Delhi District Court
Vide vs Atma Ram Sun on 1 June, 2019
In the Court of Shri Ankit Singla : Additional Senior Civil Judge of
Central District at Tis Hazari Courts, Delhi
Suit No.99820/2016
In the matter of :-
Shri Mohd. Shakeel,
Son of Shri Mohd. Shamim,
Resident of B-311, SST Colony,
Begum Colony,
New Delhi-110017
........Plaintif
VERSUS
1. Municipal Corporation of Delhi,
Twon Hall, Delhi-110006
Through its Commissioner
2. Shri Lakshaman,
Son of late Shri Suraj Prakash,
House no.57-A, Priyadarshani Vihar,
Laxmi Nagar, Shahdara, Delhi
.....Defendants
Date of institution : 19.05.2009
Reserved for Judgment : 30.05.2019
Date of decision : 01.06.2019
Suit for Declaration and Injunction
JUDGMENT
1. Vide, this order i shall decide the suit filed by the plaintiff for relief of declaration and injunction.
2. Briefly stated the facts as averred in the plaint are that one kiosk bearing no. 2, at footpath, near Subhash Park, Darya Ganj was allotted to one Sh. Suraj Prakash, by North DMC in year 1983 on license basis. After allotment, Sh. Suraj Prakash entered into an oral partnership with CS No.99820/16 Page no. 1 of 12 plaintiff for running a juice shop in the said kiosk and since then, the plaintiff is in control and management of said kiosk. Shri Suraj Prakash expired on 09.12.1988, and, after that the plaintiff was in exclusive possession of Kiosk, till, the kiosk was sealed by North DMC in pursuance of its sealing order dated 11.12.2007. The plaintiff has been depositing the license fee to the Corporation regularly. The plaintiff never received any notice of demand for license fee in respect of said Kiosk, but, all of sudden, officials of defendant Corporation came at the Kiosk with police, on the basis of a sealing order dated 11.12.2007. The said sealing order was passed on the ground that license fee amounting to Rs. 2,18,263/- was not deposited.
3. It is stated that factum of death of original license was brought into notice of defendant corporation and it had been in knowledge of its concerned officials from very beginning. Even after death of Shri Suraj Prakash, the license of Kiosk was renewed and extended on monthly basis as per policy of corporation and plaintiff has been paying the license fee on enhanced monthly license fee. It is submitted that Kiosk has been illegally sealed by the defendant corporation without affording opportunity of being heard to the plaintiff. It is submitted that plaintiff was in settled possession of the Kiosk and the said fact was in the knowledge of officials of Corporation. It is submitted that even if, the plaintiff was an unauthorized occupant, then also, he was entitled of a notice under Section 4 of Public Premises Act.
4. It is stated that as per scheme framed by defendant no.1 Corporation from time to time and it circular bearing no. CL& EC/95/228 dated 08.03.1995 issued in pursuance of Corporation decision no.4224/GW/Corporation dated 5.12.1993 for regularization of CS No.99820/16 Page no. 2 of 12 such sites which Tehbazari holders have sold or transferred upto 31 st December, 1993, the plaintiff was entitled for regularization of Kiosk on the consideration provided therein. It is stated that in this regard, plaintiff has already issued notice dated 22.11.2007 with request to de seal the Kiosk. It is stated that one writ petition was filed by plaintiff against North DMC, which was disposed of. It is stated that after writ petition, the plaintiff approached defendant corporation for reconsidering the matter afresh and cancellation of regularization in favour of Sh. Laxman, the LR of Sh. Suraj Prakash, but no response was received from defendant Corporation. In view of the aforesaid, the plaintiff filed the present suit for the following reliefs:-
"a. A decree of declaration that the sealing of the Kiosk No.2, Footpath, Near Subhash Park, Daryaganj, New Delhi by the Municipal Corporation of Delhi (MCD) in pursuance of sealing order dated 11th December, 2007 was illegal, being against the principles of natural justice and grant of an opportunity of being heard to the plaintiff, he being in physical possession of the Kiosk immedaitely after its allotment to the deceased Shri Suraj Prakash sometime in the year 1983 and till the date of its sealing;
b. A decree of declaration that the plaintiff was and is entitled to allotment of Kiosk No.2, Footpath, Near Subhash Park, Daryaganj, New Delhi by the Municipal Corporation of Delhi (MCD), as per its scheme and policy, after the death of the allottee Shri Suraj Prakash on 09 th December, 1988, being in its physical possession since 1983;
