Delhi District Court
M/S M.A. Ramzana vs Indian Tourism Development ... on 5 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. 31/17
In the matter of :
M/s M.A. Ramzana
Shop No.9,Hotel Ashok
New Delhi110021
Through Partner Mr.Zahoor Ahmed Tramboo
Through Attorney/Son Sh. Suhail Ahmed Tramboo
...... Appellant
Versus
1. Indian Tourism Development Corporation
SCOPE Complex, Core8
Lodhi Road, New Delhi.
2. Estate Officer
Indian Tourism Development Corporation
3, Sansad Marg
Jeevan Vihar Building
1st Floor, Rear Side
New Delhi. ..... Respondents
APPEAL UNDER SECTION 9 OF THE
PUBLIC PREMISES (EVICTION OF
UNAUTHORIZED OCCUPANTS) ACT,
1971, ON BEHALF OF THE
APPELLANT AGAINST THE ORDER
DATED 02.03.2010.
PPA No. 31/17
M/s M.A.Ramzana Vs ITDC & Anr. Page No. 1 of 28
Date of filing of appeal : 06.03.2010
Arguments concluded on : 03.04.2018
Date of judgment : 05.04.2018
J U D G M E N T
1.0 Vide this judgment, I shall dispose of the appeal of M/s
M.A.Ramzana, 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 02.03.2010 ("the impugned order"
in short) under sub section (1) of Section 5 and Section 7 PP Act,
directing the appellant to vacate the Shop No. 9, Main Shopping Arcade
of The Ashok Hotel, New Delhi110021("the said shop" in short),
within 7 days of the order and further, to pay charges @ 500/ per sq. ft.
per month w.e.f. 01.03.2008 till handing over of the actual possession of
the said shop.
2.0 The facts in brief as per the appeal are that:
(i) the appellant is a partnership firm and Mr. Zahoor
Ahmed Tramboo is the partner of the said firm;
(ii) notice under Sections 4 & 7 PP Act both dated
13.10.2008 were issued to the appellant, which were duly
replied by the appellant vide a common reply dated
PPA No. 31/17
M/s M.A.Ramzana Vs ITDC & Anr. Page No. 2 of 28
03.08.2009. The appellant had also filed an application on
09.10.2009 for dismissal of the respondent's application
under Sections 4 & 7 PP Act, as the same were not filed by
duly authorised person. The Estate Officer dismissed the
said application vide order dated 09.11.2009 without
appreciating the appellant's contention;
(iii) the Estate Officer proceeded to pass the impugned
order of eviction without appreciating the appellant's
contention that as per its own policy dated 30.03.2007, the
respondent was duty bound to invite tenders for the said
shop during the subsistence of the licence, giving liberty to
the appellant to bid for the said shop.
3.0 The appellant has challenged the impugned order inter alia
on the grounds that :
(i) the Estate Officer failed to appreciate that the respondent
violated its own policy dated 30.03.2007, which required it
to initiate tendering process before expiry of licence period,
providing an opportunity to the appellant/licensee to
participate in tender for the said shop;
(ii) the appellant's application for dismissal of the
respondent's application for eviction and recovery of
PPA No. 31/17
M/s M.A.Ramzana Vs ITDC & Anr. Page No. 3 of 28
damages as the same were filed by General Manager, who
was not duly authorised officer, was dismissed by the Estate
Officer vide order dated 09.11.2009 without appreciating the
contentions raised;
(iii) the Estate Officer failed to appreciate the submissions
made by the appellant and passed the impugned order on
surmises and in a predetermined manner;
(iv) the Estate Officer gave 7 days' time to the appellant to
vacate the said shop instead of 15 days as prescribed under
the PP Act and the rules framed thereunder;
(v) the Estate Officer awarded exorbitant damages @ 500/
per sq. ft. per month despite no evidence being led as to the
quantum of damages by the respondent and without
appreciating the appellant's contention in this respect and
the case law relied upon by the appellant i.e. the judgment
dated 04.03.2009 of the Hon'ble Bombay High Court in
Writ Petition No.5591/2008 titled as M/s Golden Chariot
Airport Vs Airports Authority of India & Anr. and the
judgment of the Hon'ble Delhi High Court in W.P. (C ) No.
