Delhi District Court
M/S Wanderlust Travels Pvt. Ltd vs Estate Officer on 13 November, 2018
IN THE COURT OF MS. ASHA MENON : DISTRICT &
SESSIONS JUDGE (SOUTH) : SAKET : NEW DELHI
CISPPA072018
CNRDLST 010063022018
M/s Wanderlust Travels Pvt. Ltd.
Having its office at G18 Basement,
Masjid Moth, Greater KailashII,
New Delhi110048.
Through its MD Maj. S.K. Yadav ..Appellant
Versus
Estate Officer
Delhi Tourism and Transportation
Development Corporation Ltd.
18A, DDA
SCO Complex, Defence Colony,
New Delhi110024. ...Respondent No.1
Delhi Tourism and Transportation
Development Corporation Ltd.
18A, DDA
SCO Complex, Defence Colony,
New Delhi110024. ...Respondent No.2
Instituted on: 24.09.2018
Judgment reserved on: 30.10.2018
Judgment pronounced on: 13.11.2018
JUDGMENT
This judgment will dispose off the appeal preferred U/s 9 of the Public Premises (Eviction of Unauthorized Occupants) Act, CISPPA072018 Page ...1 of 6 2015 (herein after referred to as 'P.P. Act'). The appeal has been preferred by M/s Wanderlust Travels Pvt. Ltd against the impugned order dated 10.09.2018 passed by the Estate Officer, the respondent no.1 of the respondent no.2, Delhi Tourism and Transportation Development Corporation Ltd.. (DTTDC for short). ('DTTDC' for short) I have heard the submissions of Sh. Vinit Trehan and Sh. Saurav Baweja, Ld. Counsel for the appellant and Ms. Puja Dewan, Ld. Counsel for the respondents and have perused the record.
There is no dispute that the parties had entered into an agreement dated 11.10.2017 for setting up and managing and operating a Soft Adventure Park on revenue sharing / licence fee basis at Garden of Five Senses, SaidulAjaib, New Delhi. A space was provided in front of the natural park known as "Topiary Garden" in front of solar having huge rocks for rock climbing and some given area beneath for other activities. Certain disputes arose between the parties and there are two versions of the same.
According to the appellant, it was prevented access to the area where the adventure sports equipment was to be set up since 27.11.2017. As a result, they could not operationalise the soft adventure sports activities. According to the appellant, when a branch of a tree was pruned, according to the respondents without authority, a notice was issued in respect of this alleged unauthorized pruning. However, a second show cause notice dated 28.12.2017 was issued to the appellant alleging encroachment in the premises by the appellant by which time, the installation had almost been 95% complete.
CISPPA072018 Page ...2 of 6 According to the appellant, there was no encroachment of the area given to the appellant as the area was not earmarked by means of a site plan. According to the appellant, this was an arbitrary directive of the respondents to compel the appellant company to vacate the premises. However, in passing the orders, the respondents had not adhered to the principles of natural justice as the appellant company had not been given an opportunity to put forth their version. It was further submitted that adventure sports equipment of the appellant company was lying in the custody of the DTTDC since 27.11.2017 without any authority allowing anyone to vandalise the same. It is submitted that the appellant company had invested more than Rs.2.50 crores.
Further, in the proceedings before the Hon'ble High Court, according to the appellant, the Hon'ble High Court had categorically made it clear that it would be the Arbitral Tribunal which would take a final call upon the issues in conflict between the parties despite which notice was issued under the PP Act. Further, the appellant had proposed deinstallation of the premises in the presence of the DTTDC officials and a neutral third party by taking photos / videos of the same and the appellant had requested the DTTDC to respond at the earliest but there had been no response.
