Delhi District Court
Sh. Shiv Prakash vs Sh. Vinay on 8 July, 2011
IN THE COURT OF SH. SANJAY SHARMA, JSCCCUMASCJCUM
GUARDIAN JUDGE (WEST): DELHI
SUIT NO. 195/10
Unique Case I.D. No. 02401C0434742010
Sh. Shiv Prakash
S/o Sh. Puran Chand
R/o WZ885886, Nangal Raya,
New Delhi110045. ...........Plaintiff
Versus
1. Sh. Vinay
S/o Sh. S.C. Bhagra
2. Smt. Sudershan Bhagra
W/o Late Sh. S.C. Bhagra
Both R/o 1/71, Sadar Bazar,
Delhi Cantt, New Delhi.
3. Municipal Corporation of Delhi
Through its Commissioner
Chandni Chowk, Town Hall,
Delhi110006. .........Defendants
Date of filing of the application : 23.09.2010
Date of reserving order : 18.05.2011
Date of pronouncement of order : 08.07.2011.
O R D E R
1. The plaintiff filed an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (Hereinafter referred as 'the Code') for grant of interim injunction restraining the defendant no. 3/MCD from disallowing the plaintiff from running Suit No. 195/10 Page No.12/1 meat shop in one shop in property no. WZF, 63/3, Gali No. 6, Varinder Nagar, New Delhi110058 (Hereinafter referred as 'the suit shop') on the basis of old license and further, restraining the defendant no.3/MCD from sealing the suit shop and also seeking a direction to the defendant no. 1 and 2 to give 'No Objection Certificate' to the plaintiff so as to enable him to obtain new municipal license for running meat shop in the suit shop.
2. The plaintiff filed a suit for permanent injunction and mandatory injunction against the defendants on the averments that the plaintiff is a tenant of the defendant no. 1 in respect of the suit shop @ Rs.1800/ per month. The plaintiff is running a meat shop from the suit shop since the inception of tenancy and had obtained a municipal license from the defendant no. 3/MCD, which was renewed from time to time. The plaintiff has paid rent up to October, 2008 but the plaintiff has not issued any rent receipt in that regard. The plaintiff had paid Rs.2,00,000/ in cash as security to the defendant no. 1, which is refundable without interest at the time of vacation of the suit shop. It is stated that the defendant no. 1 and 2 have claimed vacant possession of the suit shop in their own right and threatened to dispossess him from the suit shop without due process of law and therefore, the plaintiff filed a suit for permanent injunction against the defendant no. 1 and 2. The defendant no. 2 has filed a suit for possession against the plaintiff in respect of the suit shop. The said suits are pending adjudication before the Civil Courts.
Suit No. 195/10 Page No.12/2
3. The case of the plaintiff is that he had approached the defendant no. 3/MCD for renewal of the license. The plaintiff was informed by the officials of the defendant no.3/MCD that he has to obtain a new license as per changed policy and furnish a 'No Objection Certificate' from the landlord. The defendant no. 1 and 2 would not give 'No Objection Certificate' in view of litigation and therefore, the plaintiff had agreed to provide court proceedings and documents filed in courts so as to show that he is a tenant in respect of the suit shop. The officials of the defendant no. 3/MCD had insisted for 'No Objection Certificate' from the landlord and refused to grant new license or renew the old license for running meat shop in the suit shop. The defendant no. 1 and 2 had refused to issue 'No Objection Certificate'. The plaintiff cannot run meat shop in the suit shop without a valid license. The defendant no. 3 has threatened to seal the suit shop in the absence of new license. It is stated that the defendant no. 3/MCD cannot insist for 'No Objection Certificate' from the landlord in the presence of the documents showing the status of the plaintiff in respect of the suit shop where he has been running meat shop under valid license granted by the defendant no.3/MCD, which was renewed from time to time. It is stated that demand of 'No Objection Certificate' from the landlord and consequent, nonissuance of license is illegal. The plaintiff is unable to earn his livelihood and thereby, he is suffering irreparable loss and injury. The plaintiff was running the meat shop in accordance with the Rules and Regulations of the Municipal Authority and therefore, he is entitled to run meat shop in the suit shop on the basis of old license till the new license is granted by the defendant no.3/MCD.
