Indrawati Kapoor And Ors. vs Union Of India And Ors.
1983 Latest Caselaw 391 Del

JUDGMENT

Sachar, J.

(1) This is a Letters Patent Appeal against the dismissal of the writ petition filed by Late R.S. Kapoor, who is now represented by his legal representatives. Late R.S. Kapoor was allotted the premises by the Government at a rental of Rs. 57-50. The said rent was subsequently raised to Rs. 74-95 w.e.f. 1-10-1962. The petitioner retired on 15-10-1962. Under Allotment of Government Residences (General Pool in Delhi) Rules 1963 (to be called 1963 Rules) an allottee could retain accommodation for 2 months. The petitioner thereafter applied for being allowed to stay subsequent to the permissible period in terms of proviso to S.R. 317-B-22. No permission was given and the department, therefore, took proceedings for eviction under the Public Premises Eviction of Unauthorised Occupants Act (called the Act). The appellant was ultimately ordered to be evicted and the actual possession was taken by the department on 8-3-1965.

(2) Subsequently proceedings for recovery of the amount for the period of unauthorised stay were started against the appellant. The department calculated the amount due from the petitioner @ Rs. 268-90 from 15-11-1962 to 28-2-1963 and @ Rs. 513-75 per mensem from 11-3-1963 to 31-12-1964. The total amount worked out to Rs. 12,137-70. The appellant objected to this demand but he failed before the Estate Officer. His appeal against the Estate Officer's order was also dismissed by the Additional District Judge. Before the District Judge he had raised a point which he also raised before the learned single Judge namely that the damages were not properly assessed in terms of the Rules on the subject.

(3) The learned Additional District Judge took the view that the house of the type allotted to the appellant's predecessor could be let out in the market for atleast at Rs. 700- per mensem and the damages had been assessed at rather lenient manner and that the appellant had not been able to show that damages had been assessed in an excessive manner. Before the learned single Judge the appellant again made a grievance that the assessment could not be done at a rate more than Rs. 50.00 to Rs. 70.00 per month and that under the Rules the damages had to be assessed by the Estate Officer which had not been done. Reliance by the appellant on Rule 7 (now Rule 8 under 1971 Act) was negatived by the learned single Judge on the ground that they were merely guidelines to the Estate Officer. The learned single Judge also held that as the government had lodged a claim before the Estate Officer and notice of which had been served on the appellant it was permissible for the Estate Officer to accept this figure and also the Additional District Judge had from his experience observed that the premises could be let out at Rs. 700.00 per month. The plea of applicability of Delhi Rent Control Act to the premises in dispute was negatived on the ground that Section 3 of Delhi Rent Control Act exempts government buildings from the operation of the Rent Act and the standard rent could not, therefore, be a safe criterion for determining rent or damages for use and occupation of the Government premises. Accordingly the writ petition was dismissed. Hence this appeal.

(4) Section 7(2) of the Act provides that where any person is or has been in unauthorised occupation of public premises the Estate Officer may having regard to such principles of assessment to damages as may be prescribed assess the damages on account of use and occupation of such premises. Rules have been framed under the Act and Rule 8 provides for assessment of damages and lays down that in assessing the damages for unauthorised use and occupation of any public premises the Estate Officer shall take into consideration the following amongst other matters :-

(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.

It is apparent that the wording of Clause (c) positively contemplates that the basis of assessment of damages would be-what the property would fetch as a rental in the market. On this principle there is no dispute between the parties. The dispute is as to how the market rent is to be arrived at and who has to show what is the market rent.

