Delhi District Court
Smt. Romila Bahl W/O Sh. Rashik Bahl vs Indian Tourism Development ... on 27 April, 2018
In the Court of Ms. Poonam A. Bamba, District & Sessions Judge
New Delhi: Patiala House Courts, New Delhi.
In the matter of :
PPA No. 209/2016
1. Smt. Romila Bahl W/o Sh. Rashik Bahl
R/o 383, Civil Lines, Gurgaon, Haryana
2. M/s Ashok Florist, Shop No. 21
Hotel Ashok, Chanakyapuri
New Delhi
Through its Partner Smt. Romila Bahl ...... Appellants
Versus
1. Indian Tourism Development Corporation Ltd.
SCOPE Complex, CoreVII
Lodhi Road, New Delhi - 110003.
Through its Managing Director
2. Hotel Ashok ,50B, Chanakyapuri
New Delhi
Through its General Manager
3. Estate Officer
Indian Tourism Development Corporation Ltd.
1st Floor (Rear Side)
Jeevan Vihar Building, 3, Sansad Marg
New Delhi110001. ..... Respondents
APPEAL UNDER SECTION 9 OF THE
PUBLIC PREMISES (EVICTION OF
UNAUTHORIZED OCCUPANTS) ACT,
1971, ON BEHALF OF THE
APPELLANTS AGAINST THE ORDER
DATED 16.08.2010.
PPA No. 209/16
Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 1 of 22
Date of filing of appeal : 01.06.2013
Arguments concluded on : 27.04.2018
Date of judgment : 27.04.2018
J U D G M E N T
1.0 Vide this judgment, I shall dispose of the appeal under
section 9 of the Public Premises (Eviction of Unauthorized Occupants)
Act, 1971 ("the PP Act" in short) against the order of eviction and
damages dated 16.08.2010 ("the impugned order" in short) under sub
section (1) of Section 5 and sub section (2A) of Section 7 PP Act,
respectively passed by the Estate Officer, directing the appellant to
vacate the Shop No. 21, Main Shopping Arcade, The Ashok Hotel, New
Delhi110021 ("the said shop" in short), within 7 days of publication of
the order; and further to pay damage charges @ 500/ per sq. ft. per
month w.e.f. 30.10.2007 till the date of vacation of the said shop. The
appellants were further directed to pay Rs.6,36,225/ on account of dues
pending as on 30.09.2008. The appellants were also ordered to pay
interest on the outstanding amount @ 18% p.a. from the date of its
accrual till its final payment.
2.0 The facts in brief as per the appeal are that:
(i) the appellant no.2 is a partnership firm and Ms.
Romila Bahl/appellant no.1 is the partner of the said firm;
PPA No. 209/16
Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 2 of 22
(ii) the appellant had been in occupation of the said shop
and the licence was last renewed vide licence agreement
dated 25.03.2006 for the period 01.11.2005 to 30.10.2007.
Respondent vide its letter dated 28.04.2007 informed the
appellant about its decision not to renew the said licence
agreement any further. Against the same, the appellant filed
a writ petition bearing WP (C) No. 8466/2007 dated
14.11.2007, which was dismissed by the Hon'ble High Court
of Delhi vide its order dated 01.07.2008. Aggrieved by the
said order, the appellant preferred an LPA bearing No.
601/2008 before the Division Bench of the Hon'ble High
Court of Delhi. The same was disposed of vide order dated
18.05.2009;
(iii) notices under Sections 4 & 7 PP Act both dated
13.10.2008 were issued to the appellant, which were duly
replied by the appellant. However, the Estate Officer passed
the impugned order without considering the submissions
made by the appellant;
(iv) meanwhile, the Estate Officer passed order of
eviction/payment of damages against the similarly situated
shopkeepers. Said shopkeepers challenged the impugned
PPA No. 209/16
Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 3 of 22
orders by way of appeals before the Ld.District Judge, which
were dismissed. The said orders were then challenged by
way of Writ Petition before the Hon'ble High Court and after
dismissal of the said writ petitions, the shopkeepers
approached the Hon'ble Supreme Court of India. Vide its
order dated 01.03.2011 (in SLP (C) No. 5612/2010), Hon'ble
Supreme Court stayed eviction of those petitioners from
their respective shops subject to petitioners paying license
fee @Rs.250/ per sq. ft. w.e.f. from 01.01.2010;
(v) in the meantime, the respondent renewed the licence
of one of the licencees namely Central Bank of India.
