Delhi High Court
Shri Ajay Kumar vs Govt Of Nct Of Delhi And Anr. on 24 July, 2002
Equivalent citations: 2003 A I H C 634
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. The petitioner has sought quashing of the impugned order of sealing dated 28.9.1995 in respect of shop No.110, Mohan Singh Place, Baba Kharak Singh Marg, New Delhi with a further direction to transfer the shop in the name of the petitioner to be occupied by the petitioner on payment of normal license fee. The petitioner has also claimed the reliefs against fresh allotment of shop in question.
2. It is stated in the petition that the petitioner entered into a partnership with one Sh. Puran Chand on 6.9.88 to carry on business of tailoring in the shop in question which was dissolved on 13.7.89 when Sh. Puran Chand executed General Power of Attorney in favor of the petitioner. On 22.1.92 the petitioner submitted an application to respondent No.2 NDMC for transferring the allotment of the shop in the name of the petitioner along with the requisite documents. Since the transfer did not take place the petitioner enquired about the same and came to know that there were payment of dues outstanding against the shop of Rs.3lacs. The petitioner made a representation on 27.12.93 regarding the outstanding dues. The petitioner deposited approximately Rs.2.25 lacs between November, 1989 to July, 1994 with respondents 2 to 4. Respondents 2 to 4, however, sealed the shop on 28.9.95. Petitioner made representations against the same and stated that he was willing to deposit the enhanced license fee by making an initial payment of Rs.1 lac and balance in Installments. It is further stated that the Chairman of NDMC directed his subordinates to restore the electricity and remove the seal subject to payment of 50% of the amount and balance 50% in Installments. On4.1.96 the petitioner deposited an amount of Rs.1 lac but neither was electricity restored nor was the possession of the shop handed over to the petitioner. On the representation of the petitioner, the petitioner received a letter dated 8.3.1996 in the name of previous allottee Sh. Puran Chand in which Rs.2,84,477/- was shown as outstanding license fee. On 14.3.1996 the petitioner deposited Rs.1,50,000/- and on 18.3.96 the petitioner made a request for restoration of physical possession of the shop and stated that he was willing to make the payment of the balance amount. The petitioner further deposited Rs.1 lac on 25.5.96 and it is stated that the Chairman, NDMC issued a direction to the Directorate of Estate to restore the electricity and handed over physical possession of the shop to the petitioner. The petitioner claims to have deposited the balance amount on 2.9.1996 but since the possession was not handed over, the petitioner filed the present writ petition. Prior to filing of the present writ petition an OSD in the Home Ministry is also stated to have issued a DO letter for restoration of the shop.
3. In the counter affidavit it is stated by respondent NDMC that the shop in question was cancelled due to non-payment of license fee by Sh. Gyan Chand and on 2.3.73 the Estate Officer passed an order directing payment of the amount and for vacation of the premises. In May, 1974 order was passed for recovery of the said amount but the same was not implemented since the matter in issue on a larger scale was being discussed with Mohan Singh Place Traders' Association. In August, 1975 Sh. Gyan Chand alleged misconduct against his partner Sh. Puran Chand though no action was taken by respondent NDMC. In 1976 Sh. Puran Chand furnished copies of partnership deed and dissolution deed and requested that the transfer of shop in his name. Both Sh. Puran Chand and Sh. Gyan Chand were heard by the Estate Officer but in February, 1977 the Estate Officer passed the order directing both of them to vacate the premises. Sh. Puran Chand filed an appeal which was also dismissed in January, 1978.On re-representation of Sh. Puran Chand the regularisation of the shop in the name of Sh. Puran Chand was granted w.e.f.23.3.1973 on completion of requisite formalities. The renewal thus became due on 23.3.1978. The respondent NDMC called upon Sh. Puran Chand vide letter dated 6.1.81 for execution of fresh license deed but despite reminders no response was forthcoming from Sh. Puran Chand NDMC found that the premises had been unauthorised sub-let to Sh. Vijay Kumar and Jabbas Hussain and were being unauthorisedly used for kitchen preparing food articles for license on shop No.109. A show cause notice was thus served on Sh. Puran Chand on 23.7.1981 and the allotment was cancelled subsequently. Sh. Puran Chand was accordingly informed on 16.9.81 and was directed to vacate the premises and pay the dues. Since the premises were not vacated the petition was filed against him for vacation in the court of Estate Officer as also another petition for recovery of damages subsequently.
4. Sh. Puran Chand failed to appear before the Estate Officer and was proceeded ex parte against which an appeal was preferred. The case was remitted back to the Estate Officer. Further proceedings are also stated to have been filed for recovery of arrears of damages for additional period. The Estate Officer on 30.3.1987 passed an order directing Sh. Puran Chand to vacate the premises and to pay the amounts. On 8.12.88 orders were passed for recovery of damages.
5. It is further stated in the counter affidavit that proceedings for forcible eviction though had been moved before the Estate Officer, could not proceed further due to the interim stay granted by the Delhi High Court on the petition filed by the Shopkeepers Association. On the vacation of the stay the steps were once again taken and the premises were got vacated on 28.9.95. Only one Sh. Inder was found at site and the vacation is stated to have been got done in the presence of the President of the Association of the shopkeepers. The matter relating to damages continued to remain pending.
