W.P(C) Nos.19350/06 & 19447/06 Page 1 of 22 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 07.11.2008 % Judgment delivered on: 25.11.2008 + (1) W.P.(C) 19350/2006 MALARVIZHI ELANGOVAN ..... Petitioner Through: Mr. R.K. Saini with Mr. Nikhil Bhalla, Advocates. versus DIRECTOR OF ESTATES & ORS ..... Respondent Through: Mr. Rajesh Mahajan, Advocate for NDMC. Ms. Namrata Toppo for Mr. R. V. Sinha, Advocate for respondents 1 and 2. And (2) W.P(C)No.19447/06 GANGA DEVI ..... Petitioner Through: Mr. R.K. Saini with Mr. Nikhil Bhalla, Advocates. versus DIRECTOR OF ESTATES & ORS ..... Respondent Through: Mr. Rajesh Mahajan, Advocate for NDMC. Ms. Namrata Toppo for Mr. R. V. Sinha, Advocate for respondents 1 and 2. CORAM: HON’BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers may Yes be allowed to see the judgment? 2. To be referred to Reporter or not? Yes W.P(C) Nos.19350/06 & 19447/06 Page 2 of 22 3. Whether the judgment should be reported in the Digest? VIPIN SANGHI, J. 1. I am dealing with the aforesaid two petitions by this common judgment since the facts are more or less identical, except that the specific dates in the two cases are different. The appeals preferred by the petitioners in these two petitions under Section 9 of the Public Premises (Occupation of Unauthorized Occupants) Act (“The Act” for short) have been dismissed by the Ld. Additional District Judge by a common order impugned herein. For the present, I am narrating the relevant facts in W.P.(C) No.19350/06 preferred by Malarvizhi Elangovan. 2. The Directorate of Estates made an allotment of stall no.4 DIZ Area, Baba Kharag Singh Marg, New Delhi in favour of one Mohd. Zaffar on licence basis on 5.8.1998. The said allotment was made after inviting a tender. The licence was valid for a period of three years. Clause 16 of the licence deed, being relevant is reproduced herein below:- “The allotment of the shop/stall is being made for a limited period of three years. The Government shall, however, sympathetically consider renewal of the licence for a further period of three years with a like term permitting further renewal if the licensee has not been in default of any term of the licence; provided always that the total period of licence together with renewed term shall not in any case exceed 30 years and further that the renewal of the licence, if any, shall be subject to increase in the W.P(C) Nos.19350/06 & 19447/06 Page 3 of 22 licence fee as may be found reasonable by the Government and fulfillment by the licensee of such terms and conditions of the licences as may be prescribed by the Government from time to time.” 3. During the currency of the said licence, the original licencee, Mohd. Zaffar entered into a partnership with the petitioner on 11.05.1999 to jointly carry out business from the licenced premises. 4. The partnership deed aforesaid was dissolved on 20.1.2002 and the assets and liabilities of the said firm were taken over by the petitioner. The petitioner continued to be in occupation of the stall and also continued to pay the enhanced license fee to the Directorate of Estate. 5. In the allotment letter dated 5.8.1998, it was stipulated that the premises shall not be transferred or sublet to any other person and in case of default, the allotment would be cancelled straightaway and premises resumed by the Government besides taking any other action that the Govt. may be advised. Clause 8 of the licence deed prohibited the licensee from permitting any other person from using the same without the previous consent in writing of the government. In default of the said condition, the licensee was liable for ejectment. The licensee was also precluded from introducing any partner or from parting with possession of the premises or otherwise carrying on any business in the premises with any other person or to assign, transfer, charge or otherwise alienate his interest in the premises. 6. Even prior to the issuance of the licence in favour of Mohd. Zaffar, the Directorate of Estates issued an office order on 25.7.1996. W.P(C) Nos.19350/06 & 19447/06 Page 4 of 22 By this order, the Government decided to allow regularization of shops/stalls etc in the names of partners/occupants who had come into occupation of the premises on or before 20.01.1989, on certain terms and conditions. 7. Admittedly the petitioner’s case was not covered by the said office order since the said order applied only in respect of the shops/stalls and platforms in respect whereof the persons/occupants had come into occupation on or before 20.10.1989. 8. The Directorate of Estates issued a public notice dated 06.08.2001. By this notice, the Director of Estates invited applications from occupants of fourteen markets for grant of ownership rights. Amongst the categories of persons who were eligible for consideration for grant of ownership rights, occupants who had come in undisputed occupation after 20.10.1989 and upto 31.08.2000 were also included. However the petitioner’s case was not covered by this notice, since the market at Baba Kharak Singh Marg was not enlisted as one of the markets to which this notice applied. 