Delhi District Court
Mohd. Danish Faisal vs Ndmc And Anr on 27 March, 2025
IN THE COURT OF SH. VINOD JOSHI
JSCC-CUM-ASCJ-GJ, PATIALA HOUSE COURTS,
NEW DELHI
CS No. 409/2021
IN THE MATTER OF:-
Mohd. Danish Faisal,
S/o Late Sh. Shafiq @ Shafiquddin,
134-M-11, C-Block, Connaught Place,
New Delhi. ...Plaintiff
Versus
1. New Delhi Municipal Council
Enforcement Department
Through its Director
Pragati Bhawan,
Jai Singh Road, New Delhi
2. Vinod Kumar
S/o Sh. Mahesh Chand
R/o 25/1, Trilokpuri
New Delhi-110091. ...Defendants
DATE OF INSTITUTION : 02.03.2021
DATE OF RESERVING THE ORDER : 27.03.2025
DATE OF DECISION : 27.03.2025
SUIT FOR DECLARATION, MANDATORY AND
PERMANENT INJUNCTION
JUDGMENT:
1. Vide this judgment, I shall dispose off the present suit filed by the plaintiff for declaration, mandatory and permanent injunction against the defendants.
CS No. 409/2021 Page No. 1/13Digitally signed by VINOD VINOD Date:
JOSHI JOSHI 2025.03.27 16:57:01 +0530
2. For better appreciation, the brief facts of the suit as per the plaint are summarized as follows:
(i) The plaintiff is the son of late Mohd. Shafiq @ Shafiquddin, who was a Tehbazari licence holder, operating at site no. 134, M-11, C-block, opposite Singer Machine (now Van Heusen showroom), inner circle, Connaught Place, New Delhi-01, measuring 4 ft. x 3 ft (hereinafter referred to as tehbazari site). The father of the plaintiff expired on 29.11.2019.
(ii) The defendant no.1 issued Tehbazari licence to the father of the plaintiff and has illegally removed the plaintiff from the site after the death of his father, despite the protection afforded by Street Vendors (Protection of Livelihood & Regulation of Street Vending) Act, 2014.
(iii) The defendant no.2 has allegedly entered into partnership vide partnership deed dated 23.07.2011, with the father of the plaintiff and he has been attempting to forcibly take over the tehbazari site allotted to father of the plaintiff.
(iv) The father of the plaintiff was tehbazari licence holder, as verified by the Thareja Committee vide order dated 21.10.1992 and has been operating at the tehbazari site since the year 1992. Subsequently, the father of the plaintiff was allotted a confirmed space at the tehbazari site vide order of Sh. V.C. Chaturvedi dated 22.06.1999.
(v) In May, 2016, the defendant no.1 cancelled the tehbazari licences of several persons, including the father of the plaintiff and all these persons approached the Hon'ble High Court of Delhi vide separate writ petitions. The writ petition WP (C) No. 5292/2016, filed by the father of the plaintiff was decided CS No. 409/2021 Page No. 2/13 Digitally signed by VINOD VINOD Date:
JOSHI JOSHI 2025.03.27 16:57:15 +0530 alongwith the other writ petitions, by way of order dated 06.12.2016, whereby the cancellation orders were set aside and the petitioners were allowed to continue with their tehbazari sites upon payment of license fee and adherence to terms and conditions of the license.
(vi) The father of the plaintiff continued to operate from the tehbazari site till his demise on 29.11.2019 and the license fee was deposited with the defendant no.1 till July, 2019, wherein after the father of the plaintiff fell ill.
(vii) After the death of his father, an application for transfer of license was made by the plaintiff in November 2019, on behalf of his mother and a request was submitted on 04.02.2020. As the mother of the plaintiff was having some health issues, it was decided between the family members that a request for transfer of license will be made in favour of the plaintiff. Accordingly, the plaintiff vide letter dated 28.02.2020, requested defendant no.1 to transfer the tehbazari license in his favour, as the other legal heirs of his father had given no objection to the same.
