Delhi District Court
Ii Sh. Deepak Aggarwal vs The State (Govt. Of Nct Of Delhi) on 4 April, 2014
IN THE COURT OF SH. CHANDER SHEKHAR,
DISTRICT & SESSIONS JUDGE (NORTHWEST),
DISTRICT COURTS : ROHINI : DELHI.
MCD Appeal No. 3/11
Sh. Jagdish Prasad Aggarwal
(since deceased) Through LRs.
I Smt. Kamla Devi
Wd/o Late Sh. Jagdish Prasad Aggarwal
II Sh. Deepak Aggarwal,
S/o Late Sh. Jagdish Prasad Aggarwal,
Both R/o : Opposite Quarter No. 254255,
MCD Staff Colony, Azadpur, Delhi .......Appellants
Vs.
1. The State (Govt. of NCT of Delhi)
2 MCD (North), Land & Estate Office,
Through its Commissioner,
City Civic Centre,
Minto Road, New Delhi
3 Land & Estate Officer,
MCD (North)
City Civic Centre,
Minto Road, New Delhi ..........Respondents
Date of institution : 03.11.2011
Date of hearing arguments : 28.03.2014
Date of Judgment : 04.04.2014
MCD Appeal No. 3/11 Jagdish Pd. Aggarwal v. The State & Ors. Page 1 of 10
J U D G M E N T
1 This Judgment shall govern the disposal of an appeal u/s 347B of the DMC Act filed by the appellant against the Judgment dated 29.01.2009 passed by the Ld. Appellate Tribunal, MCD, whereby the Ld. Appellate Tribunal, MCD, was pleased to dismiss the appeal of the appellant.
2 The brief facts, as per the appeal, which are germane for the disposal of the present appeal are that a plot opposite Quarter No.254255, MCD Staff Quarters Colony, Azadpur, Delhi was allotted to Shri Nand Lal, father of the deceased appellant, way back in the year 1958 and the structure upon the site was raised by him as per the approved site plan and key plan and according to the site plan the area of the site is near about 300 sq. yards. A wholesale coal licences bearing No.234 was also issued to him to deal and carry on the business of wholesale coal and fuel wood by the Food & Supply Department of Delhi Administration. The appellant never raised any illegal construction over the same nor encroached any land besides the approved area. After the death of the father of the appellant in the year 1982, the allotment was transferred in the name of the appellant MCD Appeal No. 3/11 Jagdish Pd. Aggarwal v. The State & Ors. Page 2 of 10 on the same terms and conditions as given to his father and since then the appellant has been regularly paying the damaged charges. Since the business of coal and fuel wood has been abolished from Delhi, the appellant was using the premises as his godown for storage of mixtures/Namkeen. On 17.05.2007 at about 3:30 pm five persons arrived at the spot and threw out the goods lying inside the godown and sealed the property. Feeling aggrieved by the sealing action of plot opposite 254255, MCD Staff Quarters Colony, Azadpur, Delhi 33, an appeal was preferred by the appellant before the Appellate Tribunal, MCD, Delhi.
3 The Ld. Appellate Tribunal, MCD, Delhi vide the impugned order dated 29.01.2009 dismissed the appeal filed by the appellant.
4 The appellant against the impugned order dated 29.01.2009 preferred this appeal before this Court alleging therein, inter alia, that the appellant has been regularly paying the damages of the premises and as such is entitled to use the premises.
Apart from the other things, it is stated that the appellant has not been served with any show cause notice and the sealing of the MCD Appeal No. 3/11 Jagdish Pd. Aggarwal v. The State & Ors. Page 3 of 10 premises by the MCD is illegal and unlawful and against the bylaws, hence, the impugned order is liable to be set aside. Therefore, the present appeal.
5 Notice of the appeal was issued to the respondent and the respondent chose not to file any written reply but placed on record the entire record of the Ld. Appellate Tribunal, MCD. 6 I have heard Ld. counsel for the parties and have gone through the record including the records of the Ld. Appellate Tribunal, MCD and the impugned order dated 29.01.2009 passed by the Ld. Appellate Tribunal, MCD as well as the written submissions filed by the appellant.
7 During the course of arguments, Ld. counsel for the appellant submitted that the Ld. Appellate Tribunal, MCD has failed to appreciate that the appellant has not been given any proper opportunity of being heard and not served with any show cause notice by the MCD before sealing the said premises of the appellant.
It is further submitted that the Ld. Appellate Tribunal, MCD failed to appreciate that the appellant has been regularly paying MCD Appeal No. 3/11 Jagdish Pd. Aggarwal v. The State & Ors. Page 4 of 10 the damages of the premises and as such is entitled to use the premises.
It is further submitted that the sealing of the premise of the appellant is bad in law as no prior permission was sought from higher authority and there is no any kind of complaint from any side against the premises which prompted the respondent to seal the same. It has been prayed that the present appeal may be allowed and the impugned order dated 29.01.2009 may be set aside.
8 On the other hand, Ld. counsel for the respondents no.2 & 3 relied upon the impugned order dated 29.01.2009 and submitted that the appellant was given possession of the property as a licensee and a person who is given possession of a property as a licensee cannot claim the status of a lessee even if he is given exclusive possession. It is further argued that the rule is that once a licensee always a licensee and that on the expiry of the license, occupant becomes a trespasser and can be thrown out by permissible self help.
