Rashmi Puri vs N.D.M.C. And Another
2010 Latest Caselaw 5903 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                       Judgment reserved on: 26.11.2010
                       Judgment delivered on: 24.12.2010

                      W.P.(C) 17385/2005


RASHMI PURI                                     ......Petitioner

             Through: Mr.Rajat Aneja with Ms.Shweta Singh,
                      Advocates.

                                Vs.

N.D.M.C. AND ANOTHER                         ......Respondents

                 Through: Mr.Nilava Banerjee, Advocate.



CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may
     be allowed to see the judgment?                      Yes
2. To be referred to Reporter or not?                     Yes
3. Whether the judgment should be reported
     in the Digest?                                       Yes
KAILASH GAMBHIR, J.

*

1. By this petition filed under Article 226 & 227 of the

Constitution of India, the petitioner seeks quashing of the

order dated 3.5.2005 passed by the court of the learned ADJ

whereby the appeal of the petitioner under section 9 of the

Public Premises (Eviction of unauthorized Occupants) Act,

1971 was dismissed.

2. Brief facts of the case relevant for deciding the

present petition are that the petitioner was allotted a shop by

the respondent bearing No.55, Shahid Bhagat Singh Place,

Gole Market New Delhi @ Rs. 27,773/- per month. A license

deed to the said effect was executed on 9.5.1997 and the

possession of the said shop was taken by the petitioner on

13.6.1997. That the petitioner defaulted in payment of the

licence fee and hence the respondent cancelled the allotment

of the said shop vide cancellation order dated 30.3.1999.

Consequently eviction proceedings were initiated against the

petitioner and the petitioner surrendered the shop on

30.11.1999 and vide order dated 16.10.2001 the learned

Estate Officer directed the petitioner to pay arrears

@Rs.27,773/- alongwith interest @ 24% w.e.f 30.3.1999 to

8.12.1999. Feeling aggrieved with the above said order, the

petitioner filed an appeal under section 9 Of the Public

Premises Act which vide order dated 3.5.2005 was dismissed

but the rate of interest was reduced from 24% to 6% p.a .

Feeling aggrieved with the order of the learned ADJ, the

petitioner has preferred the present petition.

3. Mr.Rajat Aneja, counsel for the petitioner stated

that acting on the promises and representations made by the

respondent/NDMC through their brochures, the petitioner

was fascinated to seek the allotment of the said shop in

question. Counsel further submitted that the petitioner was

handed over the possession of the said shop in question on

13.06.1997 and she had invested a sum of about Rs.1 lac in

renovating the said shop. Counsel further submitted that the

petitioner had spelt out various inadequacies in the reply

submitted by her before the Estate Officer which were never

remedied by the respondent-NDMC. Counsel also submitted

that one of the major deviations on the part of the respondent

was that they never had demolished the temporary sheds at

Gole Market and Baird Lane Market and also did not shift the

said shops to the new market as assured. The contention of

counsel was that the petitioner had applied for allotment of

the said shop under the bonafide impression that the shop

holders from the Baird Lane Market and Gole Market would

also be shifted to the new complex and their shifting certainly

would have enhanced the business prospects. Inviting

attention of this Court to the evidence of PW-2, Shri Sushil

Gupta adduced by the respondent before the Estate Officer,

counsel submitted that the respondent-NDMC could not fetch

lucrative price when adjoining shops were re-tendered for

sale and in fact the rate of allotment fell down considerably.

Counsel also submitted that these vital aspects were ignored

by both the courts below and both the courts below have

given sole consideration to the license deed entered into

between the parties on 09.05.1997. Counsel further submitted

that the respondent has not assessed the damages in terms of

Rule 8 of the Public Premises (Eviction of Unauthorized

Premises) Rules, 1971. The contention of the counsel for the

petitioner was that had the respondent followed the mandate

of the said rule, then certainly the respondent would not have

assessed the damages based on the prevailing market rate

which was duly established by the petitioner during cross-

examination of the respondent's witness PW-2. In support of

his arguments, counsel for the petitioner placed reliance on

the judgment of the Hon'ble Supreme Court in M/s. Motilal

Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and

Others (1979) 2 SCC 409 with special emphasis on paras

5 & 6. Counsel also submitted that by the doctrine of

estoppel, the respondent is estopped to claim damages even

at the agreed rate when they themselves had failed to fulfill

their obligations as announced by them under their various

brochures based on which the petitioner had altered her

position to accept their representations and came forward to

seek allotment of the said shop. Counsel thus submitted that

the petitioner is not liable to pay the said damages as

assessed by the respondent-NDMC.

