Delhi District Court
Fortune Grand Management Pvt. Ltd vs Delhi Tourism & Transportation on 31 March, 2021
IN THE COURT OF SURESH KUMAR GUPTA,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI
PPA No. 17/16
Fortune Grand Management Pvt. Ltd.
(A Company incorporated under
the Companies Act, 1956)
Having its Registered Office at
17/2, Kalyan Puri,
Delhi110091
Through its Director
Shri Manoj Kumar .......... Appellant
Versus
Delhi Tourism & Transportation
Development Corporation
Having its Registered office at
18A, DDA SPO Complex,
Defence Colony,
New Delhi .......... Respondents
Instituted on : 02.05.2016
Argued on : 03.03.2021
Decided on : 31.03.2021
JUDGMENT
1. The appellant has impugned the order dated 2104 PPA No. 17/16 Page 1 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation 2016 passed by the ld. Estate Officer vide which appellant has been directed to pay a sum of Rs.7,28,750/ w.e.f. 04.12.2015 till 22.01.2016 assessed by the ld. Estate Officer as damages on account of unauthorised occupation of the premises and further future damages @ Rs. 14575/ per day w.e.f. 23.01.2016 till the date of vacation of the premises. It has been further directed to pay the outstanding dues upto 03.12.2015 on account of Annual Concession Fee, interest, property tax share, electricity charges, 5% share of revenue amount to Rs. 2,97,646/ after adjustment of amount of Rs. 14.65 lakhs. It has been further directed to pay Rs. 19,10,000/ towards revenue collected by the appellants which pertains to prohibited activities. It has been further directed to pay simple interest @ 8% per annum on the above sum w.e.f. 04.12.2015 till the final payment.
PPA No. 17/16 Page 2 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation
2. The appeal has been preferred on the grounds that ld. Estate Officer has reserved the order on 04.04.2016 in the proceedings u/s 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Act) but he has failed to take into consideration the order dated 08.02.2016 passed in OMP(I) Comm. No. 59/2015 and order dated 05.04.2016 passed in LPA No. 228/2016 by Hon'ble High Court of Delhi. No proceedings could have been initiated u/s 7 of the Act as termination of the agreement dated 03.12.2015 was challenged by way of filing the Writ Petition no. 588/2016 and Arbitration Petition no. 47/2016 before Hon'ble High Court of Delhi. On 21.04.2016 ld. Estate Officer has passed the order in Petition no. 02/2016 u/s 7 of the Act against the appellant without waiting for the final outcome of the Writ Petition bearing No. 588/2016. Ld. Estate Officer has unjustifiedly came to the conclusion PPA No. 17/16 Page 3 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation that appellant is liable to pay the damages of Rs. 728750/ with effect from 04.12.2015 till 22.01.2016 on account of unauthorised occupation of the premises in question and future damages @ Rs.14575/ per day with effect from 23.01.2016 till the vacation of the premises. The appellant was never in unauthorised occupation of premises in question on the termination of lease vide order dated 03.12.2015 as said order was challenged by filing OMP (I) Comm. No. 59/2015 before Hon'ble High Court of Delhi wherein direction was given to the respondent to restore the premises in question to the appellant in terms of the reports of Local Commissioner. The keys were to be handed over to the appellant vide order dated 08.02.2016. There is no unauthorised occupation w.e.f. 04.12.2015 till date.
3. There is no clause in the agreement dated PPA No. 17/16 Page 4 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation 16.08.2013 to calculate damages @ Rs.14575/ per day w.e.f. 23.01.2016. The appellant has already deposited a sum of Rs. 20 lacs and Rs.14.65 lacs in terms of the order passed by Hon'ble High Court of Delhi. Ld. Estate Officer has wrongly come to the conclusion that a sum of Rs. 297646/ is outstanding against the appellant even after the adjustment of Rs. 14.65 lacs. The appellant has paid a sum of Rs. 5491879/ against a demand of Rs. 3466670/ upto 31.03.2016. The appellant has already made payment on account of ACF, interest, property tax share, electricity charges etc.