c. A decree of declaration that the dispossession of the plaintiff from Kiosk No.2, Footpath, Near Subhash Park, Daryaganj, New Delhi by the MCD in pursuance of the sealing order dated 11th December, 2007 was illegal, he being in settled possession of the same and also it being not in according to process of law, and the plaintiff is entitled to restoration of its possession;
CS No.99820/16 Page no. 3 of 12 d. A decree of declaration that the de-sealing of Kiosk No.2, Footpath, Near
Subhash Park, Daryaganj, New Delhi by the MCD and restoration of its possession to defendant no.2 in 2008 as illegal and against the policy of the Corporation;
e. A decree of mandatory injunction cancellation of allotment and regularization of Kiosk No.2, Footpath, Near Subhash Park, Daryaganj, New Delhi in favour of the defendant no.2 by MCD, being against the policy of the Corporation and for parting its possession to Shri Shahanshah/third party;
f. A decree of mandatory injunction directing the MCD to allot and regularize Kiosk No.2, Footpath, Near Subhash Park, Daryaganj, New Delhi in favour of the plaintiff on is usual terms and conditions and restore its possession to him after evicting defendant no.2, and all persons claiming under or through him from the kiosk; and g. pass such other or further orders in the case as may be deemed just and appropriate to dispense justice to the plaintiff having regard to the facts of the case and circumstances with cost of the suit."
5. Summons for settlement of issues were sent to the defendants. The defendant no. 1 filed its written statement, wherein, it took preliminary objection that the suit is barred by provision of Section 477/487 of DMC Act. On merit, it is stated that user of suit property did not deposit the arrears of license fee of Rs. 2,18,263/- till 31.10.2007 inspite of number of demand notices, therefore, sealing order dated 11.12.2007 was passed and Kiosk was sealed on 18.12.2007. It is submitted that thereafter, one Sh. Laxman approached the department and informed about the death of his father and further requested to de-seal the property and deposit the amount in installment. It is stated that on merit and on humanitarian ground, the order for de-sealing of Kiosk was passed on 18.02.2008 and thereafter, Laxman was directed to pay the arrears by 30.04.2008. It is submitted that Kiosk cannot be CS No.99820/16 Page no. 4 of 12 transferred or mutated to any person other than allottee as per policy, therefore, the contentions of plaintiff are not tenable. Accordingly, it is prayed that the suit may be dismissed.
6. Defendant no. 2 failed to appear in the court nor filed any written statement, therefore, he was proceeded ex-parte vide order 26.08.2010.
7. Replication was filed by the plaintiff to the written statement of the defendant no. 1, wherein, the contents of the plaint have been reiterated and the contentions of the defendant no.1 made in the written statement have been denied.
8. On completion of pleadings, my learned Predecessor, vide order dated 26.08.2010, framed the following issues :
1 Whether suit is barred by Section 477/478 of DMC Act? OPD-1 2 Whether suit is barred by provisions of Specific Relief Act? OPD-1 3 Whether plaintiff is entitled to decree of declarations as claimed? OPP 4 Whether plaintiff is entitled to decree of injunction as claimed? OPP 5 Relief.
Plaintif's Evidence
9. The plaintiff has examined himself as PW1 who in his affidavit in evidence Ex.P-1 has stated and reiterated on oath the contents of the plaint. He has relied upon certain documents. Ex.PW1/1 is License CS No.99820/16 Page no. 5 of 12 No.223077 dated 09.06.1999. Ex.PW1/2 to Ex.PW1/31 are receipts for deposit of license fee. Ex.PW1/32 is copy of order dated 12.02.2008 passed by the Hon'ble Delhi High Court in writ petition filed by the plaintiff. Ex.PW1/33 is copy of legal notice dated 29.02.2008. Ex.PW1/34 to Ex.PW1/37 are postal receipts.
Defendant's Evidence
10. The defendant no.1/North DMC has examined Shri Ram Karan, Superintendent, MCD, City Zone, Delhi who in his affidavit in evidence Ex.D-1 has stated and reiterated on oath the contents of the written statement. He has relied upon certain documents. Ex.DW1/1 is copy of letter dated 11.05.1984 in respect of Kiosk in question. Ex.DW1/2 and Ex.DW1/3 are bidding documents. Ex.DW1/4 is copy of demand notice dated 02.11.2007. Ex.DW1/5 and Ex.DW1/6 are show cause notices. Ex.DW1/7 is copy of sealing order dated 11.12.2007. Ex.DW1/8 is copy of de-sealing order dated 18.02.2008.
