Girdhari Lal M. Advani vs Estate Officer And Anr.
1995 Latest Caselaw 43 Del

JUDGMENT

Anil Dev Singh, J.

(1) This petition under Article 227 of the Constitution of India questions the order of the Additional District Judge dated August 28,1990, whereby the matter has been remanded to the Estate Officer for allowing the petitioner to cross-examine certain witnesses and to conclude the proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act,1971 (for short "the Act").

(2) The facts giving rise to the petition are as follows:

(3) On November 27,1984 the second respondent invited tenders for allotment of a centrally air conditioned restaurant in Palika Parking for five years on license basis. Pursuant to the invitation,the petitioner submitted his tender. According to the said tender, the petitioner offered to pay a license fee of Rs.1,20,203.00 per month for the premises in question. Besides he also agreed to pay the air conditioning charges to be determined by the second respondent. The tender of the petitioner being the highest was accepted by the second respondent. On January 27,1985 possession of the premises was also handed over to the petitioner where he is running a restaurant under the name and style of "Treat". Thereafter a license deed was executed by and between the second respondent on the one hand and the petitioner on the other on March 13, 1985 to formalise the arrangement. However,it seems, that the petitioner was not satisfied with the dimension of the area handed over to him. The area was measured and it was found that instead of 5424 sq. mts.an area of 5122 sq. mts. was handed over to the petitioner. Having regard to the fresh measurements the license fee was reduced by the second respondent on the basis of the actual area handed over to him and was re- fixed at Rs.1,19,186.00 per month. It was also one of the terms of the license deed that in case the petitioner made the payment of license fee by the 10th of each calender month, a rebate of Rs.5,676.00 would be given to him. The petitioner, however, could not make the stipulated payments with the result that he fell into arrears. On April 17,1986 a notice was given by the Ndmc to the petitioner for payment of arrears of license fee amounting to Rs.8,88,404.37. From this notice a saga of litigation started which can be divided into four phases.These phases are: First Phase;

(4) On receipt of above said notice the petitioner filed a writ petition before the Supreme Court in April 1986. In this writ petition the petitioner challenged the vires of Sections 4, 5 and 7 of the Act. Besides he prayed for reconsideration of its decision in M/s.jain Ink Manufacturing Co. Vs.Life insurance Corporation of India and another . In the writ petition, on May 19,1986, the Supreme Court passed an ad interim order restraining Ndmc from disconnecting the electric supply to the restaurant of the petitioner. On May 26,1986 the restraint order was modified and the petitioner was asked to pay a sum of Rs.3 lacs on or before June 20,1986. Besides the petitioner was directed to pay license fee before the 10th of each succeeding month. It was further directed that in case of default of payment of three lacs or license fee and electricity charges, the order made on May 19,1986 would stand vacated and the Ndmc will be entitled to realise the aforesaid amount. On July 12,1986 the Supreme Court passed a further order directing the "restoration of the connection" on furnishing of an undertaking by the petitioner that he shall deposit an amount of Rs.29,250.00 by July 14,1986.

(5) It is not disputed that the petitioner did not make the payments as per the orders of the Supreme Court. Default in payment led to the vacation of the stay orders on March 28,1988. As a result thereof the electricity supply was disconnected to the premises in question. Second Phase;

(6) On disconnection of the electricity after stay order was vacated, the petitioner filed a petition before the Rent Controller under Section 45 of the Delhi Rent Control Act,1958. The Rent Controller vide his order dated April 12, 1988 directed the petitioner to pay Rs. 3 lacs out of arrears of license fee plus 50% of the agreed license fee every month. The Rent Controller also passed a further order, an unusual one, on August 10,1988 directing the petitioner to pay Rs.10,000.00 per month instead of Rs.29,950.00per month towards air conditioning charges as earlier fixed by the Supreme Court. It is not disputed that the petitioner even failed to pay the amount as directed by the Rent Controller.

(7) On October 8,1988 allotment of the petitioner was cancelled on account-of non-payment of dues by him as directed by the Rent Controller. This order was communicated to the petitioner by a letter of the second respondent dated October 11, 1988. On July 19,1989 the Rent Controller vacated all the interim orders and dismissed the application of the petitioner specifically holding that the petitioner was a licensee and not a tenant and the provisions of Delhi Rent Control Act were not attracted. Third Phase;

(8) The petitioner filed a suit for damages against the second respondent wherein it was stated, inter alia, that the document executed between the parties on March 13, 1985 was actually a lease deed though titled as a license deed. The petitioner also moved two applications in the suit for appointment of an arbitrator and a local commissioner for the purpose of inspection of the premises and for testing the effectiveness of the air conditioning plant. Both these applications were dismissed by the learned single Judge.Feeling aggrieved by the order of the learned single Judge the petitioner filed an appeal which came to be dismissed on October 23, 1989 by the Division Bench. Fourth Phase;

