks were put by defendant no. 1, 2 and 4 on the suit premises as alleged by the plaintiff. Since it is stated that the locks were put by defendant Nos. 1, 2 and 4, therefore, it cannot be said that the plaintiff does not have any cause of action against the defendants. In view of the above discussion the present issue is thus decided in favour of the plaintiff and against the defendants.
18. Issue no. 4.
The onus of proving the present issue is upon the plaintiff.
Suit no. 571/2006 Page no. 17/20 The plaintiff has alleged that the defendants had illegally locked the premises of the plaintiff. DW5 has deposed in his examinationinchief tht that the father of the plaintiff had been allotted the suit premises on "leave and license" basis and the said license expired on 31.12.1985 and the same was never renewed after it is expired. Therefore, it is further deposed that the plaintiff is unauthorised occupant of the suit property and has not paying the rebate amount to the hostel committee. Therefore, the committee had put locks on the suit premises bonafidely.
However, it is well settled principle of law that even a trespasser in possession of property is entitled to avail the protection of law from being evicted without due process of law being followed. The remedy of the defendants, if any lied in initiating eviction proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 or under any other law. The defendants cannot take law in their own hands. The defendants were therefore, not authorised to lock the premises without taking recourse to the process of law.
In view of the above discussion the present issue is thus decided in favour of the plaintiff and against the defendant.
19. Issue no. 5.
The onus of proving the present issue is upon the plaintiff.
Suit no. 571/2006 Page no. 18/20
The plaintiff has prayed for
(i) relief of declaration that plaintiff be declared as legally
authorised occupant of the suit premises.
(ii) relief of injunction against the defendants for directing
the defendants to remove the lock from the suit premises However, as already discussed under issue no. 2, the plaintiff is not an authorised occupant of the suit premises, therefore, the relief of declaration as prayed for in clause (i) cannot be granted in favour of the plaintiff. Vide order of the Ld. Predecessor dated 11.12.03 interim relief had been granted to the plaintiff wherein the defendants were directed to remove the locks from the suit premises till the pendency of the present suit. It has already been discussed above that defendant no. 1, 2 and 4 had illegally lock the suit premises without taking recourse to due procedure as laid down by law. Thus, in respect of clause (ii) of the prayer, the plaintiff is entitled to releif of permanent injunction against defendants.
20. Relief The suit of the plaintiff is therefore partly decreed. The defendant Nos. 1, 2 4 and 5 are hereby permanently restrained from locking the suit premises till the plaintiff is evicted from the suit premises after Suit no. 571/2006 Page no. 19/20 following due process of law by the defendants. No order as to costs.
Decree sheet be prepared accordingly. File be consigned to the record room after due compliance.
Announced in the open court (Manisha Khurana)
on 30.03.2011 Civil Judge, North (IV)
Tis Hazari Courts, Delhi
30.03.2011
This judgment consists of 20 pages and all the pages are duly signed by me.
(Manisha Khurana)
Civil Judge, North (IV)
Tis Hazari Courts, Delhi
30.03.2011
Suit no. 571/2006 Page no. 20/20
Suit no. 571/06
30.03.11
Present: Plaintiff in person.
Vide separate judgment of even date the suit of the plaintiff is partly decreed. The defendant Nos. 1, 2, 4 and 5 are hereby permanently restrained from locking the suit premises till the plaintiff is evicted from the suit premises after following due process of law by the defendants. No order as to costs.
Decree sheet be prepared accordingly. File be consigned to the record room after due compliance.
(Manisha Khurana)
Civil Judge, North (IV)
Tis Hazari Courts, Delhi
30.03.2011
Suit no. 571/2006 Page no. 21/20