M/S. Ramzana & Company vs I.T.D.C. & Another
2010 Latest Caselaw 496 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+     W.P.(C) 11945/2009, 11946/2009, 11947/2009,
      11948/2009, 11949/2009 AND 11950/2009

%                      Date of decision :   29th January, 2010.

      M/S MAHALAXMI           ..... Petitioner in 11945/2009.
      M/S LITTLE KASHMIR       ..... Petitioner in 11946/2009.
      M/S. HARADAN            ..... Petitioner in 11947/2009.
      M/S. RUBY PALACE        ..... Petitioner in 11948/2009.
      M/S. VICTORY CARPET    ..... Petitioner in 11949/2009.
      M/S. RAMZANA & CO.     ..... Petitioner in 11950/2009.
                      Through Mr.H.L.Tiku, Sr.Advocate with
                      Mr.Sumit Thakur, Ms.Jasmeet Oberoi,
                      advocates.

                  versus

      INDIAN TOURISM DEVELOPMENT
      CORPORATION LTD AND ANR            ..... Respondents
                     Through Mr.Vinod Kumar, advocate.


      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA


                              ORDER

1. Admit. With the consent of the parties the matter is taken up for

final disposal.

2. The petitioners herein were granted licences in respect of shops

situated in Shopping Complex, Hotel Ashoka, Chanakyapuri, New Delhi

on different dates. The period for which the said licences were granted

has expired. The respondent-Indian Tourism Development Corporation

Ltd. refused to extend the licence period, except on certain terms and

conditions. The action of the said respondent was challenged by the

petitioners and other shop owners. The said writ petitions were

WPC No.11945-50/2009 Page 1 dismissed vide judgment in Heera Midha & Anr. v Indian Tourism

Development Corporation, (151) 2008 DLT 479. Appeal filed by the

petitioners and other shop owners was also dismissed vide Order dated

18th May, 2009 in K.T. Corporation & Ors. v Indian Tourism

Development Corporation, (LPA No. 441/2008). The petitioners have

not challenged the said decision and the same has become final.

3. The respondent-ITDC had initiated eviction proceedings under

Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (Act,

for short). The Estate Officer passed eviction Order dated 29th July,

2008. The said Order was made subject matter of appeal before the

District Judge-IV and the appeal has also been dismissed vide Order

dated 18th September, 2009.

4. Learned senior counsel for the petitioners did not seriously

challenge the eviction order passed by the Estate Officer and upheld

by the learned District Judge-IV. It is not disputed that the term of the

licence had expired before the eviction proceedings were initiated.

There is no renewal or extension of the licence. The petitioners

occupation was/is therefore unathorised. Petitioners had challenged

the action of the respondent-ITDC in not renewing and granting fresh

licences for further period but the writ petitions have been dismissed

and the said order has been upheld in appeal. It cannot be also

disputed that the premises in question are public premises.

5. The contention that the respondent-ITDC should have first led

evidence on the question of eviction before the Estate Officer is no

longer res integra. Principles of Evidence Act and the Code of Civil

WPC No.11945-50/2009 Page 2 Procedure, 1908 are not applicable to eviction proceedings before the

Estate Officer under the Act. However, Principles of Natural Justice

have to be complied with. In New India Insurance Company versus

Nusli Neville Wadia (2008) 3 SCC 279 the Supreme Court examined

the language of Sections 4 and 5 of the Act and observed :

"49. Section 5 of the Act, on a plain reading, would place the entire onus upon a noticee. It, in no uncertain terms, states that once a notice under Section 4 is issued by the Estate Officer on formation of his opinion as envisaged therein it is for the noticee not only to show cause in respect thereof but also adduce evidence and make oral submissions in support of his case. Literal meaning in a situation of this nature would lead to a conclusion that the landlord is not required to adduce any evidence at all nor is it required even to make any oral submissions. Such a literal construction would lead to an anomalous situation because the landlord may not be heard at all. It may not even be permitted to adduce any evidence in rebuttal to the one adduced by the noticee nor it would be permitted to advance any argument. Is this contemplated in law? The answer must be rendered in the negative. When a landlord files an application, it in a given situation must be able to lead evidence either at the first instance or after the evidence is led by the noticee to establish its case and/or in rebuttal to the evidence led by the noticee."