(5) We must straightaway reject the contention of Mr. Khurana, the learned counsel appearing for Union of India, that government had performed its duty by proving that a notice demanding payment at the rate of Rs. 513-75 per mensem had been served by the Estate Officer and thus it raised a presumption that this was the market rent, unless otherwise conclusively shown by the appellant. We do not find this contention to be sound in law. As the department claims to charge market rent, it must prove it. It cannot rely on its or that of Estate Officer's ipse dixit about the market rent-this is a matter of proof. The observation of the learned single Judge that the appellant did not challenge the quantum of rent demanded, is with respect contrary to record. The appellant has drawn our attention to letters written in 1963, 1964 to the Estate Officer demanding to know the basis on which the higher rent was being demanded. We are also referred to the submission filed before the Estate Officer. In it the appellant had specifically objected that inspite of his previous letters he had not been told the basis for assessing damages, which according to him had to be done under Section 7(2) of the Act. Thus the dispute about the method of assessing damages had been put in issue. If inspite of that the department did not choose to prove how it has calculated Rs. 513.75 as the market rent, the consequences for this slackness will have to be borne by it. No doubt rent to be charged for unauthorised occupation, as in the case of the appellant is what rent the premises would fetch in the market. But what is a market rent has got to be proved, and assessed in terms of Section 7(2) of the Act and Rule 8. It is here that the department seems to have bungled. No evidence was led at all to show that the property in dispute could have fetched in the market a rental of Rs. 513-75 or even more during the period it remained in unauthorised occupation of the appellant's predecessor. As a matter of fact in the courts below there was no detail even given as to how and on what basis the amount of Rs. 268-90 for the period of 15-11-1962 to 28-2-1963 and for the subsequent period up to 31-12-1964 @ Rs. 513-75 per month was assessed. An effort was made by Mr. Khurana before us to show that the calculation was based on the basis of charging double the standard pooled rent for the period 15-11-1962 to 28-2-1963 and four times the standard pooled rent for the period subsequent to 1-3-1963 to 31-12-1964. Though this calculation was given by Mr. Khurana, he was not in a position to show us the source and the authority for this calculation. We were not referred to any Allotment rule or any rule which permitted 4 times the standard pooled rent to be charged for the period of unauthorised occupation. This apart, any attempt to put in fresh material at the stage of L.P.A. is impermissible and unfair to the appellant. The Union can, therefore, derive no assistance from such a statement.

(6) Mr. Kapoor on the other hand had urged that in order to determine what rent the property in dispute would have realised in the market if let out can be arrived at only by finding out what the standard rent of the premises in dispute would be under the Delhi Rent Control Act as that alone is the basis for assessment of damages. The learned Judge rejected this plea and has held and in our opinion rightly that the standard rent of the premises cannot be a safe criterion for determining the rent or damages for use and occupation of premises in dispute. It is not disputed that Section 3 of the Delhi Rent Control Act exempts the premises belonging to the Government from the applicability of Delhi Rent Control Act. There was thus no . restriction' on the rent that could be charged by the government. Rent would depend upon market conditions alone. The question of what is standard rent under the Rent Control Act is of no relevance for the premises in dispute. To determine the rent which it would realise in the market we must proceed' on the basis that there is outer no limit of rental, as is provided in Rental legislation. Even when one has to assess the rent which similar properties would fetch in the market, one must assess i èt on the basis that those properties would also be free from the constraints of Rent Control Laws. Unless we do that we will be applying wrong principles because properties can only be described similarly situate when restrictions of rent control are not applicable to both the properties-otherwise to assess damages by taking the example of a property subject to rent control legislation and one which is not covered by Rent Control Act, will be to proceed on wholly impermissible principles, as it would be comparing dissimilar properties. As the property in dispute, like the property requisitioned under the Requisitioning and Acquisition of Immoveable Property Act 1952 (Called 1952 Act) is not covered under Rent Control Legislation (See Section 3(2)(b) of Delhi Rent Control Act) the damages or compensation as the case may be for the use and occupation of the property would be the rent that it would have fetched in the market without the limitation of the standard rent, for the obvious reason that as Rent Control Act does not apply to such properties the rent cannot be artificially pegged down by invoking the provisions of Rent Control Act. Appellant's argument really ties him in a knot and contradiction. He admits that Rent Control Act is not applicable to such properties, but still seeks to invoke the provisions of Rent Control Act-an exercise in semantics and totally opposed to any sound logic or reasoning. Appellant's attempt at limiting the market rent by urging that as properties subject to Rent Control Act cannot charge more than standard rent, that would be the outer limit proceeds on a misapprehension of the position in law. The correct way of assessing is to proceed in case of property in dispute to which Rent Control Act does not apply and even in case of private property, under Requisition as if it is being let out for the first time in which case there is no limit on which it can be rented out. This means that when at a point of time assessment of damages is to be assessed under the Act or compensation is to be determined for a requisitioned property under 1952 Act assessment will be worked out by finding out what rent the property will fetch in the market in a transaction between a willing Lesser and willing lessee, unconstrained by any considerations of Rent Control Legislation for the simple reason that both these kind of properties are not covered by the Rent Control Legislation.