4. Ld. Estate Officer has wrongly concluded that a sum of Rs.19,10,000/ has been collected by the appellant on account of prohibitive activities in the premises in question. The said figure was arrived on the basis of chart submitted by the Secretary, Tourism, GNCTD alongwith PPA No. 17/16 Page 5 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation letter dated 07.01.2016 to Sh. Rahul Mehra, Ld. Senior Standing Counsel, Govt. of NCT of Delhi. The various dates and events / functions are mentioned in the chart. Ld. Estate Officer has completely overlooked the type of events and venue mentioned against the said dates. It is mentioned in the event column that on 23.05.2015 a golden jubilee function was held by Golden Palm/Fortune Food Court area which is not prohibited activity as per schedule D of the list of prohibited activities. On 06.06.2015 and 02.08.2015 the reception was held by Golden Palm in Hall No. 1 and Amphitheater and not by the appellant. The said events / functions are neither prohibited nor held by the appellant.
5. Ld. Estate Officer has failed to appreciate that keys of the premises have been handed over only on 27.02.2016 instead of 08.02.2016. The respondent has PPA No. 17/16 Page 6 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation demolished the kitchen room of Halls making the project non functional to the appellant. A letter dated 16.03.2016 was also received by the appellant from Health Department, North Delhi Municipal Corporation, Delhi vide which Health Trade License was rejected or revoked. Ld. Estate Officer has actively taken interest in the matter and issued several show cause notices, letters and calculated the damages vide order dated 21.04.2016. The order dated 08.02.2016 passed by Hon'ble High Court of Delhi was never challenged by the respondent.
6. Ld. Estate Officer has wrongly concluded that numerous opportunities were granted to the appellant to lead the evidence. Ld. Estate officer has erroneously given the reason that appellant did not submit any evidence in support of the case. Ld. Estate Officer has failed to consider the various documents alongwith reply filed by PPA No. 17/16 Page 7 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation the appellant. The respondent, instead of amicably settling the issue, has terminated the agreement vide letter dated 03.12.2015.
7. The unauthorised construction was already removed and dues were duly cleared before the issuance of termination order dated 03.12.2015. Ld. Estate Officer had no jurisdiction to pass the impugned order as an order was passed by Hon'ble High Court of Delhi in LPA No. 228/2016 that if any order is passed by ld. Estate Officer, then it shall be subject to the outcome of the decision in WP (Civil) No. 588/2016. Hence, this appeal.
8. The respondent has filed the reply to the effect that the appellant has made continuous violation of the terms of the agreement between the parties. The show cause notice dated 28.09.2015 was issued and ultimately PPA No. 17/16 Page 8 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation respondent was constrained to terminate the agreement vide order dated 03.12.2015. The appellant was directed by Hon'ble High Court of Delhi to deposit a sum of Rs. 20 lacs. The appellant was also directed vide order dated 08.02.2016 by Hon'ble High Court of Delhi to remove the unauthorised construction and to restore the premises in terms of report of Local Commissioner and further to deposit a sum of Rs. 14.65 lacs. The prayer of the appellant in Writ Petition (Civil) No. 588/2016 was declined and Writ Petition was dismissed. LPA No. 228/2016 was disposed of vide order dated 05.04.2016.
9. The preliminary objections raised by the appellant were disposed of vide order dated 25.02.2016 by ld. Estate Officer. On 02.04.2016 additional documents were filed by the respondent in support of the claim. The appellant has failed to file any document or evidence in PPA No. 17/16 Page 9 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation support of the claim and accordingly impugned order was passed.
10. The appellant has made frivolous allegations against the ld. Estate Officer in the various proceedings and Writ Petition and all the petitions filed by the appellant were dismissed. The appeal filed by the appellant u/s 9 of the Act for setting aside the impugned order was dismissed by ld. Predecessor of this court. The calculation sheet shows that amount is recoverable from the appellant as arrears of land revenue. There is no merit in the appeal and it be dismissed.
