Delhi District Court
M/S Palace Restaurant vs India Trade Promotion Organization on 18 September, 2021
IN THE COURT OF SH. DINESH KUMAR SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE /
APPELLATE AUTHORITY, NEW DELHI
In the matter of:
PPA No. 08/2018
1. M/s Palace Restaurant
[A Partnership Firm]
2. Mr. Manoj Kumar
Partner
M/s Palace Restaurant
3. Mr. Ashok Saxena
Partner
M/s Palace Restaurant
[All at registered office of
the firm at 17/2, Kalyanpuri
Delhi110091] ..Appellants
Versus
India Trade Promotion Organization
[A Govt. of India Enterprise]
Having its Registered Office
At Pragati Bhawan
Pragati Maidan
New Delhi110001 ...Respondent
PPA No. 08/2018 Page No. 1 of 27
M/s Palace Restaurant & Ors. Vs. ITPO
Date of filing : 28.02.2018
Date of arguments : 07.09.2021
Date of judgment : 18.09.2021
JUDGMENT
1. Vide this judgment, I shall dispose of the present appeal filed u/s 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (in short "the PP Act"), whereby the impugned order dated 19.02.2018 passed by the Estate Officer, Pragati Maidan, New Delhi has been challenged.
2. In backdrop, a petition dated 05.09.2012 u/s 7 of the PP Act was filed by ITPO against the appellants for recovery of Rs.1,00,45,042.80 as detailed below:
TableA Sl. No. Head of Account & Claims Period Amount in Rs.
1 Damage charges (Double of the normal 3,99,241.00 licence fee for the period from 01.04.2011 to 10.06.2011) 2 Damage charges on green area (Double of 19,47,980.00 the normal green area charges) from 03.11.2007 to 10.06.2021
3 Damage charges of fittings/equipments 4,57,059.00 4 Electricity consumption charges from 45,003.00 PPA No. 08/2018 Page No. 2 of 27 M/s Palace Restaurant & Ors. Vs. ITPO 08.03.2011 to 10.06.2011 5 Conservancy charges from 01.02.2011 to 1,18,169.00 10.06.2011 6 Property tax on Unit Area Method basis 39,33,494.00 from 01.04.2004 to 10.06.2011 7 Service tax on damage charges (Space Rent) 8,38,786.00 from 01.06.2009 to 10.06.2011 8 Interest on delayed payments from 23,05,301.80 01.06.2009 to 31.03.2012 @ 24% p.a. Total 1,00,45,042.80
3. The appellants were offered the licence vide letter dated 02.11.2000 for a period of seven years for running a Food & Beverage Outlet (Kiosk No. 4) at Pragati Maidan. The Licence Agreement dated 13.11.2001 was executed. The tenure of the licence was from 03.11.2000 to 02.11.2007.
4. Allegedly, the appellants failed to vacate the premises on the expiry of the terms of licence agreement. In the meanwhile, on account of certain disputes between the parties, the matter was referred to Sh. D.P. Bagchi, Sole Arbitrator. The Sole Arbitrator passed order dated 23.03.2006. The appellants challenged the order by filing a petition u/s 34 of the Arbitration and Conciliation Act, 1996 in the Hon'ble High Court of Delhi.
PPA No. 08/2018 Page No. 3 of 27M/s Palace Restaurant & Ors. Vs. ITPO The Hon'ble High Court of Delhi vide order dated 05.10.2007 directed ITPO to maintain status quo. Subsequently, the Hon'ble High Court vide order dated 24.03.2008 was pleased to permit ITPO to initiate eviction proceedings against the appellants. ITPO initiated eviction proceedings against the appellants and finally the appellants vacated the premises on 10.06.2011 in terms of the order of the Hon'ble Supreme Court. It was also alleged that the appellants were also in unauthorized occupation of the appurtenant green area. It was alleged that the appellants had paid damages at double the rate of the licence fee for the licensed premises for the period from 03.11.2007 to 31.03.2011. However, the appellants did not pay the damages at double the rate of licence fee for unauthorized occupation of the appurtenant green area.