(viii) The plaintiff started sitting at the tehbazari site with his goods and had requested that he may be allowed to operate from the tehbazari site pending decision for formal transfer, however, the plaintiff did not receive any positive response and instead, his goods were removed from the tehbazari site on 29.01.2020. The plaintiff wrote a letter dated 01.02.2020, seeking release of his goods and also paid removal charges of Rs.2400/- for release of the goods. The tehbazari site has remained unoccupied thereafter. The plaintiff also tried to pay the tehbazari fees for the site, however, the defendant no.1 refused to accept the same.
CS No. 409/2021 Page No. 3/13Digitally signed by VINOD VINOD JOSHI JOSHI Date:
2025.03.27 16:57:23 +0530
(ix) On 18.02.2020, the plaintiff was informed by one of his neighbours that some unsavory elements had tried to forcibly take over tehbazari site. The plaintiff immediately reached the site, where he was threatened by the person with dire consequences and the plaintiff called upon '100' police helpline. The police immediately reached the site and helped the plaintiff to deal with the situation and the said person was removed from the site. The plaintiff came to know that it was defendant no.2, who tried to take forcible possession of the tehbazari site. The plaintiff filed the police complaint dated 18.02.2020.
(x) The defendant no.1 had been permitting other similarly placed persons (where original tehbazari license holder has expired) to operate from their respective sites, however, in the case of the plaintiff, they acted to the contrary. The plaintiff and his family are completely dependent on the tehbazari site.
(xi) The plaintiff approached the Hon'ble High Court of Delhi by way of WP (C) 2701/2020, against the defendant no.1, wherein the defendant no.1 was directed to file status report vide order dated 11.03.2020. The plaintiff received the affidavit of defendant no.1 in response to the writ petition.
(xii) The defendant no.1, in the counter-affidavit stated that the father of the plaintiff had sublet the tehbazari site to Mr. Vinod Kumar by way of partnership deed, which is a violation of the terms of tehbazari license.
(xiii) The alleged partnership deed had only surfaced during the aforesaid proceedings before the Hon'ble High Court of Delhi.
The partnership deed is a forged and fabricated document and does not bear the signatures of the father of the plaintiff.
CS No. 409/2021 Page No. 4/13Digitally signed by VINOD VINOD Date:
JOSHI JOSHI 2025.03.27 16:57:29 +0530
(xiv) The Hon'ble High Court of Delhi disposed of the WP (C) 2701/2020, by way of order dated 19.01.2021, wherein the following observations were made in para no.6:-
"Even otherwise, in these proceedings, we cannot get into disputed questions of facts/documents or claims which are founded thereupon. It would, however, be open to the Petitioner to raise all such issues before the Town Vending Committee, or any appropriate forum/Court competent to decide the same"
(xv) The Town Vending Committee for NDMC area is yet not functional and therefore the plaintiff had approached this court.
(xvi) The plaintiff got the alleged signatures of his father upon the partnership deed dated 23.07.2011, examined and compaired with his actual signatures from the handwriting and fingerprints expert Sh. Deepak Jain, who furnished the report dated 04.02.2021 and opined that the alleged signatures on the partnership deed are not of the father of the plaintiff, Mohd. Shafiq @ Shafiquddin.
(xvii) Since the plaintiff is the legal heir of Mohd. Shafiq @ Shafiquddin, he is entitled to vend at the tehbazari site. As defendant no.1 has been giving permission to similarly placed persons in respect of tehbazari sites at Connaught Place and Sarojini Nagar areas, their refusal to allow the same to the plaintiff is arbitrary and discriminatory. The Town Vending Committee for NDMC area constituted under Street Vendors (Protection of Livelihood & Regulation of Street Vending) Act, 2014, is not yet functional and therefore, the plaintiff has filed the present suit. (xviii) The plaintiff seeks a declaration that the partnership deed dated 23.07.2011, is a forged document and that the plaintiff is the CS No. 409/2021 Page No. 5/13 Digitally signed by VINOD VINOD Date:
JOSHI JOSHI 2025.03.27 16:57:34 +0530 rightful holder/owner of tehbazari site. Plaintiff seeks mandatory injunction for direction to the defendant no.1 to transfer the tehbazari license of his father in the name of the plaintiff and to allow him to squat at the tehbazari site. Plaintiff also seeks permanent injunction against defendant no.2, thereby restraining him from interfering with the possession of the tehbazari site.
