ORDER
Manmohan Sarin,J.
1. Rule.
With the consent of the parties writ petition is taken up for disposal.
Counsel for the parties have been heard at length.
2. Petitioner by this writ petition seeks a writ of certiorari for quashing the action of respondent No.1 MCD and respondent No.2, an officer of respondent No.1, transferring the tenancy rights of shop No.22, Red Fort Market, Delhi in favor of respondent No.3. The petitioner also seek that the letter dated 18.7.1996 (Annexure-P.17) be held as illegal, arbitrary and malafide and without jurisdiction and having been issued in violation of principles of natural justice. The petitioners are the sons and legal heirs of the last acknowledge tenant of shop No.22 namely Smt. Bhagwati Devi.
3. Learned counsel for the petitioners submitted that the petitioners were entitled to have the shop No.22, Red Fort Market, Delhi mutated in their favor. In fact the petitioners had submitted an application on 14.12.1995 for this purpose. While the application of the petitions was pending, the respondent/MCD without giving an opportunity of hearing allow the mutation in favor of respondent No.3, for which they had applied on 10.7.1996.
4. Mr. Rakesh Saini also submits that in granting the mutation in favor of respondent No.3, MCD has reversed its earlier position, when it had accepted that the respondent No.3 is merely an employee of late Smt. Bhagwati Devi and an unauthorised occupant.
In these circumstances, counsel for the petitioner submits that the petitioners are fully entitled to assail and challenged the letter of mutation in favor of respondent No.3 in these writ proceeding.
5. Mr. V.B.Andley on behalf of respondent No.3 submits that respondent No.3 was in exclusive possession and control of the premises since 1962, and has been independently carrying out his individual business from the said premises. Submission of Mr. V.B.Andley is that the premises had in fact been sublet to the said respondent, who continued in actual possession. He submits that the agreement wherein the respondent No.3 had been described as an employee was an obvious camouflage, to protect the allotment in favor of late Smt.Bhagwati Devi and avoid any proceeding for cancellation. Mr. Andley has also drawn my attention to certain documents appearing at pages 24, 76 and 79, which are letters addressed from the authorities to respondent No.3, which demonstrate the independent business being carried out by him.
Mr. V.B.Andley next contended that there was no illegality or infirmity in the action of the MCD in as much as it was in accordance with the policy of the MCD to acknowledge the subletees, who have been in occupation of the premises by transferring the shop or the premises in their favor. He relies on a Resolution which appears at page 86 of the paper book, wherein based on a payment of transfer fee and in increase of 4 times in the license fee , the premises can be transferred. Mr.Andley submits that he has paid additional sum amounting to Rs.25000/- payable on such transfers.
6. An objection as to the maintainability of the writ petition has also been raised by respondents. Mr.Sain has also been heard on this aspect. Looking into the prayer in the writ petition, it is clear that in substance the petitioner is assailing the mutation in favor of respondent No.3. In other words, it is a challenged to preparatory rights. Such a challenge in the normal course has to be in the Civil Forum and not in writ jurisdiction. It would also be pertinent to notice at this stage that the petitioner himself had filed a suit for mandatory injunction and rendition of accounts, where MCD and respondent No.3 have also been imp leaded as defendants. The suit was filed on 2.9.1996 i.e. much before the writ petition. Petitioner in the said suit had sought a decreed of mandatory injunction directing MCD to substitute the name of the plaintiffs, petitioners herein, in place of the name of Smt. Bhagwait Devi as lawful tenant in the premises. a further direction of mandatory injunction is sought against the respondent No.3 for removal of all his belongings
“After delivering all the assets, stocks, records, correspondents and liabilities of their business to the plaintiffs from the said shop No.22, Arcade Bazar, Red Fort Market, Delhi “It is clear that the subject matter of the suit and relief sought are substantially the same as sought in this writ petition. Decreed of mandatory injunction in favor of the petitioners can only be granted, if the mutation in favor of respondent No.3 is held to be illegal. Although there is no such specific prayer or challenged to the same, it would still be open for the petitioners to seek such a relief in the suit, if they so choose. Looking at it from another perspective, the assertion of the petitioner is that respondent No.3 was an employee and was carrying on the business on behalf of the said petitioners predecessors in title Smt. Bhagwait Devi. Accordingly respondent No.3 was not entitled to the mutation in his favor. As against this respondent No.3 claims that his description as an employee was a mere camouflage to protect the allotment. Further that respondent No.3 was in exclusive possession and was carrying on his independent business form the premises. These are disputed questions of fact, which would entail leading of evidence and can be properly dealt with only in a civil trial and not in writ proceedings. The suit filed by the petitioner prior to institution of writ petition is pending.
7. In view of the foregoing discussion and considering the pendency of the suit, this is not a case which should be entertained in exercise of writ jurisdiction under Article 226 of the Constitution of India.
8. Writ petition is dismissed as not maintainable. Parties are left to bearing their own costs.
9. Needles to mention that any observations while disposing of the writ petition will not effect the independent exercise of judgment by the Trial Court in the suit pending before him.