Delhi District Court
Khem Chand vs . Ndmc & Anr. on 20 December, 2018
RCA No.57/2018
KHEM CHAND VS. NDMC & ANR.
20.12.2018
Present: Sh. Pradeep Kumar, ld. Counsel for appellant.
Sh. Nilesh Sahani, ld. Counsel for respondents.
1. Arguments on appeal heard.
2. This is an appeal filed by the appellant/plaintiff against the judgment dated 26.05.2018 passed by the Trial Court vide which suit of the appellant for permanent and mandatory injunction was dismissed.
3. The case of the appellant, in brief, is that Thara no.23C, Hanuman Mandir Complex, Baba Kharak Singh Marg, New Delhi was allotted to appellant on license basis by the respondentNDMC vide allotment letter dated 26.06.2003Ex.PW1/1. The respondent NDMC issued a show cause notice dated 30.05.2012Ex.PW1/7 on account of the alleged violation of the terms and conditions of the allotment committed by the appellant and, thereafter, Deputy Directorate (Estate) NDMC issued letterEx.PW1/9 for cancellation of allotment and withdrawal of license in respect of the abovesaid thara . It is averred that the appellant gave replyEx.PW1/8 to the abovesaid noticeEx.PW1/7 explaining the factual position and thereby seeking withdrawal of the said notice. However, the respondentNDMC did not consider the reply of the appellant and vide order dated 30.10.2012 [communicated vide letter dated RCA No.57/2018 Khem Chand Vs. NDMC & Anr. Page No.1 of 6 09.11.2012Ex.PW1/9 issued by the Deputy Director (Estate) NDMC] cancelled the allotment of the said thara and withdrew the license issued in favour of the appellant. The appellant was also directed to handover the possession of the said thara and pay the outstanding dues failing which an action for eviction and recovery of dues was threatened to be initiated u/S 5 & 7 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (in short 'PP Act'). It is averred that the said order is illegal, arbitrary, unfair and wholly unjustified. It is averred that respondentNDMC followed the policy pick & choose qua the appellant and its action is discriminatory. The appellant prayed that his suit be decreed.
4. The respondentNDMC filed the written statement and contested the suit. The respondentNDMC has admitted allotment, show cause notice and the cancellation of the allotment to the appellant. However, it is averred that the allotment was validly cancelled vide Ex.PW1/9. It is averred that the appellant violated the undertaking dated 05.07.2003 given by him. It is averred that the plaintiff did not take the steps in pursuance of the show cause notice issued to him which led the NDMC to cancel the allotment of the thara vide order dated 30.10.2012. It is averred that the appellant gave a false reply dated 05.06.2012 and after considering the same, his allotment was cancelled. It is averred that appellant is selling cosmetics though the thara was allotted for selling flowers. It is averred that respondentNDMC neither allowed erection of shutters RCA No.57/2018 Khem Chand Vs. NDMC & Anr. Page No.2 of 6 over the platform at the cost of the appellant nor provided doors and shutters to the allottees, including the appellant. The respondent NDMC prayed that the suit be dismissed.
5. Ld. Counsel for the appellant has contended that the Trial Court has wrongly held the suit to be not maintainable. Secondly, it is contended that orderEx.PW1/9 was not passed by a competent authority. Thirdly, it is contended that the replyEx.PW1/8 was not considered by the respondentNDMC before cancelling the allotment of the thara. Fourthly, the principles of the natural justice were not followed. No personal hearing was given to the appellant by the respondentNDMC. Fifthly, the Trial Court has not given any finding on issue no.4 and lastly, without prejudice to above arguments, it is contended that the Trial Court has given a finding not only on legal issue of maintainability of the suit but also on merits which will adversely affect the case of the appellant before the Estate Officer.
6. On the other hand, ld. Counsel for respondentNDMC has contended that there is no infirmity in the judgment and decree passed by the Trial Court. He has relied upon judgments - State of Haryana Vs. Khalsa Motors, 1990 (4) SCC 659; B. Sharma Rao H. Ganeshmal Vs. Head Quarters Asst., 1998 (9) SCC 577 and NDMC Vs. Prominent Hotels, 222 (2015) DLT 706.
