A.K. Sabharwal vs N.D.M.C. & Others
2010 Latest Caselaw 1203 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 7695/2008              Date of decision: 3rd March, 2010.

      A.K.SABHARWAL                          ..... Petitioner
                                Through    Mr. Y.P. Bhan, Advocate with
                                           petitioner in person.

                       versus


      N.D.M.C. & ORS.                        ..... Respondent
                                Through    Mr. Rajesh Mahajan, Advocate
                                           for the respondent.
      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA

                                     ORDER

%

1. The petitioner on basis of bid @ Rs. 10.26 per sq.ft. was allotted

flat No.203, Palika Bhawan Complex, New Delhi by the respondent

NDMC for a period of five years. Possession of the flat was handed over

to the petitioner on 6th June, 1984. Thereafter a written licence deed

dated 15th November, 1984 was also executed. The said licence deed

stipulated that the petitioner would pay a sum of Rs. 5,932/- per month

for the said flat. Clause-1 of the licence deed further provided that

licence was for a period of five years and would be renewable for a

further period of 5 years subject to enhancement of licence fee by 15%

and on the terms and conditions as may be laid down by the licensor.

W.P.(C) No.7695/2008 Page 1

2. The petitioner paid the licence fee @ 5,932/- per month till July,

1987. Thereafter, the petitioner stopped paying the licence fee. The

petitioner vide letter dated 8th September, 1986 raised an objection

that the actual covered area of the flat was 469 sq. feet and not 578.14

sq. feet and accordingly as per the tender he was liable to pay licence

fee of Rs. 4,812/- per month. The petitioner relied upon clause III of the

conditions of the tender document that the licence fee would be

charged for the covered area and on as is where is basis.

3. The contention of the petitioner was that balcony or

projection/chhajja outside the flat of the petitioner should not be

included in the covered area and should be treated as common area.

On the other hand, the contention of the respondent, NDMC was that

the said balcony was accessible to the petitioner and a part of the flat,

therefore, should be included in the total covered area.

4. In view of the complaint made by the petitioner, the flat was

inspected in the presence of the petitioner and re-measured. Vide

letter dated 2nd December, 1988, the petitioner was informed that the

total area of the office area was 547.23 sq. feet and the area of toilet

was 38.25 sq. feet. Accordingly, the petitioner was in possession of

585.48 sq. feet, which was more than area of 578.14 sq. feet for which

W.P.(C) No.7695/2008 Page 2 the licence fee was being charged. Along with this letter, copy of the

site plan with measurements was furnished to the petitioner.

5. The respondent, NDMC by another letter dated 15th October,

1990 informed the petitioner that the matter was considered after

examining the opinion of the Chief Architect and Chief Engineer,

NDMC. Balcony was part of the covered area as the same was not

open to sky. By this letter, the petitioner was called upon to deposit

arrears of Rs.3,07,803.50 within 10 days. The petitioner could not be

served with this letter and the same was accordingly pasted outside the

flat.

6. Learned counsel for the petitioner has relied upon file noting

filed with the writ petition, which make reference to the comments of

the Deputy Chief Architect etc. These file notings are internal

comments and cannot furnish any right to the petitioner. Moreover,

these file notings refer to calculation of floor area ratio or building bye

laws, which are for different purpose. It is a stand of the respondents

that all occupants in Palika Bhawan Complex were/are being charged

on covered area basis after including the balcony area. The covered

area for the purpose of payment of licence fee includes the exclusive

balcony which is not open to sky and the same cannot be excluded.

W.P.(C) No.7695/2008 Page 3

7. The admitted position is that the petitioner has not paid any

licence fee after July, 1987 but has continued to use and occupy the

flat. By the interim order dated 26th November, 2008, the petitioner

was asked to deposit Rs. 30 lacs but the said amount has not been

deposited. The petitioner has been dispossessed. Conduct of the

petitioner and his failure to pay licence fee from August, 1987 onwards

disentitles and does not justify grant of any relief. As per the statement

of accounts filed by the respondent NDMC, the petitioner has arrears

of more than Rs. 3 crores and 40 lacs excluding interest. The licence

period had expired on 26th June, 1989. The licence was not renewed

and the period extended. In these circumstances, I am not inclined to

entertain the present writ petition challenging and question the order

passed by the Estate Officer and the learned Additional District Judge

under the provisions of Public Premises (Eviction of unauthorized

occupants) Act, 1971.

The writ petition is accordingly dismissed.

SANJIV KHANNA, J.

       MARCH 03, 2010
       NA




W.P.(C) No.7695/2008                                                Page 4