Delhi District Court
Arti Rani vs North Delhi Municipal Corporation on 7 August, 2018
IN THE COURT OF SHRI TALWANT SINGH
DISTRICT & SESSIONS JUDGE (HQs)
TIS HAZARI COURTS, DELHI
CNR No.: DLCT010033962016
PPA APPEAL No. 30150/2016
Arti Rani
W/o Sh. Hemant Gandhi
R/o Hall No.1, MCD Market,
Sarawati Marg, Karol Bagh,
New Delhi110005.
.....Appellant
Versus
1. North Delhi Municipal Corporation
Through its Commissioner
7th Floor, SPM Civic Centre
New Delhi110002.
2. The Estate Officer
Public Premises Department
North Delhi Municipal Corporation
7th Floor, SPM Civic Centre
New Delhi
110002. .....Respondents
Date of filing of Appeal : 08.02.2016
Date of reserving Order : 19.07.2018
Date of Order : 07.08.2018
ORDER ON PENDING APPLICATIONS & APPEAL UNDER
PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 1 of 18
SECTION 9 OF PUBLIC PREMISES (EVICTION OF
UNAUTHORIZED OCCUPANTS) ACT
Appellant has filed the present appeal against impugned order dated 27.01.2016 passed by Ld. Estate Officer asking the appellant to vacate the Hall no.1, MCD Market, Saraswati Market, Karol Bagh, Delhi as well as demand letter dated 01.02.2016 of North Delhi Municipal Corporation.
2. Notice of appeal was issued to the respondent. Record of the Estate Officer was received.
3. I have heard Ld. Counsel for the parties and perused the record. The grounds of appeal are that the Ld. Estate Officer failed to consider that a writ petition to convert the interest of the appellant from license to leasehold was pending before Hon'ble High court. The Ld. Estate Officer further failed to consider that eviction/dispossession of appellant can not be ordered till her interest is converted to leasehold rights; the appellant had applied for conversion of license to leasehold rights before expiry of period of license; the license of the licensee was already extended once on 100% increase of license fee and the respondent no.2 has deliberately discriminated against the appellant in hostile manner as the appellant had filed a writ petition before Hon'ble High Court.
4. Counter affidavit on behalf of respondent no.1 has been filed denying allegations of the appellant. It has been submitted that order of eviction was rightly passed against the appellant; in case of license, no interest is created in favour of licensee; the respondent no.1 has a right to deal with its property and it has right to frame its own policies; the resolutions relied upon by the appellant were not in public domain and appellant can not take benefit of any such resolution; no further extension of license was PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 2 of 18 granted after 11.12.2007; so cancellation notice was given and proceedings for eviction of appellant were initiated and order of eviction was passed, so appeal is liable to be dismissed.
5. During arguments, Ld. Counsel for the appellant has submitted that in response to a notice inviting tender in 1997 by respondent no.1 for allotment of various shops/offices on license fee basis, the appellant had applied and she was offered Hall no.1, MCD Market, Saraswati Market, Karol Bagh, Delhi on license basis; initially the license deed was for a period of five years which was further extended for a period of another five years; licenses of 45 shops in the market were converted into lease hold, but in the case of appellant, MCD refused to convert her license to lease hold despite applying for the same in 2007; in respect of Hall no.2 regular lease was executed on paying Rs.30 Lakhs, which is much bigger than Hall no.1; appellant had written several letters to the MCD for converting her license into a lease but same were never considered; the license of the appellant was also not renewed, rather a cancellationcumeviction notice was sent to the appellant and allotment of her Hall was wrongly cancelled on 03.02.2009; since the appellant had been regularly paying the license fee and the licenses of other occupiers were converted into a lease, the case of the appellant being on the similar footing should have been considered by the MCD and her license may also be converted into a lease.
