Delhi District Court
And Also Its Showroom At vs India Tourism Development Corporation ... on 5 October, 2015
IN THE COURT OF SHRI AMAR NATH, DISTRICT & SESSIONS JUDGE
NEW DELHI
PPA No. 37/2014 & 38/2014
M/s Shreyans Lifestyle Private Limited
Having its registered office at:
Shivsagar Estate, Ground Floor,
DBlock, Dr. Annie Besant Road,
Worli, Mumbai400018.
And also its Showroom at:
Hotel The Ashok, 50B,
Chanakyapuri, New Delhi110021. ........ Appellant
Versus
India Tourism Development Corporation Limited
A company incorported under the provisions of
Companies Act, 1956
having its registered office at:
Core: 8, 6th Floor, Scope Complex,
7, Lodhi Road, New Delhi 110003.
Unit: Hotel The Ashok,
50B, Chanakyapuri, New Delhi110021. ....... Respondent
Date of Institution of Appeal : 14.07.2014
Judgment reserved on : 29.09.2015
Judgment announced on : 05.10.2015
J U D G M E N T
These two appeals are directed against the impugned order dated 25.06.2014 canvassing a common question of Law and facts pertaining to the same property and therefore, it would be appropriate to dispose them off by a PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 1 of 21 single judgment.
2. Both the appeals u/s 9 of the Public Premises (Eviction of unauthorized occupants) Act, 1971 (hereinafter to be referred as "The Act") are directed against the orders both dated 25.06.2014 passed by the Ld. Estate Officer whereby the appellant was directed to pay the arrears of license fee of Rs. 1,19,09,696/ upto April 2012 and further arrears of license fee as per the agreed rate to the license deed upto 21.03.2013 besides electricity charges upto date thus, totalling to a sum of Rs. 2,98,45,089/ along with applicable taxes and interest @ Rs. 12% per annum and the payment shall be made as per clause 6 of the license deed qua the damages for use and occupation along with 12% interest within 15 days after 21.03.2013 till the date of actual handing possession of the said premises, after holding the appellant as an unauthorized occupant in respect of the public premises praying therein; to set aside the impugned order.
3. The appeals were admitted for hearing. Notices of both the appeals were given to the respondent who has resisted the same by filing the written reply. Trial Court record was requisitioned.
4. Feeling aggrieved, the appellant challenged the impugned orders of the same date mainly on the following grounds:
a) The Ld. Estate officer failed to appreciate that the termination notice issued to the appellant in purported exercise of powers under section 4 of the Act is not in accordance with law and as such proceedings before the Estate Officer cannot be said to be legal and valid in the eyes of law.
b) Impugned order dated 25.06.2014 under challenge in appeal bearing no. 38/2014 directing PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 2 of 21 the payment of such an exorbitant amount is bad and voidabinitio which suffers from illegalities, non application of mind and having being passed in mechanical manner.
c) The Ld. Estate officer has also failed to appreciate that the license deed was executed between the parties on 16.03.2010 initially for the period of three years and expiring on 21.03.2013 which was not renewed. After the expiry of the license deed, the occupation of the appellant became to be tenant on month to month basis and as such, the Ld. Estate Officer did not have a jurisdiction to pass the impugned order and thus, Estate Officer committed grave jurisdictional error while passing the impugned order dated 25.06.2014.
(d) The Ld. Estate Officer had erred in ignoring the fact that there is an arbitration clause in the purported license deed and without exhausting the same, the proceedings before him were not maintainable.
5. I have heard the rival contentions advanced on behalf of both the parties and have given thoughtful consideration to the record.
6. The facts giving rise to these appeals are that on 16.03.2010 a license deed was entered between the appellant and the respondent for licensing of area measuring 4007.13 sq. feet (non air conditioned covered area) near out gate of The Ashok, 50B, Chanakyapuri, New Delhi110021 for the purpose of establishing the office/car showroom. The license deed was valid for the period of three years commencing from 22.03.2010 upto 21.03.2013 with the stipulation for one time renewal for the period of two years subject to fulfillment of other conditions mentioned therein on the payment of license fee in terms of clause II(1)of the license agreement. The appellant initially paid the license fee, however, from April, 2011 they failed to pay the license fee. Consequently, the PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 3 of 21 proceedings were initiated before the appropriate forum for recovery of the same. The license deed came to an end on 21.03.2013 by the efflux of time. Since the license agreement was not renewed thereafter, the appellant became to be an unauthorized occupant. Notice under section 4 of the Act was served upon the appellant annexed with the application under section 4 & 5 of the Act mentioning the grounds for the proposed eviction and hence, the action for eviction of the public premises was initiated against the appellant as per law.