Suit No. 195/10 Page No.12/3
4. In their joint written statement, the defendant no. 1 and 2 have stated that the plaintiff is an unauthorized occupant in respect of the suit shop w.e.f. 01.12.2008. The tenancy of the plaintiff was terminated by the defendant no. 2 vide notice dated 31.10.2008. The plaintiff has not paid the arrears of rent @ Rs.7000/ per month since 01.11.2006 to 30.11.2008. The plaintiff is not entitled to enjoy the suit shop without making payment of the arrears of rent and occupational charges. The defendant no. 1 has no concern with the suit shop as he has sold the suit shop to the defendant no. 2 in May, 2004. The plaintiff has concealed the fact that he had entered into a written rent agreement with the defendant no. 1 and thereafter, with the defendant no. 2. It is denied that the plaintiff is a tenant under the defendant no. 1 in respect of the suit shop @ Rs.1800/ per month. The plaintiff has not filed any document with regard to issuance, expiry and renewal of the license. The plaintiff was running the meat shop without license for several years. The plaintiff was a tenant under the defendant no. 2. The plaintiff is not entitled to 'No Objection Certificate' as he has not cleared the arrears of rent and he is an unauthorized occupant. It is admitted that the defendant no. 2 has filed a suit for possession against the plaintiff.
5. In its written statement, the defendant no. 3/ MCD stated that the plaintiff had given an application dated 24.09.2010 along with an affidavit wherein he had stated that he had vacated the suit shop and he will not run meat shop without obtaining the municipal license for the sale of meat.
Suit No. 195/10 Page No.12/4
6. According to the defendant no. 3/MCD, the plaintiff was running a meat shop in the suit shop under an Adhoc license issued by the DHO, Health Department on 15.11.2001 for sale of mutton and chicken. The said adhoc license was renewed up to March, 2006 by the Veterinary Officer of Veterinary Services Department (West Zone). It is stated that the MCD vide Resolution no. 143 dated 10.07.2006 had approved the Meat Licensing Policy/Guidelines. The meat shop owner having adhoc license were directed to follow the terms and conditions as per regular policy and further to submit the necessary documents, failing which the adhoc license would not be continued. On 05.10.2009, the plaintiff was directed to obtain 'No Objection Certificate' from the landlord and complete the formalities to obtain the trade license under regular policy of the department against the application dated 04.07.2009. The plaintiff was directed vide letter dated 10.12.2009 to submit the required documents. The plaintiff was required to complete the formalities within 15 days vide letter dated 13.02.2010. The plaintiff failed to submit 'No Objection Certificate' therefore, a show cause notice dated 03.09.2010 was served upon the plaintiff. The plaintiff had refused to receive the said show cause notice and therefore, the said notice was affixed at the door of the suit shop. The plaintiff was challaned by Veterinary Inspector on 01.09.2010. The plaintiff cannot run the meat shop without proper license in terms of the regular policy. The plaintiff must submit the 'No Objection Certificate' from the landlord in order to obtain trade license from the Department as per its regular policy approved vide Resolution no. 143 dated 10.07.2006.
Suit No. 195/10 Page No.12/5
7. The case case of the defendant no. 3/MCD, the plaintiff cannot be allowed to run the meat shop till the submission of 'No Objection Certificate' from the landlord. The plaintiff must submit the rent receipt as well as rent agreement before renewal of Trade License for sale of meat after 31st of March of every year even after issuance of Trade License under regular policy.
8. I have heard arguments of Sh. C.P. Vig, Adv. for the plaintiff, Sh. Praveen Suri, Adv. for the defendant n. 1 and 2, Sh. V.K. Aggarwal, Adv. for the defendant no. 3 and carefully considered the material placed on record.
