W.P.(C) 12156/2018 Page 1 of 35
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- IN THE HIGH COURT OF DELHI AT NEW DELHI
- W.P.(C) 12156/2018 & CM APPL. 47178/2018, CM APPL.
11959/2019, CM APPL. 7497/2024
MOHD. UBAID …..Petitioner
Through: Md. Azam Ansari, Advocate
(M:9990066404)
versus
NEW DELHI MUNICIPAL COUNCIL …..Respondent
Through: Ms. Kanika Agnihotri, SC-NDMC
with Mr. Sachin Sharma, Advocate
(M:9310225726)
CORAM:
HON’BLE MS. JUSTICE MINI PUSHKARNA
JUDGMENT
% 22.08.2025
- The present petition has been filed under Article 226 of the
Constitution of India, inter alia, seeking directions to the respondent – New
Delhi Municipal Council (“NDMC”), to regularize the shop bearing no. 83,
Palika Bazar, New Delhi (“subject shop”) in favour of the petitioner, and
execute a License Deed in his favour. The petitioner further seeks quashing
of the letters dated 18th June, 2018 and 21st December, 2011, issued by the
respondent, thereby, rejecting the petitioner’s request for regularization. - Facts, as canvassed in the petition, are as follows:
2.1 The subject shop was initially allotted to M/s Marveilleuse Arts &
Crafts on 01
st November, 1978, comprising of three Partners, i.e., Mohd.
W.P.(C) 12156/2018 Page 2 of 35
Shafi Wani, Mr. Gautam Mustafa Wani & Mr. Mukhtar Ahmad Wani, who
subsequently, entered into a Partnership Deed with Ms. Madhu Aggarwal.
Later on, Ms. Madhu Aggarwal approached the respondent with a
Partnership Deed and a Dissolution Deed, however, the necessary
formalities for execution of the License Deed were not completed. On 25th
August, 1987, Ms. Madhu Aggarwal entered into a Partnership Deed with
Smt. Jasbir Kaur. Subsequently, a License Deed dated 08
th November, 1988
was executed in the name of Smt. Jasbir Kaur, who then, entered into a
Partnership Deed with Sh. Sanjeev Gupta on 14th December, 1993.
2.2 The respondent-NDMC executed a License Deed in favour of Sh.
Sanjeev Gupta on 01st June, 1994. As no request for renewal was made on
his behalf, consequently, on 07th November, 1998, Sh. Sanjeev Gupta was
declared as an unauthorized occupant.
2.3 Subsequently, Sh. Sanjeev Gupta was also found to have sub-let the
shop to one Mr. Abdul Rauf Javed, due to which, enhancement in license fee
was levied. Further, the respondent proceeded against Sh. Sanjeev Gupta
under Sections 5 and 7 of the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 (“PP Act”), on the grounds of subletting of the public
premises, and also the determination of the License Deed by efflux of time.
Pursuant to the proceedings under the PP Act, an Eviction Order dated 24th
December, 2008, was passed by the Estate Officer, by way of which Sh.
Sanjeev Gupta was evicted, and directed to vacate the shop within 15 days.
2.4 Sh. Sanjeev Gupta challenged the Eviction Order in the Appeal
bearing no. PPA 110/09 before the District Judge, Tis Hazari Courts, Delhi,
wherein, vide order dated 18th February, 2010, the appeal was dismissed, and
the Eviction Order was upheld.
W.P.(C) 12156/2018 Page 3 of 35
2.5 Thereafter, Sh. Sanjeev Gupta filed a writ petition bearing no.
W.P.(C) 1199/2010, titled as “Shri Sanjeev Gupta Versus New Delhi
Municipal Council & Anr.”, challenging the Eviction Order and the order
passed in the Appeal, i.e., PPA 110/09, wherein, vide order dated 25th
February, 2010, the Court allowed temporary possession of the shop to Sh.
Sanjeev Gupta.
2.6 During the pendency of the said writ petition, Sh. Sanjeev Gupta
entered into a partnership with the present petitioner by way of a Partnership
Deed dated 08
th September, 2010, and the same was later dissolved by way
of a Dissolution Deed dated 11th October, 2010. Thereafter, the petitioner
vide letter dated 26th October, 2010, applied with the respondent-NDMC to
get the subject shop transferred, and regularized in his name.
2.7 The writ petition bearing no. W.P.(C) 1199/2010 was dismissed as
withdrawn vide order dated 03
rd February, 2011, and the Court vacated all
interim orders, and further directed the respondent-NDMC to take
possession of the subject shop. The possession of the subject shop was taken
over by the respondent-NDMC on 10th February, 2011.
2.8 The petitioner preferred a writ petition being W.P.(C). 867/2011, titled
as “Mohd Ubaid Versus NDMC”, seeking directions to the respondentNDMC to regularize or transfer the subject shop in the name of the
petitioner, and execute a Licence Deed thereto. The said petition was
dismissed by this Court vide judgement dated 21st February, 2011, wherein,
the Court found the petitioner to have abused the process of the Court, and
held that the petitioner cannot claim any right with respect to the subject
shop.
2.9 Aggrieved by the said judgement, the petitioner filed an appeal
W.P.(C) 12156/2018 Page 4 of 35
bearing no. LPA 450/2011, titled as “Mohd Ubaid Versus New Delhi
Municipal Council”, wherein, the Division Bench of this Court, by order
dated 12th May, 2011, directed the respondent-NDMC to consider the
representation of the petitioner, and accept or reject it, in a time-bound
manner.
2.10 After considering the representation of the petitioner, the respondentNDMC on the recommendation of the sub-committee, rejected the
application for transfer. Consequently, the respondent-NDMC issued a letter
dated 21st December, 2011, to the petitioner, rejecting the petitioner’s
request for regularization of the subject shop.
2.11 The appeal, i.e., LPA 450/2011, was dismissed as withdrawn vide
order dated 27
th April, 2012, wherein, the petitioner sought and was granted
liberty to challenge the rejection letter dated 21st December, 2011,
separately.
2.12 The petitioner sent representations dated 12th February, 2013 and 18th
December, 2013, to the respondent-NDMC for seeking transfer and
regularization of the subject shop in the petitioner’s name. However, no
decision was taken on the said representations, and therefore, being
aggrieved by the non-consideration of the representations, and the rejection
letter dated 21st December, 2011, the petitioner filed a writ petition bearing
no. W.P.(C) No. 4863/2015, titled as “Ubaid Versus New Delhi Municipal
Council”. The same was dismissed as withdrawn vide order dated 18th May,
2015, on the first date of hearing.
2.13 Thereafter, the respondent issued a new policy to grant and renew
licences of shops vide Circular no. D-1043/SO(Estate-I)/2016, dated 16th
August, 2016. The petitioner filed a fresh representation with the
W.P.(C) 12156/2018 Page 5 of 35
respondent-NDMC for regularization of the subject shop by letter dated 12th
October, 2016, based on the Circular dated 16th August, 2016.
2.14 Vide letter dated 18th June, 2018, the respondent-NDMC replied to the
fresh representation of the petitioner, thereby, clarifying the status of the
subject shop, and informing that the possession of the subject shop has been
taken over by the NDMC.
2.15 The petitioner filed another representation dated 18th September,
2018, based on the Circular dated 16th August, 2016.
2.16 Being aggrieved by the said communication dated 18
th June, 2018 and
the rejection letter dated 21st December, 2011, the petitioner filed the present
writ petition seeking regularization, and issuance of a license with regard the
subject shop in favour of the petitioner.