11. The appellant has filed the rejoinder wherein the stand taken in the appeal is reiterated and denied the averments in the reply made by the respondent. PPA No. 17/16 Page 10 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation
12. The facts giving rise to present appeal are like this. The respondent has filed a petition u/s 7 of the Act with the averments that agreement dated 16.08.2013 was terminated vide order dated 03.12.2015 with the direction to the appellant to vacate the project facility and pay the amount stated therein in accordance with the terms of the agreement. The vacant and physical possession of the project facility be handed over to the respondent failing which respondent shall be constrained to initiate the proceedings under the Act. The appellant has made unauthorised and illegal construction in the project facility which was also stated in the report submitted by the Committee appointed by Hon'ble High Court of Delhi. The appellant has been in unauthorised occupation of the premises since 03.12.2015 as such appellant is liable to pay damages @ Rs.14575/ per day w.e.f. 04.12.2015 till the vacation of the premises. The respondent is entitled to PPA No. 17/16 Page 11 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation recover outstanding dues till 22.01.2016 after adjustment of amount received on 14.12.2015 pertaining to annual concession fees upto 03.12.2015, interest, property tax share, electricity charges, 5% share of revenue, cost of unauthorised construction provided by Engineering Department which comes to Rs. 17,62,646/ alongwith revenue of Rs. 1910000/ collected by way of prohibited activities. The appellant is also liable to pay interest @ 18% per annum on the amount due.
13. The appellant has filed the reply to the petition with the averments that basis of seeking damages is the agreement between the parties. The appellant has filed OMP(I) Comm. No. 59/2015 as there is an arbitration clause in the agreement and dispute between the parties should be adjudicated in the arbitration. A petition bearing no. 47/15 u/s 11 (6) of the Arbitration & Conciliation Act PPA No. 17/16 Page 12 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation has been filed before Hon'ble High Court of Delhi. A petition bearing no. 588/2016 is also pending disposal whether the current proceedings can continue in the view of the arbitration clause in the agreement.
14. The respondent has invited proposal for renovate, operate, manage, market and transfer the food court and shops in Delhi Haat Market, Pitampura, through private participation on renovate, operate, maintain, manage, market and transfer format. The appellant has made up bid and notice of award dated 20.05.2013 was issued to the appellant to implement the project. An agreement dated 16.08.2013 was executed between the parties. The appellant was to pay ACF of Rs. 2660000/ to be increased by 15% of the previous value at the end of three years from the date of agreement in terms of clause 4.1.1. The appellant was also required to pay revenue PPA No. 17/16 Page 13 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation share @ 5% of the annual gross value in terms of clause 4.2.1 of the agreement. Clause 6 and 7 define the obligation of both the parties. Clause 13 requires to open Escrow Account in the bank in terms of the Escrow Agreement.
15. The project facility was not granted after the signing of the agreement. The letters dated 03.09.2013 and 24.10.2013 were written to hand over the possession of project facility and to approve the upgradation plan as submitted. On 22.11.2013 the possession of project facility was given. The upgradation plan was not approved due to some objection raised by the respondent as a result new drawing was submitted. The plans were approved and work was started in last week of June, 2014. There was hindrance from the respondent and work was finally stopped on 21.09.2014. The annual concession fee was PPA No. 17/16 Page 14 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation paid. The various objections were raised by the respondent and ultimately a letter dated 24.12.2014 was written to appoint a mediator to resolve the dispute regarding payment of ACF. The respondent vide letter dated 19/25.02.2015 stated that no structure could be erected or put up in multipurpose area which was duly replied on 10.03.2015 by denying the fact that there is no deviation in the multipurpose area. The respondent vide letter dated 26.02.2015 directed the appellant to carry out the renovation work as per approved drawing and in terms and conditions of agreement. The respondent has demanded the charges from 22.11.2013 i.e. date of handing over the possession instead of from the date of signing the agreement. The dues of Rs. 118093/ were cleared but another letter dated 15.04.2015 was issued to pay a sum of Rs. 747184/ w.e.f. 22.02.2015 on quarterly basis. The letter dated 18.08.2015 of the respondent shows that PPA No. 17/16 Page 15 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation appellant has held functions in violation of Schedule D of the agreement and no food court is made available to the visitors as the same is used for the purposes of banquetting for organizing functions/wedding ceremonies. 22 instead of 5 boards have been displayed. The unauthorised construction has been raised in the multipurpose pavallion with the direction to remove the same within 15 days. There was no violation on the part of the appellant.
