Case: NEW DELHI MUNICIPAL COUNCIL Vs. GANGA DEVI &amp; ANR

Council to the Director (Estates), Directorate of Estates of the Government of India seeking guidance for revision of prescribed cut-off date i.e., 20.10.1989 for transfer of shops in the names of the occupants in possession of the premises. In response thereto, the Director of Estates, Government of India communicated on 8.7.2008 that all powers to administer the markets shall now rest with Council/MCD, the concerned local body i.e., the Council may take appropriate action in this particular case at their end. It may be mentioned that the letters dated 21.5.2008 and 8.7.2008 are interdepartmental communication and not any policy decision or circular meant for public. Thus, such interdepartmental communications are not the enforceable orders of the Union or of the Council. 10. In this factual background, learned counsel for the appellant had vehemently argued that the license deed executed in the year 1998 had clearly prohibited subletting of premises, including induction of a partner. The specific reference was made to clauses 8 and 14 of the license deed, as reproduced above. It was also argued that the notice published on 6.8.2001 would not be applicable to the stalls located at the Baba Kharag Singh Marg market and that the administrative decision of the Cabinet dated 20.10.1989 had ceased to operate. The applications were invited from the allottees/occupants who have not been given ownership rights in the Cabinet decision in the year 1989 to apply on or before 30.9.2001. 11. The cut-off date for regularization of the shops, stalls, flats was 20.10.1989 as mentioned in the Circular dated 25.7.1996. It is to be noted that the occupant was not in possession of the stall on or before 20.10.1989. Still further, the public notice dated 6.8.2001 was in respect of the 14 markets which does not include the market at Baba Kharag Singh Marg. The said public notice specifically stipulates that the earlier decision of the Cabinet dated 20.10.1989 shall cease to operate. Therefore, the date fixed in the office order dated 25.7.1996 ceased to be effective after the Cabinet decision dated 31.8.2000. 12. There was a clear stipulation in the license deed executed by the predecessor of the occupant that she shall not induct any partner or sublet the premises. But in utter violation of the terms of the license, firstly, the partnership was executed and within two months, it was dissolved. The act of the predecessor of the occupant and the occupant are clearly and unequivocally in contravention of the terms of the license deed. Such license deed was executed after the office order dated 25.7.1996. Further, the public notice dated 6.8.2001 would not be applicable in respect of Baba Kharag Singh Marg market. 13. The policy of transfer of allotments of the Council is to be made 60 days before the expiry of the present license. The transfer is also to be allowed in the cases of partnership, transfer, mutation in favour of the legal heirs on merits. It is not necessary for us to examine the applicability of such policy in view of the terms of the transfer of the markets to the Council. 14. Para 1 of the notification dated 24.3.2006 explains that the Land and Development Office and Central Public Works Department are administering various markets in Delhi. In Para 2, the markets were transferred on as is where is basis. In terms of Para 3, the Council was to function as a lessor or licensee and was to exercise all powers being performed by Land and Development Office, Directorate of Estates and Central Public Works Department, as the case may be. Para 3 further provides that guidelines and procedures of the Department in matters 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 may also be followed by local bodies. Para 5 further contemplates that the revenue generated from the transfer of markets by way of receipt of rent, licenses, unearned increase, premium, conversion fee shall be deposited in a separate corpus of funds and such corpus was to be utilized only for the purpose of development of the markets and for no other purpose. 15. Thus, the rights of Government of India in administering the markets as a lessor or licensee alone was transferred and not the land or the building thereon. The Council was to administer the properties as a delegate of the Union. The regularization/restoration of allotment of shops in para 3 was in terms of the policy of the Union and not that of Council. The relevant clause is the guidelines and procedure followed by Land & Development Office and Directorate of Estates in the matter of …………………. regularization/restoration of allotment of shops may also be followed. Thus, if there is a policy of regularization or restoration of the Union, the same may be followed by the Council. However, the policy of the Council, if any, in respect of regularization/restoration of allotment would not be applicable. Therefore, even if the Council has not produced policy of regularization, it is not material to the questions raised in the present appeal. The rights of the Council are to administer the properties as a delegate of the Government of India and not as an owner as there were no transfer of rights in the markets in favour of the Council. This is evident from the fact that the revenue generated from the transfer of markets has to be deposited in a separate corpus of funds to be utilized only for the purpose of development of markets and for no other purpose. Such income would not accrue to the Council as a part of their budget. 