- On behalf of the petitioner, it is submitted as follows:
3.1 The letter dated 21st December, 2011, rejecting the request for
regularization, is cryptic and violative of Principles of Natural Justice. The
respondent-NDMC failed to apply its Resolution, titled “Estate Policy/
Guidelines for Declaring with Estate Matters” dated 18th March, 1999, and
the Resolution titled “Policy Regarding Cases in Which Eviction and
Recovery Orders Have Been Passed” dated 30th December, 1997. Thus, the
letter dated 21st December, 2011, should be set aside for non-application of
mind.
3.2 The letter dated 18th June, 2018, by which the representation of the
petitioner for regularization of the subject shop was again rejected by the
respondent-NDMC, also failed to apply the Circular dated 16th August,
2016.
3.3 The respondent, being a “state” under Article 12 of the Constitution of
W.P.(C) 12156/2018 Page 6 of 35
India, must apply its resolutions uniformly, without discriminating between
the applicants. The respondent-NDMC has regularized the shops of similarly
placed persons, against whom eviction notices were issued, either on its own
or upon intervention by the Court. Thus, the subject shop of the petitioner
should also be regularized under the resolutions of the respondent-NDMC,
on the grounds of parity and uniform application of policy.
3.4 The decision of the respondent to reject the application of the
petitioner was in contravention of the legal opinion given by the Standing
Counsel, Special Counsel and Law Department of the respondent-NDMC.
3.5 In the writ petition bearing no. W.P.(C) 1199/2010, titled “Shri
Sanjeev Gupta Versus New Delhi Municipal Council & Anr.”, this Court, by
order dated 25th February, 2010, permitted Sh. Sanjeev Gupta (petitioner
therein) to use and occupy the subject shop, upon depositing the entire
arrears of the license fee, along with the subletting charges from February,
1999 onwards. Thereafter, the respondent-NDMC demanded a payment of
Rs. 17,18,590.13/- as arrears from February, 1999 till 22nd February, 2010,
by letter dated 05
th March, 2010. The aforesaid demand was duly paid by the
present petitioner, and the subject shop was de-sealed. However, despite
clearing the dues of the last 11 years, the subject shop was again sealed by
the respondent-NDMC on 10th February 2011, as the writ petition bearing
no. W.P.(C) 1199/2010 was dismissed as withdrawn, and possession was
granted to the respondent-NDMC by the order of the Court dated 03
rd
February, 2011. The subject shop has remained in the possession of the
respondent-NDMC for the last one and a half decades. The sealing of the
subject shop violates the petitioner’s “Right to Livelihood”, protected under
Article 21 of the Constitution of India.
W.P.(C) 12156/2018 Page 7 of 35
- On behalf of the respondent-NDMC, it is submitted as follows:
4.1 The present writ is not maintainable as it is barred by delay and
laches. The application of the petitioner seeking regularization already
stands rejected, in absolute terms, by the letter dated 21st December, 2011.
Despite this, the petitioner persistently sent representations for
regularization, because of which the letter dated 18th June, 2018, was issued
by the respondent-NDMC to merely clarify the existing situation that the
respondent had taken possession over the subject shop. The letter dated 18th
June, 2018, being merely clarificatory in nature, cannot be considered to
give rise to a fresh cause of action.
4.2 The writ petition is not maintainable as the same is barred by res
judicata. This Court, while deciding the writ petition being W.P.(C)
867/2011, titled as “Mohd Ubaid Versus NDMC”, passed the judgement
dated 21st February, 2011, wherein, the Court held that the petitioner was not
entitled to any treatment in parity. This is because the subject shop had gone
much beyond the stage of termination of the License Deed, an Eviction
Order had been passed, appeal against the Eviction Order had been
dismissed, and possession was taken over. The Eviction Order attained
finality, and the petitioner could not claim any right in the subject shop,
when the person, through whom the petitioner claims his right, stood
evicted. The Court, vide order dated 21st February, 2011 in the aforesaid
writ, also noted that the petition was an abuse of the process of the Court
and dismissed the writ petition. In view of the order dated 21st February,
2011, the petitioner is barred by res judicata from raising the same relief,
and from raising new pleas for the same old relief.
4.3 On merits, the claim of the petitioner has to be rejected. The Eviction
W.P.(C) 12156/2018 Page 8 of 35
Order dated 24th December, 2008, passed by the Estate Officer against Sh.
Sanjeev Gupta has attained finality. Therefore, Sh. Sanjeev Gupta stood
divested of all the rights in the subject shop, and had no legal right to
effectuate any transfer in favour of the petitioner by the Partnership Deed
dated 08
th September, 2010. Thus, no right in the subject shop has accrued in
favour of the present petitioner.
4.4 Additionally, the Circular dated 16th August, 2016, is only applicable
to pending cases of transfer of license. Since the application of the petitioner
for regularization of the subject shop was rejected in 2011 itself, with
finality, the petitioner’s case cannot be regarded as being “pending”, and the
said Circular does not apply to the petitioner.
- I have heard learned counsels for the parties, and have perused the
record. - By way of the present writ petition, the petitioner has prayed for
regularization of the subject shop, and consequently, for the respondentNDMC to issue a license in favour of the petitioner towards the same. - As per the facts on record, the subject shop was initially allotted to a
partnership firm, i.e., M/s Marveilleuse Arts and Crafts on 01
st November, - Thereafter, one Ms. Madhu Aggarwal became a partner of the said
firm. She submitted documents with the NDMC related to Partnership Deed
and subsequent dissolution of partnership by way of a Dissolution Deed, but
failed to complete the necessary formalities for execution of License Deed in
her favour. - The said Ms. Madhu Aggarwal, then entered into a Partnership Deed
with Smt. Jasbir Kaur and a License Deed was executed in her name for a
period of five years starting from 08th November, 1988, who on 14th
W.P.(C) 12156/2018 Page 9 of 35
December, 1993, executed a Partnership Deed with Sh. Sanjeev Gupta, i.e.,
predecessor-in-interest of the petitioner, in favour of whom the respondentNDMC granted license for the subject shop on 01st June, 1994.
- It is undisputed that on account of non-renewal of the License, Sh.
Sanjeev Gupta was declared an unauthorized occupant on 07th November, - Furthermore, as it was found that the subject shop was sub-let by Sh.
Sanjeev Gupta to one Mr. Abdul Rauf Javed, in contravention to the Terms
of the License, the respondent-NDMC initiated eviction proceedings under
Sections 5 and 7 of the PP Act against Sh. Sanjeev Gupta. Pursuant thereto,
an Eviction Order dated 24th December, 2008, was passed by the Estate
Officer. - The said Eviction Order was challenged by Sh. Sanjeev Gupta,
predecessor-in-interest of the petitioner herein, before the District Judge, Tis
Hazari Courts, New Delhi by way of appeal bearing no. PPA/110/09,
wherein, vide order dated 18th February, 2010, the appeal was dismissed, and
the Eviction Order was upheld. Thereafter, the order dated 18th February,
2010, along with the Eviction Order dated 24th December, 2008, was
challenged before this Court in W.P.(C) 1199/2010 by Sh. Sanjeev Gupta. - It is pertinent to note that during the course of the said writ petition,
Sh. Sanjeev Gupta executed a Partnership Deed dated 08th September, 2010,
with the petitioner herein, and within just a span of a month, the said parties
executed a Dissolution Deed dated 11th October, 2010, upon which, the
petitioner herein sought to claim the right to have the shop licensed in his
favour by the respondent-NDMC, by way of a representation dated 26th
October, 2010. - It is also pertinent to note that the Court in W.P.(C) 1199/2010, had
W.P.(C) 12156/2018 Page 10 of 35
passed several orders, wherein, it was indicated that the identity of Sh.
