Supreme Court of India
NEW DELHI MUNICIPAL COUNCILversusGANGA DEVI & ANR.
- Citation
- 2021 INSC 549
- Decided
- 27 September 2021
- Disposal
- Appeal(s) allowed
- Bench
- HEMANT GUPTA
Holding
The eviction order is restored because the occupants were not in possession before the statutory cut‑off date, the 2001 public notice does not apply to the market, the partnership violated the licence deed, and NDMC holds only delegated administrative rights, not ownership, to grant regularisation.
Summary
The New Delhi Municipal Council (NDMC) sought to evict Ganga Devi and others from a stall at Baba Kharag Singh Marg, alleging sub‑letting and unauthorised construction. The occupants claimed ownership under a 1998 licence deed, a 2001 public notice granting ownership rights in certain markets, and a cut‑off date of 20‑Oct‑1989 for regularisation. The Supreme Court held that the cut‑off date applied, the occupants were not in possession before that date, the 2001 notice did not cover the market in question, and the partnership deed violated the licence’s prohibition on sub‑letting and induction of partners. Moreover, NDMC was only a delegate of the Union Government for market administration and did not acquire ownership rights, so it could not apply its own regularisation policy. Consequently, the earlier eviction order was restored, with the occupants given time to vacate by 30‑Nov‑2021.
Issues considered
- The applicability of the 20‑Oct‑1989 cut‑off date for regularisation of shops, stalls and flats.
- Whether the public notice dated 6‑Aug‑2001 confers ownership rights on the Baba Kharag Singh Marg market.
- Whether NDMC, as a delegate of the Government of India, can rely on its own regularisation policy or must follow Union policy.
- Whether the partnership and sub‑letting undertaken by the occupants contravened the terms of the 1998 licence deed.
- Whether the transfer of markets to NDMC vested ownership rights in the Council or merely administrative authority.
Legislation cited
Subjects
evictionregularisationlicense deedsub‑lettingpartnershipmarket transferNDMCgovernment delegatecut‑off datepublic noticeownership rights
Judgment
228 [2021]REPORTS
SUPREME COURT 9 S.C.R. 228 [2021] 9 S.C.R.
A NEW DELHI MUNICIPAL COUNCIL
v.
GANGA DEVI & ANR.
(Civil Appeal No. 310 of 2015)
B SEPTEMBER 27, 2021
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Eviction – Predecessor of the occupant-respondent no.1 was
allotted the site in question in 1998 by license deed – Shop
transferred in favour of occupant – Show cause notice issued
C
alleging sub-letting and unauthorized construction – Eviction order
passed ordering eviction of the allotee – Appeal dismissed –
Challenged by occupant – Writ petitions allowed – Writ appeal by
New Delhi Municipal Council – Dismissed – Held: Cut-off date for
regularization of the shops, stalls, flats was 20.10.89 as mentioned
D in the Circular dated 25.07.96, relied on by occupant – Occupant
was not in possession of the stall on or before 20.10.89 – Further,
public notice dated 06.08.2001 conferring ownership rights to the
shopkeepers was in respect of the 14 markets which does not include
the market in question – It specifically stipulated that the earlier
decision of the Cabinet dtd. 20.10.89 shall cease to operate –
E
Therefore, the date fixed in the office order dated 25.07.96 ceased
to be effective after the Cabinet decision dated 31.08.2000 –
Moreover, the partnership deed executed by predecessor of the
occupant with the occupant was in contravention of the terms of
the license deed which prohibited subletting/induction of partner –
F Such license deed was executed after the office order dated 25.07.96
– Orders passed by Division Bench and Single Bench of the High
Court set aside – Eviction order restored.
Allowing the appeals, the Court
HELD: 1. The cut-off date for regularization of the shops,
G 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
H notice specifically stipulates that the earlier decision of the
228
NEW DELHI MUNICIPAL COUNCIL v. GANGA DEVI & ANR. 229
Cabinet dated 20.10.1989 shall cease to operate. Therefore, the A
date fixed in the office order dated 25.7.1996 ceased to be effective
after the Cabinet decision dated 31.8.2000. 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,
B
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 C
Marg market. [Paras 11, 12][236-G-H; 237-A-C]
2. 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/ D
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 E
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 F
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. G
Such income would not accrue to the Council as a part of their
budget. 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 H
230 SUPREME COURT REPORTS [2021] 9 S.C.R.
A them on behalf of the Government of India. The orders passed
by the Division Bench of the High Court as also the Single Bench
of the High Court are erroneous in law. The same are set aside.