(7) Appellant did not dispute that under the Rules the rent chargeable for unauthorised occupation is the rent that would have been realised if the premises had been let out for rent for the same period. He also accepts that this means the rent which would be fetched in the market. But curiously he seeks to artificially depress the market rent by urging that the market rent must be taken to be the maximum at the standard rent calculated under the Delhi Rent Control Act, even though in actual practice it may be shown that similar properties have been let out at a much higher rent. Appellant would have it that even if property in dispute was actually let out at say Rs. 400.00 per month, still the damages or compensation must be pegged down at the standard rent determinable under Delhi Rent Control Act, even if it is Rs. 70.00 This argument ignores the clear words in the Rule 7 of 1952 Act which clearly says that damages would be the rent that would have been realised or under Section 8(2) of 1952 Act which provides for recurring payment to be a sum equal to the rent which would have been payable, if it had been taken on lease. What then can be the justification for saying that rent reasonable is only the standard rent even when faced with the actuality that property is taken on lease on a much higher rent. This argument of assessing damages at a fiction when reality is otherwise is understandable. The appellant however, sought to rely on Dawoodali v. State of Bombay, (All 1954 Bombay 323). In that case a property was requisitioned under the Bombay Land Requisition Act. The method of ascertaining compensation for the requisition was determined by Section 8(1) of the Act which stated that such amount of compensation shall be determined having regard to all the circumstances of the case and in particular officer shall be guided by the provisions of Sub-section (1) of Section 23 of the Land Acquisition Act, which requires amongst other matters to be taken into consideration the market value of the land at the date of publication of notification, under Section 4 Sub-section (1). The court held that this must mean the periodic payment which a willing owner may expect to receive in the open market from a willing transferee as a consideration for parting with the right of user in favor of transferee. In that case though it was accepted that a relationship of landlord and tenant does not result from requisition, still it held that if the Statute imposes a limit upon what can legitimately be regarded as rent ignoring the provisions of the Rent Restriction Statute would not be permissible. It refused to accept the view that national fair rent must be ascertained unaffected by Rent Restrictive legislation. Appellant relied on this to urge that compensation, therefore, cannot be more than the standard rent under the Rent Act. We cannot agree. We may straightaway say that we are unable to agree with the reasoning of this judgment if it purports to lay down that compensation under the Requisitioning Act has to be limited to what would be the standard rent under Rent Control Act. As it is we do not think that this authority lays down any such rigid formula. It will be seen that though Compensation Officer had held that the standard rent of each room was Rs.5.00 per month, but had yet awarded compensation at Rs. 10/ per month. All that it has held was that the provision of Rent Restriction Act cannot be excluded in ascertaining the periodic compensation. But as will be noted that this authority took a different view from Mohd. Ekramal Hague v. Bengal Province, which had held otherwise, and which in our opinion correctly lays down the law on the subject. In Mohd. Ekramal Haque's case the lease which was occupied by the Central Government expired on 29-7-1943. On the expiry of the lease the owner refused to renew the tenancy and the property was requisitioned by an order of 30-7-1943. Lease had been granted at a rent of Rs. 1950.00 monthly. The Collector offered Rs. 2200- as the monthly rent. This was refused by the landlord who claimed Rs. 3988'- as the monthly rent. The arbitrator came to the conclusion that as the Rent Control Order had come into force from 26-6-1943 the landlord was not entitled to any increase in the rent because of Section 8 of the Act and, therefore, as the Collector had already offered much more than Rs. 1950.00 which was the fair rent the landlord was not entitled to anything more. This view was not accepted by the Bench which held that the Collector had proceeded on wrong principles of law. The Bench held that the requisitioning does not bring about any actual relationship of landlord and tenant and, therefore, the Rent Control Legislation has very little direct bearing upon the assessment of compensation. The market value of the interest taken away from the owner has got to be assessed. Referring to Section 23 of the Land Acquisition Act it was held that it must be a notional fair rent of hypothetical tenant, and the assessment of such notional fair rent must be based upon a consideration which does not take into account restrictions temporarily imposed by any restrictive executive order or legislation like Rent Control Order etc. The assessment in practice should be as if it was of a house of like nature let out for the first time to a tenant who is not compelled to take it up and by a landlord who is not compelled to let it out. The practical method will be to assess rent as if it was a new house for the first time let out on that date. This will exclude all the trouble "that has been introduced in the present case by taking into account Rent Control Order which has very little direct bearing". On that view it was held that as the arbitrator had proceeded on wrong principles and the matter was remitted back turn fresh decision. The matter having gone back on remand the arbitrator held that the matter must be decided according to the rent prevailing in the locality in 1943. He awarded a compensation of Rs. 2581-08 per mensem. The High Court however, raised the compensation to Rs. 2850.00 per mensem. The matter then was brought to Supreme Court where the compensation was raised to Rs. 3200/ - per mensem as a fair compensation, it is significant to note that the fair rent under the Rent Act would have been Rs. 1950.00 per mensem. Rent Control legislation continued to apply but the compensation awarded was Rs. 3200.00 per mensem. No doubt some of this included 10% of potential value and about Rs. 125.00 per mensem on account of lifts. But the