4. Refuting the said submissions of counsel for the

petitioner, Mr.Banerjee, counsel for the respondent-NDMC

submitted that the first brochure on which reliance was

placed by the petitioner is of the year 1992 i.e. of 20.11.1992

while the tender for allotment of shop in question was of the

year 1996 and the tender application was submitted by the

petitioner on 09.07.1996. So far the second brochure is

concerned, counsel submitted that the same was issued on

31.08.1996 after the bid was placed by the petitioner on

09.07.1996 and, therefore, the second brochure will also have

no effect. Counsel placed reliance on Sub Clauses 1 & 4 of

Clause 6 of the terms and conditions of the tender to submit

that the said shop was allotted to the petitioner on 'as is

where is' basis, therefore, the plea of the petitioner that the

representation made by the respondent under the brochures

was not strictly adhered to, will not cut any ice. Counsel also

submitted that in the said tender, the reserve price itself was

Rs.10,000/- for the shop and the offer which the petitioner

had given in respect of the said shop was Rs.90.25 per sq. ft.

and the area of the shop was 293 sq. ft., therefore, the total

offer given by the petitioner in the said bid comes to be

approx. 27, 773/- per month. Counsel also submitted that the

petitioner defaulted in paying the monthly license fee right

from the very inception, which non-payment resulted in

cancellation of the license of the petitioner on 30.03.1999.

Counsel further submitted that the petitioner had

surrendered the possession of the said shop to the respondent

on 08.12.1999 after the proceedings were initiated by the

respondent against the petitioner under Sections 5 & 6 of the

Public Premises Act. Counsel further submitted that the

petitioner had also filed a civil suit to claim damages from the

respondent and also to seek protection of her possession but

the petitioner did not pursue the said civil suit which resulted

in the dismissal of the suit in default. Counsel thus submitted

that had the petitioner been aggrieved by the inadequacies or

the facilities provided by the respondent or any promise being

not fulfilled by the respondent under their brochure, then the

petitioner at least should have vacated the said shop

immediately and not after a lapse of two years. In support of

his arguments, counsel for the respondent placed reliance on

the judgment of the Hon'ble Apex Court in New Bihar Biri

Leaves Co. and Others. Vs. State of Bihar and Ors. AIR 1981

SC 679 and also on the judgment of this Court in Track

Innovations India Pvt. Ltd. Vs. Union of India (UOI) and

Ors.MANU/DE/1427/2010 Counsel also submitted that in

principle the respondent has taken a decision to waive off the

interest part on the over due amount which comes to be

Rs.5,58,000/- subject to the petitioner making the payment of

the outstanding principal amount which comes to be

Rs.3,82,559/- (approx.) on or before 31.12.2010.

5. I have heard learned counsel for the parties and

gone through the records.

6. The shop no. 55, Sahid Bhagat Singh Place, Gole

Market, New Delhi was allotted by the respondent NDMC in

favour of the petitioner after her tender offering the rate of

Rs.90.25 per sq. ft. was accepted by the respondent. A

license deed was also executed between the parties and the

terms of the licence deed primarily governed the relationship

between the parties. The petitioner took the possession of the

said shop on 13.6.1997 but her licence was terminated on

30.3.1999 due to non-payment of license fee by the petitioner.

The main emphasis of the learned counsel for the petitioner

was on the argument that the respondent NDMC failed to

keep its promise which it had made through its brochures

issued in the year 1992 and in 1996 and due to non-fulfillment

of such promises, the respondent NDMC is estopped by the

Doctrine of Promissory Estoppel to claim the amount of the

licence fee or to claim damages from the petitioner. In the

face of the two brochures on which reliance was placed by

the counsel for the petitioner; one is of the year 1992 and

the other of the year 1996, i.e. one which was issued much

prior to the offer of allotment through tenders made by the

respondent and the other in the later period after the

acceptance of the bid of the petitioner, it is difficult to accept

the contention of the counsel for the petitioner that the

petitioner had participated in the tenders to bid for the

allotment of the said shop based on the brochure which was

issued in the year 1992. The petitioner must have

participated in the tenders after fully verifying the fact

situation of the market at the site in question and if the

petitioner had given the bid without verifying the facts at

site then the petitioner cannot shift the blame on the

respondent for her own follies. Undoubtedly, the

Government or the Municipal Authorities are expected to

adhere to their announcements and representations made

through their schemes published by them in various

newspapers and brochures as such announcements enable the

people to come forward to make applications or to participate

in the tenders, but in the facts of the present case it cannot be

said that the petitioner had altered her position to her

prejudice on the representation made by the respondent

NDMC in the said brochures. The petitioner had

participated in the tenders with open eyes and if the

petitioner could not establish her business in the said market

then the blame for such failure rests on the petitioner herself

and not on the respondent NDMC. The petitioner in her

initial correspondence has taken a stand that her shop was

closed due to some financial constraints in addition to her

personal problems which emanated due to the sudden death

of her father-in-law. The petitioner also took a stand that she

also could not establish the business in the said market due

to the extreme financial hardship suffered by her because of

her furnishing bank guarantee for a heavy amount of

Rs.3,17,400 in addition to the security deposit amount. It is

only in her reply filed before the Estate Officer that the

petitioner raised the dispute of non-fulfillment of the various

announcements made by the respondent in their brochures

regarding proper implementation of Shahid Bhagat Singh

Project. The learned Estate Officer and the Appellate Court

have examined these contentions of the learned counsel for

the petitioner and I do not find any infirmity or illegality in

the reasoning given by both the courts below. The judgment

of the Apex court reported in M/s.Motilal Padampat (supra)

would be of no help to the case of the petitioner as the

petitioner cannot be said to have altered her position to her

detriment, acting on some promises or assurances extended

by the respondent.

