Delhi High Court
Dbs Financial Services Ltd. vs India Tourism Development Corp. Ltd. & ... on 19 March, 2009
Equivalent citations: AIR 2009 DELHI 94, 2009 (5) ALL LJ NOC 849, 2009 (4) AIR KAR R 664, 2009 A I H C (NOC) 568 (DEL), (2009) 2 RENCR 304, (2010) 1 RECCIVR 381, (2009) 160 DLT 256
Author: Hima Kohli
Bench: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4304/1993
% Date of decision : 19.03.2009
IN THE MATTER OF :
DBS FINANCIAL SERVICES LTD. ...... Petitioner
Through : Mr. S.K. Luthra, Adv.
Versus
INDIA TOURISM DEVELOPMENT CORP. LTD. & ORS.
.... Respondents
Through : None.
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may be allowed to see the
Judgment? Yes.
2. To be referred to the Reporter or not? Yes.
3. Whether the judgment should be reported in the Digest? Yes.
HIMA KOHLI, J. (ORAL)
The present writ petition has remained on the regular board of this Court since 06.01.2009. However, the respondent has remained unrepresented. It is pertinent to note that when the Rule was issued in this writ petition on 11.10.1995, none was present on behalf of the W.P.(C) 4304/1993 Page 1 of 8 respondent. Though the order-sheet reflects that counter affidavit was filed by the respondent, the same was not on the record. Counsel for the petitioner was directed to place a photocopy thereof served by the respondent on him, on the record. The petitioner was also directed to issue a letter to the nominated counsel for ITDC requesting him to appear in this matter. Pursuant thereto, the petitioner has filed a copy of the letter dated 22.01.2009 written to the nominated counsel of ITDC, alongwith a copy of the counter affidavit, which have been duly placed on the record under index dated 28.01.2009 and 13.03.2009. Despite the same, appearance has not been entered on behalf of the respondent.
2. The present writ petition is filed by the petitioner praying inter alia for issuance of a writ of certiorari for quashing the order dated 2.4.1993 passed by the respondent No.2/Estate Officer under Section 7 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (in short 'the Act') and the recovery notice for Rs.32,962.85 paise dated NIL, issued by the respondent No.3/Assistant Collector, Government of Delhi for enforcing the order dated 2.4.1993, passed by the Estate Officer/ITDC.
3. In a nutshell, the facts of the case are that the petitioner is a company registered under the Indian Companies Act. It was carrying W.P.(C) 4304/1993 Page 2 of 8 on its business of running a credit card scheme under the name and style of Diners Club India Ltd. As per the said scheme, the petitioner had enrolled a large number of members either in the capacity of the credit card holders or as establishment members. The respondent No.1/ ITDC is in the hotel business and the subject matter of the present dispute relates to one of its units, namely, Hotel Janpath. It is stated on behalf of the petitioner that the said unit entered into an agreement dated 28.5.1969 with the petitioner company and agreed to become an establishment member by honouring the credit cards issued by the petitioner to its members and in turn, the petitioner company agreed to pay the value of the purchases made from the respondent, on the basis of credit cards by the members of the petitioner, on presentation of the bills/charges received within a period of 30 days after they were incurred. It was stipulated in the agreement governing the parties that in case their bills/charges were received beyond a period of 30 days from the date they were incurred, reimbursement thereof would be made only when the charges were recovered by the petitioner from its members. In this context, reference is made by the counsel for the petitioner to Clause 4 of the agreement dated 28.5.1969.
4. It is stated by the counsel for the petitioner that the W.P.(C) 4304/1993 Page 3 of 8 petitioner company transferred its entire business of credit card scheme to the City Bank w.e.f. 1.7.1990. Prior thereto, on 19.8.1989, the petitioner received a statement of account of Hotel Janpath from the respondent No.1, pertaining to charges incurred for the period w.e.f. 10.7.1989 to 13.7.1989. As per the contract between the parties, the charge slips ought to have been submitted to the petitioner within 30 days from 13.7.1989 i.e. on or before 13.8.1989. However, as the charge slips were received beyond the period of 30 days, on receipt thereof the petitioner communicated to its members, calling upon them to pay the respective amounts directly to Hotel Janpath under intimation to it.