Appellant vide her letters dated 21.03.2011 and 17.07.2012
requested the respondents to renew the licence in their
favour on the same terms as settled with Central Bank of
India and also agreed to pay the outstanding amount of
Rs.5,38,471.68. But, the said requests were declined by the
respondents vide its letters dated 06.07.2012 and 15.04.2013
directing her to handover the vacant physical possession of
the said shop;
(vi) vide her letter dated 26.04.2013, the appellant again
approached the respondent to reconsider her case at par with
other similarly placed shopkeepers and to continue to accept
PPA No. 209/16
Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 4 of 22
the license fee @ Rs.250/per sq.ft.per month, as is being
continuously deposited by the appellant, but to no avail.
3.0 The appellant has challenged the impugned order inter alia
on the grounds that :
(i) the Estate Officer failed to appreciate that the ground for
eviction of the appellant and other similarly situated
licencees was that the respondents wanted to generate more
revenue. However, they did not give any opportunity to the
appellant and other similarly situated licencees to offer the
market rate of licence fee as expected by the respondents;
(ii) the Estate Officer failed to appreciate that the
respondents themselves had offered to the appellant to
participate in the tender to be floated by them. The
respondent floated such tender thrice but the same was
cancelled as none participated in the said tenders;
(iii) the Estate Officer fell in grave error while observing
that there was no agreed term for allowing further extension
of the license beyond 30.10.2007, which is contrary to the
terms of License Agreement;
(iv) the Estate Officer also failed to appreciate that the
PPA No. 209/16
Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 5 of 22
respondents no.1 & 2 had represented to the appellants that
they can continue to remain in occupation on paying the
license fee @ Rs.250/per sq.ft.per month like other
licensees under the order of Hon'ble Supreme Court;
(v) the Estate Officer failed to appreciate that the appellant
and other licencees/shopkeepers were being discriminated
against inasmuch as the licence of Central Bank of India had
been renewed;
4.0 The respondent sought dismissal of this appeal with cost
pleading that the appellant is an unauthorized occupant of the said shop
after expiry of license on 30.10.2007. It is further submitted that after
expiry of license, the appellant cannot claim renewal of the license as a
matter of right, as is clear from the terms and conditions of the licence
deed. With respect to damages, it is submitted that the Estate Officer has
rightly awarded damages @500/ per sq. ft. per month, taking into
account the nature of property and its location and other relevant factors
as per law.
5.0 I have heard Sh. Ashish Upadhyay and Sh. Pradeep Mishra,
Advocates for the appellant and Sh. Deepak Thukral, Advocate for the
PPA No. 209/16
Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 6 of 22
respondents and have perused the record carefully.
6.0 Admittedly, the said shop was given to the appellant on
license basis. The license was last renewed vide License Deed dated
25.03.2006 for the period 01.11.2005 to 30.10.2007 @ 1,45,728/ per
annum plus applicable taxes. Admittedly, the license came to an end on
30.10.2007. It is not in dispute that the license was not renewed any
further. It would be pertinent to refer here to the relevant clauses
1,2,3,&4 of the aforesaid license deed, which read as under:
"I PERIOD OF LICENSE & RENEWAL
1. This license is renewed for a period of (2)Two years
commencing from 1st November, 2005 and shall expire on
30th October, 2007 subject to the provisions for earlier
termination hereinafter contained, for centralized air conditioned
space measuring approx. 160 i.e. Shop No.21 in the Main
Shopping Arcade of Ashok Hotel.