5. It was stated that earlier, a recovery petition was filed before the Estate Officer on 24.08.2009 to recover an amount of Rs.24,42,467/ lying unpaid in different heads of account upto May 2009, which was still pending. The appellants were also served with the invoices of damage charges in respect of the scheduled premises and green area charges in respect of appurtenant green area. The appellants failed to make payment PPA No. 08/2018 Page No. 4 of 27 M/s Palace Restaurant & Ors. Vs. ITPO despite reminder dated 07.06.2011. The respondent/ITPO had also demanded Rs.39,33,494/ on account of property tax in respect of public premises No. K4, which is summarized as under:
TableB Sl. No. Head Amount (Rs.) 1 Difference of revised property tax payable for 25,87,628.00 the period from 01.04.2004 to 31.03.2009 due to introduction of Unit Area Method by MCD and after adjustment of amounts already paid against our provisional invoices during their licensed period.
2 Difference of property tax payable for the 3,96,481.00 period from 01.04.2009 to 31.03.2010 (Rs.5,29,855/ () Rs.1,33,374/ already paid) 3 Property tax for the period from 01.04.2010 7,94,783.00 to 31.03.2011 4 Property tax for the period from 01.04.2011 1,54,602.00 to 10.06.2011 Total 39,33,494.00
6. The plea of ITPO is that MCD had introduced Unit Area Method w.e.f. 01.04.2004 for the collection of property tax. ITPO filed Return and deposited the property tax to MCD on selfassessment basis every year in respect of the entire Pragati PPA No. 08/2018 Page No. 5 of 27 M/s Palace Restaurant & Ors. Vs. ITPO Maidan including K4 premises at the rate prevailing for the particular financial year. As per revised guidelines of MCD, the entire area (covered/paved/open/green), which was commercially used, had been taken into account for the calculation of the property tax. ITPO stated that as per Clause G2 of the Licence Agreement, the onus of the payment of property tax to MCD was on ITPO. Accordingly, ITPO had been remitting payment of property tax to MCD in respect of the entire Pragati Maidan including K4 location.
7. The appellants have paid the demanded property tax to ITPO on the basis of provisional invoices sent upto their licensed term i.e. upto 02.11.2007. However, since the appellants overstayed, the demand of revised property tax on Unit Area Method basis from 01.04.2004 to 31.03.2009, assessed to Rs.18,40,926/, was sent to them. The appellants did not pay the property tax on flimsy grounds. Further demand of property tax for the period from 01.04.2010 to 31.03.2011 for Rs.7,94,783/ was raised.
8. The demands were raised from time to time. However, the appellants did not pay the same and subsequently, a final notice dated 12.05.2011 was sent to them requesting to remit PPA No. 08/2018 Page No. 6 of 27 M/s Palace Restaurant & Ors. Vs. ITPO Rs.37,78,892/ towards the property tax in addition to other dues mentioned in the final notice. The appellants against this notice, paid only Rs.1,33,374/ as against the demand of Rs.5,29,855/ for the period from 01.04.2009 to 31.03.2010. The appellants were also directed to pay the property tax of Rs.1,54,602/ for the period from 01.04.2011 to 10.06.2011.
9. The appellants were also directed to pay the charges against the different heads for the relevant periods as mentioned in TableA above.
10. The appellants filed the detailed reply. The Estate Officer in the impugned order awarded damages as follows:
TableC Sl. No. Head of Account & Claims Period Amount (in Rs.) 1 Damage charges (Double of the normal 3,99,241.00 licence fee for the period from 01.04.2011 to 10.06.2011) 2 Damage charges of fittings/equipments 4,57,059.00 3 Electricity consumption charges from 45,003.00 08.03.2011 to 10.06.2011 4 Conservancy charges from 01.02.2011 to 1,18,169.00 10.06.2011 5 Property tax on Unit Area Method basis 39,33,494.00 from 01.04.2004 to 10.06.2011 PPA No. 08/2018 Page No. 7 of 27 M/s Palace Restaurant & Ors. Vs. ITPO 6 Service tax on damage charges (Space 8,38,786.00 Rent) from 01.06.2009 to 10.06.2011 7 Interest on delayed payments for the 8,64,487.00 period from 01.06.2009 to 31.03.2012 @ 9% p.a. Total 66,56,239.00 Damage Charges (Double of the Normal Licence Fee for the Period from 01.04.2011 to 10.06.2011) Item No. 1 of TableA
11. The Estate Officer after taking into account the orders passed by the Hon'ble High Court in IA No. 2666/2008 and LPA No. 37/2011, allowed the claim of ITPO of Rs.3,99,241/ as damage charges at double the rate of licence fee for the period from 01.04.2011 to 10.06.2011. The Estate Officer also denied the claim of the appellants to refund the licence fee of Rs.35,06,264/ paid to ITPO as damage charges at double the rate from 02.11.2007 to 31.03.2011.
