Thakur Gajinder Singh Pawar vs The Ndmc & Anr.
2010 Latest Caselaw 5708 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                W.P.(C) NO. 6810/2006


                   Judgment delivered on: 15.12.2010

Thakur Gajinder Singh Pawar                   ..... Petitioner

                        Through:        Mr. Vinod Diwakar, Adv.

                        Versus

The NDMC & Anr.                              ..... Respondents

Through: Ms. Sidhi for counsel for respondent.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may be allowed to see the judgment? No

2. To be referred to Reporter or not? No

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

KAILASH GAMBHIR, J. Oral:

1. By this petition filed under Article 226 and 227 of

the Constitution of India, the petitioner seeks to challenge the

order dated 1.4.2006, passed by the learned ADJ, Delhi,

whereby the learned trial court partially allowed the appeal

under Section 9 of the Public Premises Act in favour of the

appellant.

2. Brief facts of the case relevant for deciding the

present petition are that the petitioner was allotted a shop

bearing no. 92, SBS Place, Gole Market , New Delhi in 1999

at a monthly licence fee of Rs.16,300/- and had furnished a

bank guarantee to the tune of Rs.1,98,624/- and also a deposit

of Rs. 66,208/-. That the petitioner failed to pay the licence

fee and as a result a show cause notice dated 17.10.2002 was

served on him. Consequently, the petitioner offered the

respondent to take over the possession of the said shop and

also to adjust the outstanding amount against the bank

guarantee and advance deposit. However not acceding to the

proposal of the petitioner, an eviction order dated 21.2.2005

was passed by the Estate officer, to which the petitioner

preferred an appeal which vide judgment and decree dated

1.4.2006 was partially allowed and the matter remanded back

to the Estate Officer for reconsideration of the extent of

damages and rate of interest payable by the petitioner.

Feeling aggrieved with the same, the petitioner has preferred

the present petition.

3. Counsel for the petitioner has taken a stand that

the petitioner vide letter dated 22.10.2002 made a request

to the Director of Estates to take over the possession of the

shop bearing no. 92, SBS Place, New Delhi. Counsel submits

that in the said letter the petitioner had also requested the

respondent to adjust the outstanding dues against the

amount of Rs.66,208/- deposited by the petitioner towards the

advance rent and by invoking the bank guarantee of

Rs.1,98,624/-.

4. Based on the said letter dated 22.10.2002, counsel

submits that the fault was on the part of the respondent

NDMC not to have taken back the possession and therefore

the petitioner cannot be made liable to pay the rent/damages

for the period w.e.f. 22.10.2002 to 24.6.2005. Counsel for the

petitioner further submits that even as per the records of the

meter reading of the electricity connection installed in the

said shop placed on record by the respondent, it is quite

manifest that the said licenced premises remained locked

from 8.1.2002 onwards. Based on this submission, counsel

submits that the petitioner is not liable to pay the

rent/damages for the period w.e.f. 22.10.2002 to 24.6.2005.

5. On the other hand, counsel for the respondent

submitted that no perversity or illegality can be found in the

impugned judgment and thus supported the judgments passed

by the courts below.