3. The summons of the suit were issued and duly served upon the defendants. Defendant no.1 failed to file its WS and the right to file WS was closed vide order dated 17.11.2021. Defendant no.2 also failed to file WS and he was proceeded ex parte vide order dated 17.11.2021.
4. Following issues were framed in the present suit vide order dated 14.09.2022.
Issue No.1- Whether the plaintiff is entitled to decree of declaration, as prayed for in prayer A? OPP.
Issue No.2- Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for in prayer B? OPP.
Issue No.3- Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for in prayer C? OPP.
Issue No.4- Whether the plaintiff is entitled to decree of permanent injunction, as prayed for in prayer D? OPP.
Relief.
Matter was thereafter, listed for PE.
5. The plaintiff/PW1, tendered his evidence by way of affidavit Ex. PW1/A and deposed on the same lines as stated in the plaint.
CS No. 409/2021 Page No. 6/13Digitally signed by VINOD VINOD Date:
JOSHI JOSHI 2025.03.27 16:57:41 +0530 He has also relied upon the following documents:-
a) Copy of death certificate of late Mohd. Shafiq is Ex.PW1/1 (OSR);
b) Copy of possession slip is Ex.PW1/2 (OSR);
c) Copy of notice dated 10.06.2005 is Ex.PW1/3 (OSR);
d) Copy of judgment dated 06.12.2016 titled as Jagdish Vs. NDMC & Ors. is Ex.PW1/4 (OSR);
e) Application for transfer of the license on behalf of my mother Smt. Shahina dated 04.02.2020 is Ex.PW1/5;
f) Copy of letter dated 28.02.2020 is Ex.PW1/6 (OSR);
g) Copy of payment receipt dated 05.02.2020 is Ex.PW1/7 (OSR);
h) Photographs is Ex.PW1/8;
i) Copy of police complaint dated 18.02.2020 is Ex.PW1/9;
j) Copy of handwriting expert report dated 04.02.2021 is Ex.PW1/10 (OSR);
k) Copy of order dated 21.10.1992 is Ex.PW1/11 (OSR);
1) Copy of order dated 22.06.1999 is Ex.PW1/12 (OSR);
m) Copy of letter dated 01.02.2020 is Mark-A;
n) Copy of counter affiadvit on behalf of NDMC in W.P.(C) No.2701/2020 filed before Delhi High Court is Mark-B;
o) Copy of Partnership Deed dated 23.07.2011 is Mark-C; and
p) Copy of order dated 11.03.2020 is Mark-D. PW-1 was duly cross-examined by Ld. counsel for the defendant no.1.CS No. 409/2021 Page No. 7/13
Digitally signed by VINOD VINOD Date:
JOSHI JOSHI 2025.03.27 16:57:48 +0530
6. Sh. Deepak Jain, private handwriting and fingerprint expert, deposed as PW2 and relied upon his report Ex.PW1/10 (OSR). He was duly cross-examined by the ld. Counsel for defendant no.1. PE was thereafter closed and matter was listed for DE/final arguments.
7. Final arguments have been heard. I have perused the entire record.
8. My issue-wise findings are as under:-
Issue No.1- Whether the plaintiff is entitled to decree of declaration, as prayed for in prayer A? OPP.
The onus of proving this issue is upon the plaintiff. The plaintiff seeks two reliefs by way of prayer (a) in the plaint. He seeks a declaration that the partnership deed dated 23.07.2011(Mark C), is invalid and forged document. He also seeks the declaration that he be declared the rightful holder/owner of the tehbazari site.