6. On the other hand, Ld. Counsel for the respondent/North DMC has submitted that the main grievance of the appellant is that her license should have been converted into a lease which was declined; license of the appellant was also not extended after 2007 and notice was served on the appellant to vacate the premises; the appellant is still occupying the property without PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 3 of 18 paying anything; if only principal amount of monthly charges @ Rs.1.07 Lakhs is taken into consideration, it comes to more than Rs.1.00 crores payable by the appellant to respondent Corporation apart from the damages/charges even assuming that Rs.35 Lakhs had been paid at one point of time; the appellant is occupying the premises without any legal right; impugned order was passed in the year 2016; writ petition filed by the appellant on the similar grounds has been dismissed and the order of Hon'ble High Court is on record; no LPA was preferred by the appellant; order of the Hon'ble High Court deals with all the arguments now raised by appellant; rendition of account regarding due amount from appellant was done by the third party before Estate Officer; there is no merit in the appeal and same is liable to be dismissed.
7. In the present case, Hall No.1, MCD Market, Saraswati Marg, Karol Bagh, New Delhi was allotted to the appellant on licence basis in an open tender process in 1997. Licence of the appellant came to an end on 14.07.2007 after one extension and it was never extended thereafter. But the appellant continued to occupy it thereafter without any justification. Even the appellant did not deposit proper license fee after 18.09.2007. It was admitted by Sh. Hemant Gandhi, AR and husband of the appellant in his statement dated 23.08.2013 submitted before Estate Officer that premises in question was allotted to the appellant on license basis and that period came to an end in 2007, but even thereafter the appellant continued to occupy the same without any authority or justification. MCD circulated a revised policy dated 22.07.2013 regarding licensed properties and the appellant had opted for consideration of her request for further extension of license period and she showed her willingness to clear or pay the dues as per law. But the said PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 4 of 18 request of the appellant was rejected by MCD on 08.12.2014. Even the appellant did not clear the damages/occupation charges for use and occupation of the premises and a huge amount has accumulated till date.
8. Though, the appellant had written several letters to the MCD authorities for converting her license into leasehold rights but the same were considered and rejected. Even the appellant had preferred a writ petition bearing No. W.P.(C) 3146/2015 titled "Arti Rani vs. North Delhi Municipal Corporation & Ors." and Hon'ble High Court of Delhi vide its order dated 02.03.2016 dealt with all the points as raised in the present appeal and dismissed the same with cost of Rs.20,000/.
9. In the said order, Hon'ble High Court of Delhi held that the appellant at that time did not contend that since MCD had converted shops granted on licence basis at the time of establishment of market into leasehold, the tenders invited by the MCD for allotment of remaining shops in the market on license basis were faulty or that MCD was discriminating between the shops in the same market by allotting the same on different terms. A person who is allotted some premises on licence basis can not claim conversion of the license into leasehold and the MCD can not convert the said license into leasehold as it would amount to backdoor entry into the premises to the detriment of the public interest and public exchequer. Moreover, a license does not create any interest or right in the property and merely allows the licensee a right to enter and use the property, whereas a lease is a valuable property right in the property. If the North DMC is allotting shops in the market on leasehold basis, it does not entitle a licensee to get her license converted into a leasehold right.
10. Relevant portions of order of Hon'ble High Court of Delhi passed PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 5 of 18 in W.P.(C) 3146/2015 titled "Arti Rani vs. North Delhi Municipal Corporation and Ors." are reproduced hereinunder:
A. The petitioners came into possession of the shops on allotment thereof in favour of petitioners on licence basis in an open tender process. The petitioners at that time did not contend that since MCD had converted the shops granted on licence basis at the time of establishment of the market into leasehold, the tenders invited by the MCD for allotment of remaining shops in the market on licence basis were faulty or that the MCD was discriminating between the shops in the same market by allotting the same on different terms.
B. The petitioners were then happy to enter the market and have a shop therein as a licensee for a period of five years only.