overwhelming part of it was on the finding that this was the rent which the property would have fetched in the locality. Thus the Supreme Court clearly negatived the contention that compensation for a requisitioned property can not be more than the standard rent as calculable under the Rent Control Act. Ekramal Haqu's case (supra) was followed in Union of India v. Roshan Lal, while Dawoodali's case (supra) was held as not laying down correct principles. In Roshan Lal's case (supra) the property was requisitioned under Section 19 of the defense of India Act. which applied the provisions of Section 23 of the Land Acquisition Act for the purpose of determining the amount of compensation payable. The Full Bench referred with approval to Ekramal Haquf's case (supra) and came to the conclusion that "the requisitioning authority can not be deemed to be a tenant of the landlord and is, therefore, not governed by the rent laws. The fair rent as fixed by the Rent Controller is no more than a piece of relevant evidence. It certainly should not be taken as the sole criterion for determining compensation". It also approved the observation's of earlier case to the effect that "it cannot be conceded that the principle on which compensation is to be assessed is the principle on which a Rent Controller will assess standard rent for that property." For the reasons that we have already mentioned for not accepting the correctness of the view expressed in Dawoodali's case (supra), we are also unable to accept the correctness of the view of Scindia Steam Navigation Co. v. Union of India, cited by the appellant which authority has merely relied on the earlier authority in Dawoodali's case (supra). This authority has also noticed the Full Bench of Punjab in Union of India v.Roshan Lal. but has given no reasons to take a different view from that. We may also note that the observations in Scindia Steam Case (supra) 'that the 1952 Act is different from other kindred pieces of legislation under which the provisions of Sub-section (1) of Section 23 of the Land Acquisition Act are made applicable for determining the amount of compensation' are obviously based on misapprehension of law and correct position. In our view there is no difference in the principles which are to be applied for the purposes of determining the compensation under Section 23(1) of the Land Requisition Act or Section 8(2) of the 1952 Act because under Section 23(1) in determining the amount of compensation to be awarded the court shall take into consideration amongst others the market value of land at the date of publication of the notification under Section 4. Similarly under Section 8(2) of 1952 Act the amount of compensation payable for requisitioning any property shall be the recurring payment in respect of the period of requisition a sum equal to the rent which would have been payable for the use and occupation of the property which had been taken on lease for that period. In both the cases what has to be seen is as to what rent the property would have fetched in the market. Thus the principles are identically the same and we are unable to appreciate on what basis the learned Judge observed that the mode is different in these two cases. In any case this case takes a view which is even contrary to the Supreme Court in Haji Mohd. Ekramul Haque v. The State of West Bengal, and cannot be said to be laying down correct law. Reliance by the appellant on Sat Narain v. Union of India, is inapposite. In. that very case it was urged before the learned Judge that the compensation to be determined under Section 8(2)(a) of the 1952 Act should be the standard rent to be fixed under the provisions of the Rent Control Act. This plea was rejected by the learned Judge who held that the requisition did not establish the relationship of landlord and tenant and the provisions of the rent laws were not applicable to the case. He specifically relied on Ekramul Hague's case (supra). What had happened in that case was that evidence had been led by the owner purporting to show what other houses were fetching the rent but as that evidence did not relate to the comparable houses to that of the requisitioned one the owner claimed that he should be paid the rent equivalent to the standard rent by invoking the principles of proper return on the basis of the cost of construction and the cost of land. This alternative mode was adopted by the owner because he could not show as to what rent of comparable premises was available at that time. This situation is of no avail where the actual evidence is led to show what rent similar properties are getting because in that case the mode of determining compensation is as laid down in Section 8(2-A) and (2-B) of the 1952 Act. Thus if there is any evidence of the rent which this property would get in the market, it is that criteria which has to be accepted for the purpose of paying the compensation. The appellant's argument really is based on the premises as if the compensation payable under the 1952 Act or the damages payable under the Public Premises (Eviction of Unauthorised Occupants) Act read with Rules should be determined in the same manner as the annual letting value is determined under the Punjab Municipal Act and that is why he placed reliance on New Delhi Municipal Committee v.M.N. Soi and another, (AIR 1977 Sc 302). In that case it was held that even if the actual rent received by the landlord was higher than the standard rent, but as the same could not be legally demanded and is visited by penal consequence the municipal authorities cannot take advantage of this defiance of law by the landlord. The principle applicable for the annual letting value can have no relevance to the principle of damages to be paid under the Act because the premises for which annual letting value is calculated continues to remain covered under the Rent Control Act whereas the Government premises or premises which are requisitioned under the Act of 1952 or the premises in dispute arc outside the purview of the Rent Control law and, therefore, no restriction of the higher limit of the rent that can be fetched or is actually fetched in the market can be placed in determining the compensation that is to be paid for such a property. As a matter of fact in Sat Narain's case (supra), it was laid down that the assessment of annual rent even if given at a lower rate to the municipal committee cannot deny to the tenant the right to claim just compensation because the compensation has to be in terms of the Statute and the Rules.