Damage Charges on Green Area at Double the Rate from 03.11.2007 to 10.06.2011 Item No. 2 of TableA
12. The Estate Officer inter alia held that the claim of ITPO for Rs.19,47,980/ for damage charges of green area at PPA No. 08/2018 Page No. 8 of 27 M/s Palace Restaurant & Ors. Vs. ITPO double the rate was not tenable, as the contract for green area was absolute and separate from the main contract signed between the parties on 13.11.2001. It was noted that the green area was allotted to the appellants much later i.e. on 19.06.2003 and the allotment letter did not have any penalty clause to charge the licence fee for green area at double the rate. It was noted that this was confirmed by the Sole Arbitrator in his order dated 23.03.2006.
Damage Charges of Fittings/Equipments Item No. 3 of TableA
13. The Estate Officer after taking into account Clauses A.3, A.4(i) and A.4(ii) of ScheduleA of the Terms and Conditions of the Licensed Agreement dated 13.11.2001 allowed the claim of Rs.4,57,059/.
Electricity Consumption Charges from 08.03.2011 to 10.06.2011 Item No. 4 of TableA
14. The Estate Officer allowed the claim of Rs.45,003/ raised by ITPO for this period.
PPA No. 08/2018 Page No. 9 of 27M/s Palace Restaurant & Ors. Vs. ITPO Conservancy Charges from 01.02.2011 to 10.06.2011 Item No. 5 of TableA
15. The Estate Officer also allowed the claim of Rs.1,18,169/ raised by ITPO for this period.
Property Tax on Unit Area Method Basis from 01.04.2004 to 10.06.2011 Item No. 6 of TableA
16. The Estate Officer as per Clause G.1 of ScheduleA of the Terms and Conditions of the Licenced Agreement dated 13.11.2001 inter alia held that Licensee is liable to pay the property tax etc. as may become payable in accordance with the various laws or rules prevalent in Delhi. It was noted that the respondents (appellants herein) could not submit any documents showing that the property tax was paid. The Estate Officer allowed the claim of Rs.39,33,494/ raised by ITPO.
Service Tax on Damage Charges (Space Rent) from 01.06.2009 to 10.06.2011 Item No. 7 of TableA
17. The Estate Officer noted that the service tax is chargeable and, therefore, allowed the claim of Rs.8,38,786/.
PPA No. 08/2018 Page No. 10 of 27M/s Palace Restaurant & Ors. Vs. ITPO Interest on Delayed Payments from 01.06.2009 to 31.03.2012 @ 24% p.a. Item No. 8 of TableA
18. The Estate Officer allowed the interest on the delayed payment @9% p.a. as claimed by ITPO on Rs.23,05,301/.
19. The Estate Officer vide the impugned order, allowed the claim of Rs.66,56,239/ as per TableC above.
20. The appellants have challenged the impugned order on the ground that the Estate Officer has passed the impugned order mechanically contrary to the law and facts, and the impugned order has resulted in serious miscarriage of justice. It has been submitted that the Estate Officer has not given any reason for allowing the claim of ITPO. The appellants have stated that they were granted interim protection in proceedings qua OMP No. 321/2006 and the interim protection was withdrawn only on 29.10.2010. It has further been submitted that, therefore, till 29.10.2010, the appellants remained in possession of the suit premises on the ground of interim protection granted to them and, therefore, this period cannot be held as unauthorized. It was stated that since the matter was pending, the appellants paid PPA No. 08/2018 Page No. 11 of 27 M/s Palace Restaurant & Ors. Vs. ITPO licence fee for the premises at double the rate till 30.03.2011 i.e. during the period between 05.10.2007 to 29.10.2010 and, therefore, ITPO was liable to refund the licence fee paid by the appellants. The appellants have stated that the amount of Rs.35,06,265.15, which has been paid by them, is to be refunded. The Estate Officer vide order dated 06.02.2015 had also held that since the possession of the appellants was pursuant to the order passed by the Hon'ble High Court of Delhi, the same was not unauthorized and double licence fee could not be charged from them and ITPO was directed to refund the excess licence fee/charges paid by the appellants.