7. First and foremost contention of the appellant is that the termination notice issued to the appellant in purported exercise of power under section 4 of the Act is defective as the same does not specify the grounds on which the order of eviction is proposed to be made and as such, the impugned order is liable to be set aside on this ground. To support his contention, he has placed reliance upon the following judgments:
(a) 1969 (3) SCC 415 (DHC) titled "M/s Wire netting Stores and Anr. Vs. The Delhi Development Authority & Ors.
(b) 1998 AIHC 329 titled "Phiray Ram Vs. National Airport Authority, Airport Ahmadabad and Anr".
8. Per contra, Ld. Counsel for the respondent vehemently contended that the Ld. Estate Officer strictly followed the procedure of section 4 of the Act as the show cause notice was sent along with the copy of the application under section 4 & 5 of the Act mentioning the grounds of eviction to the appellant which was duly replied by the appellant vide reply dated 13.08.2013. As per the counsel for the respondent, the judgments relied upon by the Ld. Counsel for the appellant would not be applicable to the facts of this case.
PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 4 of 21
9. There is no dispute with regard to the proposition of law laid down by the Hon'ble Full Bench of the Delhi High Court in case M/s Wirenetting Stores (supra) but regard is to be had to the facts and the circumstances of the case. In the said case it was observed that only after the compliance of the procedure of the section, the eviction of unauthorized occupants under section 5 of the Act can take place. The Ld. Estate Officer neither followed the procedure of section 4 of the Act nor he gave a notice to comply with its terms. Since ITDC/respondent could not produce the copy of the notice u/s 4 of the Act then it was held that the procedure as laid down in section 4 of the Act was not followed. But in the instant case, the notice under section 4 of the Act was duly served along with the copy of the application under section 4 & 5 containing the grounds of the eviction proposed to be made which was confirmed by the appellant by giving the reply dated 13.08.2013 and hence, the judgment is inapplicable. Similarly, the judgment of Phiray Ram (supra) is also not applicable to the facts of this case.
10. The second limb of argument of the Ld. Counsel for the appellant is that the document dated 16.03.2010 executed between the parties though described as a license deed, infact it was created a lease deed in favour of the appellant which is apparent from the nature of the transaction as initially the period of the license was three years which came to an end on 21.03.2013 by the efflux of time. After the expiry of the license deed, there was neither any renewal nor extension of the license period and thus, the respondent was bound to take the possession of the public premises any time after 21.03.2013 but the respondent chose to remain silent and allowed the appellant to continue to occupy the premises meaning thereby the appellant became the tenant on monthly basis. He further urged that the instant case is that of a lease deed and not a license in as much as the possession of the said premises is with the PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 5 of 21 respondent who has its own set of locks and keys. Merely because the purported document is titled as 'license deed' has no relevance, even ownership of the possession is not proved and as such Ld. Estate Officer did not have a jurisdiction to pass the impugned order. To substantiate his line of argument, he has drawn the attention of the judgment reported as Residents Welfare Association Vs. State of U.P., 2009 14 SCC 716.
11. On the other hand, Ld. Counsel for the respondent vehemently argued that the parties had signed a license deed which also governed their rights and liabilities. The possession of the premises all along remained with the respondent. Undoubtedly, the appellant was in lawful occupation till the period of the license however, after completion of the period of license, his occupation became unlawful. In so far the relied upon citation is concerned, the same would not be applicable to the facts and circumstances of the present case as the property in question is a public premises which was given to the appellant on license basis and on expiry of the license period, the appellant was required to vacate the said accommodation. He invited the attention of this court on the relevant clauses of the license agreement which are given below: VIII) GENERAL CLAUSES
2). The right conferred upon these presents is only that of a licensee. It is expressly stated that the possession of the licensed space lies with the Licensor, and the Licensee can have only a right of use and occupation of the portion hereby licensed and no other right whatsoever. This is not a lease and the relationship is only that of a licensor & Licensee and not that of Landlord & Tenant of Lessee.
PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 6 of 21
3). ..................................................
4). .................................................. Notwithstanding anything contained herein, it is stated that the licensed space shall at all times be under the control and supervision of the licensor and the Licensor shall retain domain and possession of the said licensed space and shall have the right to direct the mode and manner of the said use of the said licensed space so as to more effectively provide for facilities and amenities to customers and visitors.
12. The contention sought to be raised during the course of arguments with regard to the nature of transaction entered into between the parties being a lease or the license by the Ld. Counsel for the appellant seems to be an afterthought after perusing the terms and conditions of the license deed. The appellant had entered into a relationship with the respondent while executing a license deed with open eyes and did sign the same after admitting their contents to be correct and as such they cannot be allowed to take the plea after the long gap of the expiry of the period of license. The license was granted for the period of three years commencing from 21.03.2010 and expired on 21.03.2013. However, licensee was granted one time renewal after the expiry of the period stipulated under clause I. The extended period of renewal shall only be for the period of two years. No second renewal was permitted after the expiry of the first renewal period. If the licensee continues to occupy the premises, even after the expiry of the initial period of license or if renewed, after the period of renewal expires, then his occupation shall be declared as unauthorized and the licensor, in his discretion, can enforce and the licensee shall be liable to pay damages for unauthorized occupation as detailed in paragraph clause 6 of the PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 7 of 21 license deed. So the admitted position which emerges is that the license came to an end on 21.03.2013. As per subclause 2 of clause 1(PERIOD OF LICENSE AND RENEWAL), the licensee shall apply for the renewal of his license six calendar months before the expiry of the initial period and on failure to do so, then the licensor shall be free to negotiate with and to allow the licensed space to any other party but the appellant in the instant case did not apply for renewal of the premises as so stipulated in the clause as referred to above.
13. Even otherwise, the appellant cannot be allowed to deny the ownership of the premises as they took the possession thereof from the respondent itself after executing the license deed which is an admitted document. It is a settled law that admission of the document need not to be proved. Relevant contents of the clause of the license deed are extracted to be reproduced below:
Whereas the licensor is the absolute owner and in possession of all that land building of Hotel The Ashok, 50B, Chanakyapuri, New Delhi110021 which is a "Public Premises" as defined under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971.
AND WHEREAS, the licensee is desirous of obtaining the privilege of, and has approached and applied to the Licensor for grant of licence with respect to a space measuring 4007.13 sq. ft. , non air conditioned covered area (near Annexure OUT gate of the hotel, as per enclosed AnnexureI, i.e. , Annexure VIIpage 29 of the Tender Document) for the purpose of operating a Showroom for high PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 8 of 21 end luxury goods in the building premises known as Hotel The Ashok, situated at 50B, Chanakyapuri, New Delhi110021 under the control and administration of the Licensor.
14. In the cited judgment of the appellant, it has been observed that there is no dispute that the nomenclature (name of the instrument) is not the determining factor for calculating stamp duty. It has also been observed that agreement does not create a tenancy is also not a decisive factor. The crucial test in each case is whether the instrument is intended to create or not to create an interest in the property. If it is infact intended to create an interest in a property, it is a lease, if it does not, it is a license but in the instant case, the instrument i.e. a license deed does not whisper anything about creating the tenancy between the parties. Here I may refer the judgment Chandu Lal (supra) wherein kiosk were given on license for a period of 11 months. After completion of the period of license, the Corporation had enforced its right of reentry which was challenged and ultimately came up for decision before full bench. The full bench has observed that the Corporation in enforcing its right of reentry cannot be said to have taken the law in its own hand as the underlying assumption in the case of a license is that the owner continues to be in possession and control of the property. The Court had declined to throw its protection round the trespasser. The facts and circumstances of the present appeals are almost similar as in the case of judgment (supra).