2. The license may be renewable at the option of the
Licensor on the expiry of the period stipulated under Clause
I(1) and on such terms and conditions as the Licensor may
impose in his own discretion. The duration of the extended period
shall be determined by the Licensor but will not be for more than
two years for each such extension. The License will apply for the
renewal of his license 6(six) calendar months before expiry of the
license and on failure to do so; the Licensor will be free to
negotiate with and to allot the licensed premises to any other
party. It is also clearly understood by and between the parties
that the Licensor will exercise the sole discretion with regard
to the renewal of the license and also the terms and conditions
of the renewed license and the Licensor's decision in this
regard shall be final and binding on the Licensee.
3. At the time of each such renewal, the Licensee shall
PPA No. 209/16
Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 7 of 22
execute a fresh License Deed in respect of the premises given on
license to it. In case the Licensee fails to get the license
renewed for the period coming into effect from the expiry of this
License Deed, the Licensee shall be considered to be in
unauthorized occupation of the Lincensed Space and the
Licensor shall be within its right to initiate proceedings under the
due process of law.
4. If any fresh license agreement/deed is not executed for
any reason, whatsoever, thirty(30) days prior to the expiry of the
initial period of Two Years granted hereunder, it will be
presumed that the License has not been renewed and the use
of the premises by the Licensee, after such date shall be
considered as unauthorized.The company/Licensor shall be at
liberty to enter into such arrangements as it may deem fit, with
any other party permitting the use of the premises by such other
party after the expiry of the initial period of license with the
Licensee and the Licensee shall not interfere with the same
directly or indirectly nor shall cause any damage, loss or expenses
to the Licensor in this regard."
6.1 From the plain reading of the above terms of the license
deed, it is evident that further renewal was at the sole discretion of the
respondent; and such decision of the respondent was final and binding on
the licensee. Clauses 3 & 4 further clarify that in case the license is not
renewed, the licensee shall be considered as an unauthorized occupant.
In view of the same, there is no doubt that in absence of further renewal,
the appellant was rendered an unauthorized occupant of the said
shop once the license came to an end on 30.10.2007.
6.2 Admittedly, prior to the expiry of licence on 30.10.2007, the
PPA No. 209/16
Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 8 of 22
respondent vide its letter dated 28.04.2007, called upon the appellant to
handover the vacant possession of the said shop and to clear all the dues.
It also made clear that failing which, the respondent shall be at liberty to
initiate appropriate action in this respect. The relevant portion of the
said letter is reproduced as under :
"Mrs.Romila Bahl
M/s Ashok Florist
383,Civil Lines
Gurgaon.
Re: Renewal of Licence Agreement
Kindly refer to License Agreement dated 25th March, 2006 regarding
shop no.21 in the Main Shopping Arcade of hotel 'The Ashok' expiring
on 30th Oct.,2007.
This is to inform you that the aforesaid license agreement will not be
renewed for further period/term. Please note that fresh tenders will
be invited for the said premises and you may also participate in the
tender process.
On not being successful, peaceful possession of the licensed premises
will have to be handed over to the hotel management within a period
of 15 days of award of the tender after clearing all hotel dues, if any. In
event of failure to do so, you will be treated as unauthorized occupant
of the premises and shall be liable for liquidated damages.
...."
6.2.1 From the above, it is apparent that the appellant was even
specifically informed about nonrenewal and was called upon to hand
over vacant possession and pay the dues. The appellant herself has
submitted that they had challenged the said letter dated 28.04.2007 vide
writ petition bearing no. WP (C ) No. 8466/2007, which was dismissed.
Even LPA bearing no. 601/2008 against the said order of Hon'ble Single
PPA No. 209/16
Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 9 of 22
Judge was also admittedly dismissed vide order dated 18.05.2009, after
considering all the pleas as raised by the appellant before this court.