Sanjeev Gupta was in doubt, and directed Sh. Sanjeev Gupta to produce
documents in this regard. However, vide order dated 03rd February, 2011,
Sh. Sanjeev Gupta withdrew the said writ petition, which was allowed to be
withdrawn by the Court with imposition of costs, and direction to the
respondent-NDMC to take possession of the subject shop. Accordingly, the
possession of the subject shop was taken by the respondent-NDMC, on 10th
February, 2011. The order dated 03rd February, 2011, passed in
W.P.(C)1199/2010, is reproduced as under:
“Learned counsel for the petitioner seeks to withdraw the present
petition.
Dismissed as withdrawn with costs of Rs. 25,000/- to be deposited by
the petitioner with the Delhi High Court Bar Association Lawyers
Social Security and Welfare Fund within two weeks from the date of
this order. Let the respondent take possession of the subject shop
forthwith.
All interim orders passed in this matter stand vacated.”
(Emphasis Supplied)
- The aforesaid facts clearly show that the Eviction Order dated 24th
December, 2008, passed by the Estate Officer and upheld vide order dated
18th February, 2010, in the appeal, against Sh. Sanjeev Gupta, predecessorin-interest of the petitioner, has attained finality. Thus, the operation of the
Eviction Order against Sh. Sanjeev Gupta was effective from 24th
December, 2008, when the Eviction Order was initially passed by the Estate
Officer. Thus, when Sh. Sanjeev Gupta entered into Partnership Deed with
the petitioner herein, on 08th September, 2010, he had no right, title or
interest over the property in question.
W.P.(C) 12156/2018 Page 11 of 35
- It is to be noted that at the time when Sh. Sanjeev Gupta entered into
Partnership Deed with the petitioner herein, he had merely been permitted
by this Court in W.P.(C) 1199/2010, vide order dated 25th February, 2010, to
use and occupy the subject shop, as an interim measure. Thus, when the
said writ petition was dismissed as withdrawn, the interim measure in favour
of Sh. Sanjeev Gupta was vacated. Consequently, upon withdrawal of the
said writ petition, i.e., W.P.(C) 1199/2010, challenging the Eviction Order,
the Eviction Order against Sh. Sanjeev Gupta became effective and attained
finality. Thus, any transaction qua the subject shop entered by Sh. Sanjeev
Gupta, after Eviction Order dated 24th December, 2008, was non-est and had
no recognition in the eyes of law. When the said Sh. Sanjeev Gupta himself
had no right, title or interest over the subject shop, he could not have
transferred any right, title or interest to the present petitioner by way of the
Partnership Deed. Law in this regard is settled that no one can transfer a
better title than what he himself has. Thus, in the absence of any title in
favour of Sh. Sanjeev Gupta, he could not have transferred any title, right or
interest in favour of the petitioner herein. - At this stage, it is to be noted that the petitioner herein has averred
that he had paid the dues against the arrears of license fees for the subject
shop to the tune of Rs. 17,18,590.13/-, from February 1999 till 22nd
February, 2010. On the basis of the Partnership Deed, and payment of the
arrears of license fees for the subject shop, the petitioner further filed a writ
petition bearing no. W.P.(C) 867/2011, seeking regularization and execution
of a License Deed in his favour. - The said writ petition, W.P.(C) 867/2011, was dismissed by way of
judgement dated 21st February, 2011, wherein, the Court held that the
W.P.(C) 12156/2018 Page 12 of 35
eviction of Sh. Sanjeev Gupta had attained finality, and Sh. Sanjeev Gupta
had no right whatsoever to transfer the possession of the subject shop, and
that the petitioner herein could not have acquired any title from Sh. Sanjeev
Gupta. The aforesaid writ petition filed by the petitioner herein, was
dismissed in the following manner:
“xxx xxx xxx
- This petition has been filed pleading that Shri Sanjeev Gupta had
on 8th September, 2010 i.e. after 25th February, 2010 vide interim
order of which date Shri Sanjeev Gupta was permitted to use and
occupy the shop had for consideration transferred the possession of
the shop to the petitioner herein by executing a Partnership Deed
and Dissolution Deed in quick succession. It is further claimed that
the respondent NDMC has a Policy for transferring and
regularizing shops which had been illegally sublet; direction for
regularizing the transfer of the shop by Shri Sanjeev Gupta in
favour of the petitioner herein is sought. Though the earlier writ
petition and the order dated 25th February, 2010 therein is disclosed
but it is pleaded that since Shri Sanjeev Gupta after transfer had lost
interest in the writ petition filed by him he had withdrawn the same.
Neither were the further orders in the said writ petition whereby this
Court had expressed doubts as to the identity of Shri Sanjeev Gupta
and as to the abuse of the process of the Court were disclosed nor
was it disclosed that this Court while dismissing the writ petition as
withdrawn had also directed NDMC to takeover possession of the
shop. - Not only is it contention of the counsel for the respondent NDMC
that the Advocates representing Shri Sanjeev Gupta and the petitioner
herein are the same but it is also stated that Shri Abdul Rauf Javed
who was pursuing the earlier writ petition as the attorney of Shri
Sanjeev Gupta is closely related to the petitioner herein. The senior
counsel for the petitioner appearing today has fairly admitted so.
From the same also, a case of concealment having been practiced by
the petitioner is made out. It is well settled that a party indulging in
abuse of the process of the Court and in concealment of facts from this
Court is not entitled to invoke the discretionary remedy under Article
226 of the Constitution of India. - The senior counsel for the petitioner has contended that the
petitioner herein cannot be accused of concealment, having
W.P.(C) 12156/2018 Page 13 of 35
disclosed the factum of earlier writ petition. I am unable to agree.
Partial disclosure or disclosure to the extent that does not hurt the
litigant is no excuse. What was required to be informed was that the
petition in the name of Shri Sanjeev Gupta was being pursued by a
close relative (brother-in-law) of the petitioner and that serious
doubts had been cast therein with respect to the very identity of Shri
Sanjeev Gupta and of the genuineness of the documents produced in
that Court. It was also required to be disclosed that the Court in the
earlier writ petition had directed the respondent NDMC to takeover
possession. On the contrary an attempt was made to have the said
direction in the earlier writ petition nullified by obtaining a
contradictory order from a Co-ordinate Bench. The senior counsel for
the petitioner of course contends that till the filing of the present
petition, the copy of the order dated 3rd February, 2011 in the earlier
writ petition had not been obtained. Even if that be so, the order dated
3
rd February, 2011 in the earlier writ petition directing the respondent
NDMC to takeover possession was made in the presence of the
counsels then appearing and who appeared before this Court also in
the present writ petition on 10th February, 2011 and there was no
reason for concealing the said fact. Such practices are but to be
deprecated and disentitle the petitioner from any hearing.