15. In M/s Gesture Hotels and Foods Pvt. Ltd. Vs. NDMC, 2014 (209) DLT 784, it has been observed that the dispute between the parties is purely contractual and the rights and obligations of the parties has to be determined in view of the terms of the license and not on the principles of equity or public law. Such type of plea was negated by the Constitution Bench in PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 9 of 21 the judgment titled as Ashoka Marketing Ltd. Vs. Punjab National Bank (1990) 4 SCC 406 with the observations that the provisions of PPA were held to override the provisions of Delhi Rent Control Act, 1958. Relevant para 20 of the aforesaid judgment (supra) is reproduced as under:
The provisions of the PP Act were held to override the provisions of the Delhi Rent Control Act, 1958. It was further held, that the PP Act had been enacted to deal with the mischief of rampant unauthorized occupation of public premises, by providing speedy machinery for eviction of persons in unauthorized occupation. It was further held that while the Delhi Rent Act is intended to deal with the general relationship of landlords and tenants, the PP Act is a special statute and not a general enactment. The Constitution Bench noticed that in the statement of objects and reasons of the PP Act was to safeguard public interest by making available for public use premises belonging to Central Government, companies in which the Central Government has substantial interest, corporations owned or controlled by the Central Government and certain other autonomous bodies and to prevent misuse of such premises. It was further notices that the Delhi Rent Act itself excluded the Government premises from its purview and all that the PP Act did was to exclude the building belonging to such statutory corporations and autonomous bodies also PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 10 of 21 from the ambit of the Rent Act. The Constitution Bench also noticed that the investments in such statutory corporations are from the consolidated fund, that is to say from the tax prayers and it is the public at large which has an interest in the functioning and profitability of the said statutory corporations.
16. The nature of occupancy of licensee is permissive which does not create any interest in the premises in question. Once permission granted to the licensee ceases, then its possession becomes to be unauthorized. The full bench judgment of our own Hon'ble High Court in case of Chandu Lal etc Vs. MCD, ILR 1978 (1) DEL 292 had expressed a similar view and the same is relied upon.
17. In view of the agreed terms of the license deed, it cannot be said that the appellant was in legal or settled possession thus, making the case of the appellant different visavis the case of a tenant or a case where the termination was premature is untenable.
18. The next submission made by the Ld. Counsel for the appellant is that there is an arbitration clause in the purported license and without exhausting the said remedy, the proceedings before the Ld. Estate Officer for eviction were not maintainable. He further argued that the provisions of the Arbitration and Conciliation Act would over ride the provisions of the PP Act and as such, no order could have been passed by the Ld. Estate Officer under the provisions of the PP Act till the outcome of the arbitration proceedings. To support his contention, he invited the attention of this court by referring the PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 11 of 21 clause V (1) Applicable Laws and Notice wherein it is stipulated that in case of any other dispute or difference relating to the terms of the license deed, the matter shall be referred to the Sole Arbitration of the Chairman & Managing Director of ITDC or any other person appointed by him in his behalf.
19. On the other hand, Ld. Counsel for the respondent vehemently denied the aforesaid arguments whilst making submissions that the license given to the appellant was subject to the jurisdiction of the Ld. Estate Officer who would have power to exercise the jurisdiction under the PP Act. He further made submission that in the same clause, it is also clearly stipulated that where the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1979 can be invoked by the licensor in respect of the licensed space, the provisions of the said Act shall apply. To support his contention, he has placed reliance upon the Judgment India Trade Promotion Organisation V. International Amusement Limited, 142 (2007) DLT 342 (DB), wherein it has been held that:
31. The second submission of Mr. Arun Jaitley that the provisions of Arbitration and Conciliation Act would override the provisions of PP Act also cannot be accepted. The aforesaid position is apparent when we make a refernce to the provisions of Clauses 27 and 28 of the licence agreement. In Clause 27 of the licence Agreement it is clearly stipulated that the licence given to the IAL would be subject to the jurisdiction of the Estate Officer of ITPO who would have the power to exercise jurisdiction under the PP Act. Clause 28 of the agreement is an arbitration clause. It is a settled principle of interpretation of documents that PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 12 of 21 harmonious construction should be adopted so as to reconcile all clauses and to give effect to them. It is also settled principle of interpretation of documents that in case of irreconcilable conflict between two clauses, the clause which is earlier should be given preference over a clause which is subsequent.