9 In view of the submissions of the Ld. counsel for the parties, written submissions filed on behalf of the appellant, record of the MCD and the impugned order dated 29.01.2009, I do not find any MCD Appeal No. 3/11 Jagdish Pd. Aggarwal v. The State & Ors. Page 5 of 10 substance in the present appeal, in view of the findings of the Ld. Appellate Tribunal, MCD which has considered that the appellant has failed to prove any infirmity in the action taken by the respondents which calls for interference. Besides the fact that the appeal is barred by time and is not maintainable in view of the Appellate Tribunal ( Procedural) Rules, 1986. Ld. Appellate Tribunal, MCD has given a thoughtful consideration in its rightful perspective regarding the fact whether the appellant has been able to assign sufficient cause for condonation of delay in filing the appeal or not. In this regard, the Ld. Appellate Tribunal has taken into consideration all the dates and the fact that there is no explanation much less any satisfactory explanation is forthcoming as to why after the withdrawal of the civil suit immediately the appeal was not filed. The appellant has failed to assign any sufficient cause for delay in filing the appeal and therefore the delay in filing the appeal cannot be condoned. This itself is sufficient to dismiss the appeal of the appellant since it is barred by time. The appellant has failed to disclose day to day delay in filing the appeal within stipulated period. The appellant has also failed to satisfy the Ld. Appellate Tribunal, MCD as well as this Court also about the sufficient cause and explain the day to day delay in not filing the appeal within the stipulated period. Hence, I do not find any flaw or MCD Appeal No. 3/11 Jagdish Pd. Aggarwal v. The State & Ors. Page 6 of 10 infirmity in the order of the Ld. Appellate Tribunal, MCD in holding that the delay in filing of the appeal cannot be condoned. Therefore, the delay in preferring the appeal cannot be condoned. 10 I also do not find any substance in the submissions of the Ld. counsel for the appellant, apart from the above facts, that the appellant was entitled for show cause notice. In this regard, it is held in the matter of Chandu Lal, Bal Krishan, Madan Mohan, Mohan Lal vs. MCD, 1978 RLR 278, there is a catena of authorities in support of the proposition that in the case of a license there is something less than a right to enjoy the property in the licensee; it is terminable while on the other hand, in the case of a lease, there is a transfer of a right to enjoy the property or in other words the lessee is entitled to enjoy the property. A bare licensee having no interest in the property cannot maintain an action for its possession. A mere licensee has only a right to use the property. Such a right does not amount to an easement or an interest in the property but is only a personal privilege to the licensee. After the termination of the license, the licensor is entitled to deal with the property as he likes. This right he gets as an owner in possession of his property. He need not secure MCD Appeal No. 3/11 Jagdish Pd. Aggarwal v. The State & Ors. Page 7 of 10 a decree of the Court to obtain this right. He is entitled to resist in defence of his property the attempts of a trespasser to come upon his property by exerting the necessary and reasonable force to expel a trespasser."
11 Furthermore in the matter of 'Dr. K.R.K. Talwar vs. Union of India and another, AIR 1977 Delhi 189', it has been held by our own Hon'ble High Court that where the lease of a tenant is terminated or the allotment is cancelled the authority under which he was allowed to occupy disappears and he becomes a person in "unauthorised occupation" of the premises. The lessor or the allotter has an absolute right to terminate the lease or cancel the allotment, it is not permissible in the course of judicial review to probe into the reasons for such action. The justifiability of such an action is not open to judicial review at all."
12 In the light of the above observations, the appellant cannot claim settled possession as claimed and argued by the Ld. counsel for the appellant. It is well settled proposition of law that a person who is given possession of a property as a licensee cannot claim the status of MCD Appeal No. 3/11 Jagdish Pd. Aggarwal v. The State & Ors. Page 8 of 10 a lessee even if he is given exclusive possession. The rule is that once a licensee always a licensee. On the expiry of the license, occupant becomes a trespasser and can be thrown out by permissible self help. The appellant has failed to produce any document even regarding his title over the suit land/ premises. Hence, I fully concur with the findings of the Ld. Appellate Tribunal, MCD that the appellant has failed to prove that he was entitled for any notice or opportunity of being heard prior to sealing of the property in as much as it is a Government Land and then for removal of encroachment, no notice is either necessary for removal or for sealing.
13 The Ld. Appellate Tribunal, MCD, in its well reasoned order has correctly interpreted and has relied upon the policies and procedure for removal of unauthorized occupant. 14 The impugned order is a well reasoned order and the directions contained therein are not liable to be set aside on any ground. Hence, I do not find any reason to interfere in the findings of Ld. Appellate Tribunal, MCD. I see no substance in this appeal as nothing could be pointed out from the contentions of the appellant. MCD Appeal No. 3/11 Jagdish Pd. Aggarwal v. The State & Ors. Page 9 of 10 15 In the result, I hold that this appeal is devoid of any merits and is accordingly dismissed and the Order of the Ld. Appellate Tribunal, MCD, is hereby confirmed. However, parties are left to bear their own costs. Record of the Appellate Tribunal be sent back along with an attested copy of the Judgment passed today.
Appeal file be consigned to Record Room, after completing the necessary formalities.
Announced in the open Court
today i.e. 04.04.2014 (CHANDER SHEKHAR)
District & Sessions Judge (NW)
Rohini Courts, Delhi
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MCD Appeal No. 3/11
04.04.2014
Present : None.
Vide separate Judgment of the even date, the appeal has been dismissed. However, parties are left to bear their own costs. Record of the Ld. Appellate Tribunal MCD be sent back along with an attested copy of the Judgment passed today.
Appeal file be consigned to Record Room, after completing the necessary formalities.
(CHANDER SHEKHAR) District & Sessions Judge (NW) Rohini Courts, Delhi MCD Appeal No. 3/11 Jagdish Pd. Aggarwal v. The State & Ors. Page 12 of 10