9. It is not disputed that the father of the plaintiff was having the tehbazari license in respect of the tehbazari site till his death on 29.11.2019. The plaintiff thereafter, applied for the transfer of license in his mother's name, however, due to health issues of the mother, it was decided by the family members that the request for transfer of license in the name of the plaintiff will be applied for. Accordingly, the plaintiff applied for transfer of the tehbazari license in his name, with the defendant. The plaintiff states that the CS No. 409/2021 Page No. 8/13 Digitally signed by VINOD VINOD Date:
JOSHI JOSHI 2025.03.27 16:57:55 +0530 defendant no.1 has been permitting similarly placed persons (wherein the original license holder has died), to continue with the tehbazari site, however, in the case of the plaintiff the defendant no.1 acted to the contrary and therefore, the plaintiff filed the writ petition WP (C) 2701/2020, titled as "Danish Faisal Vs. NDMC and Ors.", before the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi disposed of the petition in the following terms:-
"Even otherwise, in these proceedings, we cannot get into disputed questions of facts/documents or claims which are founded thereupon. It would, however, be open to the Petitioner to raise all such issues before the Town Vending Committee, or any appropriate forum/Court competent to decide the same"
10. The plaintiff has stated that the defendant no.1 in the counter-affidavit, filed before the Ho'ble High Court in the aforesaid writ petition, has made an averment that the father of the plaintiff had entered into a partnership deed with the defendant no.2 on 23.07.2011 and therefore, the father of the plaintiff has sublet the tehbazari site to defendant no.2. The plaintiff has challenged the authenticity of the partnership deed dated 23.07.2011, so relied upon by defendant no.1.
11. The plaintiff has duly filed on record the report of handwriting expert Sh. Deepak Jain, as Ex.PW1/10 (OSR). Sh. Deepak Jain has also deposed on oath as PW2. As per the report, the alleged signatures of the father of the plaintiff, namely Mohd. Shafiq @ Shafiquddin, have been compared with his signatures CS No. 409/2021 Page No. 9/13 Digitally signed by VINOD VINOD Date:
JOSHI JOSHI 2025.03.27 16:58:03 +0530 appearing on affidavit and Vakalatnama, filed on his behalf in the WP (C) No. 5292/16, before the Hon'ble High Court of Delhi. The alleged signatures have also been compared with his signatures appearing in the challan receipts of the NDMC, issued in respect of deposition of tehbazari license fees. The handwriting expert has concluded that the disputed signatures and the comparative signatures are not of the same person. PW2 has stood the test of cross-examination and no material contradiction has been brought out in his testimony during the cross-examination. The plaintiff has been able to show that the signatures appearing on the alleged partnership deed dated 27.03.2011 (Mark C), do not pertain to his father, Mohd. Shafiq @ Shafiquddin. Therefore, the plaintiff is entitled to the declaration upon the partnership deed (Mark C), against the defendants. The plaintiff has also sought declaration that he is the rightful holder/owner of the tehbazari site, however, in the opinion of the court such relief is not maintainable as the tehbazari site is allotted on the basis of license and does not confer any ownership and therefore, the plaintiff cannot claim ownership upon the same. The issue is partly allowed in favour of the plaintiff and against the defendants.
Issue No.2 and 3:
Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for in prayer B? OPP.
Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for in prayer C? OPP.
12. The onus of proving these issues is upon the plaintiff. The relief sought in prayer (b) and (c) are similar in nature and prayer CS No. 409/2021 Page No. 10/13 Digitally signed by VINOD VINOD Date:
JOSHI JOSHI 2025.03.27 16:58:10 +0530
(c) is corollary to prayer (b). It has been proved that the plaintiff has applied for transfer of license of tehbazari site in his name with the defendant no.1, after the demise of his father. The application dated 28.02.2020, for such request is already on record as Ex.PW1/6.