- I had on 10th February, 2011 also enquired from the petitioner
as to how the petitioner could base his case on transfer of the shop
by Shri Sanjeev Gupta when Shri Sanjeev Gupta himself was
custodia legis i.e. in use of the shop under orders in the earlier writ
petition. The said use permitted to him was under the control of the
Court and he could not have transferred the possession of the shop
to the petitioner herein as claimed. - The senior counsel for the petitioner has today argued that there is
nothing in the order dated 25th February, 2010 in the earlier writ
petition to suggest that Shri Sanjeev Gupta was put into possession of
the shop on that date as a receiver or that the shop was in custodia
legis. - Merely because such words have not been used in the order
cannot change the position as emerging from the records. An order
of eviction had been passed against Shri Sanjeev Gupta and the
appeal of Shri Sanjeev Gupta thereagainst been dismissed. The
possession of the shop was taken over by the respondent NDMC
thereafter and in execution of the order of eviction. The petitioner
Shri Sanjeev Gupta had claimed the interim relief of being put into
possession during the pendency of the said earlier petition and
which was granted. Such possession could be nothing but under
W.P.(C) 12156/2018 Page 14 of 35
directions of the Court. Thus Shri Sanjeev Gupta had no right
whatsoever to transfer the possession of the shop and the petitioner
who atleast admits knowledge of the order dated 25th February, 2010
in the earlier writ petition could not have acquired any title from
Shri Sanjeev Gupta.
- The senior counsel for the petitioner has argued that the
petitioner cannot be deprived of the right under the Policy of the
respondent NDMC regularizing unauthorized transfers. However in
the present case the transfer of title claimed by the petitioner is of a
date after the right and title if any in favour of Shri Sanjeev Gupta
stood extinguished by the eviction order and by execution thereof.
There was thus nothing to which the petitioner could have acquired
title. - The senior counsel for the petitioner has next argued that the
petitioner has paid over ₹17.8 lacs as consideration for the said shop
and is willing to pay to the respondent NDMC all charges also for
transfer and the respondent NDMC will not suffer any loss if transfer
in favour of the petitioner is regularized. The counsel for the
respondent NDMC on the contrary has argued that the shop will be
put to public auction. - In the face of doubt as to the identity of Shri Sanjeev Gupta, the
version of the petitioner of having paid ₹17.8 lacs to Shri Sanjeev
Gupta cannot be believed. Rather what appears is that the shop had
been sublet, assigned or illegally parted with possession of much prior
to the initiation of the proceedings under the PP Act against Shri
Sanjeev Gupta. However instead of availing of the Policy aforesaid at
that stage, the eviction proceedings were contested tooth and nail and
on false grounds of the shop having not been sublet, assigned or
parted with possession. It appears that it was the petitioner only who
was contesting the earlier proceedings also including proceedings
before the Estate Officer. Though the senior counsel for the petitioner
has urged that Shri Abdul Rauf Javed is different from the petitioner
but there is nothing to explain as to why the Power of Attorney in
favour of Shri Abdul Rauf Javed was executed when it was the
petitioner who had been transferred the shop. Normally such power of
attorney are executed as part of transfer and there is no reason for me
to believe that it was not so in the present case also. - There is yet another aspect. It is disclosed that an application for
transfer was made to the respondent NDMC on 26th October, 2010
i.e. when the earlier writ petition was still pending. Even then it was
not disclosed in the earlier writ petition that an application for
transfer had been made. When the deceit and falsehood in the
W.P.(C) 12156/2018 Page 15 of 35
earlier writ petition was caught, the same was conveniently
withdrawn and this second round commenced.
- The senior counsel for the petitioner has drawn attention to the
paper book where it is pleaded that benefit of the Policy has been
given even in cases where license of the shop had been terminated.
It is contended that the petitioner is to be treated at par. The shop
subject matter of the present petition had however gone much
beyond the stage of termination of license; eviction order had been
passed, appeal dismissed and possession taken over. The writ
petition preferred by Shri Sanjeev Gupta against the order of
eviction was withdrawn. The said order of eviction has now attained
finality. The petitioner cannot claim any right with respect to a shop
from which the person through whom petitioner claims right stood
evicted. The petitioner thus cannot claim parity with those cases. - The present petition is found to be a continuation of abuse of the
process of the Court noticed in the earlier writ petition and is
dismissed. I refrain from imposing any costs.”
(Emphasis Supplied) - Against the aforesaid judgment, the petitioner herein preferred an
appeal bearing no. LPA 450/2011, wherein, the Division Bench of this Court
vide order dated 12th May, 2011, without entering into the merits of the
dispute, directed the respondent to decide the representation of the
petitioner, earlier submitted with the respondent. The order dated 12th May,
2011, passed by the Division Bench in LPA No. 450/2011, reads as under:
“Heard Mr. Arvind Nigam, learned senior counsel with Mr. Sanjay
Kr. Pathak, learned counsel for the appellant and Mr. Nilava
Banerjee, learned counsel for the respondent/NDMC. In course of
hearing of the appeal Mr. Nigam submitted that the appellant has
filed an application for consideration by the NDMC and that should
be considered in accordance with the policy of the NDMC. Without
expressing any opinion on any of the aspects, we only direct NDMC
to consider the representation and accept or reject the same within
four weeks from the date of receipt of the order passed today.
We repeat at the cost of repetition that all grounds are available to the
NDMC to deal with the application within four weeks.
When we have directed for consideration it shall not be construed that
W.P.(C) 12156/2018 Page 16 of 35
there has been direction by this Court for initiating the process of
auction, if NDMC so advised.
After the decision is communicated to the petitioner the matter be
listed on 4th July, 2011.”
- Thus, it is manifest that though the Division Bench directed that the
representation of the petitioner herein be considered, however, the findings
in the writ petition, W.P.(C) 867/2011, vide judgment dated 21st February,
2011, were not disturbed. Thus, the findings that Sh. Sanjeev Gupta himself
being custodia legis, i.e., in use of the subject shop under orders in the
earlier writ petition, and could not have transferred the possession of the
shop to the petitioner, attained finality. It was established that when the title
of the predecessor-in-interest of the petitioner herein, stood extinguished by
the Eviction Order, there was nothing to which the petitioner could have
acquired title. Further, the finding by this Court in W.P.(C) 867/2011, that
the petitioner cannot claim any right with respect to a shop from which the
person, through whom the petitioner claims the right, stood evicted, also
attained finality. Thus, it is undisputed that the petitioner did not acquire any
right from his predecessor-in-interest, since the right of his predecessor-ininterest, was extinguished upon passing of the Eviction Order against him,
legality of which order has been sustained, and has not been set aside. - Upon the directions of the Division Bench, as aforesaid, the
respondent-NDMC considered the representation of the petitioner, and by
way of rejection letter dated 21st December, 2011, rejected the
representation of the petitioner for regularization. The rejection letter dated
21st December, 2011, is reproduced as under:
“xxx xxx xxx
W.P.(C) 12156/2018 Page 17 of 35
xxx xxx xxx”
- Pursuant to the said rejection, the petitioner herein, i.e., appellant in
the aforesaid appeal, sought to withdraw the appeal, with liberty to challenge
the rejection letter separately, and the same was allowed vide order dated
27th April, 2012, in the following manner:
“The learned counsel for the appellant seeks permission to withdraw
this appeal in view of the fact that a subsequent order has been
passed by the NDMC on 21.02.2011 and that he would be
W.P.(C) 12156/2018 Page 18 of 35
challenging that order separately.
Dismissed as withdrawn with the aforesaid liberty.”