16. The appellant was required to pay outstanding amount of Rs. 1359009/ on account of property tax, ACF and revenue share in terms of letter dated 15.09.2015. It was informed by the appellant that amount has been paid upto 31.03.2015. ACF has been paid till 30.09.2015. The respondent has reiterated vide letter dated 09/12.10.2015 that appellant is organizing functions in violation of PPA No. 17/16 Page 16 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation schedule D. The allegations are baseless. A show cause notice dated 28.09.2015 were issued by the respondent which was duly replied on 12.10.2015 but even then the agreement was terminated vide letter dated 03.12.2015. The allegations in the show cause notice dated 28.09.2015 was duly replied but same was not considered at all. There is no violation of terms and conditions of the agreement on the part of the appellant. No notice u/s 4 of the Act has been served. There is no justification to claim Rs. 14575/ per day as damages. The respondent has locked the premises on 10.12.2015 and premises was restored only when order dated 08.02.2016 was passed by Hon'ble High Court of Delhi. There is no merit in the petition.
17. The respondent filed the rejoinder to the reply wherein the averments made in the petition were reiterated and denied the averments of the reply of the appellant. PPA No. 17/16 Page 17 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation
18. Ld. Estate Officer after going through the record has allowed the petition u/s 7 of the Act of the respondent and passed the order dated 21.04.2016.
19. Heard and perused the entire record of the case.
20. It is clear from the record that both the parties have entered into an agreement dated 16.08.2013. The appellant was required to renovate, operate, maintain, manage, market and transfer format the food courts at Delhi Haat, Pitam Pura, New Delhi. The appellant has carried out the construction/renovation after taking the required permission from the respondent. The respondent has found certain irregularities and violations of the terms and conditions of the agreement and accordingly, issued show cause notice dated 28.09.2015 to the appellant with PPA No. 17/16 Page 18 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation the opportunity to file the reply. The appellant has duly replied to the show cause notice. The respondent, after going through the show cause notice and its reply filed by the appellant, terminated the agreement vide letter dated 03.12.2015.
21. The appellant has filed OMP(I) Comm. No. 59/2015 titled as Fortune Grand Management Pvt. Ltd. Vs DTTDC in which termination of the agreement was challenged. No stay was granted by Hon'ble High Court of Delhi against the termination of the agreement. The case was disposed with the finding that the dispute would be adjudicated on merits by the appropriate forum i.e. Arbitrator or the Estate Officer. The decision shall be subject to the outcome of the decision in Writ Petition no. 588/2016.
PPA No. 17/16 Page 19 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation
22. Ld. Estate Officer has passed the present order on 21.04.2016. The appellant has filed the Writ Petition bearing No. 588/2016 titled as Fortune Grand Management Pvt. Ltd. Vs Delhi Tourism and Transport Development Corporation on the ground that agreement dated 16.08.2013 contains the arbitration clause so dispute should be resolved by the Arbitral Tribunal. The said writ petition was dismissed vide order dated 25.04.2016 by Hon'ble High Court of Delhi. 23 The appellant has filed PPA no. 16/16 titled as M/s Fortune Grand Management Pvt. Ltd. Vs Delhi Tourism and Transportation Development Corporation Ltd. wherein appellant has taken various grounds including termination of agreement vide letter dated 03.12.2015 as well as issuance of notice u/s 4 of the Act and biasness of the ld. Estate Officer. The said appeal was dismissed by PPA No. 17/16 Page 20 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation my ld. Predecessor vide order dated 06.12.2017.