6. Learned counsel for the petitioner has referred to the minutes of the informal meeting held with the representatives of the respondent where the issue of regularisation of partnership/subletting in municipal markets was discussed. In the said minutes a reference is made to the resolution of the respondent NDMC No.20 dated 7.5.76 for regularising the existing/pending cases of subletting in terms whereof new license deeds were to be executed at market rate. This decision was subsequently modified vide resolution No.8 dated 27.5.1977to the extent that the cases of subletting prior to 7.5.76 were to be governed as per the policy existent before the said decision and action taken for regularisation accordingly except in case of Mohan Singh Place Shopkeepers considering that this modification would be beneficial to the community. This position was found to be acceptable in terms of the minutes of the meeting.
7. Learned counsel for the petitioner has further contended that it is not disputed that the petitioner on 22.1.92 applied to get the shop regularised in his favor and on 22.11.95 on a representation submitted to the Chairman of the NDMC requesting for regularisation it was directed that the electricity in the premises be restored on payment of 50% of the total dues in three Installments.
8. It is in pursuance thereto that the petitioner paid Rs.3,84,493/- in different Installments though the receipts are in the name of Sh. Puran Chand. Further amounts were also deposited and the entire amount of dues was cleared by the petitioner. It is thus contended that the petitioner had a legitimate expectation that the petitioner would be allotted the shop and that the respondents have estopped from resiling from the same. Learned counsel for the petitioner further submits that the petitioner never misrepresented his casein the application dated 22.11.95 stating that he was an allottee since the word was used in loose sense as the petitioner had continued to occupy the shop. This submission arises out of the additional affidavit dated 28.8.99 filed by the respondent NDMC in which it is stated that it was on account of this representation that the order was made to examine the case of the petitioner for reconnection of the electricity to the shop.
9. Learned counsel for the respondents, on the other hand, contends that there was no question of the allotment in favor of the petitioner since the petitioner was never an allottee. It was further submitted that the question of restoration of license or acting on any partnership deed could only have been considered if there was a subsisting license. However, the license in favor of the previous allottee Sh. Puran Chand was cancelled long time back in 1981 and even proceedings were taken thereafter before the Estate Officer which became final. Only the process of forcible eviction which was started on 1.5.88 could not proceed further due to the general stay order in respect of the Mohan Singh Place Shopkeepers' Association. It was thus contended that since all rights in respect of the shop in question already stood terminated there was no question of substitution of the petitioner as a licensee instead of Sh. Puran Chand. The original records were also produced in court in respect of the shop in question.
It may be noted that in terms of the interim orders passed by this court status quo as to the possession was directed and further re-tender of the shop was also stayed. The result is that the shop is in the possession of the respondents without being allotted to any third person.
10. A perusal of the original records shows that the Special Officer of the NDMC had in fact ordered restoration of electricity and allotment of the shop on payment of 50% of the total outstanding dues. It is in pursuance here to that the petitioner paid a sum of Rs.1 lac vide DD dated 26.12.1995 against the outstanding of Rs.3,84,344/-. This amount after noting the factual position was accepted though it was directed that 50% of the arrears of the electricity should also be recovered. These nothings were made on 28.12.95.
11. The letter dated 8.3.96 in the name of previous allottee showed an outstanding Rs.2,84,477/- which had been deposited fully by September, 1996.
12. The aforesaid facts clearly show that the petitioner deposited these amounts on the understanding and assurance through various orders passed on his representations. If the allotment of the petitioner was not to be restored there was no occasion to clear the arrears in respect of Sh. Puran Chand up to 1996. It is also not disputed that in other cases partnership changes have been terminated. However, the defense being raised in the present petition is that the allotment was cancelled prior to the partnership of 1989 and thus there was no occasion to make the allotment in favor of the petitioner. Thoughthis position is correct, there would have been no occasion to ask the petitioner then to deposit the amount from time to time and clear the arrears.
13. The respondent committee being a public authority must act in a fair and reasonable manner. The petitioner has deposited the amounts and cleared the arrears on the assurances held out to the petitioner that the allotment would be made in favor of the petitioner. It is unfortunate that the shop has been lying sealed since September, 1995 and no one is benefited during this period of 7 years.
14. Thus the only question is whether an allotment should be made in favor of the petitioner in view of the amounts deposited by him on the nothings of the Special Officer that there should be restoration of allotment on deposit of amount or the shop should be re-tendered. I am of the considered view that in view of the amounts for the past having been deposited by the petitioner, the petitioner has a right to the allotment in his favor subject to payment of dues and fulfillment of requisite conditions as also on terms and conditions at which such renewals of licenses are taking place. If such renewals are taking place on current rates then the petitioner is also liable to be in the same boat. This is more so as change of partnership has been permitted in other cases.
15. In view of the aforesaid I consider it appropriate to direct the respondents to allot the shop to the petitioner on the same terms and conditions of license and license fee as the other occupants of the shops in the complex. The petitioner would not be liable to be charged for the shop for the period from when the petitioner was dispossessed till the date possession is handed back to the petitioner. If there are still some charges pending against the petitioner the same should be intimated to the petitioner within four weeks from today and the petitioner shall pay the same within four weeks' thereafter and execute necessary documents. The petitioner shall be handed over the shop within two weeks of such payment and execution of documents and the electricity connection shall also be restored. Needless to say that the arrears to be intimated to the petitioner would include any arrears on account of the electricity.
16. Writ petition is disposed of in the aforesaid terms leaving the parties to bear their own costs.