32. If we apply the above principles in the present case, then we have to harmoniously read Clauses 27 and 28 of the licence deed to give effect to both of them. Harmonious reading of the two Clauses is possible if we hold that provisions of PP Act will apply to all matters referred to and specified by the special enactments and provisions of Arbitration Act including arbitration clause will apply to matters and disputes that cannot be subject matter of proceedings under the PP Act. Thus the arbitrator is entitled to adjudicate and decide claims other than those pending before the Estate Officer or raised under the PP Act. Disputes under the PP Act can be decided and adjudicated upon the Estate Officer in terms of - 1 Clause. If we hold that the two clauses are irreconcilable, then in terms of the second principle mentioned above, Clause 27 will apply.
33. It cannot be said that proceedings under the PP Act and arbitration Act for the same dispute can be restored to and permitted under the licence deed. No such argument was in fact raised. It is also not permissible to PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 13 of 21 raise any such argument and there cannot be an arbitration clause which givens option to a parties to have resort to arbitration and also have right and option to resort to proceedings under the PP Act. The two clauses have to harmoniously interpreted. The intention of the parties as disclosed from the aforesaid clauses in the licence agreement is that wherever and whenever the provisions of PP Act are applicable the same would apply. Matters that can be made subject matter of Arbitration. Consequently, we hold that the jurisdiction to be exercised by the Estate Officer cannot be said to be subject to the order to be passed by the Arbitrator in the arbitration proceedings.
34. Learned Counsel for the IAL had drawn out attention of Sections 5, 8 and 40 of the Arbitration and Conciliation Act. Referring to the said provisions it was submitted that the arbitration clause will override the provisions of the PP Act and Arbitrator can also decide the petition filed by ITPO before the Estate Officer.
35. Section 5 of the Arbitration and Conciliation Act prohibits and restrains any judicial authority from interfering with arbitration proceedings except in accordance with the provisions as contained in Part I of the Arbitration and Conciliation Act. Section 5 incorporates a limited non obstante clause which restrains all judicial authorities from examining and PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 14 of 21 going into the questions, except as provided for and stipulates in Part I . To this extent, exclusive jurisdiction is vested with the Court as defined in Section 2(e) or judicial authority to decide all matters as stipulated in PartI. The said provision does not specifically state that Arbitration and Conciliation Act shall prevail over all other existing enactments.
37. Section 15 read with Sections 5 and 7 of the PP Act confers exclusive jurisdiction on the Estate Officer appointed under Section 3 of the aforesaid Act to deal with the applications under Section 5 and 7. Section 15 of the PP Act bars and prohibits any Court from entertaining any suit or proceeding for eviction, etc. as provided under Clauses (a) to (e) therein. The general power of the Court under Section 9 of the Code of Civil Procedure, 1908 to entertain suit or proceedings is therefore ousted of a dispute raised falls in Clauses (a) to (e) of the aforesaid section. SectionS 5 and 7 of the PP Act empowers an Estate Officer appointed under Section 3 to deal with applications for eviction of unauthorized occupants and applications for payment of rent and damages in respect of the public premises. The Act also prescribes a procedure for filing an appeal by a person aggrieved by an order passed by the Estate Officer under Section 9 of the PP Act. The aforesaid Act is, therefore, a special Act which also prescribes complete procedure for adjudication of proceeding PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 15 of 21 under the PP Act. The said Act is a complete code in itself. We do not think that proceedings under Sections 5 and 7 of the PP Act can be made subject matter of arbitration. The said enactment is a special legislation, whereby specific powers have been conferred on an Estate Officer to adjudicate and decide applications under Sections 5 and 7 of the PP Act. Courts have been prohibited and restrained from exercising jurisdiction over matters mentioned in Sections 5 and 7 of PP Act in view of Section 15 of the PP Act. Reading of Sections 5 and 7 makes it clear that it is the Estate Officer alone who has the sole and exclusive jurisdiction to decide applications under Sections 5 and 7 of the said Act. The said jurisdiction conferred by the statute cannot by a contract be conferred upon an arbitrator or made subject matter of reference before an arbitrator. PP Act has given exclusive jurisdiction to an Estate Officer, who alone has authority to determine the specified disputes and matters and, therefore, these are not matters that can be referred to an Arbitrator. There cannot be waiver of statutory provisions. Contract must be within the legal framework. Parties cannot contract out of the statute. The matters on which an Estate Officer has exclusive jurisdiction are not arbitrable and parties by a contract cannot agree to refer matters on which jurisdiction has been conferred and given to Estate Officer. Arbitrability of the claims covered by Section 5 and 7 of PP Act is therefore excluded. We are PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 16 of 21 fortified in our conclusion by the judgment of the Supreme Court in the case of Ashoka Marketing Limited and Another V. Punjab National Bank and Others, (1990) 4 SCC 406.
