Tripti vs India Trade Promotion ...
2010 Latest Caselaw 161 Del

5.
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+       W.P.(C) 14117/2009

        TRIPTI                               ..... Petitioner
                              Through Mr. Sudhir Nandrajog, Sr. Advocate with Mr.
                              P.S. Bindra, Advocate.

                     versus

        INDIA TRADE PROMOTION ORGANIZATION (ITPO)
        .....                        Respondent
                       Through Mr. Rajender Wali, Advocate.

        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA

                 ORDER

% 13.01.2010

1. The petitioner has challenged order dated 11th November, 2009 passed by the Estate Officer allowing the amendment application of the respondent-India Trade promotion Organisation.

2. Learned counsel for the petitioner submits that the additional claims raised by respondent-India Trade Promotion Organisation in the amendment application are barred by limitation and this aspect should have been examined by the Estate Officer at the very threshold while deciding the question whether the amendment application should be allowed. He has also drawn my attention to the award passed by the learned Arbitrator in which it has been held that Indian Trade Promotion Organisation has not been able to prove any deviation/use of excess area.

3. The impugned order dated 11th November, 2009 passed by the Estate Officer specifically records as under:-

"I am of the considered opinion that the issue of amendment in the original petition as moved by the petitioner shall have to be decided on factual basis. It is a fact that if the amendment is not allowed the right of the petitioner to seek amendments shall be forfeited without going into the details of the claim. Whereas, if the amendment is allowed no injustice would be caused to the respondent as the respondent shall have all liberty to defend his position vis-à-vis the amendments and shall have the right to take all pleas as available to him under the law when the case shall be taken up for final adjudication. The question whether the amended amount is recoverable or not shall be decided on the basis of evidence adduced by the parties.

In view of the above discussion, I allow the amendments sought by the petitioner. With these observations the application filed by the petitioner on 20.07.2009 stands decided."

4. The Estate Officer has clarified that he has left all issues and questions open and has not gone into the merits of the pleas raised by the petitioner herein while allowing amendment application. It is obvious that the petitioner will be entitled to raise the question of limitation and contend that in view of the award passed by the learned Arbitrator, the respondent-India Trade Promotion Organization cannot raise any claim on the basis that the petitioner had made any deviation or used excess area and the award operates as res judicata. The petitioner will be also entitled to raise his claim before the learned arbitrator that the licence fee payable was inclusive of property tax. The impugned order does not require interference in exercise of writ jurisdiction. No controversy or issue on merits has been decided by the Estate Officer. It will not be appropriate for this Court to control the proceedings before the Estate Officer. If any final adverse order is passed by the Estate Officer, the petitioner has remedy by way of an appeal under Section 9 of the Public Premises (Eviction of Unauthorised Occupants') Act, 1971, I do not think the impugned order requires any interference. With the aforesaid observations, the writ petition is dismissed.

SANJIV KHANNA, J.

JANUARY 13, 2010 VKR/NA