(Emphasis Supplied)
- Instead of challenging the aforesaid rejection letter dated 21st
December, 2011, in terms of the liberty taken from the Division Bench, the
petitioner sent further representations dated 12th February, 2013 and 18th
December, 2013, to the respondent, seeking regularization of the subject
shop. However, on account of no reply on behalf of the respondent-NDMC,
the petitioner filed another writ petition bearing no. W.P.(C) 4863/2015,
which was dismissed as withdrawn vide order dated 18th May, 2015, on the
first date of hearing, after some arguments. The order dated 18th May, 2015,
passed in W.P.(C) 4863/2015, reads as under:
“CM APPL. No. 8793/2015 (Exemption)
Allowed, subject to all just exceptions.
The application stands disposed of.
W.P.(C) 4863/2015 & CM APPL. No. 8794/2015 (stay)
After some arguments, learned counsel for the petitioner seeks
to withdraw this petition. The petition and the application are
dismissed as withdrawn.”
(Emphasis Supplied) - Subsequently, the petitioner, by taking shelter under the new policy of
the respondent-NDMC, issued by way of Circular dated 16th August, 2016,
for transfer and renewal of license of shops, again sent a representation
dated 12th October, 2016, seeking regularization of the subject shop in his
favour. By way of letter dated 18th June, 2018, the respondent-NDMC
clarified the status of the shop, thereby, communicating that the subject shop
was in possession of the respondent-NDMC, and that the eviction of Sh.
Sanjeev Gupta, predecessor-in-interest of the petitioner, had attained
finality. The letter dated 18th June, 2018, is reproduced as under:
W.P.(C) 12156/2018 Page 19 of 35
“xxx xxx xxx
xxx xxx xxx”
- The petitioner again filed a representation dated 18th September, 2018,
and thereafter, filed the present writ petition seeking regularization and
issuance of license in relation to the subject shop in favour of the petitioner.
W.P.(C) 12156/2018 Page 20 of 35
- Taking into account the aforementioned facts and the conduct of the
petitioner in relation to filing subsequent representations, despite his earlier
representation having been rejected by the respondent-NDMC vide letter
dated 21st December, 2011, it is evident that the petitioner has agitated and
re-agitated the substantial prayer of seeking regularization time and again,
by way of several petitions before this Court. - It is noted that the petitioner, despite receiving a liberty vide order
dated 27th April, 2012, to challenge the rejection letter, again sent
representations to the respondent dated 12th February, 2013 and 18th
December, 2013, for regularization of the shop in his favour. The petitioner
despite having the opportunity to challenge the rejection letter by the
respondent in 2012, when the aforesaid liberty was granted by the Division
Bench, chose to again file representations with similar prayers as was
already decided by the respondent, which was also the basis for withdrawal
of the appeal, LPA No. 450/2011, before the Division Bench, vide order
dated 27th April, 2012. - Furthermore, as noted above, the petitioner, in 2015 had filed another
writ petition, i.e, W.P.(C) 4863/2015, being aggrieved by the fact that the
subsequent representations submitted by him had not being decided, and
also challenged the rejection letter dated 21st December, 2011, which was
again withdrawn by the petitioner on the first date of hearing itself, vide
order dated 18th May, 2015. - Thus, it is apparent that the petitioner has resorted to filing
representations time and again, despite the fact that the finding against the
petitioner has attained finality, wherein, this Court in W.P.(C) 867/2011,
vide judgment dated 21st February, 2011, has categorically held that after the
W.P.(C) 12156/2018 Page 21 of 35
eviction of the predecessor-in-interest of the petitioner, the said predecessorin-interest of the petitioner did not have any title or interest left in him qua
the shop in question, which could been transferred in favour of the petitioner
herein. The mere fact that the Division Bench of this Court in LPA
450/2011, had granted liberty to the petitioner to challenge the rejection
letter issued by the respondent-NDMC separately, would not imply that the
interest of the petitioner in the shop in question stood revived, when he had
no interest in the shop ever. Even otherwise, the pending representation of
the petitioner which was considered pursuant to directions issued by the
Division Bench stood rejected way back vide letter dated 21st December,
2011, which is also sought to be challenged belatedly in the present writ
petition.
- Thus, it is evident that the findings against the petitioner having no
right or title over the shop in question, in view of the fact that his
predecessor-in-interest himself had no right or title over the shop in question
at the time of entering into the Partnership Deed with the petitioner herein,
has attained finality in view of the judgment dated 21st February, 2011,
passed in W.P.(C) 867/2011. The said findings still hold the field and have
not been set aside in the appellate proceedings initiated by the petitioner in
LPA 450/2011. Thus, the findings against the petitioner, having become
conclusive and final, the present petition is barred by the Principles of
Constructive Res Judicata. The petitioner’s attempt to re-argue the case,
which has already been finally decided, is clearly a misuse and abuse of the
process of law. Thus, Supreme Court in the case of M. Nagabhushana
Versus State of Karnataka and Others, (2011) 3 SCC 408, has held as
follows:
W.P.(C) 12156/2018 Page 22 of 35
“xxx xxx xxx
- Therefore, any proceeding which has been initiated in breach of
the principle of res judicata is prima facie a proceeding which has
been initiated in abuse of the process of court. - A Constitution Bench of this Court in Devilal Modi v. STO [AIR
1965 SC 1150], has explained this principle in very clear terms: (AIR
p. 1152, para 7)
“7. … But the question as to whether a citizen should be allowed to
challenge the validity of the same order by successive petitions
under Article 226, cannot be answered merely in the light of the
significance and importance of the citizens’ fundamental rights.
The general principle underlying the doctrine of res judicata is
ultimately based on considerations of public policy. One
important consideration of public policy is that the decisions
pronounced by courts of competent jurisdiction should be final,
unless they are modified or reversed by appellate authorities; and
the other principle is that no one should be made to face the same
kind of litigation twice over, because such a process would be
contrary to considerations of fair play and justice
(vide Daryao v. State of U.P. [AIR 1961 SC 1457 : (1962) 1 SCR
574] ).” - This Court in AIMO case [(2006) 4 SCC 683] explained in clear
terms that principle behind the doctrine of res judicata is to prevent
an abuse of the process of court. In explaining the said principle the
Bench in AIMO case [(2006) 4 SCC 683] relied on the following
formulation of Somervell, L.J. in Greenhalgh v. Mallard [(1947) 2 All
ER 255 (CA)] (All ER p. 257 H): (AIMO case [(2006) 4 SCC 683] ,
SCC p. 700, para 39)
“39. … „I think that on the authorities to which I will refer it would
be accurate to say that res judicata for this purpose is not
confined to the issues which the court is actually asked to decide,
but that it covers issues or facts which are so clearly part of the
subject-matter of the litigation and so clearly could have been
raised that it would be an abuse of the process of the court to
allow a new proceeding to be started in respect of them.‟ ”
(emphasis supplied in AIMO case [(2006) 4 SCC 683] )
The Bench in AIMO case [(2006) 4 SCC 683] also noted that the
judgment of the Court of Appeal in Greenhalgh [(1947) 2 All ER 255
(CA)] was approved by this Court in State of U.P. v. Nawab
Hussain [(1977) 2 SCC 806 : 1977 SCC (L&S) 362] , SCC at p. 809,
W.P.(C) 12156/2018 Page 23 of 35
para 4.