1194550/2009, decided on 29.01.2010.
PPA No. 31/17
M/s M.A.Ramzana Vs ITDC & Anr. Page No. 4 of 28
4.0 The respondent vide its reply has sought dismissal of this
appeal with cost pleading that the appellant is an unauthorized occupant
of the said shop after expiry of license on 29.02.2008. It is further
submitted that after expiry of license, the appellant cannot claim renewal
of the license as a matter of right. As far as the policy dated 30.03.2007
is concerned, same is in the nature of administrative instructions and
guiding in nature. Same does not override the provisions of PP Act.
Therefore, the Estate Officer rightly passed the impugned order of
eviction as the appellant was in unauthorized occupation after the expiry
of the license.
4.1 With respect to the order of damages, the respondent has
submitted that it had produced before the Estate Officer, all relevant
documents along with its application. Therefore, there was no occasion
to lead any further evidence.
5.0 I have heard Sh. Sanjay Gupta, Advocate for the appellant
and Sh. Deepak Thukral, Advocate for the respondents and have perused
the record carefully.
6.0 Admittedly, the appellant occupied the said shop as a
licencee. As per license deed dated 09.06.2006, the licence was for the
period 01.03.2006 to 29.02.2008 @ 2,87,000/ per annum plus
PPA No. 31/17
M/s M.A.Ramzana Vs ITDC & Anr. Page No. 5 of 28
applicable taxes. Admittedly, after the license came to an end on
29.02.2008, it 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 March, 2006 and shall expire on 29th
February, 2008 subject to the provisions for earlier termination
hereinafter contained, for centralized air conditioned space
measuring approx. 315 sq.ft. on "as is where is" basis.
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 Licensee 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
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.
PPA No. 31/17
M/s M.A.Ramzana Vs ITDC & Anr. Page No. 6 of 28
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 29.02.2008.
6.2 It is not in dispute that vide notice/letter dated 01.02.2008,
the appellant was called upon to handover the vacant possession of the
said shop and to clear all the dues by 01.03.2008, 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 :
"M/s M.A.Ramzana
PPA No. 31/17
M/s M.A.Ramzana Vs ITDC & Anr. Page No. 7 of 28
Shop No. 9,
Ashok Hotel
New Delhi110021.
Kind Atten: Mr.Zahoor Ahmed Tramboo
.....
Please be informed that the Management has taken a Policy Decision that no renewal would be granted to the existing Licensees whose licence agreement is expiring or has already expired. The License Agreement entered with you is going to expire on 29.02.2008.
In view of the above decision of the Management, you are hereby call upon to hand over the vacant and peaceful possession of the premises licensed to you and clear all the dues, if any, by 1st March, 2008. Upon failure to do so, Management would be free to initiate any action as deemed and appropriate in this regard."
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.
6.3 In view of the above, it is evident that the appellant's authority to occupy the said shop came to an end on 29.02.2008. The appellant has failed to demonstrate his authority to occupy the same after 29.02.2008. The only submission which is made in this respect by the appellant is that he is not an unauthorized occupant as the appellant was entitled to participate in the tendering process for the said shop; but the respondent did not call for tenders despite their own policy dated PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 8 of 28 30.03.2007, which required the respondent to initiate the process five months prior to the expiry of each license. Ld. Counsel for the appellant also argued that the Estate Officer failed to appreciate his aforesaid contention despite specific submissions in this respect.
6.3.1 Ld. Counsel for the respondent on the other hand, has submitted that the appellant had no right to continue to occupy the said shop once the term of licence expired and the renewal was declined and communicated vide letter dated 01.02.2008. It is also submitted that the policy dated 30.03.2007 is in the nature of guidelines/administrative instructions and do not override the provisions of the Act; and therefore, the respondent was well within its rights under PP Act to initiate the proceedings for eviction and damages. The respondent in this respect has placed reliance upon the judgment of the Hon'ble Supreme Court in Syndicate Bank Vs Ramchandran Pillai & Ors., 2011 SCC (15) 398. The respondent has also relied upon the judgment of Hon'ble High Court of Delhi dated 01.07.2009, in WP(C) No.3682/2008 titled as Exclusive Motors Pvt.Ltd. Vs ITDC and Ors.