The order of eviction affirmed by the Additional District Judge
on 5.12.2006 is restored. [Paras 15-17][237-G-H; 238-A-F]
B CIVIL APPELLATE JURISDICTION: Civil Appeal No.310 of
2015.
From the Judgment and Order dated 06.04.2009 of the High Court
of Delhi at New Delhi in LPA No.145 of 2009.
With
C
Civil Appeal Nos.311, 312 and 313 of 2015.
Yoginder Handoo, Ashwin Kataria, Advs. for the Appellant.
Sanjay Jain, ASG, A. K. Sinha, Sr. Adv., S. R. Rajagopal,
S. Santanam Swaminadhan, Ms. Abhilasha Shrawat, Ms. Aarthi Rajan,
D Rajesh Kumar Singh, Ms. Sunita Sharma, Ms. Reena Pandey, Amrish
Kumar, B. V. Balaram Das, Advs. for the Respondents.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
E 1. This order shall dispose of four appeals arising out of an order
dated 6.4.2009 passed by the Division Bench of the High Court of Delhi
in the Letters Patent Appeals.
2. Since the facts in all the appeals are similar, for facility of
reference, facts from Civil Appeal No. 310 of 2015 are referred herein.
F A show cause notice dated 11.3.2004 was issued to respondent no.1 1
alleging sub-letting and unauthorised construction in a stall located at
Baba Kharag Singh Marg, New Delhi on the basis of a survey conducted
on 4.3.2004. A reply was filed that the shop was allotted to Smt. Maheshi
Dhoundiyal and the same was sublet in the year 1999 to the occupant.
Smt. Maheshi Dhoundiyal transferred the shop in favour of the occupant
G in the year 2000 and therefore, the occupant claimed ownership of this
property. In addition, the occupant relied upon the Circular dated
25.7.1996 as well as the policy adopted by the Government in pursuance
of the Cabinet decision dated 31.8.2000 whereby occupants of the shops
1
H Hereinafter referred to as the ‘occupant’
NEW DELHI MUNICIPAL COUNCIL v. GANGA DEVI & ANR. 231
in the 14 specified markets were resolved to be granted ownership rights. A
Thus, the occupant claimed that there cannot be discrimination and she
should also be treated in the same category as the occupants in the said
14 markets.
3. After considering the reply filed, an order of eviction was passed
by the Estate Office, Directorate of Estates, New Delhi on 15.12.2005, B
ordering eviction of the allottee from whom the occupant had purchased
the stall in question. The appeal against the said judgment was dismissed
by the learned Additional District Judge on 5.12.2006. The said order
was challenged by the occupant before the Writ Court. The learned
Single Bench allowed the two writ petitions holding that merely because
market in question i.e., Baba Kharag Singh Marg Market has fallen into C
the lap of New Delhi Municipal Council2 by virtue of notification dated
24.3.2006, it does not mean that the policy regarding substitution/mutation
of ownership for that market can be different from the one adopted by
the Council for all other markets managed by it. Therefore, the Council
cannot treat them differently and the occupant was held to be entitled to D
regularization of allotment in accordance with its policies. The Council
was directed to transfer the allotment in the favour of the occupant
within two months. An intra-court appeal filed by the Council was
dismissed on 6.4.2009 vide the impugned order. Still aggrieved, the Council
is in appeal before this Court.
E
4. The predecessor of the occupant was allotted the site in question
on 4.8.1998. Some of the conditions of the license deed executed on
11.8.1998 read thus:
“8. The licencee(s) shall not permit the said premises or any part
thereof being used by any other person for any purpose whatsoever F
without the previous consent in writing of the Government and in
default thereof shall be liable for ejectment. The licencee(s) shall
not introduce any partner nor shall he/they transfer possess on of
the premises or part thereof or otherwise carry on the business in
the premises alienate his interest in the premises.