(8) That a fair rent fixed under the Rent Control Act may be put forth as a piece of evidence, but only in so far as there is no evidence of what the market rent of similar properties would be and it was only in that context that this was said to have some guidance in the case of Sat Narain (supra), but it was specifically held by the court that the provisions of Rent Laws were not applicable to the case and that the recurring payments to be made to the owner/claimants could not be merely the standard rent. But where proof or instances of rent being paid in the market for similar properties is available it is these alone that will have to be taken into consideration for the purpose of determining the compensation that would be payable. Appellant's contention that notwithstanding the higher market rent, compensation must be depressed and held down to what would be the standard rent under Rent Control Laws is supportable neither on any principle of law nor precedent. If, therefore, it is proved on record that the market rent of similar property would be higher than that of the standard rent fixed under Rent Control Laws, compensation for the property requisitioned would be payable on the basis of market rent. Appellant's contention, therefore, to limit damages for use of the premises in dispute only to the standard rent has nothing to commend it and must be rejected. How very wrong and baseless is the argument of pegging down damages under the Act or compensation payable under 1952 Ace to limit it to the Standard Rent is immediately clear if we make a reference to Sections 8(2-A) and (2-B) of 1952 Act. Now Section 8(2-A) of 1952 Act provides that the recurring payment referred to in Clause (a) of Sub-section (2) in respect of any properly the recurring payment should be revised by re-determining such payment as if such property had been requisitioned on the date w.e.f. which the requisition was to be made i.e. in 1980, its practical effect would be nil revision because the standard rent under the Rent Control Legislation having been fixed does not change with the course of years. Thus a property of which standard rent has been fixed under the Rent Control Act in Delhi in 1975 would continue to have the same standard rent in subsequent years. This would mean that the owner of property which was requisitioned in 1975 and is kept in requisition beyond a period of 5 years i.e. 1980, would only be entitled to receive the same compensation subsequent from 1980 onwards as he was receiving in 1975. This illustration will show the incongruity and impossibility of accepting the argument that compensation under the 1952 Act has to be limited by the standard rent under the Rent Control Act. The whole object of the Parliament Act of 1975 in incorporating Sub-section (2-A) and (2-B) in Section 8 of 1952 Act was to provide relief to the person whose property was requisitioned if the property was to be kept in requisition beyond a period of 5 years by providing that the recurring payment would be revised by re-determining such amount as if such property was requisitioned on the said date. The Parliament was aware that in course of 5 years the market rent may escalate much higher from that of the period of earlier requisitioning date. It was keen that if it did not release the property after a period of 5 years the owner should atleast be compensated by re-determining such payment by taking the date from which revision was to be made in Sub-section (2-A) and (2-B) i.e. on the expiry of period of 5 years. ' The Statement of Objects and Reasons for Parliament Act 2 of 1975 clearly brings out that initially the 1952 Act was enacted to operate for a period of 6 years but its duration was extended from time to time. By an amendment of 1970, the 1952 Act was made a permanent measure but restricted the period for which the requisitioned property could be retained in requisition to 3 years from commencement of the amendment Act. Thus. properties requisitioned under the Amendment Act could be retained under requisition up to 10-3-1973. However, a large number of properties requisitioned under the 1952 Act could not be released by the said date and the maximum period for which the properties could be kept under continuous. requisition was extended for a further period of 2 years by the 1973 Amendment Act. However, due to financial stringency and other constraints it was. not found possible For the government to release the requisitioned properties. Hence it was necessary to keep a requisitioned property under continuous. requisition for a longer period. That is why in Section 6 the amendment was. made to substitute for the words 'five years' the words '10 years'. The Statement of Objects and Reasons specifically