C. There may have been a large number of other persons who may not have responded to the notice inviting tender, being not desirous of acquiring shop on licence basis for a period of five years only and with no permanency therein. Thus the petitioners, in bidding for the said shops, competed only with those who were willing to take the shops on licence basis and being the highest bidder, were allotted the shops. In my view, the petitioners having come into possession of the shops through open bidding tender process and as per the terms whereof the rights being created in the shops were of a licencee for a period of five years only, may be with a renewal for five years, cannot demand conversion PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 6 of 18 of the licence into leasehold and the MCD cannot convert the said licence into leasehold.
D. It cannot be forgotten that the subject shops are public property, the disposal whereof has to be in public interest and for public purpose and yielding the maximum possible price therefrom. It is well nigh possible that if the MCD in the Notice Inviting Tender for the subject shops had provided that the shops once taken on licence would entitle the licencees to have the same converted to leasehold, the shops may have fetched a much higher price than that paid by the petitioners. To allow a person who enters into possession as a licencee to have his licence converted into a lease would amount to allowing a backdoor entry into the premises, to the detriment of the public interest and public exchequer.
E. If such a procedure is given a stamp of approval by the Court, it would allow vested interest in public authorities to first induct persons of their choice into occupation of public premises at throwaway prices by initially framing the tender conditions so, as to not fetch the best price and to thereafter convert the terms into more favourable for the persons so inducted into public premises at throwaway prices.
F. A licence does not create any interest or right in the property and merely allows the licensee a right to enter and use the property. On the contrary, lease for a period of 99 PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 7 of 18 years, as the petitioners are claiming, is a valuable property right in the property and there is a sea of a difference between the price fetched while offering a licence for 5 years and the price fetched by offering a lease for 99 years.
G. We have to see the claim of the petitioners in the said light. Seen in the said light, the petitioners are clearly disentitled from the relief. H. Merely because the respondent NrDMC is now again allotting shops in the market on leasehold basis would not entitle the petitioners who entered the shops as a licencee, to conversion of their licences obtained by concessional rates into leasehold.
I. The petitioners, even if desirous of the same premises, have to first vacate the premises and to thereafter when the bids are invited for allotment thereof on leasehold basis, participate in the competition and if successful, then re enter the premises on leasehold basis.
J. Further seen in this light, the Resolution dated 5th March, 1979 i.e. of a date much prior to the petitioners coming into occupation of the premises, cannot create any right in favour of the petitioners.
Q. Applying the said principle here, if it were to be held that after inviting tenders for occupation of shops as a licensee, the licence can be converted into leasehold, it would amount to changing the rules of the game after it had begun.
S. Similarly here, if it was known that licence can be PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 8 of 18 converted into leasehold, others could have participated in the tender process through which the petitioners initially came into possession of the premises.
The only right which the petitioners could have claimed and claim was under the MCD resolutions No. 494 and 495 dated 29th November, 2005 but which resolutions according to the NrDMC were never operationalized and did not come into effect. It is not the case of the petitioner that the benefit thereof was/has been given to any other person. In the light of the position of law as discussed by me hereinabove, the said resolutions were in any case contrary to law and discriminatory and arbitrary and cannot be enforced. The only other Resolution on which the counsels for the petitioners can possibly rely and rely is the Resolution No.856 referred to in the note dated 14th February, 2005. However I need not go further into the said aspect as the reference by the counsel for NrDMC in WP(C) No.2347/2015 on Anuradha Sharma supra is apposite in this context.
15. We are also pained to see that the petitioners, inspite of having admittedly only rights as a licensee, have overstayed in the premises for long, naturally to the detriment of the public interest.
16. There is thus no merit in the petitions which are dismissed with costs of Rs.20,000/ payable by each of the PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 9 of 18 petitioners to the respondent NrDMC on the next date in the appeal preferred by the petitioners against the order of their eviction and pending before the District Judge."