9. Director of Estates issued a show cause notice to Sh. Mohd. Zaffar on 11.03.2004 alleging breach of conditions of the licence. It was alleged that he had sublet the stall and he had made unauthorized construction. He was asked to explain why the allotment be not cancelled. The petitioner responded to the Show Cause Notice, and this was followed by an order dated 27.05.2004, cancelling the licence granted to Mr. Mohd. Zaffar at the expiry of the month of August W.P(C) Nos.19350/06 & 19447/06 Page 5 of 22 2004. 10. The Estate Officer/Directorate of Estates initiated eviction proceedings under the Public Premises (Eviction of Unauthorised Occupants), Act 1971 by addressing notices dated 11.03.2004 to “All persons concerned in particular Sh. Mohd. Zaffar”, under Section 4 of the Act. It was alleged in the notice that Mohd. Zaffar had continued in occupation of the premises in question even after its allotment stood cancelled w.e.f. 1.9.2004 vide Department of Estates Order dated 27.05.2004. These proceedings were defended by the petitioner before the Estate Officer. The said notice culminated in an eviction order dated 15.12.2005 passed under Section 5(1) of the Act. An appeal was preferred by Malarvizhi Elangovan, the present petitioner, before the District Judge under Section 9(1) of the Act bearing PPA No.18/06. 11. In the case of Ganga Devi (the petitioner in W.P.(C) No.19447/2006) the relevant facts are that the Directorate of Estates allotted open stall No.1, DIZ Area, Baba Kharag Singh Marg, New Delhi to one Sh. Maheshi Dhaundiyal on licence basis on 04.08.1998. A partnership was entered into between Sh. Maheshi Dhaundiyal and the petitioner on 12.06.2000 for jointly carrying out the business of motor vehicle repair/job work and accessories from the stall in question. This partnership was dissolved on 03.08.2000 and the petitioner took over all the assets and liabilities of the partnership including all rights, title and interest in the allotment of the premises in question. It appears W.P(C) Nos.19350/06 & 19447/06 Page 6 of 22 that the allotment in favour of Sh. Maheshi Dhaundiyal was cancelled w.e.f. 01.09.2004 vide letter dated 27.05.2004 and the Estate Officer initiated proceedings under Section 4 of the Act against him and all other person concerned by issuing a notice. The petitioner responded in response to the show cause notice before the Estate Officer. The same culminated into the passing of the eviction order dated 15.12.2005 by the Estate Officer. The petitioner Smt. Ganga Devi preferred an appeal before the District Judge bearing P.P.A. No.15/2006 under Section 9(1) of the Act. 12. By a common order passed in the aforesaid two appeals, the learned Additional District Judge has dismissed the appeals on the ground that the petitioners had failed to show that the allotment of the premises in question had been regularized in their respective favour. 13. The first submission of Mr. Saini, learned counsel for the petitioners in both the writ petitions, is that the allotments in question had been made by inviting tenders. The allotments were made purely for commercial considerations. The licence was renewable for a period of upto 30 years with periodic enhancement in the lincence fee. The primary concern of the respondents was that the licence fee is regularly paid and the stalls/premises in question are utilized for the purpose for which the licence was granted, and that the other terms and conditions of the licence are complied with. It really does not matter as to who is in occupation of the premises. The respondent, Directorate of Estates, had even earlier on two different occasions, W.P(C) Nos.19350/06 & 19447/06 Page 7 of 22 recognized the transferees/ occupants and regularized the licence in their favour. He submits that there is no reason why the petitioners should not have been treated similarly. The further submission of Mr. Saini is that during the pendency of the petitioners appeals before the learned District Judge the Directorate of Estates had transferred the market in question to the NDMC by issuing a public notice. The relevant part of the public notice reads as follows: - “Government of India had decided to transfer the markets under the control of Land & Development Office, Directorate of Estates and Central Public Works Department (except Indira Chowk, Rajiv Chowk and I.N.A. Complex) comprising shops and flats, over the shops (excluding as the general pool flats, over the shops in R.K. Puram Market, Srinivaspuri, Andrews Ganj, Nanakpur and Lancer Road Markets) to the New