21. In respect of damages as to the use of green area, it has been held in the arbitration proceedings that the contract for permission to use the green area was absolute and separate from the main contract dated 13.11.2001 and, therefore, demand of property tax cannot be raised in this regard. It has been submitted that the payment made by the appellants to ITPO for use of the green area includes the property tax.
22. The appellants have also challenged the demand of damage charges of fittings and equipments on the ground that the appellants, from their own pocket, constructed a building after PPA No. 08/2018 Page No. 12 of 27 M/s Palace Restaurant & Ors. Vs. ITPO taking permission from ITPO and the fittings and equipments were installed by the appellants. It has been submitted that there is no basis given in the petition of the damage charges sought to be recovered. The appellants have stated that at the time of taking over possession, the fittings & fixtures and equipments lying in the premises were inspected by the officials of ITPO and the same were found to be in order.
23. In respect of electricity and conservancy charges, the appellants have stated that the same had already been paid and no claim survives in this regard.
24. In regard to property tax, it has been submitted that in respect of green area, there is no prescription requiring the appellants to pay the property tax separately and the contract in respect of green area provides for payment of lumpsum licence fee.
25. In respect of originally licensed premises, it has been submitted that the appellants had been making payments of property tax as per the invoices raised from time to time. It has further been submitted that after a period of around four years after the appellants vacated the premises, respondent/ITPO raised PPA No. 08/2018 Page No. 13 of 27 M/s Palace Restaurant & Ors. Vs. ITPO this demand. It has further been submitted that there is no proof that ITPO had paid to MCD more than what was recovered from the appellants. The claim has also been challenged on the ground of limitation.
26. The appellants have also challenged the demand on account of service tax from 01.06.2009 to 10.06.2011 on the ground that there is no question of service tax.
27. In respect of payment of interest, it has been submitted by the appellants that excess amount has been collected by the respondent/ITPO.
28. The appellants have also assailed the proceedings under Order II Rule 2 CPC, as they had filed another petition against ITPO u/s 7 of the PP Act on the same cause of action.
29. The award has also been challenged by the appellants on the ground that the claims were barred by the law of limitation.
30. Sh. Pawanjit Singh Bindra, Ld. Sr. Advocate with Sh. Anant Agarwal, Ld. Counsel for the appellants has submitted that the impugned order is liable to be set aside. It has been submitted that the licensed premises was only vacant land, where the PPA No. 08/2018 Page No. 14 of 27 M/s Palace Restaurant & Ors. Vs. ITPO appellants constructed a building at its own expenses. The impugned order which has been challenged in respect of each head of the claims awarded by the Estate Officer is as under:
Damage Charges (Double of the Normal Licence Fee for the Period from 01.04.2011 to 10.06.2011 Item No. 1 of TableC
31. It has been submitted by Ld. Sr. Advocate for the appellants that though the appellants are not liable to pay the charges claimed i.e. double of the normal licence fee between 03.11.2007 and 10.06.2011, the charges claimed under this head, however, to put an end the controversy, the appellants are ready to pay the amount claimed i.e. Rs.3,99,241/.
Damage Charges of Fittings/Equipments Item No. 2 of TableC
32. It has been submitted by Ld. Sr. Advocate for the appellants that the premises were handed over to the respondent in perfect condition and the same is clear from handing over/taking over report, which is Ex PW1/DX. It has been submitted that the premises was handed over in good condition. It has further been submitted that there is no basis, reason or justification for claiming a sum of Rs.4,57,059/ and further that ITPO did not lead any evidence in proof of the same.
PPA No. 08/2018 Page No. 15 of 27M/s Palace Restaurant & Ors. Vs. ITPO Electricity Consumption Charges from 08.03.2011 to 10.06.2011 and Conservancy Charges from 01.02.2011 to 10.06.2011 Item Nos. 3 & 4 of TableC
33. It has been submitted by Ld. Sr. Advocate for the appellants that though this amount has already been paid, however, in order to put an end to this controversy, the appellants are ready to pay the electricity consumption charges and conservancy charges as awarded by the Estate Officer.