24. It is clear from the record that termination of the agreement vide letter dated 03.12.2015 was upheld and no other relief was granted to the appellant by any other court.
25. The question that needs consideration is whether the occupation of the premises in question by the appellant is authorised or not.
26. Ld. counsel for the appellant submitted that he has been in possession of the premises in question by the orders of Hon'ble High Court of Delhi passed in OMP(I) Comm. No. 59/2015 dated 08.02.2016 though this argument is rebutted by ld. Counsel for the respondent. He has placed reliance on Civil Appeal No. 1599/2005 titled as PPA No. 17/16 Page 21 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation Ram Dayal Rai vs Jharkhand State Electricity Board and Others decided on 09.03.2005 by Hon'ble Apex Court of India as well as on S.K. Kacker vs AIIMS, MANU/DE/0625/2012.
27. I have perused the case law referred to by ld. Counsel for the appellant. With due respect to the case law referred to by Ld. Counsel for the appellant, the same is not applicable to the present facts and circumstances of the case. The cases referred to by the appellant shows that the appellant was granted time to remain in possession of the premises by the court and the possession of the appellant was not held to be unauthorised once he was in possession of the premises by the order of the court.
PPA No. 17/16 Page 22 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation
28. In the instant case, the appellant has filed OMP (I) Comm. No. 59/2015 before Hon'ble High Court of Delhi whereby he has sought the stay of the termination of the agreement as there is an arbitration clause.
29. The order dated 08.02.2016 passed by Hon'ble High Court of Delhi nowhere shows that appellant has been allowed to remain in possession for a particular period. The order further shows that the dispute between the parties would be adjudicated on merits by the appropriate forum i.e. arbitrator or Estate Officer and the same would be subject to the decision of writ petition no. 588/2016.
30. The order clearly shows that the nature of the possession has not been decided by Hon'ble High Court of Delhi. The writ petition bearing no. 588/2016 has been PPA No. 17/16 Page 23 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation dismissed by Hon'ble High Court of Delhi. Ld. Estate Officer has decided the petition u/s 7 of the Act vide order dated 21.04.2016.
31. The appellant was to vacate the premises in question within 10 days of the receipt of letter dated 03.12.2015 of the termination of the agreement dated 16.08.2013. The appellant did not vacate the premises in question.
32. On 10.12.2015 the respondent has put the locks in the premises in question. The respondent has failed to explain why the locks were put in the premises in question. The premises in question was not in the possession of the appellant as it was under the lock and key of the respondent. The keys were handed over to the appellant only on 27.02.2016. The appellant has failed to PPA No. 17/16 Page 24 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation enjoy and use the premises in question from 10.12.2015 till 27.02.2016. The appellant cannot be said to be in possession of the premises in question during this period so the possession of the appellant cannot be termed as an unauthorised for this period. This period has to be excluded to calculate the period of his exact unauthorised possession.
33. The agreement dated 16.08.2013 has been terminated vide letter dated 03.12.2015. The appellant was given 10 days time to vacate the premises in question on the receipt of termination letter meaning thereby that his unauthorised possession will start after 10 days from the date of receipt of letter dated 13.12.2015. The period from 03.12.2015 till 09.12.2015 cannot be said to be unauthorised possession of the appellant. PPA No. 17/16 Page 25 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation
34. The appellant has not been in possession of the premises in question by the order of the court. The appellant knew that the agreement has been terminated. The litigation between the parties has started and appellant has filed various writ petitions in Hon'ble High Court of Delhi.