Delhi Municipal Council and Municipal Corporation of Delhi on “as is where is” basis. Consequent upon transfer of these markets, NDMC and MCD will function as the Lessor or Licensor, in respect of shops and flats in these markets and shall exercise all powers being performed by Land & Development Office, Directorate of Estates and Central Public Works Department as the case may be as lessor or licensor, in the matter of substitution/mutation of title, Gift Permission, Sale Permission, Mortgage Permission, Conversion of lease hold into freehold, change of use of premises, regularization/restoration of allotment of shops etc. The transfer of Markets will take effect from 01st April, 2006 and transfer of all records shall be completed by 30th April, 2006. With effect from 1.4.2006, all applications in respect of these markets may be submitted to the concerned local body. The names and addresses of the nodal officers of the local bodies are give below: New Delhi Municipal Council Sh. D. Verma, Director (Recovery) NDMC, W.P(C) Nos.19350/06 & 19447/06 Page 8 of 22 10th Floor, Palika Kendra, Sansad Marg, New Delhi – 110001. (Tel. No.23340638)” (emphasis supplied) 14. He submits that once the market in question had been transferred to the NDMC, post 01.04.2006 the NDMC was obliged to follow its own stated policy for allowing mutation in favour of a partner/sub-lettee, which the NDMC had been applying in respect of the markets which were already under its control and management. He submits that the NDMC has a uniform and ongoing policy for this purpose. The petitioner has placed on record the gist of the said policy as downloaded from the website of the NDMC. The relevant extract from the said policy reads as follows: “TRANSFER OF ALLOTMENT Transfer of allotment is made as per policies/resolutions of NDMC. Partnership: Partnership or subletting is allowed after enhancement of licence fee at rates fixed by Council from time to time.” 15. Mr. Saini further submits that the treatment meted out to the petitioners by the NDMC is also partisan, inasmuch as, in respect of another similar appeal being P.P.A. No.127/2005 preferred by one Mrs. Poonam Singh, also a sub-lettee in the same market, which was decided on 13.04.2006 (and the appeals in the case of the petitioners were decided later on 05.12.2006), the learned ADJ had remanded the case back for reconsideration by the Estate Officer. However, when the petitioners appeals were heard the respondent NDMC did not act W.P(C) Nos.19350/06 & 19447/06 Page 9 of 22 fairly by bringing to the notice of the learned ADJ the order passed in the case Poonam Singh, who was identically situated. It is argued that in all fairness, the respondents should have themselves pointed out the order passed in Poonam Singh’s case so that their appeals could also be remanded back before the Estate Officer for reconsideration. 16. I may, at this stage, take note of certain other developments which have taken place during the pendency of the writ petition. The writ petitions had earlier come up before the Court on 08.09.2008. It had then been brought to the notice of the Court that there were substantial amounts of damages outstanding from the petitioners which had not been paid by them. Since the interim stay of dispossession had been granted in both these writ petitions at the initial stage subject to payment of licence fee/ damages, this Court vacated the interim stay in both the matters. Both the writ petitioners preferred Letters Patent Appeals bearing L.P.A. Nos.556/2008 and 558/2008, respectively, against the orders dated 08.09.2008. The said LPAs were dispossessed off by the by the Division Bench on 15.09.2008. The Division Bench requested this Court to dispose off the writ petitions within a period of three months from the date of the said order and granted relief against dispossession subject to their depositing the amounts due. 17. The matters were thereafter listed before this Court on 01.10.2008 by the Registry. They were listed for hearing on 05.11.2008. On 05.11.2008 they were directed to be listed on W.P(C) Nos.19350/06 & 19447/06 Page 10 of 22 06.11.2008. In the meantime, the petitioner in W.P.