Property Tax on Unit Area Method Basis from 01.04.2004 to 10.06.2011 Item No. 5 of TableC
34. It has been submitted by Ld. Counsel for the appellants that in regard to the property tax claimed on the basis of Unit Area Method from 01.04.2004 to 10.06.2011, the contract in respect of green area was independent of main contract dated 13.11.2001. It has further been submitted that the contract in respect of green area provides for payment of lumpsum licence fee.
In respect of originally licensed premises, it has been submitted that the respondent had been making payment of property tax to the petitioner as per the invoices raised by the PPA No. 08/2018 Page No. 16 of 27 M/s Palace Restaurant & Ors. Vs. ITPO petitioner from time to time. It has further been submitted that ITPO raised this issue after around four years and did not lead any evidence before the Estate Officer to substantiate their claim.
Service Tax on Damage Charges (Space Rent) from 01.06.2009 to 10.06.2011 Item No. 6 of TableC
35. It has been submitted by Ld. Sr. Advocate for the appellants that the respondent is not liable to pay any damage charges and, therefore, there is no question of making payment of service tax thereupon.
Interest on Delayed Payments from 01.06.2009 to 31.03.2012 @ 9% p.a. Item No. 7 of TableC
36. It has been submitted by Ld. Sr. Advocate for the appellants that since the respondent is not liable to make any payment, there is no question of the respondent making the payment of interest.
It has further been submitted by Ld. Counsel for the appellants that the petition is barred by the principles of Order II Rule 2 of the CPC, as the petitioner had filed another petition on 05.09.2012 against the respondent u/s 7 on the same cause of PPA No. 08/2018 Page No. 17 of 27 M/s Palace Restaurant & Ors. Vs. ITPO action. It has further been submitted that since the present claims were omitted, therefore, the petitioner was barred from filing the present petition. It has further been submitted that the present petition has been filed after around three years after vacating the premises. Ld. Sr. Advocate for the appellants has also filed the written submissions.
37. Sh. Vikas Kumar, Ld. Counsel for the respondent/ITPO has submitted that the Estate Officer has passed a reasoned and detailed order after taking into account the pleadings and evidence led by the parties.
38. In respect of earlier petition u/s 7 of the PP Act being filed by ITPO, it has been submitted that in the order dated 06.02.2015, the only period i.e. 03.11.2007 to 24.03.2008 was considered and ITPO was directed to refund the licence fee for the period of stay maintained by the Hon'ble High Court of Delhi i.e. 03.11.2007 to 24.03.2008 along with simple interest @9% per annum and the same has already been paid by ITPO.
39. It has further been submitted that the appellants are liable to pay damages at the double rate of the licence fee w.e.f. 03.11.2007 to 10.06.2011. It has further been submitted that the PPA No. 08/2018 Page No. 18 of 27 M/s Palace Restaurant & Ors. Vs. ITPO Estate Officer has rightly calculated the claim of Rs.3,99,241/ at the double rate of the normal licence fee for the period from 01.04.2011 to 10.06.2011. It has further been submitted that as per Clause A.3 of ScheduleA of the Terms and Conditions of the Licenced Agreement signed by both the parties on 13.11.2001, the appellants were required to handover the premises in good condition and they should not have removed the fixtures and fittings at the time of vacation. It has been submitted that by removing the fittings/equipments, the appellants had caused substantial damages and, therefore, the Estate Officer has rightly awarded the claim of Rs.4,57,059/. It has further been submitted that the Estate Officer has also rightly accepted the claim on account of conservancy charges.
40. In respect of the claim regarding property tax, it has been submitted that as per the revised guidelines of MCD regarding collection of the property tax (unit area method) dated 01.04.2004, the entire area (covered/paved/open/green) which is being commercially used is to be taken into account for the calculation of the property tax. Thus, with respect to the appurtenant green area since there exists no separate agreement, the evaluation of the property tax has to be paid in terms of the PPA No. 08/2018 Page No. 19 of 27 M/s Palace Restaurant & Ors. Vs. ITPO said premises as per the terms and conditions of the revised guidelines of MCD. It has further been submitted that the respondent herein has filed Return and deposited property tax to MCD on selfassessment basis every year in respect of entire Pragati Maidan, including K4 premises at the rate prevailing for the particular financial year, which legally the appellants herein were and are still liable to pay. It has been submitted that the appellants herein had also admitted at the time of cross examination that they had not paid any property tax and service tax in respect of the appurtenant green area.