- Following all these principles a Constitution Bench of this Court
in Direct Recruit Class II Engg. Officers’ Assn. v. State of
Maharashtra [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13
ATC 348] laid down the following principle: (SCC p. 741, para 35)
“35. … an adjudication is conclusive and final not only as to the
actual matter determined but as to every other matter which the
parties might and ought to have litigated and have had decided as
incidental to or essentially connected with subject-matter of the
litigation and every matter coming into the legitimate purview of
the original action both in respect of the matters of claim and
defence. Thus, the principle of constructive res judicata
underlying Explanation IV of Section 11 of the Code of Civil
Procedure was applied to writ case. We, accordingly hold that the
writ case is fit to be dismissed on the ground of res judicata.” - In view of such authoritative pronouncement of the Constitution
Bench of this Court, there can be no doubt that the principles of
constructive res judicata, as explained in Explanation IV to Section
11 CPC, are also applicable to writ petitions. - Thus, the attempt to re-argue the case which has been finally
decided by the court of last resort is a clear abuse of process of the
court, regardless of the principles of res judicata, as has been held by
this Court in K.K. Modi v. K.N. Modi [(1998) 3 SCC 573]. In SCC
para 44 of the Report, this principle has been very lucidly discussed
by this Court and the relevant portions whereof are extracted below:
(SCC p. 592)
“44. One of the examples cited as an abuse of the process of the
court is relitigation. It is an abuse of the process of the court and
contrary to justice and public policy for a party to relitigate the
same issue which has already been tried and decided earlier
against him. The reagitation may or may not be barred as res
judicata.” - In coming to the aforementioned finding, this Court relied on The
Supreme Court Practice, 1995 published by Sweet & Maxwell (p.
344). The relevant principles laid down in the aforesaid practice and
which have been accepted by this Court are as follows: (K.K. Modi
case [(1998) 3 SCC 573], SCC p. 592, para 43)
“43. … „This term connotes that the process of the court must be
used bona fide and properly and must not be abused. The court
W.P.(C) 12156/2018 Page 24 of 35
will prevent improper use of its machinery and will in a proper
case, summarily prevent its machinery from being used as a
means of vexation and oppression in the process of litigation. …
The categories of conduct rendering a claim frivolous, vexatious
or an abuse of process are not closed but depend on all the
relevant circumstances. And for this purpose considerations of
public policy and the interests of justice may be very material.‟ ”
- On the premises aforesaid, it is clear that the attempt by the
appellant to reagitate the same issues which were considered by this
Court and were rejected expressly in the previous judgment
in AIMO case [(2006) 4 SCC 683], is a clear instance of an abuse of
process of this Court apart from the fact that such issues are barred
by principles of res judicata or constructive res judicata and
principles analogous thereto.
xxx xxx xxx”
(Emphasis Supplied) - By taking advantage of the liberty granted by the Division Bench, the
petitioner cannot resort to making similar representations time and again,
when the earlier pending representation of the petitioner that was considered
pursuant to the order of the Division Bench, already stood rejected. As noted
above, the petitioner withdrew the appeal, LPA 450/2011, vide order dated
27th April, 2012, with liberty to challenge the rejection of the representation
vide letter dated 21st December, 2011, by the respondent-NDMC. However,
taking benefit of the said order passed by the Division Bench, the petitioner
cannot seek to file numerous representations when the earlier pending
representation considered by the respondent-NDMC as per direction of the
Division Bench, had already been rejected. This is abuse and misuse of the
process, as there was no liberty from the Division Bench to file innumerable
representations later, when the earlier pending representation had been
rejected. Rather, the appeal before the Division Bench was dismissed as
withdrawn to only challenge the letter by which the representation of the
W.P.(C) 12156/2018 Page 25 of 35
petitioner had already been rejected by the respondent-NDMC.
- As noted above, the present petition is evidently barred by res
judicata, as the issue at hand, which is regularization and issuance of license
in relation to the subject shop in favour of the petitioner, has already been
dealt by this Court vide judgement dated 21st February, 2011, which findings
have not been interfered with, and have accordingly attained finality. The
principles of res judicata apply to writ proceedings, as held by the Supreme
Court in the case of Raghavendra Rao and Others Versus State of
Karnataka and Others, (2009) 4 SCC 635, wherein, it has been held as
under:
“xxx xxx xxx - As noticed hereinbefore, leave had been granted to avail any other
remedy available only to those petitioners who had not been paid their
salary for the period during which they worked as Accountants. The
claim of the appellants is, thus, barred under the principles of res
judicata/constructive res judicata, the earlier judgment having
attained finality. It is now a well-settled principle of law that the
principle of res judicata applies also to the writ proceedings.
xxx xxx xxx”
(Emphasis Supplied) - The present writ petition has been filed seeking to set aside the letter
dated 21st December, 2011, by which the earlier pending representation of
the petitioner that was considered by the respondent-NDMC pursuant to
directions issued by the Division Bench, was rejected. Despite, rejection of
the representation of the petitioner vide the aforesaid letter, the petitioner
continued making representations to the NDMC. Thus, vide letter dated 18th
June, 2018, the respondent-NDMC clarified about the status of the shop in
question, which letter has also been impugned by way of the present writ
petition.
W.P.(C) 12156/2018 Page 26 of 35
- The petitioner has taken the aforesaid letter of 2018 as a cause of
action, and filed the present writ petition, challenging the said clarificatory
letter dated 18th June, 2018 and the rejection letter dated 21st December, - It is to be noted that any cause of action that may have arisen in favour
of the petitioner, has arisen from the date of the first representation of the
petitioner, i.e., 26th October, 2010. No fresh cause of action can be said to
have arisen in favour of the petitioner from the date of the rejection letter
dated 18th June, 2018, issued by the respondent. Further, no fresh cause of
action can be said to have arisen in favour of the petitioner from the date
when the liberty was granted by the Division Bench to challenge the said
rejection letter. Further, fresh cause of action cannot also be said to have
arisen in favour of the petitioner from the date of any further representations
filed by the petitioner or the consequent clarification of the respondent with
regard the subject shop. In this regard, it would be apposite to refer to the
judgement of the Supreme Court in the case of Union of India and Others
Versus M. K. Sarkar, (2010) 2 SCC 59, wherein, it has been categorically
held that a direction to consider a representation and a decision in
compliance thereof, will not create a new cause of action, and the aspect of
delay has to be seen from the original cause of action. Thus, it has been held
as follows:
“xxx xxx xxx - When a belated representation in regard to a “stale” or “dead”
issue/dispute is considered and decided, in compliance with a
direction by the court/tribunal to do so, the date of such decision
cannot be considered as furnishing a fresh cause of action for
reviving the “dead” issue or time-barred dispute. The issue of
limitation or delay and laches should be considered with reference to
the original cause of action and not with reference to the date on
which an order is passed in compliance with a court’s direction.
W.P.(C) 12156/2018 Page 27 of 35
Neither a court’s direction to consider a representation issued
without examining the merits, nor a decision given in compliance
with such direction, will extend the limitation, or erase the delay and
laches.