11. Final arguments have been heard and record has been perused.
12. Now I shall give my issue-wise findings.
Issue No.1 : Whether suit is barred by Section 477/478 of DMC Act? OPD-1
13. The onus to prove this issue was upon the defendant no.1. No evidence has been produced by the defendant no.1 to prove this issue. Per contra, the plaintiff examined himself and stated on oath that he had sent a legal notice to the defendant no.1 through speed post. The CS No.99820/16 Page no. 6 of 12 plaintiff produced the copy of said legal notice which is Ex.PW1/33. The plaintiff also produced postal receipts which are Ex.PW1/34 and Ex.PW1/35. The copy of the acknowledgement is Ex.PW1/36 and Ex.PW1/37. These documents relied upon by the plaintiff show that the plaintiff had sent a legal notice through speed post at the address of the defendant Corporation.
14. Section 27 of the General Clause Act, 1987 states that where any Act, authorizes any document to be served by post, then, unless a different intention appears, the service shall be deemed to be affected by properly addressing, pre-paying and posting the process/notice by registered post.
15. Section 114 of the Indian Evidence Act also envisage following presumption :
"The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to common course of natural events, human conduct and public and private business, in their relation to fact of the particular case."
16. Since, in the present case, the plaintiff has proved that he had sent a legal notice by speed post at the address of the defendant Corporation, in view of aforesaid provision of law, a presumption is raised that the same has been duly served upon the defendant Corporation. In this regard, the reliance is place upon judgment titled as "Gujarat Electricity Board and Anr. Versus Atma Ram Sun Gomal Goshani" AIR 1989 SC 1433 passed by the Hon'ble Supreme Court wherein, Hon'ble Court was pleased to held that there is a CS No.99820/16 Page no. 7 of 12 presumption of service of letter sent under registered cover. Hon'ble Court also held that the said presumption is rebuttable and it is for party denying service to place on record evidence to rebut the presumption by showing that address mentioned on the cover was incorrect or that postal authorities never tendered the registered letter to him.
17. No evidence has been led by the defendant no.1 to rebut the presumption raised in favour of the plaintiff. Accordingly, it is held that notice sent by the plaintiff was duly served upon the defendant Corporation. Hence, the issue in hand is decided against the defendant no.1 and in favour of the plaintiff.
Issue No.2 : Whether suit is barred by provisions of Specific Relief Act?
OPD-1
18. The onus to prove this issue was upon the defendant no.1. This issue was framed as objection was taken by the defendant no.1 in preliminary objection of the written statement that the suit is barred by provisions of the Specific Relief Act. No specific provision of the Specific Relief Act was mentioned in the preliminary objection of the written statement. The defendant no.1 also failed to lead any evidence or address arguments to satisfy the Court that the suit is barred by any provision of the Specific Relief Act. Accordingly, this issue is decided against the defendant no.1.
Issue no. 3 : Whether plaintiff is entitled to decree of declarations as claimed? OPP CS No.99820/16 Page no. 8 of 12 Issue no. 4 : Whether plaintiff is entitled to decree of injunction as claimed? OPP0
19. Issue no. 3 & 4 are taken together as same involves common question of law and facts. The onus to prove both these issues was upon the plaintiff. The plaintiff has filed the present suit stating that after death of original allottee, Shri Suraj Prakash, in year 1988, the factum of his death and the fact that plaintiff is in possession of Tehbazari Site/Kiosk was brought into notice of defendant corporation, and since 1988, the plaintiff is in exclusive possession of the Kiosk and he is also paying the license fee regularly to the defendant corporation and therefore, plaintiff as per policy of defendant corporation which allow the person in actual possession to get the Tehbazari site regularized in his name was entitled for regularization. It is further case of plaintiff that no arrear of license fee was due from the plaintiff and no notice of demand was ever served upon him and the act of sealing the Kiosk/suit property was passed by defendant corporation without affording any opportunity to the plaintiff who was entitled for such opportunity being in actual possession of the Kiosk.