35. The appellant should have vacated the premises once the agreement was terminated or even after the receipt of keys by the order of the court. The appellant continued to remain in possession of the premises in question. The appeal against termination of agreement and issuance of notice u/s 4 of the Act was dismissed by my ld. Predecessor of this court meaning thereby that termination of the agreement and issuance of the notice were upheld. The appellant has vacated the premises in question only on 02.05.2016. The possession of the appellant from PPA No. 17/16 Page 26 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation 28.02.2016 till 02.05.2016 was not authorised as agreement dated 16.08.2013 has been terminated vide letter dated 03.12.2015. The arguments of ld. Counsel for the appellant do not hold water.
36. Ld. counsel for the appellant submitted that respondent cannot go beyond the terms and conditions of the agreement dated 16.08.2013. He further submitted that there is no term and condition in the agreement dated 16.08.2013 vide which penalty can be imposed upon the appellant. He further submitted that there is nothing on record that how a sum of Rs. 14575/ per day has been calculated to claim damages for the unauthorised occupation and possession. He has placed reliance on Shangrila Food Products Ltd. And Others vs LIC and Others, MANU/SC/0606/1996, Union of India and others PPA No. 17/16 Page 27 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation vs Banwari Lal and Sons Pvt. Ltd., MANU/SC/0331/2004 and Oil and Natural Gas Corporation Ltd. Vs Saw Pipes Ltd., MANU/SC/0314/2003.
37. Ld. counsel for the respondent submitted that there is clause 1.2.1(t) in the agreement dated 16.08.2013 that damages can be claimed. He further submitted that damages in question are compensatory in nature and not by way of penalty imposed upon the appellant.
38. Clause 1.2.1(t) of the agreement dated 16.08.2013 says like this : "the damages payable by either party to the other of them, as set forth in this Agreement, whether on per diem basis or otherwise, are mutually agreed genuine preestimated loss and damage likely to be suffered and incurred by the Party entitled to receive the same and are not by way fo penalty (the "Damages")."
PPA No. 17/16 Page 28 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation
39. I have perused the case law referred by the ld. Counsel for the appellant. There is no dispute about the preposition of law laid down by their lordship that intention of the parties for the construction of the contract has to be gathered from the words used in the agreement.
40. The clause 1.2.1 (t) of the agreement says that the party is entitled to receive the damages whether on per diam basis or otherwise is mutually agreed genuine pre estimated loss or damage but the same are not by way of penalty.
41. Rule 8 of the Rules under the Act deals with the assessment of damages which is as under" "8. Assessment of damages. In assessing damages for unauthorised use and occupation of any public premises the estate officer shall take into consideration the following matters, namely: PPA No. 17/16 Page 29 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation
(a) the purpose and the period for which the public premises were in unauthorised occupation;
(b) the nature, size and standard of the accommodation available in such premises;
(c) the rent that would have been realised if the premises had been let on rent for the period of unauthorised occupation to a private person;
(d) any damage done to the premises during the period of unauthorised occupation;
(e) any other matter relevant for the purpose of assessing the damages".
42. The clause 1.2.1 (t) of the agreement clearly shows that parties are entitled to receive damages but the same cannot be by way of penalty. The annual concession fee per day is Rs.7288/. The respondent has charged Rs.14575/ per day as future damages for the unauthorised occupation till the vacation of the premises in question. The said amount of Rs. 14575/ is double the amount of annual concession fee of Rs. 7288/ per day.
43. The onus is upon the respondent to show that PPA No. 17/16 Page 30 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation the respondent has suffered damages of Rs. 14575/ per day for the unauthorised occupation and possession of the premises in question by the appellant. The respondent has issued notice dated 22.01.2016 u/s 7(3) of the Act whereby a sum of Rs. 728750/ as damages for unauthorised occupation of the premises in question has been demanded from 04.12.2015 till 22.01.2016. The respondent has not made it clear how a sum of Rs. 14575/ per day as damages has been assessed by ld. Estate Officer while issuing notice as well as while passing the impugned order. The impugned order shows that ld. Estate Officer has not adverted to the factors enumerated under Rule 8 of the Rules framed under the Act. It is settled principle that when a statute prescribed a particular mode for doing a particular act, it is required to be done in the said manner. Besides, the statute also imposes an obligation upon the ld. Estate officer to assess PPA No. 17/16 Page 31 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation damages in the manner prescribed.