G
xx xx xx
11. The licencee(s) shall on revocation or termination of this licence
hand over possession of the said premises to the Government in
2
For short, the ‘Council’ H
232 SUPREME COURT REPORTS [2021] 9 S.C.R.
A as good condition as they were in at the date of the licence, normal
wear and tear excepted.
xx xx xx
14. This licence shall stand ipso-facto determined, without any
right to compensation whatsoever to the licencee(s), in any of the
B following events, that is to say:-
(i) If the licencee(s) being an individual or if a firm, any partner in
the licence firm shall die, or at any time be adjudicated insolvent
or shall have a receiving order or order for administration of his
estate made against him or shall take any proceedings for
C liquidation or composition under any Insolvency Act, for the time
being in force or make any conveyance or assignment of his effects
or enter into any agreement for composition with his creditors to
suspend payment or shall introduce a new Partner or shall change
the constitution of the partnership or if the firm be dissolved under
D the Partnership Act, or
(ii) If the licencee(s) being a company shall pass a resolution or
the court shall make an order for the liquidation or its affairs or a
receiver or manager on behalf of the debenture holders shall be
appointed or circumstances shall have arosen which entitle the
E court or debenture holders to appoint a receiver or manager.
Provided always that such determination shall not prejudice
any right of action or remedy which shall have accrued or shall
accrue thereafter to the Government.”
5. It is an admitted fact that a partnership deed was executed by
F the predecessor of occupant on 12.6.2000 with the occupant wherein
the predecessor had kept only 20% share in the partnership firm and the
remaining 80% share was that of the occupant. Such partnership was
dissolved on 3.8.2000, that is within 2 months of the partnership firm
was created. One of the conditions of the dissolution deed was that the
predecessor of the occupant would have no objection for transfer of the
G
shop in favour of the occupant and regularization in her name.
6. It was on 24.3.2006, the Ministry of Urban Development,
Government of India transferred certain markets to the Council and
Municipal Corporation of Delhi w.e.f. 1.4.2006. The said order reads
thus:
H
NEW DELHI MUNICIPAL COUNCIL v. GANGA DEVI & ANR. 233
“S.O. 404(E). – Whereas the Land and Development Office, A
Directorate of Estates and Central Public Works Department
under the Ministry of Urban Development are administering
various markets in Delhi.
2. And whereas the Central Government has decided to transfer
the markets under Land & Development Office, Directorate of B
Estates and Central Public Works Department (except Indira
Chowk, Rajiv Chowk and I.N.A. Market Complex) comprising
of shops and flats over the shops (excluding the general pool flats
over the shops in R.K. Puram Market, Srinivaspuri, Andrews Ganj,
Nanakpura and Lancer Road Markets) to the New Delhi Municipal
Council and Municipal Corporation of Delhi on “as is where is” C
basis, it is decided as follows;
3. On transfer of these markets, New Delhi Municipal Council
and Municipal Corporation of Delhi 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 D
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, E
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. F
4. In addition to performing the functions as lessor/licensor, local
bodies can also take appropriate action against violation of building
bye-laws, municipal bye-laws and exercise other statutory powers.
5. Both New Delhi Municipal Council and Municipal Corporation G
of Delhi shall create a separate Corpus of Fund to which the
revenue generated from the transfer of markets by way of receipt
of rent, licences, unearned increase, premium, conversion fee,
damages/misuse charges etc. shall be deposited. If for any reason
the amount is credited in the common Municipal Fund, then a
H
234 SUPREME COURT REPORTS [2021] 9 S.C.R.
A separate Account shall be maintained in respect of the revenue
realized from transfer of markets and this be duly accounted for.
These Funds shall be utilized only for the purpose of development
of the markets and for no other purpose. A quarterly report of the
deposits made and the amount spent are to be furnished to the
Land and Development Office and Ministry of Urban
B
Development, Nirman Bhawan, New Delhi.
6. The details of the markets being transferred to the New Delhi
Municipal Council are listed under Annexure-I. Similarly, the details
of the markets being transferred to the Municipal Corporation of
Delhi are at Annexure-II.
C
7. The transfer of Markets will take effect from 1st April, 2006
and transfer of all records shall be completed by 30th April, 2006.”