11. All the grounds raised by the appellant here were duly considered by Hon'ble High Court and it has been held that the appellant is not entitled to leasehold rights of the property in question owned by the respondent Corporation. The license of the appellant had already expired on 11.12.2007, so the Ld. Estate Officer had rightly held on 27.01.2016 that the appellant is in unauthorised occupation of the Public Premises and he had further ordered the appellant to vacate the premises within 15 days of the date of issue of that order. The respondent Corporation was given the right to claim upto date damages from the appellant.
12. The appellant has also moved number of miscellaneous applications. One such application was filed in the Court on 22.08.2017 against Estate Officer Mr. Rehman for initiating proceedings under Section 340 Cr.P.C. against him. Only allegation against Ld. Estate Officer is that he had negated the legislative intents of the rule making body of MCD, which vide its various Resolutions passed from time to time and more recently Resolution No. 494 dated 21.11.2005, had reiterated its intentions to give benefits to the traders/occupants of its various commercial properties by providing them the option to convert their license to longterm leases. Hon'ble High Court of Delhi in W.P.(C)3146/2015 has held that the only right which the petitioners could have claimed and claim was under the MCD resolutions No. 494 and 495 dated 29th November, 2005 but which PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 10 of 18 resolutions, according to the North DMC, were never operationalized and did not come into effect. It is not the case of the petitioner that the benefit thereof was/has been given to any other person. In the light of the position of law as discussed by me hereinabove, the said resolutions were in any case contrary to law and discriminatory and arbitrary and cannot be enforced. Since these resolutions bearing Nos. 494 & 495 have been declared contrary to law, discriminatory and arbitrary, the appellant could not have been granted any benefit on the basis of these resolutions. Hence, Ld. Estate Officer had not committed any contempt by not relying upon said resolutions. This application under Section 340 Cr.P.C is not maintainable and same is hereby dismissed.
13. Another application was filed on 22.08.2017 under Section 340 Cr.P.C. for initiating proceedings against Sh. Bijender Singh, the Superintendent Land & Estate Department MCD Civic Centre, for alleged perjury committed by him. There is no specific allegation against Sh.Bijender Singh in the entire body of the application and it is only mentioned that there is mismanagement in his office due to which the applicant had suffered a lot of mental trauma and agony regarding deposit/return of certain bank drafts, so the Superintendent Land & Estate Department, MCD Civic Centre Sh. Bijender Sijngh should be penalised and perjury proceedings be initiated against them. There is no specific allegation against Sh. Bijeder Singh except that his office had allegedly harassed the appellant and there was allegation of mismanagement in the said office. This is no basis for initiating proceedings under Section 340 Cr.P.C. Application is accordingly dismissed.
14. There is another application, which was also filed on 22.08.2017 PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 11 of 18 under Section 340 Cr.P.C. for initiating proceedings against Additional commissioner Sh. A.S. Asthir for perjury committed by him. Allegation against Sh. A.S. Asthir are mentioned in para No. 13 of this application wherein it is stated that the complainant met Sh. A.S. Asthir many a times and showed him letter issued by the department regarding acceptance of provisional allotment in anticipation of approval tender for Kiosk/Dhaba in Hall No.1, Municipal Market, Karol Bagh on dated 06.10.1997 and she had also written letter dated 18.05.2016 and had already deposited drafts, which were returned for revalidation and same were revalidated by the Bank and that shows mismanagement in his office, due to which the complainant/appellant was harassed and she suffered a lot of mental trauma and agony. In my opinion, if the appellant had suffered mental trauma and agony due to alleged mismanagement on the part of office of Additional Commissioner, this is no ground to initiate proceedings under Section 340 Cr.P.C. and application is accordingly dismissed.