6.2.2 In view of the above, it is evident that the appellant's
authority to occupy the said shop came to an end on 30.10.2007. The
appellants has failed to demonstrate her/ its authority to occupy the same
after 30.10.2007. The only submission which is made by the appellant in
this respect is that the appellant never violated any of the terms &
conditions of the licence agreement, the renewal was declined mala fide;
and that although, the respondent subsequently renewed the licence of
Central Bank of India, one of the similarly placed licensees but declined
their request for renewal made vide letters/ representations dated
23.03.2011 and 17.07.2012. As already noted above that in terms of
Clause (2) of the Licence Deed, such renewal was the sole discretion of
the licensor; and its decision in this respect is final and binding.
Needless to mention that the appellant had even challenged the
respondent's letter dated 28.04.2007 vide such renewal was declined by
way of writ petition and thereafter, by way of LPA, which were
dismissed.
6.3 It would also be pertinent to refer here to the judgment of
Hon'ble Delhi High Court dated 01.07.2009 in WP (C ) No. 3682/2008
titled as Exclusive Motors Pvt. Ltd. V. ITDC Ors. In that case, the
petitioner had approached the Hon'ble High Court against notice
PPA No. 209/16
Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 10 of 22
whereby the license agreement in favour of the petitioner was terminated
and it was called upon to hand over the vacant and peaceful possession.
The Hon'ble High Court held that once the term of license came to
an end, the petitioner's occupation of the public premises became
unlawful. While dismissing the petition, the Hon'ble High Court went on
to observe as under
"45. Defaulters, such as the petitioner, have already flooded
the Courts with frivolous litigations, they cannot be permitted
to further block the stream of justice, in this manner. Petitioner
had entered into a licence deed with open eyes, knowing fully that
the duration was three years, which was renewed for another period
of two years at the sole option of the respondent. Learned Counsel
for the petitioner has not been able to show any right accrued in its
favour which would entitle the petitioner to use the premises
thereafter. In these circumstances petitioner is not entitled to any
relief in these proceedings. Accordingly, petition stands dismissed
with no order as to costs."
6.4 In view of the above facts and circumstances and settled
position of law, I find no infirmity in the Estate Officer's finding that the
appellant is in unauthorized occupation of the said shop w.e.f.
30.10.2007.
7.0 The appellant has contended that the impugned order stands
vitiated and needs to be set aside as the Estate Officer has given 7 days'
PPA No. 209/16
Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 11 of 22
time to the appellant to vacate the said shop instead of 15 days as
prescribed under PP Act/Form B, provided in the Act. No doubt, the
format of order of eviction under Section 5(1) PP Act provided in Form
B mentions 15 days time. However, sub section (2) of Section 5 PP Act
lays down as under:
"5.Eviction of unauthorized occupants
(2) If any person refuses or fails to comply
with the order of eviction[on or before the
date specified in the said order or within
fifteen days of the date of its publication
under subsection(1),whichever is later,] the
estate officer or any other officer duly
authorised by the estate officer in this behalf
[may, after the date so specified or after the
expiry of the period aforesaid, whichever is
later, evict that person] from, and take
possession of, the public premises and may, for
that purpose, use such force as may be
necessary;"
7.1 From the plain reading of the above provision and use of
words "whichever is later", it is evident that even if the Estate Officer
specifies a date for vacating of public premises prior to 15 days, the
PPA No. 209/16
Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 12 of 22
occupant shall be liable to evicted only after 15 days. Thus, merely
because the Estate Officer gave 7 days' time to the appellant to hand over
vacant possession, does not vitiate the impugned order of eviction.
Admittedly, the appellant has not vacated the said shop till date, though
the impugned order was passed on 16.08.2010.
ORDER UNDER SECTION 7 PP ACT FOR RECOVERY OF
OUTSTANDING AMOUNT/DAMAGES
8.0 The Estate Officer has directed payment of dues of
Rs.6,36,225/ as outstanding on 30.09.2008. In this respect, it may be
mentioned that the respondent during the course of arguments submitted
that the said amount has been paid by the appellant after the impugned
order was passed.