44. The respondent should have led evidence that the premises in question could have been leased out for annual concession fee of Rs. 14575/ per day for the period of unauthorised occupation of the appellant. The respondent should have placed any document to show that any other premises of like nature of the respondent is fetching annual concession fee to the extent of Rs. 14575/ per day. The respondent has not led any evidence in order to substantiate the claim of Rs. 14575/ per day as damages. The agreement does not show that damages can be double the amount of annual concession fee. The agreement further shows that the damages cannot be by way of penalty.
45. The amount assessed as damages for PPA No. 17/16 Page 32 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation unauthorised occupation is nothing but an arbitrary assessment as assessment does not meet out the requirements laid down in Rule 8 of the Rules of the Act or clause 1.2.1(t) of the agreement. The respondent has not led any evidence to show how sum of Rs. 14575/ has been calculated as damages for unauthorised occupation. In the absence of any evidence from the respondent, it can be held that the same is assessed by way of penalty and not by way of damages.
46. The charges of Rs. 7288/ per day was the annual concession fee and same can be termed as damages for unauthorised occupation of the premises in question with the appellant as well in the absence of any evidence to claim charges @ Rs. 14575/ per day.
47. The appellant has been in unauthorised PPA No. 17/16 Page 33 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation occupation of the premises in question from 28.02.2016 till 02.05.2016. The appellant is liable to pay damages @ Rs.7288/ per day from 28.02.2016 till the vacation of the premises in question i.e. 02.05.2016.
48. Ld. counsel for the appellant submitted that reception is nowhere barred under Schedule D to the agreement dated 16.08.2013. He further submitted that there is no evidence that liquor was served in the premises in question. He further submitted that the functions were held by Fortune Palm and not by the appellant so the charges should have been recovered from Fortune Palm. He further submitted that the respondent has arbitrarily assessed the number of persons and also arbitrarily levied the charges of Rs. 1000/ per plate without any material on record.
PPA No. 17/16 Page 34 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation
49. Ld. counsel for the respondent submitted that premises in question could be used for Food Court purposes and certain activities are prohibited under Schedule D to the agreement dated 16.08.2013. He further submitted that reception is a prohibited activity though it is not specifically mentioned in Schedule D. He further submitted that premises in question has been given for project facility to the appellant and appellant was to run it. He further submitted that functions in question were held by the appellant as management of Golden Palm and appellant is same. He further submitted that number of persons have been taken from the entries made by the security guard and charges of Rs. 1000/ has been levied by taking the minimum rate per plate.
50. The appellant was required to manage and operate the project facility at Delhi Haat Pitampura i.e. PPA No. 17/16 Page 35 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation premises in question. The premises in question was not given to Golden Palm. The notices issued to the appellant by the respondent show that the management of Golden Palm and the appellant is one and same. The appellant has not come with any evidence to show that the management of appellant and Golden Palm is different. Further, no evidence has been led by the appellant that the appellant has no concern with Golden Palm. The appellant is responsible to pay for any function held in the premises in question once premises in question was managed and operated by the appellant.
51. The appellant has not come out with any evidence that no function on the dates mentioned i.e. 02.04.2015, 16.04.2015, 23.05.2015, 06.06.2015, 02.08.2015 was held in the premises in question. This fact has not been controverted meaning thereby that this fact PPA No. 17/16 Page 36 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation stands admitted.
52. The onus is upon the appellant to show that particular number of persons have attended the functions and particular amount has been charged per plate for the functions held in the premises in question. The appellant could have filed the documents on record to this effect which is not done. The best possible evidence was available with the appellant but same has been withheld by the appellant which calls for an adverse inference against the appellant. Support is drawn from AIR 1968 SC 1423.