6.3.2 It is seen that vide letter(referred to as policy by the appellant) dated 30.03.2007, Chairman & MD,ITDC with respect to renewal of licenses, instructed that PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 9 of 28 " .......tell all licencees six months before their license is to expire for a second time that there will be no automatic second renewal (i.e. third term) of their existing licence. The tendering process should begin five months before each license is to expire. .........
The incumbent can bid with the other prospective licencees with all these advantages.
........
There can be no exception to this rule....."
6.3.3 From the plain reading of the above letter, it is clear that these are administrative instruction/guidelines issued by ITDC with respect to renewal of licenses. These guidelines do not in any manner confer any right on the appellant to seek renewal as a matter of right and to continue to occupy the public premises / the said shop. Admittedly, the appellant did not vacate the said shop after expiry of license on 29.02.2008 and is still in occupation of the same.
6.3.4 Be that as it may. Even if, there was any violation of the aforesaid letter/guidelines dated 30.03.2007 by the respondent, the same does not help the appellant in any manner, in view of the law as laid down in Syndicate Bank's case (Supra), as relied upon by the respondent.
6.3.5 In Syndicate Bank's case(Supra), the bank issued a notice PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 10 of 28 terminating the monthly tenancy of the respondent and called upon him to vacate the premises. On tenant's failure to vacate the premises, proceedings for eviction under PP Act were initiated against him leading to passing of order of eviction by the Estate Officer. The said order was upheld by the Appellete Court. On challenge, the Appellate Court's order/eviction order was set aside by the Hon'ble High Court in revision petition directing the Syndicate Bank to review the respondent's case in terms of Central Govt. Resolution/Guidelines dated 30.05.2002, which required that facts of each case be considered and a person in occupation of the public premises not be declared unauthorized occupant merely on service of notice of termination of tenancy. The said order of the Hon'ble High Court was challenged by the Syndicate Bank before the Hon'ble Supreme Court. Hon'ble Supreme Court set aside the order of Hon'ble High Court observing that no doubt, the public authorities are bound to keep in mind, the guidelines to the extent possible on the facts and circumstances of each case, but such guidelines/executive instructions are not law and are not statutory in character. They confer no legal right. The relevant portion of the judgment reads is as under:
"6......Guidelines or executive instructions which are not statutory in character, are not "laws", and compliance therewith cannot be enforced through courts. Even if there has been any violation or breach of such nonstatutory guidelines, it will not confer any right on any member of the public, to seek a direction in a court of law, for compliance with PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 11 of 28 such guidelines. An order validly made in accordance with a statue(as in this case the Public Premises Act), cannot be interfered with, even if there has been any transgression of any guidelines, except where it is arbitrary or mala fide or in violation of any statutory provision. These are wellsettled principles.
7.As the guidelines relied upon in this case were not issued in exercise of any statutory power under the Public Premises Act or any other statute, even if there was violation or non compliance with the aforesaid guidelines by the appellant, relief to the appellant could not be denied by relying upon the guidelines. To do so would amount to reading the guidelines into the statute, which is impermissible. The only "remedy" of any person complaining of noncompliance with such guidelines, is to bring such violation to the notice of a higher authority. We therefore hold that the enforcement of any right or exercise of any power by the appellant, under the Public Premises Act cannot be set at naught by relying upon or referring to the guidelines issued by the Central Government........"
6.3.6 In view of the above, merely because the respondent did not invite tender before expiry of the license in terms of letter dated 30.03.2007, did not confer any legal right on the appellant to continue to occupy the said shop after 29.02.2008.
PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 12 of 286.3.7 It would also be pertinent to refer here to the judgment of Hon'ble Delhi High Court in Exclusive Motors Case(Supra) as relied upon by the respondent. In that case, the petitioner had approached the Hon'ble High Court against notice 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 a 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 PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 13 of 28 appellant is in unauthorized occupation of the said shop w.e.f. 01.03.2008. The impugned order of eviction therefore, does not call for any interference.
