Lovely Shoes vs Indian Tourism Development ...
2012 Latest Caselaw 2354 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                   Date of decision: 11.04.2012


+              LPA 248/2012, C.M. APPL. 5837/2012 & 5838/2012


       LOVELY SHOES                                         ..... Appellant
                                Through: Mr. B.B. Sawhney, Sr. Advocate
                                with Mr. Lakshya Sawhney and Mr. Sunil Kumar,
                                Advocates.

                       versus

       INDIAN TOURISM DEVELOPMENT CORPORATION
                                                  ..... Respondent

Through: Dr. Kumar Jwala with Mr. Ujwal Jha, Advocates.

MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE S.P. GARG

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT) % C.M. APPL. 5838/2012 (for exemption)

For the reasons mentioned in the application, C.M. Appl. 5838/2012 is allowed.

LPA 248/2012, C.M. APPL. 5837/2012 (for stay)

1. The Appeal impugns the judgment and order of the learned Single

LPA 248/2012, C.M. Appl. 5837/2012 & 5838/2012 Page 1 Judge, dated 7.2.2012, disposing of W.P. (C)-4474/2007. That proceeding was preferred by the respondent - Indian Tourism Development Corporation (ITDC), who was aggrieved by a judgment of the learned Appellant Authority i.e. Additional District Judge, dated 14.05.2007, which allowed the appellant's appeal against an order of eviction.

2. The facts necessary for the purpose of this judgment are that the appellant M/s Lovely Shoes was a licensee in the Ashoka Hotel owned by ITDC w.e.f. 1996. The first period of license ended in 2001 and was not renewed. Apparently, the parties were in negotiations on account of high rates of license fee claimed by the ITDC. Thereafter, the appellant was given the same premises i.e. 243 Sq. Ft. shop in the hotel, by a deed executed on 10.01.2003, w.e.f. 01.09.2002, since the appellant continued to remain in possession, for an annual license fee of Rs. One Lakh. The ITDC issued a notice of revocation and termination of the license on 17.11.2003 alleging that the material terms and conditions of the license had not been complied with inasmuch as license fee for the period of 10.01.2003 to 30.09.2003 besides electricity and telephone charges (which worked out to ` 92,659.90), remained unpaid.

3. The appellant protested by its reply dated 06.12.2003. Eventually, proceedings for eviction under the Public Premises (Eviction of Unauthorized Occupants), Act, 1971 (hereafter referred to as PP Act) were initiated. The Estate Officer by its order dated 8.12.2006 directed the eviction of the appellant. The said order also directed payment of ` 8,87,000/- as damages besides other amounts and 24% interest thereon. The licensee, therefore, appealed against this order. The learned ADJ who is designated as the Appellate Authority, by an order dated 14.05.2007 allowed

LPA 248/2012, C.M. Appl. 5837/2012 & 5838/2012 Page 2 the Appeal in entirety. The ITDC, therefore, felt aggrieved and filed writ proceedings, which has been partly allowed by the impugned judgment.

4. The appellant contends that the impugned judgment is in error of law since the learned Single Judge did not address himself to a very material aspect i.e. the illegality and justification of the termination order dated 17.11.2003. It was contended that the appellant had engaged in selling various handicrafts items which included artificial jewellery and the narrow view taken by the ITDC that this activity amongst others constituted violation of the terms and conditions of the license was unfeasible. Learned counsel emphasized that the term 'handicrafts' included artificial jewellary which also required deployment of expertise and that under no circumstances could it be included in the description of jewellery which is in the form of valuable.

5. Learned counsel for the ITDC drew the attention of the Court to the notice dated 17.11.2003 and stressed that the rationale for termination was not the kind of activity engaged in by the appellant but its default in payment of the license fee.

6. We have considered the submissions. The learned Single Judge by the impugned judgment has permitted the parties to lead evidence on the question of damages; which is apparent from the reading of paragraph-10 of the impugned order. However, as regards the validity of the termination, which was vigorously canvassed today, we are of the opinion that the appellant is not entitled to succeed. A plain look at the termination order dated 17.11.2003 bears out the reasons why ITDC terminated the arrangement; it was continued default in the payment of license fee. It is not disputed that the terms and conditions of the license mandated timely

LPA 248/2012, C.M. Appl. 5837/2012 & 5838/2012 Page 3 payment of the license fee in respect of the premises. In fact the quantum of payment was apparently in dispute; that was resolved and as a result even though license was granted, License Deed was executed on 10.01.2003 which was made effective from 1.9.2002 recognizing the appellant's previous possession as a licensee and to the extent legitimizing it. In these circumstances, the ITDC's concern about non-payment, in the opinion of this Court, was justified. The Court is of the view that ITDC was constrained to terminate the license, clearly due to non-payment of fee as is apparent from the following extract of the termination letter dated 17.11.2003: -

"1. That on your approaching the company for renewal of licence to run/use one of the shops in the "Public Premises" of Ashok Hotel, New Delhi and on your promise to vacate the same on breach of covenant of the deed you were permitted by my client to enjoy the physical possession of the said premises with effect from 1.9.2002 and you occupied the said premises accordingly.

2. That after occupying the premises you have failed to pay the licence fee from 10.1.2003 to 30.9.2003 and also the electricity and telephone charges from 10.1.2003 to July, 2003 amounting to a sum of Rs.92,659.90/-."

7. So far as the quantum of damages is concerned, we note that the learned Single Judge in the impugned judgment has kept the issue open; for the sake of clarity, we reiterate that it is open to the appellant to adduce such evidence as is permissible in law to show that quantum of damages assessed was less than what was actually arrived at by the Estate Officer in his first determination.

8. The Court is, therefore, of the opinion that the Appeal lacks merit; it is

LPA 248/2012, C.M. Appl. 5837/2012 & 5838/2012 Page 4 accordingly dismissed but subject to the above observations.

S. RAVINDRA BHAT (JUDGE)

S.P.GARG (JUDGE) APRIL 11, 2012/vks/

LPA 248/2012, C.M. Appl. 5837/2012 & 5838/2012 Page 5