- A court or tribunal, before directing “consideration” of a claim or
representation should examine whether the claim or representation is
with reference to a “live” issue or whether it is with reference to a
“dead” or “stale” issue. If it is with reference to a “dead” or “stale”
issue or dispute, the court/tribunal should put an end to the matter
and should not direct consideration or reconsideration. If the court or
tribunal deciding to direct “consideration” without itself examining
the merits, it should make it clear that such consideration will be
without prejudice to any contention relating to limitation or delay
and laches. Even if the court does not expressly say so, that would be
the legal position and effect.
xxx xxx xxx”
(Emphasis Supplied) - As discussed above, the issue with regard to eviction in relation to the
subject shop was dealt with by way of judgement dated 21st February, 2011
in W.P.(C) 867/2011, wherein, this Court recognised the fact of eviction of
predecessor-in-interest of the petitioner, i.e., Sh. Sanjeev Gupta in
categorical terms, and dismissed the claim of the petitioner for regularization
of the subject shop. In the aforesaid judgement, it has been held that the
petitioner’s predecessor-in-interest, i.e., Sh. Sanjeev Gupta, did not have an
effective title and stood divested of all rights in the subject shop in view of
the Eviction Order against him. When the predecessor-in-interest of the
petitioner himself, by virtue of the Eviction Order having attained finality,
did not have an interest to transfer, in that case, no right accrued in favour of
the petitioner from Sh. Sanjeev Gupta, as the said Sh. Sanjeev Gupta,
predecessor-in-interest of the petitioner, was himself divested of all interest
in relation to the subject shop. - Thus, the Supreme Court in the case of Umadevi Nambiar Versus
W.P.(C) 12156/2018 Page 28 of 35
Thamarasseri Roman Catholic Diocese, (2022) 7 SCC 90, while holding
that no one can confer a better title than what he himself has, held as
follows:
“xxx xxx xxx
- It is a fundamental principle of the law of transfer of property that “no
one can confer a better title than what he himself has” (Nemo dat quod non
habet). The Appellant’s sister did not have the power to sell the property to
the vendors of the Respondent. Therefore, the vendors of the Respondent
could not have derived any valid title to the property. If the vendors of the
Respondent themselves did not have any title, they had nothing to convey to
the Respondent, except perhaps the litigation.
xxx xxx xxx”
(Emphasis Supplied) - Furthermore, it is manifest that the petitioner made the same prayer
for regularization in the earlier writ petitions, as has been made in the
present writ petition. Therefore, this Court is of the considered view, that the
prayer of the petitioner for regularization of the subject shop in his favour, is
a misuse and abuse of the process of law as the finding against him in this
regard, had attained finality when the representation of the petitioner was
rejected vide letter dated 21st December, 2011. Further, the various issues
raised by the petitioner time and again, including, in the present writ petition
for regularization of the shop in question in the name of the petitioner, were
settled by this Court vide its judgement dated 21st February, 2011, which
was not interfered with by the Appellate Court, and has no existing
challenge against it. - Furthermore, the present petition largely suffers from delay and
latches. Consequent to the rejection letter dated 21st December, 2011, which
was passed pursuant to the directions issued by the Division Bench vide
order dated 12th May, 2011 in LPA/450/2011, the petitioner withdrew the
W.P.(C) 12156/2018 Page 29 of 35
said appeal vide order dated 27th April, 2012, with liberty granted to the
petitioner to challenge the rejection letter separately. However, the challenge
of the petitioner to the said rejection letter first came in writ petition filed in
2015, i.e., W.P.(C) 4863/2015 which was also withdrawn on the first date
itself. Despite the same, the petitioner has again re-agitated the said
challenge to the rejection letter dated 21st December, 2011, by way of the
present petition which was filed in 2018.
- There is no cogent reason presented by the petitioner with regard to
the delay in challenging the rejection letter of the year 2011, despite
receiving liberty to do the same, by the Division Bench of this Court. Even
if the subsequent proceedings before this Court are taken into account,
nevertheless, on account of the said proceedings being withdrawn and the
judgement dated 21st February, 2011, attaining finality, the present petition
suffers from delay and laches. The petitioner, to surpass this hurdle of delay,
has time and again attempted to revive the cause of action by way of
repeated representations. This course of action of the petitioner, cannot be
accepted, or allowed. In this regard, the Supreme Court in the case of
Chennai Metropolitan Water Supply and Sewerage Board and Others.
Versus T.T. Murali Babu, (2014) 4 SCC 108, while holding that delay and
laches should not be lightly brushed aside in writ petitions, has held as
follows:
“xxx xxx xxx - First, we shall deal with the facet of delay. In Maharashtra
SRTC v. Balwant Regular Motor Service [AIR 1969 SC 329] the Court
referred to the principle that has been stated by Sir Barnes Peacock
in Lindsay Petroleum Co. v. Hurd [Lindsay Petroleum Co. v. Hurd,
(1874) LR 5 PC 221], which is as follows: (Balwant Regular Motor
Service case [AIR 1969 SC 329] , AIR pp. 335-36, para 11)
W.P.(C) 12156/2018 Page 30 of 35
“11. … „Now the doctrine of laches in Courts of Equity is
not an arbitrary or a technical doctrine. Where it would be
practically unjust to give a remedy, either because the party has,
by his conduct, done that which might fairly be regarded as
equivalent to a waiver of it, or where by his conduct and neglect
he has, though perhaps not waiving that remedy, yet put the other
party in a situation in which it would not be reasonable to place
him if the remedy were afterwards to be asserted in, either of
these cases, lapse of time and delay are most material. But in
every case, if an argument against relief, which otherwise would
be just, is founded upon mere delay, that delay of course not
amounting to a bar by any statute of limitations, the validity of
that defence must be tried upon principles substantially equitable.
Two circumstances, always important in such cases, are, the
length of the delay and the nature of the acts done during the
interval, which might affect either party and cause a balance of
justice or injustice in taking the one course or the other, so far as
relates to the remedy.‟ (Lindsay Petroleum Co. case [Lindsay
Petroleum Co. v. Hurd, (1874) LR 5 PC 221] , PC pp. 239-40)”
xxx xxx xxx
- Thus, the doctrine of delay and laches should not be lightly
brushed aside. A writ court is required to weigh the explanation
offered and the acceptability of the same. The court should bear in
mind that it is exercising an extraordinary and equitable
jurisdiction. As a constitutional court it has a duty to protect the
rights of the citizens but simultaneously it is to keep itself alive to the
primary principle that when an aggrieved person, without adequate
reason, approaches the court at his own leisure or pleasure, the
court would be under legal obligation to scrutinise whether the lis at
a belated stage should be entertained or not. Be it noted, delay comes
in the way of equity. In certain circumstances delay and laches may
not be fatal but in most circumstances inordinate delay would only
invite disaster for the litigant who knocks at the doors of the court.
Delay reflects inactivity and inaction on the part of a litigant — a
litigant who has forgotten the basic norms, namely, “procrastination
is the greatest thief of time” and second, law does not permit one to
sleep and rise like a phoenix. Delay does bring in hazard and causes
injury to the lis.
xxx xxx xxx”
(Emphasis Supplied) - This Court also rejects the premise that any fresh cause of action may
have arisen in favour of the petitioner on account of letter dated 18th June,
W.P.(C) 12156/2018 Page 31 of 35
2018, issued by the respondent. The said letter was merely clarificatory in
nature and did not decide nor substantiate any rights, as the petitioner’s
earlier pending representation dated 26th October, 2010 considered by the
respondent-NDMC pursuant to the directions issued by Division Bench of
this Court, already stood rejected by way of letter dated 21st December,
- The respondent by way of the said letter only provided the status in
relation to the subject shop to the petitioner. - The Supreme Court has categorically laid down that every
representation to the Government for relief may not be replied on merits.