9. Ld. Counsel for the plaintiff argued that the plaintiff is a tenant in respect of the suit shop @ Rs.1800/ per month. He argued that the plaintiff has been running a meat shop in the suit property under a valid Municipal License. He argued that the MCD had granted the license for sale of meat in respect of the suit shop on 15.11.2001. He argued that the plaintiff has been running a meat shop under a valid license since 15.11.2001, which was renewed from time to time up to 31.03.2006. He argued that the MCD had insisted for submission of 'No Objection Certificate' from the landlord in order to grant fresh license as per changed policy. He argued that the plaintiff is unable to furnish 'No Objection Certificate' as the defendant no. 1 and 2 have already filed a suit for possession against him and they would not issue any 'No Objection Certificate' in his favour. He argued that the plaintiff and the defendant no. 2 are litigating against each other and the defendant no. 1 and 2 have refused to issue 'No Objection Certificate'. Suit No. 195/10 Page No.12/6
10. Ld. Counsel for the plaintiff further argued that the defendant no. 3/MCD would not issue Trade License in the absence of 'No Objection Certificate' from the landlord and as such the plaintiff is not able to run his meat shop. He argued that the MCD vide office order dated 01.04.2010 pursuant to Resolution no. 203 dated 10.08.2004 has dispensed with the requirement of 'No Objection Certificate' in case the applicant furnishes Rent Agreement/ Rent Receipts or any other documents. He argued that the plaintiff would file the documents as well as the copies of the civil cases pending between the parties wherein the defendant no. 1 and 2 have admitted the status of the plaintiff in respect of the suit shop as a tenant. He argued that the plaintiff is running his livelihood from the meat shop and in case the requirement of 'No Objection Certificate' is not dispensed with and the MCD is not directed to consider the documents filed by the parties in the Court cases in placed of 'No Objection Certificate', the plaintiff would suffer irreparable loss and injury. He argued that the MCD be directed to consider the said documents in place of 'No Objection Certificate' and issue Trade License in favour of the plaintiff. He argued that the balance of convenience is in favour of the plaintiff and against the defendants as the plaintiff is a tenant in respect of the suit shop where he has been running the meat shop under a valid license.
11.Ld. Counsel for the defendant no. 1 and 2 argued that the plaintiff is an unauthorized occupant in respect of the suit shop w.e.f. 01.12.2008. He argued that the defendant no. 2 has terminated the tenancy of the plaintiff vide notice dated 31.10.2008 and as such, the plaintiff is not entitled to claim that he is a tenant in Suit No. 195/10 Page No.12/7 respect of the suit shop. He argued that the plaintiff is a habitual defaulter and he is in arrears of rent @ Rs.7000/ per month since 01.11.2006 to 30.11.2008 and thereafter, he has not paid the damages for use and occupation of the suit shop. He argued that injunction is a discretionary relief and such person who has not paid the arrears of rent should not be shown any indulgence. He argued that the plaintiff has no primafacie case in his favour. He argued that the plaintiff is not entitled to seek discretionary relief of injunction in view of his conduct. He argued that the plaintiff has been running the suit shop without valid municipal license and therefore, he was challaned by the MCD. He prayed for dismissal of the application under Order 39 Rule 1 and 2 of the Code.
12.Ld. Counsel for the defendant no. 3/ MCD argued that the plaintiff had submitted an affidavit on 24.09.2010 that he has vacated the suit shop and he will not sell the meat from the suit shop without obtaining Municipal License. He argued that the plaintiff has not furnished 'No Objection Certificate' from the landlord for obtaining Trade License for sale of meat as per Resolution No. 143 dated 10.07.2006. He argued that the plaintiff was directed to obtain 'No Objection Certificate' on 05.10.2009. He argued that the plaintiff was prosecuted for sale of meat without Municipal License on 01.09.2010. He argued that the plaintiff was required to submit the documents as per policy within 15 days vide letter dated 10.12.2009 and 13.02.2010 but he failed to submit the necessary documents. He argued that a show cause notice was issued on 03.09.2010. He argued that the plaintiff had refused to receive the said show cause notice.
Suit No. 195/10 Page No.12/8
13. Ld. Counsel for the defendant no.3/MCD further argued that the plaintiff cannot run the meat shop without trade license under the regular policy approved vide regulation no. 143 dated 10.07.2006. He argued that trade license cannot be issued if the plaintiff does not submit 'No Objection Certificate' from the landlord under the said policy.
14.It is the admitted case of the defendant no. 1 and 2 that the plaintiff was inducted as a tenant in respect of suit shop. The defendant no. 2 in her legal notice dated 31.10.2008 has categorically stated that the plaintiff is a tenant in respect of suit shop @ Rs.7000/ per month besides electricity charges.
15.In so far as case of the defendant no. 1 and 2 that the tenancy of the plaintiff was terminated vide legal notice dated 31.10.2008 and he is an unauthorized occupant since 01.12.2008 and liable to pay arrears of rent as well as damages is concerned, it can be stated that the defendant no. 2 has already filed a civil suit for possession and recovery of arrears of rent and damages. Till the plaintiff is evicted from suit shop in accordance with the process provided by law, the plaintiff is entitled to use an enjoy the suit property.
