Prakriti Restaurant P.Ltd. vs India Trade Promotion ...
2009 Latest Caselaw 2842 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) 2167/2008


                                           Date of decision : 27.07.2009
IN THE MATTER OF :

PRAKRITI RESTAURANT P.LTD.                    ..... Petitioner
                   Through: Ms. Manisha Agarwal, Advocate

                   versus

INDIA TRADE PROMOTION ORGANIZATION              ..... Respondent
                   Through: Mr. Rajinder Wali, Advocate

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may be allowed to see the
        Judgment? No.

     2. To be referred to the Reporter or not?   No.

     3. Whether the judgment should be reported in the Digest?   No.

HIMA KOHLI, J. (ORAL)

1. The present writ petition is directed against the order dated

31.10.2007 passed by the learned ADJ on an appeal preferred by the

petitioner under Section 9 of the Public Premises (Eviction of Unauthorised

Occupants) Act, 1971 (hereinafter referred to as „the Act'), against the

order dated 17.08.2005 passed by the Estate Officer under Section 7 of the

Act.

2. At the outset, counsel for the petitioner states that the present

writ petition is confined to the grievance of the petitioner with respect to

three issues alone, i.e., with regard to the findings pertaining to assessment

of property tax dues, electricity dues and the interest imposed by the Estate

Officer, and upheld in the impugned order.

3. Briefly stated, the facts of the case are that in the year 1999,

the petitioner was allotted a premises on licence basis, at Pragati Maidan

Complex by the respondent/ITPO to run a food and beverage outlet, on the

terms and conditions of the license as contained in the agreement dated

08.11.2000. Differences and disputes arose between the parties on account

of which, the respondent issued a show cause notice to the petitioner calling

upon it to pay license fee charges, water charges, conservancy charges,

green area charges, electricity charges and property tax charges. The

petitioner made a representation before the respondent for rationalization of

the licence fee, which was rejected by the respondent and hence, the

petitioner paid the licence fee. The petitioner also did not dispute the green

area charges and the conservancy charges and paid the same but it

contested the claim of the respondent on account of demand raised in

respect of property tax, electricity charges, water charges and interest

claimed by the respondent on the arrears.

4. Counsel for the petitioner states that the appellate authority did

not take into consideration the submissions made on behalf of the petitioner

to the effect that not only was the assessment of property tax in respect of

the premises in occupation of the petitioner required to be proved by the

respondent, the respondent was also required to establish the fact that the

property tax demands as raised in terms of the assessment order were paid

by the respondent, for and on behalf of the petitioner. The aforesaid issue

is purely a question of fact, which has been dealt with in para 4.3.3 of the

impugned order wherein the Estate Officer‟s records have been discussed

and it is noted that the respondent produced receipt of payment of property

tax made to the MCD and the receipts of payment made on account of

differential amount of property tax claimed by the MCD towards part of

property given on rent to different licencees. The said documents were

marked before the E.O. as Ex.PW3/2 (colly). Reference has been made to

the respondent‟s witness, PW3, who proved the said documents.

5. It is not disputed by the petitioner that the terms and conditions

of the agreement governing the parties required the petitioner to bear the

incidence of property tax. Clause G of the Agreement deals with rates and

taxes. Clause G.2 clearly states that "the licensee shall bear the incidence of

the property tax of the structure of the allotted premises as demanded by

the licensor". In this regard, reference has been made to the statement of

the Managing Director of the petitioner, which is reproduced in para 4.3.3 of

the impugned order. This Court, sitting in appeal ought to accept the

findings of facts returned by the Courts below as there appears no mis-

appreciation of facts or material irregularity in the conclusion arrived at by

the Estate Officer as also the Appellate Authority. Both the Courts below

have arrived at an identical conclusion on the basis of the documents placed

before them. i.e., the evidence adduced by the respondent and the receipts

of payment of property tax made to the MCD by the respondent. Hence,

the grievance of the petitioner with regard to the findings of the learned

ADJ, pertaining to property tax dues, is found to be devoid of merits and is

rejected.

6. The second grievance raised on behalf of the petitioner is with

regard to the findings returned as to the electricity dues. Counsel for the

petitioner states that the learned ADJ failed to take into consideration the

fact that the power to determine the tariff of electricity vests in the Delhi

Electricity Regulatory Commission (DERC) in terms of Section 11(1) of Delhi

Electricity Reform Act, 2000 and that though the respondent can revise the

tariff, it was bound to issue a notice to the petitioner. In this context, a

reference to the terms and conditions of the Agreement are necessary.