9.0 As far as order of damages is concerned, it is significant to
note that neither in its reply dated 02.09.2009 before the Estate Officer
nor before this court in this appeal, the appellant has made any specific
submission as to why the damages demanded by the respondent/ awarded
by the Estate Officer @ Rs.500/ per sq. ft. per month be not charged/ set
aside. The appellant has simply contended that the impugned order is
contrary to the settled principles of law and the facts of the case. It is
submitted that the appellant has been regularly paying the licence fee @
PPA No. 209/16
Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 13 of 22
Rs.250/ per sq. ft. per month w.e.f. 01.01.2010 with the consent of the
respondent, in terms of the order dated 08.03.2010 of Hon'ble Supreme
Court of India in SLP (C) No. 5612/2010. It is further submitted that in
the meantime, the respondent even renewed the licence of Central Bank
India and the appellant also requested for renewal at the same terms &
the license fee as had been settled with the Central Bank of India. But the
same was declined.
9.1 The respondent on the other hand submitted that the
damages are justified and have been awarded by the Estate Officer after
duly considering all the factors as per law.
9.2 Before examining the rival contentions, let me refer to sub
sections (2) and (2A) of Section 7, which talk about assessment of
damages. Same read as under :
"7.Power to require payment of rent or damages in respect of
public premises.
(2)Where any person is, or has at any time been, in unauthorised
occupation of any public premises, the estate officer may, having
regard to such principles of assessment of damages as may be
prescribed, assess the damages on account of the use and
occupation of such premises and may, by order, require that person
to pay the damages within such time and in such instalments as
may be specified in the order.
PPA No. 209/16
Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 14 of 22
[(2A)While making an order under subsection (1) or subsection
(2), the estate officer may direct that the arrears of rent or, as the
case may be, damages shall be payable together with simple
interest at such rate as may be prescribed, not being a rate
exceeding the current rate of interest within the meaning of the
Interest Act, 1978 (14 of 1978).]
9.2.1 As per section 7(2) of PP Act, the damages have to be
assessed as per the principles prescribed in that respect. Rule 8 of The
Public Premises (Eviction of Unauthorised Occupants) Rules,1971 ("PP
Rules" in short), lays down the matters which may be taken into
consideration while assessing the damages for unauthorized use &
occupation of any public premises. Rule 8 of PP Rules reads as under
"8.Assessment of damagesIn assessing damages of
unauthorised use and occupation of any public premises the
estate officer shall take into consideration the following
matters, namely :
(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;
PPA No. 209/16
Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 15 of 22
(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."
9.2.2 As per the above provision, while assessing damages, the
purpose, nature, size,standard of the accommodation and the rent it
would have fetched etc. need to be taken into account while arriving at
the quantum of damages for unauthorized occupation of public premises.
9.3 The appellants themselves have stated in the appeal that the
Hotel Ashok was one of the earliest Five Star Hotels set up in the city.
Further, admittedly the appellants vide letter dated 21.03.2011 had
requested the respondent for renewal of their licence deed at the same
terms/ the licence fee at which the licence had been renewed in favour of
the Central Bank of India. Let me refer to the appellant's letter dated
21.03.2011 :
" March 21,2011
The Chairman and Managing Director
India Tourism Development Corporation Limited
Unit Ashok Hotel, New Delhi.
Core8, Scope Complex,
7,Lodhi Road,
New Delhi110003.
Re: Unit: Hotel Ashok Chanakyapuri, New Delhi.Shop No.21.
Dear Sir,
The matter concerning shopkeepers in Hotel Ashok was listed in
PPA No. 209/16
Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 16 of 22
the Hon'ble Supreme Court on 18.03.2011 where it was pointed out by your senior
counsel Shri R.K.Khanna that in view of ITDC Ltd. having negotiated and
settled terms with Central Bank of India, in which respect they handed over
copy of the extract of minutes of the board meeting held on February 10, 2011,
we could also make a matching offer to you so that our case could also be
considered on the same lines.