20. After applying the ratio of the judgment of India Trade Promotion Organisation (supra), it makes abundantly clear that the enactment has conferred sole and exclusive jurisdiction on the Ld. Estate Officer to decide the disputes as enumerated in section 15 r/w section 5 & 7 of the PP Act. Their dispute cannot be decided by Civil Courts or by Arbitration and as such, the plea of the Ld. Defence counsel to refer the dispute to the Arbitrator for adjudication is rejected being unfounded.
21. Now I am coming to the next plea of the appellant that the impugned order is also bad in the eyes of law whereby the appellant was directed to pay such an exorbitant amount as damages for use and occupation of the premises after expiry of the period of license deed without any basis. As far as the current market rates is concerned, I am to state that the license was not renewed after 21.03.2013. The fresh license shall be as per the provisions of Section 141 (2) of the NDMC Act, 1994. The public premises having area measuring 4007.13 sq. feet, non air conditioned covered area, Out gate of The Ashok, 50B, Chanakya Puri, New Delhi (a unit of ITDC), Govt. of India undertaking. It is an admitted position that the appellant had been given a bare license for a specific purpose which had expired by the efflux of time and the license was neither renewed nor extended for further time. The appellant chose to occupy the premises even thereafter. It is settled preposition of law that the licensee has no legal right to stay in the property after termination of the license. Thomas Cook (India) Ltd. Vs. Hotel Imperial & Ors. 2006 (127) PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 17 of 21 DLT 431 wherein it was held that the nature of occupancy is clearly permissive. Infact, it does not amount to possession at all. A license does not create any interest in the property. It merely permits another person to make use of the property. There is no parting with possession as a legal possession continues with the owner (licensor). The view taken in the aforesaid judgment was approved by the Hon'ble Supreme Court in Maria Margarida Sequeira Fernandes and Ors. Vs. Erasmo Jack De Sequeira (dead) through LRs. (2012) 5 SCC 37. Illegality or irregularity cannot be perpetuated on the ground that illegal benefits have been extended to others. Their lordships have also dealt with the proposition of the market rate of rent in the judgment of Ashoka Marketing Ltd (supra). Now it has become essential to quote the paragraphs no. 24 and 25 which would decide the controversial point of the parties:
P24: as far as the claim of the tenants to renewal of their tenancy at rent below market rent is concerned, the same would amount to the tenants of the statutory corporations/ financial institutions being placed in a better position than the tenants of private landlords. We do not see any reason to create such a classification. As we have already observed in Damyanti Verma (supra) as far as the city of Delhi is concerned, the tenancy wherethe rent is in excess of Rs. 3500/ per month, as is the case in most of the tenancies today except which were created long ago, are bound strictly by contract the tenants are entitled to renewal only if agreed to by the landlord and cannot force the landlord to continue with the tenant. Not only will such a PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 18 of 21 situation create two classes of tenants and would be discriminatory but would also result in loss to the statutory corporations/financial institutions, which instead of earning market rent would be getting a much lower return on their assets/ properties. That would also amount to giving benefit to certain class of tenants at the cost of the public exchequer. We fail to find any rationale therefor. The same is also against the spirit of judgment of the Constitution Bench in Ashoka Marketing Ltd (supra). The Constitution Bench proceeded on the premise that the statutory corporations/financial institutions require better and more expeditious provisions to evict persons continuing in occupation after the authority under which they were allowed to occupy the premises has expired or has been determined and thus held the provisions of PP Act to be overriding the provisions of the Rent Act. The Division Bench of this Court in K.T. Corporation Vs. India Tourism Development Corporation 165 (2009) DLT 65 (DB) has held that the Court cannot interfere with the demand for market rent.