16. Therefore, the markets transferred by the Government of India to the Council have to be dealt independently and separately than the properties owned by the Council as the Council has no title over such markets as it has been asked only to manage them on behalf of the Government of India.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]11. The cut-off date for regularization of the shops, stalls, flats was 20.10.1989 as mentioned in the Circular dated 25.7.1996. It is to be noted that the occupant was not in possession of the stall on or before 20.10.1989. Still further, the public notice dated 6.8.2001 was in respect of the 14 markets which does not include the market at Baba Kharag Singh Marg. The said public notice specifically stipulates that the earlier decision of the Cabinet dated 20.10.1989 shall cease to operate. Therefore, the date fixed in the office order dated 25.7.1996 ceased to be effective after the Cabinet decision dated 31.8.2000.12. There was a clear stipulation in the license deed executed by the predecessor of the occupant that she shall not induct any partner or sublet the premises. But in utter violation of the terms of the license, firstly, the partnership was executed and within two months, it was dissolved. The act of the predecessor of the occupant and the occupant are clearly and unequivocally in contravention of the terms of the license deed. Such license deed was executed after the office order dated 25.7.1996. Further, the public notice dated 6.8.2001 would not be applicable in respect of Baba Kharag Singh Marg market.13. The policy of transfer of allotments of the Council is to be made 60 days before the expiry of the present license. The transfer is also to be allowed in the cases of partnership, transfer, mutation in favour of the legal heirs on merits. It is not necessary for us to examine the applicability of such policy in view of the terms of the transfer of the markets to the Council.14. Para 1 of the notification dated 24.3.2006 explains that the Land and Development Office and Central Public Works Department are administering various markets in Delhi. In Para 2, the markets were transferred on as is where is basis. In terms of Para 3, the Council was to function as a lessor or licensee and was to exercise all powers being performed by Land and Development Office, Directorate of Estates and Central Public Works Department, as the case may be. Para 3 further provides that guidelines and procedures of the Department in matters 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 may also be followed by local bodies. Para 5 further contemplates that the revenue generated from the transfer of markets by way of receipt of rent, licenses, unearned increase, premium, conversion fee shall be deposited in a separate corpus of funds and such corpus was to be utilized only for the purpose of development of the markets and for no other purpose.15. Thus, the rights of Government of India in administering the markets as a lessor or licensee alone was transferred and not the land or the building thereon. The Council was to administer the properties as a delegate of the Union. The regularization/restoration of allotment of shops in para 3 was in terms of the policy of the Union and not that of Council. The relevant clause is the guidelines and procedure followed by Land & Development Office and Directorate of Estates in the matter of …………………. regularization/restoration of allotment of shops may also be followed. Thus, if there is a policy of regularization or restoration of the Union, the same may be followed by the Council. However, the policy of the Council, if any, in respect of regularization/restoration of allotment would not be applicable. Therefore, even if the Council has not produced policy of regularization, it is not material to the questions raised in the present appeal. The rights of the Council are to administer the properties as a delegate of the Government of India and not as an owner as there were no transfer of rights in the markets in favour of the Council. This is evident from the fact that the revenue generated from the transfer of markets has to be deposited in a separate corpus of funds to be utilized only for the purpose of development of markets and for no other purpose. Such income would not accrue to the Council as a part of their budget.16. Therefore, the markets transferred by the Government of India to the Council have to be dealt independently and separately than the properties owned by the Council as the Council has no title over such markets as it has been asked only to manage them on behalf of the Government of India.