6. I have heard learned counsel for the parties.

7. The proceedings against the petitioner for eviction

and recovery of damages were initiated by the Estate Officer

with regard to Shop No. 92, SBS Place, New Delhi. The said

shop was allotted by the respondent NDMC in favour of the

petitioner in the year 1999 at the monthly rent of Rs. 16,300/-

with some other additional charges. The appellant had

deposited an amount of Rs. 66,208/- towards the advance rent

and besides the said deposit the appellant had also deposited

the bank guarantee of a sum of Rs. 1,98,624/- in favour of the

respondent NDMC for securing the payment of the monthly

licence fee. Since the petitioner defaulted in the payment of

the monthly licence fee, therefore, the respondent issued

show cause notice dated 17.10.2002, calling upon him to

show cause as to why his licence not be cancelled and

eviction proceedings not be initiated against him for the

realization of the outstanding dues. After receipt of the said

show cause notice, the petitioner vide letter dated

22.10.2002 made a request to the Director of Estates, NDMC

to take over the possession of the said shop and also to adjust

the outstanding dues with the said advance payment of the

rent of Rs.66,208/- and the bank guarantee amount of

Rs.1,98,624/-. Not agreeing with the proposal of the

petitioner, the respondent NDMC initiated eviction

proceedings under Section 5 and recovery proceedings

under sub-section (3) of Section 7 of the Public Premises

(Eviction of Unauthorized Occupants) Act, 1971. The

petitioner appeared before the Estate Officer on 3.2.2005

and the matter was then fixed for 16.2.2005. However, the

petitioner was proceeded ex-parte and vide order dated

21.2.2005, the Estate Officer passed the eviction order under

sub-section (1) of Section 5 of the Public Premises (Eviction of

Unauthorized Occupant) Act, 1971 as well as passed an

order under sub-section (2) & 2 (A) of Section 7 of the said

Act for the recovery of damages. Both the said orders were

challenged by the petitioner before the learned Appellate

Court by filing an appeal under section 9 of the Public

Premises Act.

8. The learned Appellate Court in the impugned

order dated 1.4.2006 has referred to one letter dated

10.1.2005 (10.02.2005) which was filed by the petitioner

during the course of the proceedings before the Estate Officer

and in fact the Appellate Court has reproduced the said

letter dated 10.1.2005 in the impugned order.

9. In the said letter, the petitioner took a stand that

on 24.1.2005 he approached the Director of Estates with a

request to give him some relief in the interest rate as well as

in the damage charges as his business had picked up and he

was in a position to pay a sum of Rs. 1 lac every month

towards the arrears of the licence fee along with amount of

interest. The petitioner in the said letter dated 10.1.2005,

had also admitted the fact of total outstanding dues standing

at Rs.. 8.5 lacs. In the said letter the petitioner also

submitted that he would clear the entire outstanding dues in

equal installments within a period of 7-8 months. The

petitioner had even approached the Permanent Lok Adalat to

seek redressal of his grievance and the Permanent Lok

Adalat vide order dated 29.5.2005 reduced the rate of interest

charged by the respondent NDMC from 12% to 6% without

interfering in the total demand raised by the respondent

NDMC. In the face of the said stand taken by the petitioner in

his letter dated 10.1.2005 and also order dated 29.5.2005

passed by the learned Lok Adalat, the petitioner cannot take

an absolutely contrary stand that the petitioner had

abandoned the premises on 22.10.2002, and therefore he is

not liable to pay the damages w.e.f. 22.10.2002 till 24.6.2005.

The petitioner was not expected to abandon the said shop

and in fact he should have surrendered the said shop as per

the requirements of the respondent NDMC and in terms of

the licence deed. Even as per the letter dated 22.10.2002, on

which strong reliance is placed by the petitioner, the

petitioner merely sought adjustment of the advance amount

and the amount of bank guarantee against the outstanding

amount. Since the petitioner failed to make full payment

towards his outstanding liability, therefore, it was not

obligatory on the part of the respondent to have accepted the

said offer of the petitioner for taking over the possession of

the said shop. The meter reading records placed on record

by the respondent although show that the premises remained

locked till the same were sealed on 24.6.2005 but the mere

fact that the premises remained locked would not given any

advantage to the petitioner as the said locked premises

remained under the control, power and possession of the

petitioner. Hence, this plea of the petitioner is devoid of any

merit and thus cannot be accepted.

10. In the light of the above, there is no merit in the

present petition and the same is hereby dismissed.

11. The appellate Court vide order dated 1.4.2006,

directed both the parties to appear before the learned Estate

Officer on 24.4.2006. The matter was remanded back to the

Estate Officer to reconsider the extent of damages and rate of

interest which is payable by the petitioner according to the

Public Premises (Eviction of Unauthorized Occupants) Act,

1971 read with the Public Premises Rules, 1971 and

prevailing interest rate as applicable during the relevant

period.

12. In view of the said directions, the parties are

directed to appear before the learned Estate Officer on

3.1.2011 at 12.30 P.M. The learned Estate Officer shall carry

out the directions of the learned Appellate Court in terms of

paras 5.6 and 5.7 of the order dated 1.4.2006.

13. With these directions, the petition stands disposed

of.

December 15, 2010                  KAILASH GAMBHIR, J
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