6. In the present case there was no need and necessity for the

respondents to lead evidence on the question of eviction in view of the

admitted and accepted factual position. Onus is upon the noticee. As

quoted above, Supreme Court has clarified that in a given situation the

Authority may be asked to give evidence in the first instance or after

evidence is led by the noticee or rebuttal evidence. It has also been

observed in the said decision that the Estate Officer is expected to

expeditiously arrive at his decision and matters should not be delayed

WPC No.11945-50/2009 Page 3 and prolonged. The contention relating to the question of waiver of

notice, etc. under Sections 4 and 5 is also without merit as the writ

petition was pending and thereafter the matter was taken up in LPA.

Eviction proceedings pending before the Estate Officer were not

withdrawn.

7. The contention that the petitioners are lessees and not licencees

and therefore the provisions of the Act do not apply is without any

substance. In Ashoka Marketing Ltd. versus Punjab National

Bank 1990 (4) SCC 406 it has been held that the provisions of the Act

will apply when the premises are public premises. It does not matter

whether the person in occupation is a tenant/lessee or a mere

licencee.

8. In view of the aforesaid facts, I do not find any ground to

interfere with the eviction order passed by the Estate Officer and

upheld by the District Judge-IV.

9. The main plea raised by the learned counsel for the petitioners is

on the question of computation of damages and interest awarded. It is

pointed out that no evidence was led by the respondent on the

question of quantum of damages. My attention is also drawn to the

order passed by the District Judge-IV wherein the quantum of damages

had been reduced to Rs.250.00 p.sq.ft./p.m. plus applicable taxes, and

interest has been awarded @ 18% after holding that the Estate Officer

has not given any reason for awarding damages @ Rs.7850/- per day.

10. On the question of evidence as regards the quantum of

damages, the Supreme Court has observed in New India Assurance

WPC No.11945-50/2009 Page 4 Company (supra) that although the provisions of the Evidence Act are

not applicable but the burden of proving a fact rests on the party who

substantially asserts the affirmative of the issue and not upon the

party who denies it; for a negative is usually incapable of proof. It

further held that when an application for damages is based on such

grounds, which require production of positive evidence on the part of

the landlord, it would be for it to adduce evidence first. It is apparent

that the respondents were under the impression that they were not

required to lead any evidence to prove damages. As noticed by the

District Judge IV, the Estate Officer has not revealed and stated as to

how the market rate/damages were assessed as Rs.7850/- per day.

Rule 8 was also not taken into consideration by the Estate Officer.

District Judge IV, however directed the petitioner to pay damages @

Rs.250/- p.sq.ft. plus applicable taxes. District Judge-IV has erred in

directing damages @ Rs.250/-p.sq.ft. However, at the same time it is

noticed that some of the petitioners had in their reply filed before the

Estate Officer had stated that they were ready and willing to renew

and extend the period @ Rs.250/-p.sq.ft. plus taxes. The said

statement was made without prejudice to the rights and contentions of

the occupants/petitioners.

11. During the course of hearing, learned counsel for the

respondent-ITDC states that on the question of quantum of damages

the matter may be remanded back to the Estate Officer for fresh

adjudication. The statement made by the learned counsel for the

respondent is accepted and the matter is remanded back to the Estate

WPC No.11945-50/2009 Page 5 Officer for adjudication on the question of damages. Parties will be at

liberty to adduce evidence before the Estate Officer.

Writ Petitions are accordingly disposed of.

SANJIV KHANNA, J.

      JANUARY 29, 2010
      P




WPC No.11945-50/2009                                             Page 6