7. I have gone through the file. In the present case it is not disputed that the premises in question are public premises. Ex.PW1/1 clearly lays down that an open space measuring 24 sq. ft., thara RCA No.57/2018 Khem Chand Vs. NDMC & Anr. Page No.3 of 6 no.23/C was allotted to the appellant. The relevant portion of Ex.PW1/1 is reproduced hereinbelow : "To execute undertaking on prescribed performa on a nonjudicial stamp paper of Rs.10/ indicating therein that:
a. He/She will not sell licensable items including b. He/She will not close the tharas and provide shutters etc c. He/She will clear the sites daily after close of their business d. To clear the entire outstanding dues, if any, in respect of his/her tharas/Tehbazari. Please Note that in case you fail to complete the above formalities by the date mentioned above it will be presumed that you are not interested in the allotment and the said allotment will automatically stand withdrawn after expiry of the said date. Further action for your eviction from the tharas will be initaited at your risk and expense which may also be noted".
(Emphasis mine)
8. Section 15(a) of the PP Act lays down that no court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises. Vide show cause noticeEx.PW1/7 an opportunity was given to the appellant to remove the unauthorised violation/construction failing which the allotment was cancelled vide orderEx.PW1/9. After cancellation of allotment, the appellant became unauthorised occupant within the meaning of PP Act. In view of the judgments relied upon by ld. Counsel for the respondent NDMC, Estate Officer is competent to decide the factum of unauthorised occupation of public premises. Section 15(a) of PP Act RCA No.57/2018 Khem Chand Vs. NDMC & Anr. Page No.4 of 6 clearly bars the jurisdiction of civil courts with respect to eviction of any person who is in unauthorised occupation of any public premises. Thus, the Trial Court has rightly held that the civil suit filed by the plaintiff is barred u/S 15 of the PP Act.
9. In the replication, the appellant has admitted having given an undertaking to the respondentNDMC. He has stated in the replication to the effect, "the plaintiff has already filed the copy of the allotment letter containing the terms and conditions of allotment. The undertaking given by the plaintiff is a matter of record". Replication is a part of pleadings u/O VIII Rule 9 CPC. Ex.PW1/1 itself provides in clause 8 to the effect, "He/she will not close the tharas and provide shutters etc". In para 10 at page 7 of the plaint, the plaintiff has himself stated to the effect, "Under these circumstances and keeping in view the safety of the tharas/stalls, all the allottees of the tharas had been provided with rolling shutters or steel doors at the opening of the tharas/stalls. The providing of the steel doors had not caused any addition or alteration in the thara that may invite any objection". The respondentNDMC, in the written statement, has denied the same. Thus, it was for the plaintiff to prove that any such rolling shutters or steel doors were provided by NDMC. Ld. Trial Court has rightly held that the appellant has failed to show that any such permission was granted to him by the respondentNDMC. The Ld. Trial Court rightly disbelieved the oral testimony of plaintiff in this regard. The photographsEx.PW1/10 to Ex.PW1/12, filed by the RCA No.57/2018 Khem Chand Vs. NDMC & Anr. Page No.5 of 6 plaintiff himself, show that the plaintiff has put up an iron gate and closed the thara. Thus, the plaintiff has miserably failed to show that he has not violated the terms and conditions of allotment. The Trial Court has rightly held the plaintiff to be not entitled to permanent and mandatory injunction. Though the onus of issue no.4 was on the respondentNDMC, it is for the appellant/plaintiff to prove his case. I find no infirmity in the judgment of the Trial Court taking up issues no.1, 2 and 4 together and deciding them accordingly. There is nothing on record to suggest that the cancellation order was not passed by competent authority or the principles of the natural justice were not followed.
10. Considering the facts and circumstances of the case, this court is of the opinion that this appeal has no merit. Hence, the same is dismissed. However, the respondentNDMC shall proceed further in a matter in accordance with law uninfluenced by the observations on merits made by the Trial Court as well as by this court. Interim stay granted by this court on 07.07.2018 stands vacated. The appeal stands disposed of. Trial court record be sent back with copy of the order and appeal file be consigned to Record Room after due compliance. Digitally signed PRAVEEN by PRAVEEN KUMAR KUMAR Date: 2018.12.21 22:05:50 +0530 (Praveen Kumar) ADJ05/PHC, NEW DELHI 20.12.2018 RCA No.57/2018 Khem Chand Vs. NDMC & Anr. Page No.6 of 6