We hereby make an offer that we are willing to renewal of the
license in respect of our shop No.21 being run under the name and style of Ashoka
Florist, w.e.f. April 1,2011 on the same terms on which the license fee has been
settled with Central Bank of India.
......
We hereby confirm that we have paid upto March 31,2011, the license fee @ Rs.140.00 per sq. ft. per month. If there is any diffence payable in terms of the terms settled by you with Central Bank of India, kindly let us know and we will be willing to pay the same as well.
......"
9.4 Let me also refer to the appellant's subsequent letter dated 17.07.2012 in this regard. The relevant portion of which reads as under :
" New Delhi
July 17,2012
..........
............
............
............
We would also like to point out with reference to our representation dated March 21,2011 whereby we had expressed our willingness to have our license renewed on the same terms on which it was so renewed in favour of Central Bank of India..........
............
As far as the outstanding amount due from us, as mentioned in your statement dated 30.06.2012 for the period 01.01.2010 to 30.06.2012 showing a sum of Rs.5,83,471.68, is concerned, we would appreciate that we are allowed to pay the same in installments of Rs.50,000.00 per month besides the current license fee which is being paid by us and will be paid in future as well, till the matter is finally resolved between the management of ITDC Ltd. and ourselves................."
9.5 It is not in dispute that the Central Bank of India had agreed PPA No. 209/16 Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 17 of 22 to pay Rs.350/ per sq. ft. per month. The appellant vide its above letters had requested for renewal of Licence Deed at the same rate, i.e., Rs.350/ per sq. feet per month.
9.5.1 From the above, the acceptance on the part of the appellant that the said shop could have fetched the rent @ Rs.350/ pr sq. ft. per month, way back in the year 2011, is apparent. That was the amount the appellant was agreeable to pay in the year 2011. Since then, there has been an escalation in rentals generally.
9.6 Perusal of the impugned order dated 16.08.2010 shows that the Estate Officer while determining the damages took into account the opportunity loss to the respondent in view of continued unauthorized occupation by the appellants. He also noted that the damages need to be imposed for such unauthorized occupation much beyond the period of licence, in order to curb such a general trend of unauthorized occupation by the licencees and accordingly, directed the appellant to pay damage charges @ Rs.500/ per sq. ft. per month w.e.f. 30.10.2007 till the date of vacation of the Public Premises; to pay an amount of Rs.6,36,225/ (Rs. Six lakh thirty Six thousand two hundred and twenty five only) on account of dues pending as on 30.09.2008 and to pay interest on the outstanding amount @18% p.a. from the date of its accrual till its final payment.
PPA No. 209/16Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 18 of 22 9.7 Hotel Ashok, a Five Star Hotel is situated in a prime location cannot be disputed. Further, the fact that major renovations in the Ashoka Hotel as well as in the area in and around the shopping Arcade were undertaken, had come on record in appeal PPA No. 31/17 titled M/s M.A. Ramzana V. ITDC, which also involved a shop in Shopping Arcade of Hotel Ashok.
9.8 It would also not be out of place to mention here that admittedly, even the licensees/petitioners of similarly placed shops in Ashoka Hotel, ITDC, in Petitions for Special Leave to Appeal(Civil) No.5626/2010, titled as M/s Ramzana & Co. vs ITDC Ltd. & Anr. with SLP(C) No.5871/2010,7809/2010 and 7842/2010, agreed to pay the license fee at the rate as fixed by the ITDC for Central Bank of India. The Hon'ble Supreme Court vide order dated 02.11.2012 had directed the petitioners to pay the license fee/arrears at that rate i.e. @ Rs.350/ per sq.ft. per month.