(C) No.19350/2006 filed C.M. No.15102/2008 seeking a direction to the respondent Nos.1 & 3 to disclose whether the NDMC has approached the Central Government for granting permission to regularize the stalls/shops in the market in question, in the name of the occupants/partners, and if so, to disclose the reply of the Central Government. The petitioners also sought information with regard to the actual date of implementation of the said proposed regularization. Since the said application was moved by the petitioner only on 04.11.2008 i.e. just before the date of hearing, I did not permit an adjournment of the matter to call for a reply in the said application, particularly considering the fact that the petitioners had agreed to the disposal of the writ petitions within three months from the date of order of the Hon’ble Division Bench. Counsel for the NDMC, Mr. Mahajan categorically stated that there is no such proposal sent by the NDMC to the Central Government, as is sought to be made out by the petitioners in C.M.No. 15102/2008. After the arguments were heard and judgment reserved on 7.11.2008, the learned counsel for the petitioner, Mr. Saini mentioned another application on 17.11.2008 with advance copy to counsel for the respondents, which was permitted to be listed on 18.11.2008. By moving C.M.No.15669/08 in W.P(C)No.19350/2006, the petitioners sought to place on record the information/document received from the respondent NDMC in response to the queries made under the Right to Information Act. W.P(C) Nos.19350/06 & 19447/06 Page 11 of 22 After hearing the parties, I directed that the documents filed along with the application would be taken into account. Based on the said documents, another submission of Mr. Saini, learned counsel for the petitioners is that a proposal is pending before the Government of India, recommended by the NDMC to regularize the shops/stalls in the name of the occupants/partners, in a similar fashion as had been done in the year 1996 and 2001 by the Directorate of Estates. 18. These petitions are opposed by the learned counsel for the NDMC. 19. Mr. Mahajan submits that admittedly the petitioner’s case is not covered by the office order dated 25.07.1996 issued by the Directorate of Estates or by the public notice dated 06.08.2001 aforesaid. Admittedly, the allotment in favour of the erstwhile licensees had been cancelled in both the cases and proceedings under the Act had been initiated. There was no defence raised by the petitoners and the Estate Officer had rightly passed the eviction orders. Mr. Mahajan submitted that vide a notification dated 24.03.2006 bearing SO-404(E) issued by the Ministry of Urban Development, the Central Government decided to transfer the markets under the land and development office, Directorate of Estates and Central Public Works Department comprising of shops and flats over the shops to, inter alia, the NDMC on “as is where is” basis. Clause 3 of the said notification provides as follows: “On transfer of these markets, New Delhi Municipal Council and Municipal Corporation of Delhi will function W.P(C) Nos.19350/06 & 19447/06 Page 12 of 22 as the lessor or Licensor, in respect of shops and flats in these markets and shall exercise all powers being performed by Land & Development Office, Directorate of Estates and Central Public Works Department, as the case may be, as the lessor or licensor. The guidelines and procedure followed by Land & Development Office and Directorate of Estates in the matter of substitution/mutation of title, Gift Permission, Sale Permission, Mortgage Permission, Conversion of lease hold into freehold, change of use of premises, regularization/restoration of allotment of shops etc., change of trade, conferment of ownership rights, recovery of misuse/damages charges etc. may also be followed by the local bodies viz. New Delhi Municipal Council and Municipal Corporation of Delhi.” 20. Mr. Mahajan submits that in respect of the markets transferred to NDMC, which included the premises in question situated on Baba Kharag Singh Market, the NDMC had decided to continue to apply the same guidelines as were in application when these markets were under the control and jurisdiction of the Directorate of Estates and the set of rules and guidelines, inter alia, for the purpose of transfer of allotment in favour of the partner / occupant being followed by NDMC in relation to various other markets under its management from before had not been made applicable to such transferred markets. He also argued that the case of Poonam Singh was materially different from that of the petitioners. He submits that in the case of Poonam Singh, the remand was directed by the learned ADJ to the Estate Officer for re-consideration, primarily for two reasons: the first was that the appellant Poonam Singh had relied upon the cases of Ved Rajol, occupant of Stall No. 6 and Sh. Nasir Ahmed, occupant of Stall No. 7. The cases of both these occupants W.P(C) Nos.19350/06 & 19447/06 Page 13 of 22 was covered by the scheme of regularization floated by the Directorate of Estates on 25.07.1996 as these occupants had come into occupation of premises on or before 20.01.1989. Mr. Mahajan has produced photocopies of the partnership deeds executed by the original allottees in favour of Sh. Ved Rajol and Sh. Nasir Ahmed respectively which are dated 22.08.1988 and 19.02.1988. Secondly, the learned ADJ in the case of Poonam Singh had found that the appellant Poonam Singh had not been given a proper hearing, and that