41. It has further been submitted that in accordance with Clause G.1 and G.2 of ScheduleA of the Terms and Conditions of the said Licence Agreement, the appellants are liable to pay the property tax as per the prevalent law as discussed above and the appellants have been unable to submit any documents supporting the fact that they had paid the property tax due against them. It has further been submitted that thus, the Estate Officer has rightly and in the interest of justice allowed the claim of the respondent/ITPO for Rs.39,33,494/ on account of property tax and also pointed the same to be statutory dues against the appellants and the appellants are liable to pay the same to the PPA No. 08/2018 Page No. 20 of 27 M/s Palace Restaurant & Ors. Vs. ITPO respondent/ITPO in terms of order dated 19.02.2018 passed by the Estate Officer.
42. It has further been submitted by Ld. Counsel for the respondent that the appellants were also liable to pay penal interest @ 24% per annum on delayed payment. However, the Estate Officer restricted the same to 9% per annum.
43. In regard to the limitation, it has been submitted that a reminder was served upon the appellants vide letter dated 07.06.2011 to clear all the outstanding dues. However, they failed to do so despite repeated requests/reminders. Therefore, the respondent filed the petition u/s 7 of the PP Act before the Estate Officer on 05.09.2012. It has further been submitted that as envisaged under Schedule 137 of the Limitation Act, the period of limitation is three years and the petition u/s 7 of the PP Act was filed within the period of limitation.
44. It has further been submitted that the petition was filed on 05.09.2012 after serving a letter/notice dated 14.05.2012, whereas the earlier petition was filed for the damages till 31.05.2009. Thus, both the petitions were filed separately on different cause of actions. It has further been submitted that the PPA No. 08/2018 Page No. 21 of 27 M/s Palace Restaurant & Ors. Vs. ITPO claims that arose in the said petition was after filing of the former recovery petition and the respondent could not at any circumstances have fathomed the same to rise prior to the filing of the petition filed on 05.09.2012. Hence, the plea of the appellants that this petition is barred by the principles of Order II Rule 2 of the CPC is wrong and untenable. Ld. Counsel for the respondent has relied upon Sidramappa Vs. Rajashetty, (1970) 1 SCC 186 and Rathnavathi Vs. Kavita Ganashamdas, (2015) 5 SCC 223. Ld. Counsel for the respondent has filed the detailed written submissions.
45. I have considered the submissions and perused the record carefully.
46. The PP Act, 1971 was enacted with a view of mechanism for eviction of unauthorized occupants from the public premises and for recovery of the damages. The Estate Officer appointed under the PP Act and the proceedings conducted are quasijudicial in nature. The Estate Officer is expected to conduct the proceedings in accordance with the principles of natural justice. The Estate Officer is obliged to record the evidence and to give the detailed reasons for arriving PPA No. 08/2018 Page No. 22 of 27 M/s Palace Restaurant & Ors. Vs. ITPO at the conclusion. Rule 5 of the Public Premises (Eviction of Unauthorized Occupants) Rules, 1971 (in short "the PP Rules) provides that the Estate Officer shall record the summary of the evidence tendered before him. The Estate Officer is also required to maintain the record of such evidence and relevant documents filed before him. Rule 8 of the PP Rules also provides the mechanism for assessment of damages.