The present appeal has been filed against the orders passed U/s 5(1) of the P.P. Act whereby the appellant was directed to vacate the premises within 15 days of the order dated 10.09.2018. The appellant has challenged this order on the ground that the alleged termination letter dated 11.05.2018 was nonest in the eyes of law as the same had been issued in contravention of the order dated CISPPA072018 Page ...3 of 6 02.05.2018. It was submitted that before the Hon'ble High Court, the respondent herein had conceded that the question of encroachment was not finally decided by the Hon'ble Single Judge and therefore, without the Arbitrator looking into the question of the existence of encroachment, there could have been no termination. It is also submitted that the appellant had proposed the deinstallation of the equipment in the presence of the DTTDC officials and neutral third party but the DTTDC had failed to respond to these suggestions and further had raised a demand of Rs.3,68,160/ and damages @ Rs.2,000/ per day. It is further submitted that in these circumstances, the impugned order suffers from illegality which was liable to be set aside. It was prayed before this Court that in the alternative, the de installation of the equipment be directed in the presence of the DTTDC officials and a court appointed Local Commissioner by taking photos and videos and an order be passed granting a period of 30 days for such deinstallation.
No reply was filed to the appeal but Ld. Counsel for the respondents opposed the appeal vehemently.
Ld. counsel for the appellant laid much emphasis on the orders of the Hon'ble High Court where certain proceedings were initiated by the present appellant. The contention that the P.P. Act was inapplicable to the present premises is without any basis in view of the fact that the agreement dated 11.10.2017 itself has described the premises as public premises in respect of which the P.P. Act would be applicable (Part B Clause 13). The licence to the premises cannot be a subject matter of arbitration. However, any dispute in regard to the sharing of earnings or as claimed by the appellant, CISPPA072018 Page ...4 of 6 damage to the property of the appellant or loss of business are disputes that would be covered by the Arbitration Agreement and which the Sole Arbitrator also appointed by the Hon'ble High Court would look into. Ld. counsel for the appellant submitted in this regard that an application had already been moved before the Ld. Arbitrator in respect of dismantling of the installation. Be that as it may, the prayer sought from this Court for appointment of a Local Commissioner to oversee the dismantling is beyond the scope of an appeal U/s 9 of the P.P. Act and further beyond the scope of this Court acting under Section 9 of the P.P. Act.
Under Section 9 of the P.P. Act, all that the Court can consider is whether there has been adherence to the principles of natural justice and whether the requirements of the Act have been met while dealing with the question of eviction. Under the agreement, the licence could be terminated by giving one month's notice if the licensor thought that the services were not run properly by the licencee or that there was any breach of the terms and conditions of the licence or the licencee was not in a position to run the services strictly as per the terms and conditions of the Licence (Part BClause
24).
The notice dated 11.05.2018 is the termination notice which refers to the list of encroachments and unauthorized constructions as per the physical demarcation done in the presence of the appellant on 13.03.2018. This notice refers to the orders of the Hon'ble High Court as well. However, the notice also records that nonpayment of licence fee was also a ground for termination of the CISPPA072018 Page ...5 of 6 agreement. Thus, even if it was to be accepted for the sake of arguments that the question of encroachment is to be determined by the Ld. Sole Arbitrator, the question of nonpayment of licence fee, which has already been determined by this court, also provides for a ground for cancellation of the licence. Once the licence stood terminated, the Estate Officer was well within its right to seek eviction of the appellant from the premises in question. The record reveals that full opportunity of hearing was granted to the appellant before the impugned order dated 10.09.2018 was passed. Thus, neither on technical grounds nor on merits can this appeal succeed.
The appeal is, accordingly, dismissed. The appellant is granted time till 13.12.2018 to vacate the premises failing which the respondent would be entitled to use as much force as is necessary to get the premises vacated.
The file be consigned to the Record Room.
Announced in open Court (ASHA MENON )
today on 13.11.2018 District & Sessions Judge (South)
Saket/New Delhi.
Digitally signed
by ASHA
ASHA MENON
MENON Date:
2018.11.20
12:31:46 +0530
CISPPA072018 Page ...6 of 6