16.The plaintiff was running a meat shop in the suit shop since 15.11.2001. The defendant no. 3/MCD had issued an adhoc license to the plaintiff in respect of the suit shop on 15.11.2001 for sale of meat and chicken. The said license was renewed from time to time till 31.03.2006. Thereafter, the plaintiff had deposited process fee of Rs.250/ on 23.09.2006, 04.02.2008, 18.03.2009, Suit No. 195/10 Page No.12/9 and 04.07.2009 and registration fee of Rs.3100/ on 10.12.2009. It is not the case of the defendant no. 3/MCD that the plaintiff had contravened any Rule or Regulation governing the sale of meat from the suit shop and he was not maintaining proper hygiene. The MCD has not issued any notice to the plaintiff with regard to non observation of Rules and Regulations framed for sale of meat. According to Resolution No. 143 dated 10.07.2006, 'No Objection Certificate' from the owner of the shop is necessary for grant of license for sale of the meat.
17.According to the MCD, the plaintiff had submitted application on 04.07.2009 for grant of license for sale of meat and the plaintiff was directed to obtain 'No Objection Certificate' from the landlord. The plaintiff was directed vide letter dated 13.02.2010 to complete the necessary formalities for grant of Trade License for sale of meat. The plaintiff could not submit the 'No Objection Certificate' from the defendant no. 1 and 2 and therefore, he was not granted Trade License. In the present case, there are several cases are pending between the parties before different courts. The defendant no. 2 has filed a suit for possession against the plaintiff. In such a situation, the landlord will not issue 'No Objection Certificate' for grant of Trade License to the tenant. Taking note of such a situation, the MCD had issued an office order dated 01.04.2010 pursuant to Resolution no. 203 dated 10.08.2004 that 'No Objection Certificate' of owner can be dispensed with if the tenant furnishes Rent Agreement/ Receipts or any other document provided that the landlord/ owner has let out the subject property for commercial/storage purposes in case of general Trade License. Suit No. 195/10 Page No.12/10
18.In so far as contention of the defendant no. 3 that the plaintiff had submitted an affidavit that he had vacated the suit shop is concerned, it is seen from the said affidavit that the plaintiff had stated that he has been running a business of sale of meat at the suit shop and he will not sell the meat from the shop without obtaining Municipal License. On careful reading of the said affidavit, the inference that the plaintiff had stated that he had vacated the suit shop cannot be raised. If the plaintiff had vacated the suit property, then there was no need for him to give the undertaking that he will not sell the meat from the suit shop without obtaining Municipal License.
19.In the absence of 'No Objection Certificate' from the landlord, the plaintiff can be permitted to submit documents or certified copies of the pleadings and documents filed before the Courts to show that he is a tenant in respect of suit shop. The plaintiff has a primafacie case. The plaintiff is earning his livelihood from running meat shop from the suit shop and he would suffer irreparable loss and injury in case the interim injunction is not granted and the MCD is not directed to consider the certified copies of the Court cases pending between the parties in place of 'No Objection Certificate' from landlord. The plaintiff has been running the meat shop under a valid Municipal License since 15.11.2001 and therefore, the balance of convenience is in favour of the plaintiff and against the defendants.
Suit No. 195/10 Page No.12/11
20. Accordingly, the application of the plaintiff under Order 39 Rule 1 and 2 of the Code is allowed in the following terms:
21.The defendant no. 3 is hereby directed to dispense with the requirement of 'No Objection Certificate' from the landlord for grant of regular license for sale of meat in view of office order dated 01.04.2010 and further, directed to consider the documents submitted by the plaintiff in order to show that he is a tenant in the suit shop.
22.The defendant no. 3 is hereby restrained from interfering in running of meat shop on the basis of the old license subject to deposit of processing fee and license fee and other charges till the disposal of the application submitted by the plaintiff for grant of regular license as per resolution no. 143 dated 10.07.2006 and office order dated 01.04.2010 pursuant to Resolution no. 203 dated 10.08.2004.
23.The defendant no. 3/MCD is at liberty to take appropriate action if the plaintiff does not maintain hygiene and sanitation and contravene any term and condition governing the sale of meat or grant of trace license as per its policy.
Announced in the open Court today the 8th July, 2011.
(SANJAY SHARMA) JSCCCumASCJCum GUARDIAN JUDGE (West) 08.07.2011 Suit No. 195/10 Page No.12/12