13. The plaintiff has stated that the Town Vending Committee is not functional and therefore, the plaintiff has approached this court. The plaintiff has relied upon section 5 (2) of Street Vendors (Protection of Livelihood & Regulation of Street Vending) Act, 2014. It is claimed that the tehbazari site is the only source of income for the family. It is further submitted that the mother of the plaintiff cannot continue the tehbazari site due to health issues and therefore, the plaintiff has applied for transfer of license in his own name and he is entitled to transfer on the basis of section 5 (2) of Street Vendors (Protection of Livelihood & Regulation of Street Vending) Act, 2014.
14. Section 5(2) of Street Vendors (Protection of Livelihood & Regulation of Street Vending) Act, 2014, provides that when a street vendor having certificate of vending dies, one of the family members may vend in his place, till the validity of the certificate of vending. As per the provision, the first priority is to be accorded to the spouse of the street vendor and the dependent child of the street vendor comes next. The defendant NDMC have not disputed the factual position as discussed in preceeding paragraph. Further, no reply to the request of the plaintiff has been furnished by the NDMC or the Town Vending Committee. It is an admitted position CS No. 409/2021 Page No. 11/13 Digitally signed by VINOD VINOD Date:
JOSHI JOSHI 2025.03.27 16:58:16 +0530 that the Town Vending Committee formed under the provisions of Street Vendors (Protection of Livelihood & Regulation of Street Vending) Act, 2014, is not functional for NDMC. Therefore, there is no justification on the part of the defendant NDMC to keep the application of the plaintiff in abeyance and thereby the plaintiff is justified in approaching this court. The issues are decided in favour of the plaintiff and against the defendants.
Issue No.4- Whether the plaintiff is entitled to decree of permanent injunction, as prayed for in prayer D? OPP.
15. The onus of proving this issue is upon the plaintiff. The plaintiff has alleged that the defendant no.2 had tried to forcibly occupy the tehbazari site and the complaint Ex.PW1/9, has been filed with the police. The counter-affidavit (Mark C), shows that the defendant NDMC has also averred before the Hon'ble High Court that the plaintiff and the defendant no.2 had a fight and consequently both of them were removed from the tehbazari site on 14.03.2020, for the time being. The defendant no.2 has not appeared or contested the present case. The allegations against defendant no.2 have remained unrebutted. Accordingly, this issue is decided in favour of the plaintiff and against the defendant no.2.
Relief:-
16. In view of above said discussion, the suit of the plaintiff is partly decreed. The plaintiff is held entitled to the declaration against the defendants that the partnership deed (Mark C) dated 23.07.2011, does not bear the signatures of Mohd. Shafiq @ CS No. 409/2021 Page No. 12/13 Digitally signed by VINOD VINOD Date:
JOSHI JOSHI 2025.03.27 16:58:22 +0530 Shafiquddin and is therefore, invalid and forged. The defendant no.1 is directed to transfer the tehbazari license issued to Mohd. Shafiq @ Shafiquddin in respect of site no. 134, M-11, C-block, opposite Singer Machine (now Van Heusen showroom), inner circle, Connaught Place, New Delhi-01, measuring 4 ft. x 3 ft., in favour of the plaintiff and further allow the plaintiff to vend at the said tehbazari site. The defendant no.2 is restrained from vending at the tehbazari site no. 134, M-11, C-block, opposite Singer Machine (now Van Heusen showroom), inner circle, Connaught Place, New Delhi-01, measuring 4 ft. x 3 ft. and is also restrained from interfering with the possession of the plaintiff of the said tehbazari site. No order as to costs.
17. Decree-sheet be prepared accordingly.
18. File be consigned to the record room after due compliance.
Announced in open Court VINOD JOSHI
Delhi Dated 27.03.2025 JSCC/ASCJ/GJ/PHC
New Delhi/27.03.2025
CS No. 409/2021 Page No. 13/13
Digitally
signed by
VINOD
VINOD JOSHI
JOSHI Date:
2025.03.27
16:58:27
+0530