20. In order to be entitled for the relief of declaration and injunction as prayed in the present suit, the plaintiff was required to prove aforesaid averments. However, the perusal of evidence led by the plaintiff shows that the plaintiff has not placed on record any document to show the factum of death of Sh. Suraj Prakash was ever brought into the notice of defendant corporation prior to sealing of the Kiosk. On the contrary, the perusal of license receipts Ex. PW-1/2 to Ex. PW-1/31 filed by the plaintiff himself shows that the license fees was always CS No.99820/16 Page no. 9 of 12 deposited with defendant Corporation by showing that the same has been paid by Sh. Suraj Prakash himself. The bare perusal of these license receipts Ex. PW-1/2 to Ex. PW-1/31 clearly shows that name of the payee is reflected as that of Sh. Suraj Prakash. The fact that name of payee in aforesaid receipts is mentioned as that of deceased Sh. Suraj Prakash itself shows that prior to sealing of the suit property in year 2007, the factum of death of Sh. Suraj Prakash was not brought into notice of defendant Corporation and it was mislead that original allottee is alive. The general rule, relating to a license is that a license come to an end on a death of licensor. In the present case also, after death of Sh. Suraj Prakash in the year 1988,the license in respect of Kiosk had come to an end and it appears that in order to avoid cancellation of license, the license fee was paid deliberately in name of Shri Suraj Prakash.
21. The another factor which plaintiff was required to prove was that he is in possession of suit property since 1988 and there is policy of North DMC which allow a person in actual possession to apply for regularization. The plaintiff has failed to place any evidence on record to show his possession since 1988. In order to show his possession, the plaintiff has placed on record the license receipt from the year 1995. As noted above, the license receipts are in name of Sh. Suraj Prakash, therefore, the said license receipts cannot be termed as proof of possession of the plaintiff over the suit property. However, even if same is considered to be proof of possession of plaintiff over the suit property, then also, the said receipts can be considered as proof of possession over suit property from 31.10.1995 only. There is no receipt produced by the plaintiff prior to 1995. No other document has been placed on record as proof of possession prior to 1995. Further, CS No.99820/16 Page no. 10 of 12 the plaintiff has also failed to place on record any policy of year 1995 or circular of North DMC or any other document which entitled a transferee of original allottee to be entitled for regularization. Since, the onus was upon the plaintiff, it was duty of plaintiff only, to produce such policy or circular. Neither, plaintiff filed such policy or circular, nor he took any step for summoning the same from North DMC. Therefore, an adverse view is taken against him that no such policy exists.
22. Although, the plaintiff has miserably failed to produce on record existence of such policy entitling a transferee from original Tehbazari holder for applying for regularization, but, even if, it is assumed for sake of arguments that such policy does exists, then also, the case of plaintiff is not covered by such policy for simple reason that plaintiff was not sold or transferred the Kiosk by original allotte Sh. Suraj Prakash because, it is admitted case of the plaintiff that he was put into possession of Kiosk by Sh. Suraj Prakash as his partner in business of juice shop only. The said transaction of creating partnership cannot be termed as transfer or sale of Kiosk by Sh. Suraj Prakash.
23. As per Section 56 of Indian Easement Act, 1882, unless a different is expressed or necessary implied, a license, except a license to attend a place of public entertaining cannot be transferred by licenssee or exercised by his servants or agents. Thus, in view of Section 56 of Indian Easement Act, 1882, it is clear that Tehbazari license was personal to Shri Suraj Prakash and could not have been transferred by him or exercised by his servants or agents. Therefore, the contention of the plaintiff that since the plaintiff was in settled possession of Kiosk/tehbazari site for long period of time, he was entitled for regularization is liable to be rejected.
CS No.99820/16 Page no. 11 of 12
24. Apart from above, in order to be entitled for relief the plaintiff was also required to prove that no dues were pending in respect of license fee and defendant Corporation wrongly sealed the Kiosk. In order to prove that no such dues were pending, the plaintiff was required to apprise the Court what was the monthly rate of license fee, but, the plaintiff has failed to clearly mention the rate of license fee. He has merely stated that he has been depositing the license fee without mentioning the rate of license fee. In the absence of clear detail regarding the rate of license fee, this Court cannot ascertain and decide whether the license fee in respect of suit property was paid regularly or not.
25. Accordingly, in view of aforesaid observations, this Court has no hesitation to hold that the plaintiff has miserably failed to prove all the facts necessary for him to succeed in the issues in hand. Accordingly, both these issues are decided against him.
Relief
26. In the light of my findings on the above said issues, the suit is dismissed with cost. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Digitally signed by ANKIT ANKIT SINGLA
Announced in the Open Court
on 01.06.2019
SINGLA Date: 2019.06.04
16:32:48 +0530
(Ankit Singla)
Additional Senior Civil Judge
Central District: Tis Hazari Courts: Delhi
CS No.99820/16 Page no. 12 of 12