(9) The second respondent initiated proceedings for eviction of the petitioner under the Public Premises (Eviction of Unauthorised Occupants) Act,1971. Proceedings culminated in the order of the Estate Officer dated June 1,1990 directing the eviction of the petitioner. Against this order of the Estate officer, the petitioner filed an appeal before the learned Additional District Judge. On August 28,1990 the learned Additional District Judge remanded the case to the Estate Officer for decision of the matter afresh, after allowing the petitioner to cross examine Public Witness .2 and Public Witness .3. By the same order learned Additional District Judge asked the petitioner to pay a sum of Rs.10 lacs out of the arrears of license fee to the second respondent and to continue paying Rs.57,000.00 per month i.e. half of the license fee subject to the final decision in order to establish his bona fides. On September 31, 1990 the Estate Officer acting on this order of the learned Additional District Judge asked the petitioner to deposit Rs.10 lacs in three Installments. The petitioner feeling aggrieved by the order of the learned Additional District Judge and the Estate Officer has come up by way of the present petition under Article 227 of the Constitution.

(10) Learned counsel for the petitioner mainly contended that the remand order passed by the learned Additional District Judge was bad in law as the premises in question are not public premises and the deed governing the relationship between the parties was not a license deed but a lease deed. He submits that in relation to the Union Territory of Delhi any premises belonging to the Municipal Corporation of Delhi or any municipal committee or notified area committee would fall in the definition of the public premises provided the premises was not leased out. Learned counsel points out that sub section 3(ii) of Section 2(e) of the Act, declares any premises belonging to the Delhi Development Act, 'whether such premises are in possession of, or leased out by the said authority' as public premises and according to sub section 3(i) thereof any premises belonging to the Municipal Corporation of Delhi or any municipal committee or notified area committee are also public premises. But he highlighted the fact that the words 'whether such premises are in possession of, or leased out' though occurring in sub-section 3(ii) of sub-section 2(e) of the Act are missing from sub-section 3(i) thereof. Learned counsel says that the omission in sub section 3(i) of Section 2(e) of the Act is significant and indicates that the premises belonging to the Municipal Corporation of Delhi or any municipal committee or notified area committee if they are leased out would not be covered under the definition of "public premises". Learned counsel for the respondent on the other hand submitted that sub section 3(i) of Section 2(e) of the Act is of a very wide amplitude and any premises belonging to the New Delhi Municipal Committee would be covered under the words "public premises" irrespective of the fact whether they are leased out or given on license.

(11) I have considered the submissions of the learned counsel for the parties. Learned counsel for the respondent is right in his contention that the premises belonging to the Ndmc would be covered under the definition of "Public Premises" and it does not matter whether the premises are leased out or given on license to the occupier of the premises. Sub section 3(ii) of Section 2(e) cannot control the sweep of sub-section 3(i) thereof. The said sub section is not hedged in by any words restricting its operation and sweep and the only requirement under the said provision for the premises to be public premises is that they should belong to Mcd or any other Municipal Committee or notified area committee. It is not disputed that the premises in question belong to the NDMC. This being the position the premises are covered under the definition of "public premises" and the Act would squarely apply. In Ashoka Marketing Ltd. & another Vs.Punjab National Bank and others, the Supreme Court held that the expression unauthorised occupant contained in Section 2(g) of the Act would even cover a lessee. Therefore the contention of the learned counsel for the petitioner is liable to be rejected.

(12) Besides, having regard to the conduct of the petitioner I am not inclined to grant him any relief in this petition under Article 227 of the Constitution. By various orders of the Supreme Court the petitioner was directed to make certain payments but he did not comply with the same. Again the petitioner moved the Rent Controller and obtained interim orders but did not comply with the directions of the Rent Controller in respect of payments towards arrears of license fee, air conditioning char- ges and license fee. It is significant to note that the license fee is in arrears right from the year 1986.

(13) Learned counsel for the petitioner argues that the Estate Officer cannot determine the question whether or not the petitioner took the premises in question on the basis that the air conditioning was to run properly and since it did not run as contemplated by the license deed he would be entitled to reduction of the rent pro rata. These questions are being raised' at this stage without any foundation being laid in the pleadings. A .perusal of the grounds of the petition as also the para pertaining to the prayer clearly shows that the petitioner has not taken the plea which he is trying to raise in the oral arguments. The petitioner cannot be allowed to raise a plea which he has not raised in the petition. Accordingly this submission of the petitioner is rejected.

(14) Learned counsel for the petitioner also submits that the second respondent has committed contempt of court by misquoting the orders of the High Court dated October 16,1990 and October 28,1992 to the Estate Officer. The question whether the respondent has committed contempt of court will be a question which is to be determined in the C.C.P. pending before another bench but its pendency cannot block the hearing of the present petition.

(15) Having regard to the above discussion the petition fails and is hereby rejected. The Estate Officer will hear the petitioner if he deposits a sum of Rs.10 lacs towards arrears of license fee. Learned counsel for the petitioner submits that three months time may be granted to make the payment. I consider the request to be highly unreasonable. The petitioner will make the payment within four weeks from today. All interim orders stand vacated. There will-be no order as to costs.