15. Two applications were filed on 14.03.2018 and 03.02.2018 under Section 340 Cr.P.C. against Smt. Anita Vaid, Assistant commissioner, Land & Estate and also for initiating proceedings under Sections 10/12 of Contempt of Courts Act against her. In the application filed on 14.03.2018, it is mentioned that Smt. Anita Vaid had filed an application under Section 151 CPC for preponement of next date of hearing on behalf of North DMC wherein it was alleged that applicant was enjoying a stay order granted by Ld. Predecessor of this Court against the eviction order, so the proceedings be initiated against her. In another application filed on 03.02.2018, it is stated that proceedings may be initiated against Smt. Anita Ved and officials of NDMC for filing false and frivolous application along with the affidavit and PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 12 of 18 misleading the Court, which resulted into putting allegation on the District Court, which had granted stay order and application was moved by officials of the NDMC just to blackmail and harass the appellant and application was not bonafide. All the facts and circumstances mentioned in the application were already part of the record and nothing new was mentioned in the application under Section 151 CPC by the North DMC. Moreover, the parties have a legal right to move a preponement application and it is for the court to consider the application on merits and if there is any valid ground, the matter would be preponed otherwise, said application would be dismissed. Applicant has failed to make out a case to proceed under Section 340 Cr.P.C. and also under Sections 10 & 12 of Contempt of Courts Act against Smt. Anita Vaid and the M.C.D. officials. Hence, applications are not maintainable and are hereby dismissed.
16. Another application dated 24.03.2018 has been moved under Section 340 Cr.P.C. for initiating proceedings against North Delhi Municipal Corporation & Ors. wherein it is alleged that matter was fixed in the court on 24.03.2018 when counsel for the North DMC came and he pressurized the Court staff and took the date as per his wish and without consulting the counsel the appellant, so the respondent may be penalized. Perjury proceedings be initiated and case should be registered against the named persons in the said application. Undersigned fails to understand as to how this application can be filed only on the ground that counsel for the opposite party had taken a date without consulting counsel for the appellant. Application is without any basis and same is hereby dismissed.
17. In another application filed on 08.06.2018, it is submitted that proceedings under Section 340 Cr.P.C. may be initiated against the PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 13 of 18 officials/officers of North DMC for misleading the Court and for submitting false and frivolous document/list of outstanding dues. The officials of North DMC had calculated dues as per record available with them. The appellant is in knowledge of said calculations. Nowhere in the application, it is mentioned as to how the said calculations are wrong. Moreover, the appellant has every right to file her own version of the dues statement and it is for the Court to consider both the versions and reach to a logical conclusion. Merely filing of calculations of dues as per record maintained by the North DMC does not amount to perjury and thus application is hereby dismissed.
18. There is another application, which was also filed on 08.06.2018 for initiating proceedings under Section 12 of the Contempt of Courts Act against the officials of North DMC. It is mentioned that on 05.06.2018, defendant Nos. 1,2 & 3 along with 4,5,6, 7 & 8 as well as their associates came to demolish the boundary wall and they trespassed into the shop of the complainant inspite of continuity of stay order and they flaunted and disobeyed the Court orders. Ld. Counsel for North DMC has stated that officials of North DMC had not trespassed into the shop of the appellant and action was only being taken against encroachment on government land and appellant was not vacated from the Hall in question. Since action was being taken against encroachment on government land, no case for initiating contempt proceedings against officials of North DMC is made out. Application is accordingly dismissed.
19. Another application dated 25.07.2018 under Section 151 CPC was filed on 28.07.2018 for filing necessary documents. Document is a copy of policy on licenses. The appellant is not covered in this policy as her license period had expired in 2007 and she is an unauthorized occupant.
PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 14 of 18Hence, this application is not maintainable and same is hereby dismissed.
20. Another application dated 25.07.2018 under Section 151 CPC was also filed on 28.07.2018 for filing the documents, which allegedly shows double standard of MCD and flaunting and disobeying the rules and regulations. This application is nothing but reiteration of facts mentioned in earlier application and there is nothing new in this application. Application is according disposed off.