7. The argument of the occupant was that in terms of clause 3,
the policy of regularization/restoration of allotment may also be followed
D by the local bodies. It was argued that the Government of India on
25.7.1996 allowed regularization of shops, stalls, flats which had come
into occupation of the respective premises on or before 20.10.1989.
Reliance was also placed upon an advertisement issued by the
Government of India published in the Hindustan Times on 6.8.2001 to
confer ownership rights to the shopkeepers of 12 markets. It was also
E mentioned that earlier decision of the Cabinet dated 20.10.1989 which
finds mention in the office order dated 25.7.1996 will cease to operate.
It may be mentioned that Baba Kharag Singh Marg Market is not one of
the market areas covered by the said public notice. The relevant extract
from such public notice reads thus:
F “Consequent upon the decision of Cabinet dated 31.8.2000 to grant
ownership rights to the shop keepers of 12 markets, it has been
decided by the Ministry that the earlier decision of the cabinet
dated 20.10.1989 shall cease to operate. Now Director of Estates,
Nirman Bhawan, New Delhi on behalf of the President of India,
G calls for applications from let out allottees occupants of the
following fourteen markets who have not been given ownership
rights under the cabinet decision 1989. It has been decided consider
their cases for granting ownership rights acceding to the prescribed
terms and conditions as approved by the Cabinet in its decision
dated 31.8.2000.
H
xx xx xx
NEW DELHI MUNICIPAL COUNCIL v. GANGA DEVI & ANR. 235
2. The following categories of persons would be eligible for A
consideration to the grant of ownership rights subject to production
of adequate proofs
(a) Original allottees
(b) The allottees in whose names the shops have been regularised
with the consent of the original allottees on or before B
20.10.1989.
(c) Undisputed occupants after 20.10.1989 till 31.8.2000.”
8. The occupant also relied upon a policy of regularization
appended as Annexure R/3, probably appearing on the website of the C
Council and downloaded on 18.12.2006. The relevant clauses read as
under:
“TRANSFER OF ALLOTMENTS
Transfer of allotment is made as per policies/resolutions of NDMC.
D
Transfer is allowed in following cases on merits:
1. Partnership:
Partnership or subletting is allowed after enhancement of license
fee at rates fixed by Council from time to time.
xx xx xx E
4. Renewal of license of shops/commercial units:
The application for renewal must reach within the time stipulated
as per terms and conditions i.e. 60 days before the date of expiry
of present license. An affidavit is required that there is no violation F
of the terms and conditions is of the present license.
Renewal of license in case of shops, stalls, kiosks, tharas, office
space/units and restaurants may be allowed for a period of ten
years on year to year basis subject to enhancement in license fee
@ 10% per annum and as may be fixed by the council from time
G
to time.
a) Shops/Markets:- Palika Place, Palika Bazaar and Palika
Bhawan’s license fee freezed w.e.f. 1-9-2000 to 1-9-2007.
b) Non-renewal of license in time will attract damage charged @
30% of the license fee.” H
236 SUPREME COURT REPORTS [2021] 9 S.C.R.
A 9. Learned counsel for the occupant also relied upon an interim
order passed by this Court on 30.10.2012 wherein, the policy of
regularization as referred to in the notification dated 24.3.2006 was asked
to be produced by Union of India and the Council. It was argued that no
such policy has been produced on record, therefore, the occupant is
entitled to regularization of the stall site in accordance with the policy
B
available on the website of the Council. The occupant had also relied
upon communication dated 21.5.2008 by Director (Estates), 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
C 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
D
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
E 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
F 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
G 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.
H
NEW DELHI MUNICIPAL COUNCIL v. GANGA DEVI & ANR. 237
Therefore, the date fixed in the office order dated 25.7.1996 ceased to A
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 B
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.
C
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. D
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 E
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 F
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 G
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
H
238 SUPREME COURT REPORTS [2021] 9 S.C.R.
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
B
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
C 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
D
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
E Government of India.
17. Thus, we find that the orders passed by the Division Bench of
the High Court as also the Single Bench of the High Court are erroneous
in law. The same are set aside. The order of eviction affirmed by the
learned Additional District Judge on 5.12.2006 is restored. However, the
F occupants are granted time to vacate and hand over the physical vacant
possession of the sites in question on or before 30.11.2021. The appeals
are thus allowed.
Divya Pandey Appeals allowed.
G
H
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