POORAN CHAND v. DELHI DEVELOPMENT AUTHORITY — 1994 DIGILAW 251 (DEL)

P. N. Nag, J. (Oral) ( 1 ) BY this petition, the petitioner has challenged the order dated 11. 3. 1992 (annexure A to the petition) whereby the petitioner has been directed to pay the licence fee with effect from 16. 2. 1990 to 15. 2. 1991 @ Rs. 1,690. 00 per month and with effect from 16. 2. 1991 to 15. 1. 1992 @ Rs. 3,380. 00 per month in respect of Piao site measuring 81. 05 sq. ft. , DTC block, ISBT complex subject to certain terms and conditions. ( 2 ) THE facts set out in the petition, in substance, are that the petitioner is a poor scheduled caste person and on the basis of compassionate ground, the respondent allotted 3. 9 sq. metres (42 sq. ft.- approximately) Piao site at I. S. B. T. on 30. 4. 1985 on licence basis at the rate of Rs. 324. 00 p. m. as licence fee. Initially the. h1 CW 1183/ 92 licence was for 11 months and thereafter it was renewed from time to time, as referred to in para 2 of the petition. ( 3 ) BY the impugned letter/order dated 11. 3. 1992, the demand raised against the petitioner is wholly unreasonable, excessive and arbitrary and cannot be legally sustained. ( 4 ) IN the reply, the stand taken by the respondent-DDA is that the petitioner has suppressed the material facts. According to the respondent, the true factual position is that in the year 1985, the petitioner was allotted the Piao site in the form of an open platform on licence basis for the sale of fruit items and a free Piao on a monthly licence fee of Rs. 324. 00 ending 15. 4. 1986, which was renewed at the request of the petitioner from time to time and as per the policy on a gradual revision of the licence fee, such licence fee was fixed at Rs. 566. 00 for the period from 16. 2. 1989 to 15. 2. 1990. The last written licence deed executed between the parties has been filed as Annexure F to the writ petition for the period 16. 2. 1989 to 15. 2. 1990. Before the expiry of the licence period from 16. 2. 1989 to 15. 2. 1990, the petitioner made written representations dated 30. 8. 1989 and 16,10. 1989 to 15. 2. 1990. The last written licence deed executed between the parties has been filed as Annexure F to the writ petition for the period 16. 2. 1989 to 15. 2. 1990. Before the expiry of the licence period from 16. 2. 1989 to 15. 2. 1990, the petitioner made written representations dated 30. 8. 1989 and 16,10. 1989 (Annexuresr-1 and R-2 to the counter affidavit) for construction of a pucca kiosk in lieu of open platform, which request was considered and a pucca platform was constructed comprising an area of 81. 05 sq. ft. as against 42 sq. ft. of the open platform and the same was handed over to the petitioner on 26. 2. 1990. The request of the petitioner for change of trade was also acceded to by the respondent. Vide annexures R-4 and R-5 (dated 27. 1. 1990 and 28. 1. 1991 respectively) to the counteraffidavit, the petitioner requested for the renewal of the licence period from 16. 2. 1990 to 15. 2. 1991 and from 16. 2. 1991 to 15. 2. 1992. The petitioner also submitted an undertaking to the respondent dated 20. 2. 1990 and a written letter dated 28. 1. 1991 agreeing to pay Iicence fee at the current rate as may be determined by the authority for the year 16. 2. 1990 to 15. 2. 1991 and for the period 16. 2. 1991 to 15. 2. 1992. (Letters - Annexures R-6 and R-7 to the counter affidavit - refer to ). ( 5 ) WE have heard the learned counsel for the parties. Counsel for the petitioner has submitted that the enhanced rate of licence fee as demanded vide Annexure A by the respondent is exorbitant and arbitrary. Enhancement of the licence fee should be reduced and he may be asked to pay only 5% increase in the licence fee as has been done earlier. ( 6 ) ON the other hand, counsel for the respondent, has submitted that the licence fee has been enhanced having regard to the prevailing rates of market and the enhanced licence fee is much below the market rates. ( 6 ) ON the other hand, counsel for the respondent, has submitted that the licence fee has been enhanced having regard to the prevailing rates of market and the enhanced licence fee is much below the market rates. Secondly, the petitioner himself has undertaken to pay the licence fee as demanded by the respondent, Therefore, according to learned counsel for the respondent, the enhanced licence fee as demanded vide Annexure A by the respondent is fully justified in the facts and circumstances of the case. ( 7 ) WE have considered the rival contentions of the parties. ( 8 ) IT may be noticed that the averments of the petitioner in the petition that he is a Scheduled Caste and that he was allotted the Piao site on compassionate grounds, have not been controverted by the respondent in their counter affidavit and, therefore, we take it that Piao site was allotted to the petitioner on compassionate ground being a Scheduled Caste. The last enhanced demand made from the petitioner for the period 16. 