referred to the compensation to be paid for the requisitioned properties and it was stated therein that "compensation once fixed cannot be revised during the entire period of requisitioning, as it is based on. the rent that the requisitioned property would have fetched if it had been leased out on the date of requisitioning. But the position has greatly changed now because rent for urban properties had increased several fold and similarly the present annual produce of agricultural land is many times more than it was years ago. It is, therefore, felt that it will be fair to the owners if the amount of compensation is revised quinquenially with reference to the circumstances prevailing at the time of such revision and that the proposed revision will lessen the pressure from the owners for de-requisitioning or acquiring of their properties". The Parliament, therefore, clearly intended that as the Statute had laid down that the property could remain in requisition for a period of more than 5 years the owner atleast must be compensated by having periodical revisions made of recurring payments for the property under requisition by being paid the market rent from the date of the revision. But if the appellant's argument was to be accepted that nothing more than the standard rent can be the compensation under the 1952 Act then for a property requisitioned in 1975 the same compensation determined in 1975 will continue to remain legitimate for all period right up to 1990. This would completely frustrate and nullify the object and purpose of Section 8(2-A) and (2-B) of the 1952 Act. This illustration alone will show how completely wrong is the argument that compensation under the 1952 Act or damages under the Public Premises (Eviction of Unauthorised Occupants) Act should be calculated at the maximum on the basis of what is standard rent under the Rent Control Act. The only reasonable, legal and consistent manner and which will give meaning and purpose to the amendments made of Section 8(2-A) and (2-B.) in the 1952 Act is to hold that compensation for the requisitioned property has to be determined by what the market rent of the property would be i.e. to say what the property would fetch in the market on the date of requisition and subsequently the market rent on the date of further continuance of requisition, i.e. to say that if on the date of original requisition the market rent of the property requisitioned is Rs. 500.00 p.m. in 1975 it is that amount of compensation which is payable notwithstanding that the standard rent of the premises may be Rs. 200.00 per mensem. On the same parity of reasoning if in 1980 the property is continued under requisition for a further period and if by then the market rent at that time has risen and is determined to be at Rs. l,000.00 per mensem then the compensation that wilt have to be paid for such a property will be Rs. l,000.00 per mensem i.e. the market rent on that date. If the argument of the appellant was to be accepted compensation will continue to remain Rs. 200.00 right through, as the standard rent will remain the same. The very illustration shows the hollowness of the argument. There can be no upper limit fixed at what the requisitioned property would get in the market as rent by artificially pegging it down to the figure of a standard rent under the Rent Control Act. We cannot attribute a meaningless and a futile exercise to the Parliament when it amended and incorporated Sub-sections (2-A) and (2-B) to Section 8 of 1952 Act. The only manner in which any purpose could be given to these amendments is by holding as we do that as Rent Control Act is not applicable to the requisitioned property, it was not the compensation payable has to be determined on the basis of what the property would fetch in the market unaffected by any limit of the standard rent calculable under the Rent Control Act. On the same ground as above the language used in Rule 8 of 1971 Rules requires that in assessing damages the Assessing Officer shall take into consideration amongst others rent that would have been realised if the premises had been let on rent for the period of unauthorised occupation must receive the same meaning i.e. that damages would be calculated on the , basis of what the property in dispute would fetch in the market as rent. The property in dispute admittedly being not covered by the Rent Control Act there could be no artificial upper limit to the rent that could be realised on such a property. In the same manner as a requisitioned property under 1952 Act being not covered by the Rent Control Act no limit can be placed on the rent that such a property could fetch in the market. The statement of objects and reasons mentioned above has specifically