ORDER FOR RECOVERY OF DAMAGES 7.0 The appellant has challenged the impugned order awarding damages @Rs.500/ per sq. ft. per month pleading that the Estate Officer has simply awarded the damages as prayed for by the respondent. The said amount is exorbitant and is without any basis, as no evidence was led by the respondent regarding quantum of damages. In view of the same, the impugned order needs to be set aside. In support, the appellant has placed reliance upon the judgment of Hon'ble Bombay High Court in Golden Chariot Airport case (Supra) and the order of Hon'ble Delhi High Court dated 29.01.2010 in WP(C)11945/09 to 11950/09 titled as M/s Mahalaxmi and Others vs ITDC & Anr.
7.1 The respondent vide its reply has submitted that the damages are justified and are in accordance with law. It is also pleaded that the appellant failed to produce any supporting document before the Estate Officer.
PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 14 of 287.2 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.
[(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).] 7.2.1 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), lay down the matters which may be taken into consideration while assessing the damages for unauthorized use & PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 15 of 28 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;
(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."
7.2.2 Thus, 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.
7.3 Now, let me examine whether the Estate Officer kept in mind the above criteria while determining the damages. It is seen from PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 16 of 28 the Estate Officer's record that vide its application under Section 7 PP Act before the Estate Officer, the respondent/ITDC prayed for damages @ Rs.500/per sq. ft. per month pleading that it is suffering a loss to that extent every month. Notice under section 7(3) PP Act was issued to the appellant calling upon it to show cause as to why damages @Rs.500/ along with interest, per sq. ft. per month, be not directed to be paid by it. In response, vide its reply, the appellant submitted that there is world wide recession in the market and rents have fallen. The respondent has given an imaginary figure of Rs.500/ without any supportive evidence. The appellant did not submit/place on record any material to show the prevalent rent in the area. Nor did the respondent produce any material in this respect.
7.3.1 Let me now refer to the impugned order to see the basis on which the damages @Rs.500/ per sq. ft pm have been awarded by the Estate Officer. The Estate Officer while assessing the damages, noted as under :
".....Rule 8 of Public Premises (Eviction of Unauthorised Occupants) Rule 1971 provides assessment of damages for unauthorised use and occupation of any Public Premise. As per the parameters, it is observed that the applicant has undertaken major renovation initiatives in the Hotel Premise as well as the area in and around the shopping Arcade where the said Public Premise occupied by the respondent is located. With such major PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 17 of 28 renovation efforts the value of the Public Premise has increased many fold from the point of view of licence fee as well as the level of prospective licences having strong economic background and paying capacity. Further the Public Premise is located in the vicinity of diplomatic missions of various countries and in the close proximity to the Prime Minister's House. The applicant Hotel is the only Five Star Hotel in the location as described and is thus the trend setter for determination of value of licence fee considering its Five Star Delux standard. It is thus, the amount of damages imposed by the applicant is reasonable and cannot be compared with the licence fee paid by the respondent prior to the renovation. The respondent being an unauthorised occupant is liable to pay damage charges @ Rs. 500/ per sq. ft. per month w.e.f. 01.03.2008 till handing over actual possession to the applicant."
7.4 From the above, it is apparent that the Estate Officer has taken into account the criteria prescribed under PP Act and PP Rules for determining the damages viz., that the public premises was being used as a shop in the Shopping Arcade of The Ashok Hotel, which is the only five star hotel in the area and is located in the prime locality / vicinity of diplomatic missions of various countries. The Estate Officer also considered the fact that major renovations had been carried out in and around the hotel which increased the value of the property manifold. It is not disputed that the renovations had been carried by the respondent but PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 18 of 28 Ld. Counsel for the appellant submitted that the Estate Officer has not specified the date/period when such renovations were carried out. It may be mentioned that considering the above facts and circumstances, the Estate Officer found the damages of Rs.500/per sq. ft. per month as claimed by the respondent, to be reasonable.
7.4.1 In view of the above facts, the judgment in Golden Chariot Airport case(Supra), relied upon by the appellant, is of no assistance to the appellant, as the facts in that case were very different. In that case, the Estate Officer who was dealing with the matter was transferred and the new Estate Officer who took over the charge, passed the order of damages. The said order of damages was set aside by the Hon'ble High Court finding that the Estate Officer had not considered the case himself; he had verbatim reproduced the findings of damages from the draft sent by the earlier Estate Officer, while just filling in the operative part of the order. In view of those facts, while setting aside the impugned order, the Hon'ble High Court also observed that the order was rendered without any evidence. Whereas, as noted above, in the instant case, the Estate Officer has given reasons for the findings recorded by him.