53. Schedule D to the agreement dated 16.08.2013 does not show that reception is allowed. The perusal of the agreement dated 16.08.2013 shows that premises in question will be used for food court purposes. The PPA No. 17/16 Page 37 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation reception is nowhere allowed if entire agreement is perused. The said activity does not gel with the theme of Delhi Haat premises. The activity which does not gel with the theme of Delhi Haat premises is automatically stands prohibited. The reception is therefore a prohibited activity which was held by the appellant.
54. The respondent has charged Rs. 1000/ per plate. The onus is upon the appellant that appellant did not charge Rs. 1000/ per plate for the functions held in the premises in question. The appellant could have placed on record the receipts of the payment received from the host who had held the functions. The appellant could have examined any one of them to show that price per plate was not Rs. 1000/. The appellant has failed to discharge the onus and therefore respondent has rightly levied the charges of Rs. 1000/ per plate. The arguments advanced PPA No. 17/16 Page 38 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation by ld. Counsel for the appellant do not hold water.
55. Ld. counsel for the appellant submitted that the appellant cleared the charges of annual concession fee, property tax share, electricity charges, and 5% of revenue amount and calculation done by the respondent is wrong. Ld. Counsel for the respondent has urged the contrary.
56. The calculation sheet is annexureC in the record submitted by the respondent. It shows that a sum of Rs.297646/ is due till 22.01.2016. The respondent has adjusted a sum of Rs. 20 lacs as well as Rs. 14.65 lacs received by the orders passed in OMP(I) Comm. No. 59/2016 by Hon'ble High Court of Delhi. The appellant could have placed on record that he has paid 5% of the revenue, electricity bill and property tax share. No evidence to this effect is led by the appellant meaning thereby that PPA No. 17/16 Page 39 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation the claim of the respondent is genuine. The argument does not hold water.
57. The Respondent has claimed simple interest @ 8% per annum on the entire amount till the final payment is made. The notice issued u/s 7 of the Act shows that why an order requiring the appellant to pay damages together with interest should not be made. The respondent can claim interest on the outstanding dues. The appellant has not brought on record any provision under the Act or Rules framed under the Act that respondent cannot claim interest. In the absence of evidence from the side of the appellant, I am of the view that the claim of simple interest @ 8% per annum does not suffer from any infirmity.
58. Keeping in view my aforesaid discussion, I find an infirmity in the order dated 21.04.2016 passed by the PPA No. 17/16 Page 40 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation ld. Estate Officer to the extent that he has not properly calculated the period of unauthorised occupation and possession of the premises in question by the appellant as well as assessment of damages qua the unauthorised use and occupation and possession of the premises in question.
59. The appeal is partly allowed and the impugned order is modified only qua the period of unauthorised occupation and possession as well as assessment of damages of unauthorised occupation and possession of the premises in question by the appellant.
60. The appellant has been in unauthorised occupation and possession of the premises in question from 28.02.2016 till 02.05.2016 i.e. the day when the appellant has vacated the premises in question. The PPA No. 17/16 Page 41 of 42 Fourtune Grand Management Pvt. Ltd. Vs Delhi Tourism & Transportation Development Corporation appellant is liable to pay damages for the unauthorised use and occupation of the premises in question @ Rs. 7288/ per day from 28.02.2016 till 02.05.2016 with simple interest @ 8% per annum till the payment is made.
61. The remaining part of the impugned order is upheld.
62. Copy of this judgment alongwith record be sent back to the Ld. Estate Officer.
63. Appeal file be consigned to record room.
ANNOUNCED IN THE OPEN COURT Digitally signed by SURESH SURESH KUMAR KUMAR GUPTA ON 31st MARCH 2021 GUPTA Date: 2021.04.01 13:14:21 +0530 (SURESH KUMAR GUPTA) PRINCIPAL DISTRICT & SESSIONS JUDGE NORTH WEST DISTRICT ROHINI COURTS, DELHI PPA No. 17/16 Page 42 of 42 Fourtune Grand Management Pvt. Ltd. Vs
Delhi Tourism & Transportation Development Corporation