Clause F.14 of the Agreement is reproduced hereinbelow:

"F.14 It is recognized that the Licensor takes bulk

supply of electricity from high tension lines and water from main supply lines. Thereafter the licensor through an elaborate network of distribution regulates the supply of electricity and water. Therefore, the licensor has own independent system of billing and determining the rates payable by the licensee. The licensee would be charged according to the rates notified by Licensor from time to time."

7. As per the aforesaid clause, it is apparent that the licensor

having its own independent system of billing and determining the rates

payable by the licensee, could charge the licensee according to the rates

notified by the licensor from time to time. It is not disputed that electricity

was supplied to the respondent at rates determined by the DERC. It was

receiving bulk supply of electricity from high tension lines and in turn

supplying it to the petitioner and to other similarly situated occupants at the

Pragati Maidan Complex of ITPO. The petitioner having entered into an

agreement with the respondent/ITPO and having accepted the clauses

contained in the agreement which pertain to levy of electricity charges at

rates notified by the respondent, cannot be permitted to seek to overturn

the very same agreement at a later stage, as per its convenience.

8. The findings of the learned ADJ as contained in paras 5.1.1 and

5.1.2 in that regard are relevant. One of witnesses of respondent, PW2 also

mentioned that a notice of increase in tariff was circulated by the F&B Unit of

the respondent to all the parties including the petitioner. The evidence of

Shri Vinod Gulati, Managing Director of the petitioner, referred to by the

learned ADJ in para 5.1.2, shows that he admitted that the payments were

not being made as per invoices raised, but were being made on account,

under protest. These abovesaid invoices reflect the rate of Rs.10/- per unit

and the petitioner has not denied receipt of these invoices. This buttresses

the findings in the impugned order that the petitioner was well aware of the

rates at which payment with regard to the electricity tariff was to be made to

the respondent/ITPO. The petitioner having conceded the knowledge of the

fact that rates were revised, the formality of notice is deemed to have been

completed. Hence, the contention of the counsel for the petitioner that

notice of revised rates of electricity tariff had not been received by the

petitioner from the respondent, is untenable and is rejected.

9. The plea of the petitioner that the demand of revision of

electricity tariff was arbitrary and in the absence of any details furnished,

the same was not justified, is rejected, as the terms and conditions of the

agreement are clear. When the said terms and conditions of the agreement

do not stipulate furnishing of any basis for revision, the Estate Officer could

not have been called upon by the petitioner to furnish the said details to

him, nor can the impugned order be faulted for upholding the order of the

Estate Officer in that regard.

10. The last plea raised by the counsel for the petitioner to assail the

impugned order is that the Estate Officer ought not to have awarded interest

on the damages imposed on the petitioner and the learned ADJ ought to

have set aside the order dated 17.8.2005 passed by the Estate Officer.

Counsel for the petitioner states that the Interest Act, 1978, mandates that

notice ought to be issued to a party before a demand for interest can be

raised. She submits that as no demand was made by the respondent under

the Interest Act, interest could not have been levied on the petitioner by the

Estate Officer. In this regard, reference to sub- section (2A) of Section 7 of

the Act is relevant. The aforesaid provision permits the Estate Officer to

direct that the arrears of rent or damages shall be payable together with

simple interest at the rate as may be prescribed, not being a rate exceeding

the current rate of interest within the meaning of the Interest Act, 1978. It

is pertinent to note that the aforesaid sub-section (2A) of the Act was

inserted in Section 7, by way of amendment carried out in the year 1980.

In view of the aforesaid provision which empowers the Estate Officer to

impose simple interest on the arrears of rent and damages, he was

competent to impose interest on the petitioner, even in the absence of any

separate notice issued by the respondent under the Interest Act, 1978.

Hence, the contention of the counsel for the petitioner that a notice was

required to be served upon the petitioner prior to the respondent raising a

demand of interest is not justified and therefore rejected.

11. There is no other ground taken to assail the impugned order

dated 31.10.2007. For all the aforesaid reasons, this Court find no illegality,

perversity or arbitrariness in the impugned order that deserves interference

by this Court. The writ petition is dismissed.

HIMA KOHLI,J JULY 27, 2009 rkb