mentioned that the amendment was made in 1975 so that the compensation fixed earlier could be revised quinquenially with reference to the circumstances prevailing at the time of such revision. In face of this to urge that compensation is fixed once and for all because standard rent is fixed once and for all is to completely pervert the whole object of the 1952 Act or the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act or the Rules therein. It must, therefore be held that for the purpose of determining the damages resort will have to be made to the provisions of 1971 Rules and under Rule 8, this means that the rent which can be shown to be fetched in the market for this or other similar properties would be proper assessment of damages. It is here of course that the Estate Officer has failed to assess the damages as provided by the Act and the Rules. The appellant had clearly taken the plea before the Estate Officer making a grievance that he has not been supplied the details as to how the rent or so called damages has been done and has characterised it as excessive. No evidence has been led to show as to what is the basis for charging the rate at which less damages have been done. There is no material on record that this property in dispute would have fetched the rent for which damages have been assessed. Additional District Judge seems to rely on his own persona] assessment that similar properties could fetch the rent of Rs. 700.00 but we are convinced that this is a sheer conjecture and in the absence of any evidence it is not possible to accept that as a basis for imposing damages. Of course the petitioner is undoubtedly unauthorised occupant for the period the damages have been assessed. It is usually accepted by the courts that where the tenant at will holds over after determination of his tenancy then ordinarily the proper measure of damages in cases where a tenant contumaciously holds over is twice the amount of the rent payable by the tenant (See Sunder Singh and others v. Ram Saran Dass, Air 1933 Lahore 61) and Narain Dass v. Dharam Das, (AIR 1932 Lahore 275). Of course if it could be shown that the damages suffered are much more, the same would have to be awarded. But this view was doubted in Hindustan Steel Ltd. v. Usha Rani, (AIR 1959 Delhi 59) where it was held that even where the tenant fails to deliver the possession of the premises on the expiry of his lease he is not liable to pay damages at double the rent if the landlord does not lead evidence as to the actual damages suffered by him during the period of lease he has held over. In that case no evidence was at all led by the landlord as to what was the damages during the period the tenant held over. His stand was that it was not necessary to prove damages because ordinarily double the rent was the measure. After noticing large number of cases which had taken this view the bench did not fully subscribe to this proposition because it held that this rule is not inflexible, and the actual loss must be proved. Now in this context we may refer to the Allotment of Government Residences (General Pool in Delhi) Rules, 1963. Reference to proviso to S.R. 317-B-22 will show that an officer in special cases may be allowed by the Director of Estates to retain a residence on payment of twice the standard license fee for a period not exceeding six months beyond the period permitted under S.R. 317-B-11(2). The Rule thus shows that even if the permission was to be given to the appellant to retain the house after the period he was authorised to occupy it would have been at not less than twice the standard license fee. This atleast gives indication that after the period of permitted occupation the Estate Office could have legitimately expected to receive at least twice the standard license fee or twice the pooled license fee whichever was higher even when the appellant may have been permitted to stay on. In that view it would be unrealistic not to hold that this atleast is certainly a measure of damages for the period that the appellant remained in unauthorised occupation because this twice the standard license fee is the minimum chargeable. We are aware that imposing damages at twice the rent is still on the basis of the Rules and not on the basis of market rent but this amount would in any case have had to bepaid. As a matter of fact in C.W. 349/1978 titled as B.K.Lelan v. Union of India and others, decided on 29-11-1968 where the government servant remained in unauthorised occupation the writ petition was allowed directing the respondents not to recover from the petitioner more than double the assessed rent of the quarter or ten per cent of his emoluments whichever is higher for the period of unauthorised occupation.