7.4.2 Further, as far as the proposition of law laid down by Hon'ble Delhi High Court in WP(C)11945/09 to 11950/09 in M/s PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 19 of 28 Mahalaxmi and Others vs ITDC & Anr., that the burden of proving a fact rests on the party who asserts the same and not upon the party who denies it, cannot be disputed. What is to be seen is whether the amount of Rs.500/per sq.feet per month awarded by the Estate Officer is reasonable. As already noted above, the Estate Officer considered various criteria as prescribed under PP Act and PP Rules. But neither of the parties produced before the Estate Officer, any material to show the rent being fetched by similarly placed shops/property in the vicinity. It may however, be mentioned that during the course of these proceedings on 01.11.2010, Ld. Counsel for the appellant Sh. Sanjay Gupta himself submitted that the appellant was one of the parties in the SLPs M/s Little Kashmir vs. ITDC with SLP (c) No. 5626 of 2010; SLP (c) No. 5663 of 2010; SLP (c) No. 5871 of 2010; SLP (c) No. 5878 of 2010 and SLP (c) No. 5882 of 2010, in which the Hon'ble Supreme Court granted interim protection to the petitioners against eviction subject to payment of license fee @Rs.250/ per sq. ft per month w.e.f. 01.01.2010. It was also submitted that the appellant has been paying the rent at the said rate. In view of which, the Ld. Predecessor Court directed the appellant to continue to pay the license fee @Rs.250/ per sq. ft. per month in compliance of the order of Hon'ble Supreme Court.
7.5 Further, admittedly, the licensees/petitioners of similarly placed shops in Ashoka Hotel, ITDC, in Petitions for Special Leave to PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 20 of 28 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 directed the petitioners to pay the license fee/arrears at that rate. The respondent has placed on record, a copy of memorandum / minutes of Board Meeting dated 28.02.2011 of Central Bank of India whereby the Central Bank of India agreed to pay Rs.350/ per sq. ft per month for AC area. Subsequently, the said SLP was disposed of vide order dated 18.11.2013 giving last opportunity to the petitioner to clear the arrears at that rate i.e. Rs.350 per sq.ft.per month. These facts are not disputed by the appellant.
7.5.1 Further, the respondent has placed on record, a copy of the appellant's letter dated 18.03.2011 whereby the appellant agreed to pay licence fee @Rs.350/ per sq. ft per month. Said letter is not disputed. It is seen that vide its said letter, the appellant submitted as under :
"To, The Chairman India Tourism Development Corporation Limited Unit Ashok Hotel, New Delhi Core8, Scope Complex 7, Lodhi Road New Delhi - 110003.
Re: SLP No. 7809/2010 Zahoor Ahmed Tramboo & Anr. Vs. ITDC Ltd. Unit: Hotel Ashok Chanakyapuri, New PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 21 of 28 Delhi, Shop No.8 Dear Sir, The above matter was listed in the Hon'ble Supreme Court today 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.9, being run under the name and style of M.A.Ramzana on the same terms on which the license fee has been settled with Central Bank of India.
......."
7.6 From the above, it is evident that the appellant vide its letter dated 18.03.2011 agreed to pay the license fee @Rs.350/ per sq. feet per month. The appellant though pleaded during arguments that it had agreed to pay the license fees @Rs.350/ per sq. ft per month without prejudice and subject to fresh license being granted. Ld. Counsel for the appellant argued that Hon'ble High Court vide its order dated 08.09.2017 in WP(C)9054/2011 titled as Himalayan Travel And Tours(I) Pvt. Ltd. vs ITDC, directed payment of damages @ Rs.250/per square feet with respect to a similar shop. The respondent has not disputed that the said case pertains to a shop situated in the lobby of the Ashoka Hotel but Ld. Counsel for the respondent submitted that the same was only an interim PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 22 of 28 order. The said rate cannot be termed to be the damages finally determined by the Hon'ble High Court. I find force in contention of Ld. Counsel for the respondent. It is seen that vide order dated 08.09.2017, the Hon'ble High Court during the pendency of the said petition directed the payment of dues/damages @ 250/ by way of an interim order, mentioning that the same would be subject to the final outcome of the said petition. The respondent has placed on record a subsequent order dated 19.02.2018 passed by the Hon'ble High Court in that case, vide which the Hon'ble High Court directed the petitioner to pay the license fee @ Rs.370/per square feet per month plus applicable taxes, while allowing extension of time to the petitioner to vacate the subject property on 31.03.2018.