P25: As far as the reliance on Jamshed Hormusji Wadia (supra) is concerned, that case turned on its own facts. Even otherwise, the Supreme Court now in Centre for Public Interest Litigation Vs. Union of India (2012) 3 SCC 1 has held that the distribution of State resources is to be guided by the PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 19 of 21 Constitutional principles including the doctrine of equality and larger public good and rational, transparent procedures designed to fetch the maximum value, for enrichment of the public at large have been commended. To accept the contentions of the appellant would amount to giving monetary benefit for all times to come to those who, may be on first come basis, have come into occupation of properties of statutory corporations and financial institutions and at the cost and prejudice of others. This cannot be permitted.
22. Mr. Vivek Satyani during his crossexamination has categorically admitted that the relationship between the parties is based on the license deed including the applicable rate of the license fees. He further admitted that the license fee has not been paid but he is not aware as to for which period the license fee has not been paid. Clause 6 of the license deed stipulated that if the party continues to occupy the premises, even after the expiry of the initial period of licence or if renewed, after the period of renewal expires, besides being declared an unauthorized occupant and for any other action that the licensor in his discretion can enforce, the licensee shall be liable to pay damages for unauthorized occupation at the following rates; • 50% of the monthly license fee (applicable at the time) for each day of the first week of unauthorized occupation. • 75% of the monthly license fee (applicable at the time) for each day of the second week of unauthorized occupation. • 100% of the monthly license fee for each day of the third week of unauthorized occupation.
PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 20 of 21 • For each day of unauthorized occupation thereafter, 100% of the monthly license fee shall continue to be charged till the party vacates the premises on his own volition or due to any act of the licensor.
The appellant does not have any justification as to why the license fees has been discontinued and thus, the order of the Ld. Estate Officer dated 25.06.2014 does not warrant any interference with regard to the damages for use and occupation including the arrears of the license fees as detailed in paragraph no. 2 of the judgment as the same is strictly in consonance of clause 6 of the license deed.
23. In view of the aforesaid discussions, the appellant fails in both the appeals and the same do not require any interference. Accordingly, both the appeals as referred to above are dismissed by upholding the orders of the Ld. Estate Officer dated 25.06.2014. Copy of the judgment be placed in the trial court record of learned Estate Officer and thereafter, they be sent back. An attested copy of this judgment be also kept in the connected appeal file bearing no. 38/14. Files of both the appeals be consigned to the record room. Announced in the open court on this 5th Day of October, 2015 (AMAR NATH) District & Sessions Judge New Delhi PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 21 of 21 IN THE COURT OF SHRI AMAR NATH : DISTRICT & SESSIONS JUDGE, NEW DELHI PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC 05.10.2015 Present : Sh. Puneet Gaba, proxy for Sh. Amit Khanna, Ld. Counsel for the appellant.
Sh. Abhayendra, proxy for Sh. Sushant Kumar, Ld. Counsel for the respondent/ITDC.
Vide common judgment of the even date, both the appeals stand dismissed. Impugned order dated 25.06.2014 is upheld and confirmed. Copy of the judgment be placed in the trial court record of learned Estate Officer and thereafter, they be sent back. An attested copy of this judgment be also kept in the connected appeal file bearing no. 38/14.
Files of both the appeals be consigned to the record room.
(AMAR NATH) District & Sessions Judge New Delhi/05.10.2015 PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 22 of 21 IN THE COURT OF SHRI AMAR NATH : DISTRICT & SESSIONS JUDGE, NEW DELHI PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC 05.10.2015 Present : Sh. Puneet Gaba, proxy for Sh. Amit Khanna, Ld. Counsel for the appellant.
Sh. Abhayendra, proxy for Sh. Sushant Kumar, Ld. Counsel for the respondent/ITDC.
Vide common judgment of the even date, both the appeals stand dismissed. Impugned order dated 25.06.2014 is upheld and confirmed. Copy of the judgment be placed in the trial court record of learned Estate Officer and thereafter, they be sent back. An attested copy of this judgment is also kept in the connected appeal file bearing no. 38/14.
Files of both the appeals be consigned to the record room.
(AMAR NATH) District & Sessions Judge New Delhi/05.10.2015 PPA No. 37/14 & 38/14 Shreyans Lifestyle Pvt. Ltd. Vs. ITDC page no. 23 of 21