(9) We, therefore, are of the opinion that even though the respondents have not proved the actual damages which had been suffered by them because of the unauthorised occupation, the least that can be legitimately urged is that in terms of S.R. 317-B-22 the government is entitled to payment of twice the standard license fee or twice the pooled standard license fee whichever is higher. But as the authorities have not proved what is the standard fee or pooled standard license fee the safe and proper basis would be the actual rent that was being paid by the appellant's predecessor in interest. The learned single Judge has noticed that though originally the rent for the premises in dispute was Rs. 57-50 the same was subsequently raised to Rs. 74-95. This is also the plea in para 27 of the writ petition wherein it has been stated that no damages for use and. occupation at the rate exceeding Rs. 74-95 should be assessed as he was not an unauthorised occupant but authorised occupants for the period. This obviously shows that Rs. 74-95 was the rent which was being paid during the period of authorised occupation. As held above double of this rent which was being paid by appellant's predecessor-in-interest would be the proper measure of damages in the absence of any specific damages having been proved by the respondents. Of course strictly speaking it would have been necessary to remit the matter back to the Estate Officer for re-decision but that course we are not following because both the counsel for the respondent and the appellant were in agreement that after a period of over a decade it would be a harassment and would not serve much useful purpose in ordering the de novo enquiry. As a matter of fact the appellant who is appearing in person states that if a choice was of having a de novo enquiry by the Estate Officer to determine the market renter paying double of what was being paid during permitted-period, he would be willing to accept the latter course. We may note that in the course of the argument the appellant was under the mistaken belief that the agreed rent was Rs. 54-00 p.m. or so. This is not so, as we have seen, the agreed rent prior to the retirement of the appellant's predecessor in interest was Rs. 74-95. So it is double of this amount which must be assessed as damages for the period of unauthorised occupation. However, to round up the figure we would direct that the damages at the rate of Rs. 145.00 per month would be the proper measure for calculation of the damages for the period in question, i.e. 15-12-1962 to 31-12-1962.

(10) In this connection we may note that the appellant's predecessor in interest retired on 15-10-1962. The damages have been calculated from 15-1 1-1962. In this there seems to be some mis-calculation because a reference to Section 317-B-11(2) shows that the permissible period of retention of a residence in case of retirement is two months. In that view of the matter the appellant can be held to be in unauthorised occupation from 15-12-1962 and not from 15-11-1962 and the Estate Officer would make the necessary modification in the assessment.

(11) As a result of the above the appeal is allowed subject to the observations and directions above. The Estate Officer will now calculate the damages in the light of our judgment. The parties will bear their own costs throughout.

(12) The appellant is given three months time to pay the damages from the date the Estate Officer intimates to him the amount due from him.