2. 1989 to 15. 2. 1990 was at the rate of Rs. 566. 00 p. m. However, the area of Piao site has since now been constructed by the respondent and handed over to the petitioner who is now in occupation double the area allotted to the petitioner initially. In addition there to the respondent has also spent money on construction of the platform and has also allowed the petitioner to change the trade from fruit selling to Chhole Bhatura etc. Therefore, in our opinion, the increase in the licence fee by the respondent is not unreasonable if the prevailing market rates are taken into consideration. ( 9 ) HOWEVER, since the Piao site was allotted to the petitioner on compassionate ground being a Scheduled Caste, in our opinion, it would be equitable and just to reduce the licence fee fixed by the respondent vide impugned order/letter. In our opinion, ends of justice would be met if the petitioner is asked to pay the licence fee from 16. 2. 1990 to 15. 2. 1991 at the rate of Rs. 1,190. 00 per month (i. e. , double the licence fee fixed earlier by the respondent plus 5% increase thereon as per the policy of the respondent ). From 16. 2. 1991 to 15. 1. 1992 and onwards upto 15. 1. 2. 1990 to 15. 2. 1991 at the rate of Rs. 1,190. 00 per month (i. e. , double the licence fee fixed earlier by the respondent plus 5% increase thereon as per the policy of the respondent ). From 16. 2. 1991 to 15. 1. 1992 and onwards upto 15. 1. 1994 the petitioner should be asked to pay the licence fee per month by enhancing the licence fee at the rate of 5% per annum as per the policy adopted by the respondent. A copy of the new policy dated 10. 11. 1993 has been filed incourt by the petitioner, which is taken on record. According to this policy where the allotment has been made on compassionate grounds, 5% annual increase in the licence fee has been contemplated by the respondent. Although, strictly speaking, this policy is not applicable for the period aforementioned, but in our opinion, it would be equitable and just to extend this analogy to this case also as in this case allotment has been made on compassionate ground and being a Scheduled Caste. ( 10 ) IT may be noticed that the period of licence granted to the petitioner has since expired and the petitioner cannot claim any right to continue as a licencee for further period. However, he may apply to the respondent, who is the ultimate authority, for further renewal of licencee, who will decide the same in accordance with law. ( 11 ) THE next submission of counsel for the respondent is that the petitioner himself has given undertaking and written letter (Annexure R-6 and R-7 to the counter affidavit) agreeing to pay licence fee at the current rate as may be determined by the authority. According to the learned counsel for the respondent, in view of the undertaking and letter, it does not lie in the mouth of the petitioner to challenge the enhanced licence fee as demanded by the respondent vide Annexure A. ( 12 ) NO doubt the aforementioned undertaking has been given and also a letter written by the petitioner but it appears to us that there was no means of livelihood forthe petitioner and the question of his survival was in question. Therefore, in these circumstances, there was no option left to the petitioner except to give such an undertaking and write a letter and the respondent, being an instrumentality of the State, should not be permitted to take advantage. This contention of the learned counsel is, therefore, rejected. ( 13 ) IN the light of what is discussed above, we allow the petition and direct the respondent to charge and realise the licence fee in the manner indicated hereinabove with effect from 16. 2. 1990 to 15. 1. 1994 and the petitioner will pay the same within four weeks from today. Liberty is also given to the petitioner to approach the respondent for further renewal of the licence with effect from 16. 1. 1994 within four weeks from today. The respondent will decide the same in accordance with law within six weeks thereafter. ( 14 ) IN the facts and circumstances of this case, we. make no order as to costs.