7. As already discussed above, the brochure on which

reliance was placed by the petitioner pertains to the year

1992 and the other brochure pertains to the year 1996 and

both were not instrumental so far the participation of the

petitioner in the tender in question is concerned. It is not the

case of the petitioner that due to various inadequacies in the

said market the petitioner could not start her business or

immediately after having taken over possession of the said

shop in question the petitioner had taken up the matter with

the respondent that she was not in a position to start her

business due to the alleged inadequacies or due to the lack of

development of proper infrastructure and also due to non-

shifting to the new market. Doctrine of Promissory Estoppel

is an equitable principle and to invoke such principle it is for

the promissee to first establish that not only the fact that

based on certain promises made by the Government it had

altered its position but also the fact that it had taken all

possible steps to act on such promise and not contrary to the

same by not paying the license fee for such a long period.

Therefore, the petitioner cannot take the shelter of the said

doctrine to escape from her monetary liability. It cannot be

lost sight of the fact that the petitioner had filed a civil suit to

claim damages from the respondent on account of the alleged

inadequacies in the said market but the said suit was

withdrawn by the petitioner herself and this fact would itself

establish that the petitioner herself was not serious so far her

grievance against the inadequacies in the said market is

concerned. Hence, this court does not find any merit in the

argument of the counsel for the petitioner that the petitioner

is not liable to pay the license fee or the damages due to non-

fulfillment of various promises made by the respondent

through their said two brochures.

8. Dealing with the next contention of the counsel for

the petitioner that the respondent has not assessed the

damages in accordance with the principles ingrained in Rule

8 of the Public Premises Rules, 1971, the contention of the

counsel for the petitioner was that the respondent could not

have calculated the damages at a rate more than the

prevailing market rate which as per the deposition of PW-2

Sushil Gupta was Rs.46.20 per sq. ft. for the similar shop in

the said market in 1997. Counsel for the respondent on the

other hand took a stand that pursuant to the order passed by

the learned Estate Officer, the respondent has not only

agreed to charge damages for the relevant period equivalent

to the rate of the licence fee but has also further agreed to

waive the interest amount of Rs. 5,58,987 in the event of the

petitioner paying the entire amount on or before 31 st

December 2010. It is not in dispute that a similar shop when

allotted in the year 1997-98 was given at a lesser rate than

the one allotted by the respondent in the year 1995-96, but

the moot question is whether the rate of license fee prevalent

in the year 1997-98 would determine the rate of damages

in the face of an admitted position that the license of the

petitioner was cancelled before the license period of five

years was yet to expire. The learned Estate Officer has

already not accepted the plea of the respondent to enhance

the damages @ 30% over the existing license fee, therefore, I

do not find any infirmity in the order passed by the courts

below accepting the damages at the same rate as that of the

license fee. I also find myself in agreement with the findings

of the court below that damages in any case should not be

less than the amount of license fee payable by the petitioner,

more particularly when the license period was yet to come to

an end. The criteria of assessment of damages as laid down

in Rule 8 of the Public Premises Rules would have been

resorted to for claiming any enhanced amount than the

amount of license fee payable by the petitioner and since

already both the courts below have not accepted the said

raise @ 30% over the amount of the license fee, therefore, no

fault can be found with the findings of the courts below

assessing the damages at the same rate as that of the license

fee rate. In any event of the matter, assessment of damages

as envisaged under Rule 8 of the Public Premises Act cannot

be assessed lower than the amount of the license fee fixed

between the parties. The said criteria would apply where the

raise is being claimed over and above the agreed rate of

rent/license fee/damages or in a case where there was no

agreement or contract to pay any particular rent or license

fee. This court, therefore, does not find any illegality or

perversity in the findings of both the courts below awarding

the damages from the period w.e.f. 30.3.99 to 8.12.99 at the

same rate as that of existing license fee.

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

present writ petition and the same is hereby dismissed.

However, since during the pendency of the present writ

petition, the respondent had agreed to waive the interest

amount of Rs.5,58,987/- in the event of the petitioner coming

forward to pay the entire arrears of the license fee including

the amount of damages on or before 31.12.010, therefore,

the said option can still be exercised by the petitioner . If,

however, the petitioner does not choose to pay the entire

outstanding amount towards the arrears of the license fee

and damages on or before 31st December 2010, then the

petitioner would not be entitled to the benefit of the said

relaxation by the NDMC with regard to the said waiver of

interest.

10. In terms of the above directions, the present

petition is dismissed with no order as to costs.

December 24, 2010                KAILASH GAMBHIR, J
dc/mg