The representations relating to matters which have become stale or barred by
limitation, can be rejected on that ground alone, without examining the
merits of the claim. Thus, the Supreme Court in the case of C. Jacob Versus
Director of Geology and Mining and Another, (2008) 10 SCC 115, while
holding that a reply to a dead claim cannot raise a fresh cause of action, has
held as under:
“xxx xxx xxx - Let us take the hypothetical case of an employee who is
terminated from service in 1980. He does not challenge the
termination. But nearly two decades later, say in the year 2000, he
decides to challenge the termination. He is aware that any such
challenge would be rejected at the threshold on the ground of
delay (if the application is made before Tribunal) or on the ground
of delay and laches (if a writ petition is filed before a High Court).
Therefore, instead of challenging the termination, he gives a
representation requesting that he may be taken back to service.
Normally, there will be considerable delay in replying such
representations relating to old matters. Taking advantage of this
position, the ex-employee files an application/writ petition before
the Tribunal/High Court seeking a direction to the employer to
consider and dispose of his representation. The Tribunals/High
Courts routinely allow or dispose of such applications/petitions
(many a time even without notice to the other side), without
examining the matter on merits, with a direction to consider and
W.P.(C) 12156/2018 Page 32 of 35
dispose of the representation.
- The courts/tribunals proceed on the assumption, that every
citizen deserves a reply to his representation. Secondly, they
assume that a mere direction to consider and dispose of the
representation does not involve anydecision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction toconsider’. If the representation is considered and
rejected, the ex-employee files an application/writ petition, not with
reference to the original cause of action of 1982, but by treating
the rejection of the representation given in 2000, as the cause of
action. A prayer is made for quashing the rejection of
representation and for grant of the relief claimed in the
representation. The Tribunals/High Courts routinely entertain
such applications/petitions ignoring the huge delay preceding the
representation, and proceed to examine the claim on merits and
grant relief. In this manner, the bar of limitation or the laches gets
obliterated or ignored. - Every representation to the Government for relief, may not be
replied on merits. Representations relating to matters which have
become stale or barred by limitation, can be rejected on that
ground alone, without examining the merits of the claim. In regard
to representations unrelated to the Department, the reply may be
only to inform that the matter did not concern the Department or
to inform the appropriate Department. Representations with
incomplete particulars may be replied by seeking relevant
particulars. The replies to such representations, cannot furnish a
fresh cause of action or revive a stale or dead claim.
xxx xxx xxx”
(Emphasis Supplied) - There is another aspect of the matter. This Court notes that the
petitioner had filed a writ petition in the year 2015 seeking the same prayer
for regularization of the shop in question in his name, and for setting aside
the letter dated 21st December, 2011, rejecting the representation of the
petitioner. The said writ petition, being W.P.(C) 4863/2015, titled as “Ubaid
Versus New Delhi Municipal Council” was withdrawn on the first date
W.P.(C) 12156/2018 Page 33 of 35
itself, as recorded in the order dated 18th May, 2015.
- Thus, it is apparent that the earlier writ petition filed in the year 2015
was withdrawn by the petitioner simpliciter, without any liberty to file a
fresh petition. In this regard, it would be fruitful to refer to the judgment of
the Supreme Court in the case of Sarguja Transport Service Versus State
Transport Appellate Tribunal, M.P., Gwalior and Others, (1987) 1 SCC 5,
wherein, the Supreme Court held that once a writ petition filed under Article
226 of the Constitution of India has been withdrawn, without permission to
file a fresh writ petition, the remedy under Article 226 of the Constitution of
India should be deemed to have been abandoned by the petitioner in respect
of the cause of action relied on in the writ petition, when he withdraws it
without such permission. Thus, it was held as follows:
“xxx xxx xxx - The point for consideration is whether a petitioner after
withdrawing a writ petition filed by him in the High Court under
Article 226 of the Constitution of India without the permission to
institute a fresh petition can file a fresh writ petition in the High
Court under that article. On this point the decision in Daryao
case [AIR 1961 SC 1457: (1962) 1 SCR 574] is of no assistance. But
we are of the view that the principle underlying Rule 1 of Order XXIII
of the Code should be extended in the interests of administration of
justice to cases of withdrawal of writ petition also, not on the ground
of res judicata but on the ground of public policy as explained above.
It would also discourage the litigant from indulging in benchhunting tactics. In any event there is no justifiable reason in such a
case to permit a petitioner to invoke the extraordinary jurisdiction of
the High Court under Article 226 of the Constitution once again.
While the withdrawal of a writ petition filed in a High Court without
permission to file a fresh writ petition may not bar other remedies
like a suit or a petition under Article 32 of the Constitution of India
since such withdrawal does not amount to res judicata, the remedy
under Article 226 of the Constitution of India should be deemed to
have been abandoned by the petitioner in respect of the cause of
action relied on in the writ petition when he withdraws it without
such permission. In the instant case the High Court was right in
W.P.(C) 12156/2018 Page 34 of 35
holding that a fresh writ petition was not maintainable before it in
respect of the same subject-matter since the earlier writ petition had
been withdrawn without permission to file a fresh petition. We,
however, make it clear that whatever we have stated in this order may
not be considered as being applicable to a writ petition involving the
personal liberty of an individual in which the petitioner prays for the
issue of a writ in the nature of habeas corpus or seeks to enforce the
fundamental rignt guaranteed under Article 21 of the Constitution
since such a case stands on a different footing altogether. We,
however leave this question open.
xxx xxx xxx”
(Emphasis Supplied)
- Accordingly, considering the aforesaid judgment, the present writ
petition, would not be maintainable on account thereof, also. - This Court rejects the submission on behalf of the petitioner that the
respondent has acted in contravention to the legal opinion of the Standing
Counsel, Special Counsel and Law Department. Mere legal opinions are not
binding upon an authority, and are merely tools to aid the authority for
arriving at a decision or conclusion. (See: J.S. Arora Versus D.V.C. and
Others, 2022 SCC OnLine Del 173, Para 45) - Furthermore, the petitioner cannot place reliance on the file noting of
the respondent, as the same cannot amount to any form of decision that was
taken by the respondent (See: State of Uttaranchal and Another Versus
Sunil Kumar Vaish and Others, (2011) 8 SCC 670, Para 24). - As far as the petitioner’s claim for parity with similarly placed
persons in relation to the policy of the respondent, this Court accepts the
submission of the respondent that the petitioner is not at par with the said
persons. The policy of the respondent allowed for regularization of the shops
of such persons, against whom the proceedings of eviction were initiated.
However, the case of the petitioner, through its predecessor-in-interest, falls
short of the said condition, as the eviction proceedings in the present case
W.P.(C) 12156/2018 Page 35 of 35
had attained finality. Furthermore, reliance by the petitioner on the order
dated 23rd April, 2025, in W.P.(C) 5657/2024, titled as “Rajiv Kohli Versus
New Delhi Municipal Council”, to claim parity is again misplaced. In the
said case, there was no proceeding of eviction initiated against the petitioner
therein, and the said case merely pertained to question of renewal of
License.
- Thus, in view of the detailed discussion hereinabove, the petitioner
has failed to make out a case for regularization and issuance of license in its
favour for the subject shop. No merit is found in the case of the petitioner. - Accordingly, present writ petition, along with the pending
applications, is dismissed.
MINI PUSHKARNA
(JUDGE)
AUGUST 22, 2025
Ak/Au /Kr/Sk