there was a violation of principle of natural justice in her case. Mr. Mahajan, therefore, argues that the case of Poonam Singh cannot be relied upon by the petitioners and there was no discrimination in the approach of the respondents before the Estate Officer or the learned ADJ against the petitioners. Mr. Mahajan also relied upon Narmada Bachao Andolan Vs. U.O.I (2000) 10 SCC 664 to submit that the courts, in exercise of their jurisdiction, would not transgress in the field of policy decisions as the courts are ill equipped to adjudicate on a policy decision of the Government. When two or more options or views are possible, and after considering them the Government takes a policy decision, it is then not the function of the Court to go into the matter afresh and, in a way, sit in appeal over such a policy decision. 21. Mr. R.K. Saini, counsel for the petitioner made his submissions in the rejoinder. Mr. Saini submitted that the discriminatory approach of the respondent vis-à-vis Poonam Singh’s case lay in not bringing to the notice of the learned ADJ the fact that W.P(C) Nos.19350/06 & 19447/06 Page 14 of 22 the case of Poonam Singh is not covered by the public notice dated 25.07.1996 issued by the Directorate of Estates. It is argued that the respondent should have pointed out in the case of Poonam Singh that the cases of Ved Rajol and Nasir Ahmed are distinct from that of Poonam Singh, which the respondents deliberately did not do. It is also argued that the so called policy adopted by the respondent NDMC to apply a different set of rules and guidelines in relation to markets transferred to NDMC vide notification dated 24.03.2006 is discriminatory. Once the transferred markets became a part of the pool of markets being managed by the NDMC, there was no rationale in treating the said markets differently and in denying the benefit of the same liberal policies which the NDMC applies to other markets owned and managed by it from before. 22. Having considered the rival submissions of the parties I am inclined to agree with the submissions of the petitioners and to allow the writ petitions. 23. The premises in question was allotted to the original allottees against public auction and by charging licnese fee. The license fee itself was revised from time to time. These allotments were not made out of any other consideration apart from monetary considerations. The original license deed itself shows that the intention was to grant a long term license of up to 30 years. Therefore, unless there was a serious and un-remedied breach of an essential term of the license, normally the same would not be terminated. No doubt the license of W.P(C) Nos.19350/06 & 19447/06 Page 15 of 22 the original allottees, in the present cases, were terminated since it was not open to induct a partner or to transfer or sublet the premises to a stranger without the prior permission of the Directorate of Estates. It cannot be argued that the said breach was not a material breach and that the termination of the licnese as originally done by the Directorate of Estates was bad in law. However, the matter does not end there. While the appeals filed by the petitioners under Section 9 were pending before the learned ADJ, Baba Kharag Singh Market stood transferred to the NDMC. On transfer of the market to NDMC, the NDMC became entitled to exercise the power being exercised by the Land & Development Office, Directorate of Estates as licenser. Mr. Mahajan, to justify the adoption of a different policy in respect of the transferred markets, from the policy adopted in markets owned and governed by it from before, has laid great emphasis on Para 3 of the notification dated 24.03.2006 which states: “The guidelines and procedure followed by Land & Development Office and Directorate of Estates in the matter of substitution/mutation of title, Gift Permission, Sale Permission, Mortgage Permission, Conversion of lease hold into freehold, change of use of premises, regularization/restoration of allotment of shops etc., change of trade, conferment of ownership rights, recovery of misuse/damages charges etc. may also be followed by the local bodies viz. New Delhi Municipal Council and Municipal Corporation of Delhi.” The submission of Mr. Mahajan is that the markets were transferred to the NDMC with the express stipulation W.P(C) Nos.19350/06 & 19447/06 Page 16 of 22 that the guidelines and procedures followed by Land & Development Office and Directorate of Estates, inter alia, in the matter of substitution / mutation of title would continue to govern the occupants of the shops / stalls being transferred and, therefore, the NDMC is justified in not applying its more liberalized norms to such markets. 24. I do not agree with the interpretation given by the respondents to the notification dated 24.03.2006. By the aforesaid extract of Para