LAWS(DLH)-2012-7-51

NDMC Vs. PARVEEN KUMAR

Decided On July 02, 2012
NDMC Appellant
V/S
PARVEEN KUMAR Respondents

JUDGEMENT

(1.) BY virtue of the License Deed of 11th March, 1992, respondent was operating Fuel Depot at Sarojini Nagar, Delhi at a monthly license fee. In proceeding under Section 5 and 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, order of 15th October, 2008 was passed by the Estate Officer evicting the respondent from the aforesaid public premises (hereinafter referred to as the subject premises), as it was found that the license in respect of the subject premises had expired on 17th March, 1997 and was not renewed.

(2.) IN the statutory appeal preferred by the respondent, appellate forum vide impugned order of 5th December, 2008 (Annexure P -1) had kept the eviction order in abeyance till respondent's application of 20th December, 1997 for the change of trade is not decided by the petitioner herein. At the hearing of this petition it was urged by petitioner's counsel with much vehemence that the appellate forum has exceeded its jurisdiction in keeping the Eviction Order (Annexure P -1) in abeyance because equity jurisdiction cannot be exercised by the appellate forum. As regards the request of the respondent for withdrawing the cancellation order alongwith respondent's request for change of trade, in view of the directions issued vide order (Annexure P -13) of 31st January, 2000 in CW 5250/1999 is concerned, it is contended by learned counsel for the petitioner that since the respondent had not removed the unauthorised construction made on the subject premises despite undertaking given to this Court in the earlier proceedings/Order (Annexure P -13), therefore, respondent's request for restoration of the subject premises to the respondent could not be acceded to.

(3.) LEARNED senior counsel for the respondent contends that in the face of the categoric admission of petitioner's witness 1/2 Shri Prasadi Lal, Deputy Director (Estates) (PW -1), regarding there being no encroachment upon the road by the respondent and of there being no other construction or encroachment in the subject premises, petitioner's refusal to decide respondent's application for change of trade is patently illegal and thus, the impugned order is eminently justified, requiring dismissal of this petition. To emphasise the concept of fairness in the proceedings like the instant one, reliance is placed upon Apex Court decision in 'New India Assurance Company Ltd. vs. Nusli Neville Wadia and Anr.' (2008) 3 SCC 279 .