47. During the course of submission, Ld. Sr. Advocate for the appellants has not disputed the award on account of damages in Item No. 1 of TableC and electricity and conservancy charges in Item Nos. 3 & 4 of TableC. The remaining awards passed by the Estate Officer have seriously been disputed/challenged by the appellants. Ld. Sr. Advocate for the appellants has also challenged the eviction petition under Order II Rule 2 CPC on the ground that ITPO had also filed a petition u/s 7 of the PP Act for recovery of the rent and damages on 24.08.2009. In the said petition, the petitioner had raised the following claims:
TableD Sl. No. Particulars Charges (In Rs.) 1 Green area charges (half portion of double 13,84,728.00 of the normal charges) from 03.11.2007 to PPA No. 08/2018 Page No. 23 of 27 M/s Palace Restaurant & Ors. Vs. ITPO 31.05.2009 2 Service Tax on damage charges & green 7,22,580.00 area charges from 03.11.2007 to 31.05.2009 3 Interest on delayed payment for the period 2,80,225.00 01.04.2007 to 31.05.2009 4 Electricity charges from 01.04.2009 to 46,987.00 11.06.2009 5 Water charges from 01.04.2009 to 8,058.00 03.06.2009 Total 24,42,467.00
48. The Estate Officer after conducting the proceedings and taking into note the order passed by the Hon'ble High Court in Civil Writ No. 6628/2003, award of the Sole Arbitrator and the order passed by the Hon'ble High Court dated 24.03.2008 in IA No. 2666/2008 rejected the claim of ITPO for the charges of green area at double the rate. Ld. Estate Officer also rejected the claim raised by ITPO on the service tax and interest. In regard to electricity and water charges, the same were admitted by the appellants. The Estate Officer also opined that the period of 03.11.2007 to 24.03.2008 may not be treated as unauthorized occupation of the premises, as the respondents had continued to have the possession of the premises at the direction of the PPA No. 08/2018 Page No. 24 of 27 M/s Palace Restaurant & Ors. Vs. ITPO Hon'ble High Court. By virtue of order dated 05.10.2007, the Hon'ble High Court had directed to the respondent to maintain the status quo with regard to possession of the premises. ITPO was directed to refund the licence fee for the period 03.11.2007 to 24.03.2008.
49. In the second petition u/s 7 of the PP Act, the claims have been raised for the period subsequent to the period as claimed in first recovery petition except the claim for property tax.
50. It is also pertinent to mention here that as discussed above, the appellants have agreed to pay the amount on account of Damage Charges of Rs.3,99,241/ (Item No. 1 of TableC) and Electricity Consumption Charges of Rs.45,003/ for the period from 08.03.2011 to 10.06.2011 & Conservancy Charges of Rs.1,18,169/ for the period from 01.02.2011 to 10.06.2011 (Item Nos. 3 & 4 of TableC).
51. In respect of Property Tax on Unit Area Method basis, I consider that the Estate Officer has wrongly awarded the amount of Rs.39,33,494/ for various reasons. I have gone through the order of the Estate Officer and record. ITPO has not PPA No. 08/2018 Page No. 25 of 27 M/s Palace Restaurant & Ors. Vs. ITPO led any evidence to the fact that they had paid the amount to MCD on account of property tax in respect of the public premises. ITPO had not produced even an iota of evidence to prove this claim. The Estate Officer has mechanically allowed this amount merely on the asking of ITPO. The Estate Officer is not supposed to work as a mouthpiece of the Department. Furthermore, for the amount for the period 01.04.2004 to 10.06.2011, it has not been explained why this demand was made while the first recovery petition was filed. ITPO did not examine any witness from MCD or the concerned authority.
I consider that the matter regarding the property tax is liable to be remanded back to the Estate Officer for the purpose of taking evidence on this point and then to return the findings.
52. In respect of Damage Charges for Fittings/Equipments, the Estate Officer has awarded the amount of Rs.4,57,059/. However, I do not find any evidence on the record on which basis the Estate Officer has reached to the conclusion that this amount is liable to be awarded. I consider that in the absence of any evidence, the Estate Officer has fallen into error in awarding this amount.
PPA No. 08/2018 Page No. 26 of 27M/s Palace Restaurant & Ors. Vs. ITPO
53. In respect of Service Tax on Damage Charges, the Estate Officer has not given any basis for awarding this amount. There is no evidence on the record, on the basis of which the Estate Officer has reached to the conclusion.
54. Since the only claims on account of Damage Charges, Electricity Consumption Charges and Conservancy Charges have been awarded, therefore, the interest is also to be calculated afresh. Hence, the matter is remanded back to the Estate Officer. The Estate Officer shall conduct the proceedings afresh and decide the matter in accordance with law.
55. With the above observations, the present appeal stands disposed of. Parties are directed to appear before the Estate Officer on 04.10.2021.
56. Record of the Estate Officer along with copy of the judgment be sent back and thereafter, appeal file be consigned to Record Room. DINESH Digitally signed by DINESH KUMAR KUMAR SHARMA Date: 2021.09.18 SHARMA 16:51:18 +0530 Announced in the open (Dinesh Kumar Sharma) Court on 18.09.2021 Principal District & Sessions Judge/ Appellate Authority, New Delhi PPA No. 08/2018 Page No. 27 of 27 M/s Palace Restaurant & Ors. Vs. ITPO