21. One more application dated 25.07.2018, was also filed on 28.07.2018 under Section 151 for filing photographs of the incident of demolition. These photographs show demolition of encroachment on the government land and no demolition took place in respect of Hall in question. Hence, there is no merit in the application. Application is dismissed.
22. Ld. Counsel for the appellant has relied upon following judgments:
(1) Syed Nazim Husain Vs. The Additional Principal Judge Family Court & Another [Writ petition No. (56) of 2002] decided by High Court of Judicature at Allahabad, Luchnow Bench, Lucknow on 09.01.2003 wherein it has been held that if an application is moved in the pending case bringing to the notice of the court that any false evidence knowing well has been filed or fabricated in such proceedings, the court should dispose of the said application first before proceeding any further or before recording of further evidence. It is not applicable to the present case as arguments were heard on all pending applications and appeal on merits in one go and then final order has been passed.
(2) In Swaran Singh vs. State of Punjab decided by Hon'ble Supreme Court of India on 26.05.2000, it has been held that when a Trial Judge knows that the witness is telling a lie and is going back on his previous statement, he PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 15 of 18 is required to sign the complaint himself and should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure. There is no dispute about ratio of this judgment but the same is not applicable to the facts of present case as detailed above. (3) In HS Bedi vs. National Highway Authority of India [RFA 784/2010 decided by Hon'ble High Court of Delhi on 22.01.2016, it has been held that Section 209 of the Indian Penal Code is a salutary provision enacted to preserve the sanctity of the Courts and to safeguard the administration of law by deterring the litigants from making the false claims. It has been further held that unless the judicial system protects itself from such wrongdoing by taking cognizance, directing prosecution, and punishing those found guilty, it will be failing in its duty to render justice to the citizens.
Again in view of the discussion above, the present judgment is not applicable to facts of the present case.
(4) In Arun Dhawan & Anr. vs. Lokesh Dhawan [CO. A(SB) 50/2013 decided by Hon'ble High Court of Delhi on 05.12.2014, it has been held that even if a document was tamper/forged prior to institution of the legal proceedings, the Court will have jurisdiction to entertain an application under Section 340 of the Code if the document has been produced in Court proceedings. However, in that case admittedly false and forged documents were filed by the respondent. But in the present case, there is no such admission on the part of officers/officials of North DMC that false and fabricated documents have been filed by them. Hence, this judgment does not come to rescue of the appellant.
(5) In Dhananjay Sharma vs. State of Haryana AIR 1995 SC 1795, it has been held that filing of false affidavit in Court not only obstructs but PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 16 of 18 perverts course of justice and such deponent is guilty of criminal contempt. But in this case, it has not been proved that officers/officials of North DMC filed false affidavit, hence, no case for contempt is made out and this judgment does not render any assistance to the appellant.
23. On the other hand, Ld. Counsel for the respondent i.e. North DMC has placed reliance on a judgment in case of "Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr." [Appeal (Crl.) 402 of 2005 decided by Hon'ble Supreme Court of India on 11.03.2005] wherein it has been held that Section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or give evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis. In the present case, it has not come on record that any fabrication has been made with a document after it was filed and it was in the custody of the Court, hence, there was no occasion with the appellant to make any application under Section 340 Cr.P.C. against the officers/officials of North DMC.
24. In view of above, all the applications of the appellant as discussed above are hereby dismissed.
25. Remaining applications are formal in nature and stand disposed off.
26. Appeal is without any merits and the same is hereby dismissed. Record of Estate Officer be sent back along with copy of the order. File be consigned to record room.
Digitally signed by TALWANT TALWANT SINGH SINGH Date: 2018.08.08 10:34:14 +0530 Announced in the open Court (TALWANT SINGH) PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 17 of 18 Dated: 7th August, 2018 District & Sessions Judge (HQs) Tis Hazari Courts : Delhi PPA Appeal - 30150/16 Arti Rani v. North DMC & Ors. Page 18 of 18