5. Thereafter, on 4.11.1992, the petitioner received a notice from the respondent No.2/Estate Officer under Section 7 of the Act calling upon the petitioner to show cause as to why an order requiring the petitioner to pay a sum of Rs.32,962.85 paise, towards arrears of rent together with simple interest should not be not made. Enclosed with the said notice was an application dated 3.11.1992, filed by the respondent No.1 before the Estate Officer. In the aforesaid application, the respondent No.1 stated that the petitioner had not made payment of Rs.32,962.85 paise despite repeated reminders and hence the provisions of the Act were invoked.
W.P.(C) 4304/1993 Page 4 of 8
6. Counsel for the petitioner states that immediately upon receipt of the aforesaid notice, the petitioner filed its reply before the Estate Officer pointing out that the amount was not payable by the petitioner in terms of the agreement governing the parties. This was, however, followed by the impugned order dated 2.4.1993 passed by the Estate Officer holding that a sum of Rs.32,962.85 paise was due as rent payable by the petitioner with simple interest @ 18% per annum w.e.f. 4.11.1992, till final payment.
7. The petitioner is aggrieved by the impugned notice dated 2.4.1993 and the subsequent demand raised on the petitioner by the respondent No.3 on the basis of the said notice, on the ground that the Estate Office was not vested with any jurisdiction to take notice of the recovery or to initiate proceedings for recovery under the Act, on the basis of an application filed by the respondent No.1, as the recovery did not pertain to rent of any public premises or use and occupation of any public premises, but pertained to charges arising on account of utilization of hotel services by customers/patrons, for consumption of food and beverages, etc. He submits that the said demand is therefore beyond the scope of Section 7 of the Act. The provisions of Section 7 of the Act contemplates the power to require payment of rent or damages in respect of the public premises. Sub- W.P.(C) 4304/1993 Page 5 of 8 Section (1) of Section 7 of the Act stipulates as below :
"7 (1) "Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such installments as maybe specified in the order."
8. A bare reading of the aforesaid provision makes it apparent that only in case a person is in arrears of rent payable in respect of any public premises, can the Estate Officer require that person to pay the same within a stipulated time. The term "rent" is defined under Section 2(f) of the Act, which is reproduced herein below :
"2(f) "rent", in relation to any public premises, means the consideration payable periodically for the authorized occupation of the premises, and includes -
(i) Any charge for electricity, water or any other services in connection with the occupation of the premises,
(ii) Any tax (by whatever name called) payable in respect of the premises, where such charge or tax is payable by the Central Government or the corporate authority."
9. A bare perusal of the aforesaid definition clause makes it apparent that charges payable on account of consumption of food and beverages in a hotel premises are beyond the pale of the definition of "rent", as contained in the Act, as they cannot be treated as charges payable for authorized occupation of a public premises or for W.P.(C) 4304/1993 Page 6 of 8 consumption of electricity, water or any other services in connection with occupation of a public premises. A visitor to a hotel who avails of the services of a hotel for consumption of food and beverages can by no stretch of imagination be treated as either an authorized occupant of a public premises, or for that matter, an unauthorized occupant of the same. The question of „occupation of a premises‟ in such circumstances does not arise as the limited services availed of by such a customer/patron is confined to consumption of food and beverages at the premises of hotel, for consideration.
10. In these circumstances, this Court is in agreement with the petitioner that the Estate Officer had no jurisdiction to take cognizance of the recovery claimed by respondent No.1 or initiate proceedings for recovery, much less make an order requiring the petitioner to pay the amount of Rs.32,962.85 paise under sub-section (1) of Section 7 of the Act. The provisions of the Act could not have been invoked by the respondent No.1 to make recoveries for outstanding dues towards consumption of food and beverage articles from the customers/patrons in the premises of the hotel, under the garb of recovery of „rent for occupation of a public premises‟. The remedy of the respondent No. 1 lay elsewhere.
W.P.(C) 4304/1993 Page 7 of 8
11. In these circumstances, the present writ petition is allowed. The impugned order dated 2.4.1993 is quashed, being without jurisdiction and as a consequence, the demand dated NIL raised by the respondent No.3 based on the aforesaid notice is set aside. There shall be no orders as to costs.
HIMA KOHLI,J MARCH 19, 2009 sk W.P.(C) 4304/1993 Page 8 of 8