7.7 In view of the above particularly from the appellant's own letter dated 18.03.2011, whereby it agreed to pay Rs.350/ per sq. feet per month, acceptance on the part of the appellant that the said shop could have fetched the rent @Rs.350 per sq. ft. per month, 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. Further, the Hon'ble High Court vide order dated 19.02.2018 (in Himalayan Travel and Tours's case (Supra)) directed the petitioner to pay the license fee @ Rs.370/per square feet per month plus applicable taxes, while granting further time to vacate.
PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 23 of 288.0 Considering the above facts and circumstances in entirety 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. feet per month, I am of the considered opinion that the damages @Rs.370/ per sq. feet per month shall meet the ends of justice.
9.0 The appellant contended that the impugned order is liable to be set aside also because the very applications u/S 4 & 7 PP Act filed before the Estate Officer were not filed by an authorized/competent person. It is pleaded that the appellant had even filed an application for dismissal of the respondent's applications for eviction and recovery of damages on that ground. But, the Estate Officer dismissed the same vide order dated 09.11.2009 without appreciating the contentions raised. The said order needs to be reviewed and the impugned order needs to be set aside.
9.1 The respondent has submitted that the appellant's contention is without any merit and therefore, the appellant's application seeking dismissal of the proceedings u/Ss 4 &7 PP Act, was rightly PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 24 of 28 dismissed by the Estate Officer finding that the applications u/Ss 4 & 7 PP Act, were filed by the General Manager/competent official. In support, the respondent has placed on record a copy of Office Order dated 21.02.1994.
9.2 As per the aforesaid Office Order dated 21.02.1994, ".......the GMs/Managers of Hotels and Catering Establishments of ITDC have been subdelegated the power to institute, defend, compound or abandon legal proceedings or refer claims to arbitration and execute Power of Attorney and sign Vakalatnamas, Mukhtiarnamas, plaints,written statements and other documents and papers in connection with cases in law courts etc.on behalf of the Corporation." It is also clarified in the said Officer Order that ".......GMs/Managers are also authorised to appoint any employee of their unit to appear in courts on their behalf and also to institute/defend, sign complaints/written submissions subject to ultimate control and authority being retained by the GM/Manager concerned."
9.3 It is seen that the applications u/Ss 4 & 7 PP Act before the Estate Officer were filed by General Manager Sh. Sudhir Sibal. It may also be mentioned here that even the license deed in favour of the appellant was signed by General Manager on behalf of ITDC.
PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 25 of 289.4 In view of the above, I find no substance in the appellant's contention. For the same reason, I find no infirmity in the order of Estate Officer dated 09.11.2009 whereby the appellant's application raising similar plea was dismissed by the Estate Officer.
10.0 The appellant has also contended that the impugned order stands vitiated as the Estate Officer has given 7 days' 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 PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 26 of 28 later, evict that person] from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary;"
10.1 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 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 02.03.2010.
11.0 In view of the findings recorded in preceding paras, the order of eviction is upheld. As far as order of damages is concerned, same is modified. The rate of damages is reduced from Rs.500/per sq.feet per month to Rs.370/per sq. feet per month. The taxes as applicable shall remain payable.
12.0 This appeal is thus, partly allowed only to the extent of rate of damages.
PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 27 of 2814.0 Record of the Estate Officer be returned along with copy of this judgment.
13.0 Appeal file be consigned to record room.
Dictated and Announced in the open (Poonam A. Bamba) Court on 05th April, 2018. District & Sessions Judge New Delhi PPA No. 31/17 M/s M.A.Ramzana Vs ITDC & Anr. Page No. 28 of 28