9.9 The respondent has submitted that recently vide order dated 19.02.2018, the Hon'ble High Court in WP(C)9054/2011 titled as Himalayan Travel And Tours(I) Pvt. Ltd. vs ITDC, directed payment of license fee @ Rs.370/per square feet per month plus applicable taxes w.r.t. the said shop and has placed on record, a copy of orders dated PPA No. 209/16 Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 19 of 22 08.09.2017 and 19.02.2018. It is seen that in that case although, vide earlier order dated 08.09.2017 during the pendency of the said petition, the Hon'ble High Court had directed the petitioner therein to pay an interim amount @ Rs.250/ per sq. ft. as damages with respect to a similar shop. Subsequently vide order dated 19.02.2018, while allowing extension of time to the petitioner to vacate the subject property, directed the petitioner to pay the licence fee @ Rs.370/per sq.ft. per month plus applicable taxes.
10.0 It would also be pertinent to mention here that on 27.03.2018, Advocate Ms.Anita Sahani, Ld. Counsel for the appellant during the course of hearing, made a categorical submission that she had instructions from the appellant to state that the appellant was ready to pay the damages @ Rs.370/ per sq. ft. per month as awarded by this court vide judgment dated 14.03.2018 in PPA No.30/17 titled M/s Gift Centre vs ITDC, subject to the adjustment of the amount already paid by the appellant for the relevant period. Accordingly, the statement of Ld. Counsel at Bar was recorded on 27.03.2018. However, on the next date of hearing i.e. 03.04.2018, the appellant appeared with new advocate Sh. Pradeep Mishra and Sh. Asish Upadhyay. Appellant also filed an application under Section 151 CPC for withdrawal of the statement of her Advocate Ms. Anita Sahani as made on 27.03.2018 stating PPA No. 209/16 Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 20 of 22 that due to some misunderstanding and confusion, the earlier counsel made the aforesaid statement and her consent was not taken properly. Accordingly, notice was issued to Ms. Anita Sahani, Advocate, the previous counsel of the appellant. Pursuant thereto, the Ld. Counsel, Ms. Anit Sahani had appeared and stated that the aforesaid statement was made on the instructions of the appellant. In view of these facts, the application u/S 151 CPC appears simply to be an after thought.
10.1 Be that as it may. Even if the said statement is ignored, considering the above facts and circumstances in entirety, particularly that the appellants themselves offered to pay Rs.350/ per sq. ft. per month in the year 2011 vide their letters of request for renewal of licence; and that in M/s Himalaya Travels and Tour (I) Pvt. Ltd. (supra), the Hon'ble High Court directed the licencees of the similar shop to pay Rs.370/ per sq. ft. per month; and in absence of any lease deed/ license deed of the similar property being produced by the respondent, either before the Estate Officer or before this court to demonstrate that the similar property could have fetched license fee @ Rs.500 per sq. ft. per month, I am of the considered opinion that the damages @ Rs.370/ per sq. ft. per month shall meet the ends of justice. As far as the interest @18% per annum awarded by the Estate Officer is concerned, it may be mentioned that in other similar cases, no interest interest has been PPA No. 209/16 Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 21 of 22 awarded by the Estate Officer on the outstanding damages. No reasons have been assigned by the Estate Officer for awarding the same in the present case. Hence, the same cannot be allowed.
11.0 In view of the findings recorded in preceding paras, the order of eviction is upheld.
11.1 As far as the order of damages is concerned, the same is modified to the extent of quantum. The damages shall be payable @ Rs.370/per sq. ft. per month instead of Rs.500/per sq. ft. per month. The taxes as applicable shall remain payable.
12.0 This appeal is thus, partly allowed.
13.0 Record of the Estate Officer be returned along with copy of this judgment.
14.0 Appeal file be consigned to record room.
Dictated and Announced in the open (Poonam A. Bamba) Court on 27th April, 2018 District & Sessions Judge New Delhi PPA No. 209/16 Smt. Romila Bahl & Anr. Vs ITDC Ors Page No. 22 of 22