Indian Tourism Development Corp. vs M/S. Lovely Shoes
2012 Latest Caselaw 817 Del

*                 HIGH COURT OF DELHI : NEW DELHI

                                               Reserved on : January 24, 2012
                                            Pronounced on : February 07, 2012
+
                             W.P. (C) No.4474/2007
                             & C.M. No. 784/2009

%      INDIAN TOURISM DEVELOPMENT CORP.      ...   Petitioner
                         Through: Dr.Kumar Jwala, Advocate

                                     versus

       M/S. LOVELY SHOES                                 ... Respondent
                                 Through:     Mr.Chandra Shekhar, Mr.Saurabh
                                              Upadhyay, Ms.Meghna De and
                                              Mr.Manoj Agrawal, Advocates.
       CORAM:
       HON'BLE MR. JUSTICE SUNIL GAUR

                                     ORDER

07.02.2012

1. Upon being evicted from Shop No.34, Ashoka Hotel Shopping Arcade, Chanakya Puri, New Delhi, in pursuance to Eviction Order of 8th December, 2006 (Annexure E), Respondent had filed an appeal against the said order which was allowed by the Appellate Authority on 14th May, 2007, which was stayed by this Court while entertaining the writ petition. As per the petitioner, the shop in question was converted into a smoking zone in terms of the direction of the Expert Committee of the Common Wealth Games.

2. By virtue of License Deed of 10th January, 2003, which was valid for three years, Respondent was permitted to carry out the business of handicraft goods in the shop in question on payment of the license fee but it was found that the Respondent was doing the business of jewellery instead of handicraft goods in violation of the aforesaid License Deed W.P. (C) No.4474/2007 Page 1 and vide notice of 17th November, 2003, aforesaid license was terminated with immediate effect due to afore-noted violation. Respondent had filed a reply to the aforesaid notice and the eviction proceedings concluded with the passing of the Eviction Order of 8th December, 2006 (Annexure E).

3. In appeal, it was noticed that opportunity to lead evidence was not granted to the Respondent and the finding returned in the impugned order is that admittedly, a fresh license deed was executed between the parties on 10th January, 2006 and there is nothing on record to indicate that the said license deed was terminated at any point of time and so, the Eviction Order has been set aside while giving the liberty to recover the dues from the Respondent in accordance with law.

4. In the writ petition, it has been specifically averred that no fresh license deed came into existence on 10th January, 2006 or at any point of time. In the short counter affidavit filed by the Respondent, there is no denial of this material averment made in the writ petition. The basic stand of the Respondent in the counter affidavit is that there has been a denial of an opportunity to him to lead evidence and in support of the stand order sheet of 6th September, 2006 (Annexure C-1) has been filed alongwith the counter affidavit.

5. During the course of hearing, learned counsel for the petitioner asserted that existence of license deed of 10th January, 2006 was never conceded before the Appellate Authority and this assertion was not controverted by respondent's counsel.

6. Upon hearing learned counsel for the parties and on perusal of the certified copies of the record of this case, I find that Respondent's application for leading evidence has been dealt with in the order of 6th

W.P. (C) No.4474/2007 Page 2 September, 2006 (Annexure C-1) by the Estate Officer in a most unsatisfied manner and the Appellate Authority ought to have remanded this matter to the Estate Officer with liberty to the Respondent to lead evidence with particular reference to the quantum of damages.

7. A bare perusal of the certified copies of the record of the Estate Officer does reveal that there is a possession letter of 5 th January, 1996, which indicates that a fresh license had come into existence for a period of three years in favour of the Respondent by the petitioner but there is also a communication of 30th August, 1996 which also shows that Respondent was permitted to vacate the shop in question as he was unable to clear the arrears of the license fee and had requested the petitioner to adjust the same against the security deposit. Apparently, by aforesaid communication of 30th August, 1996, the license by virtue of letter of 5th January, 1996 came to an end.

8. In the face of the aforesaid documentary evidence, learned counsel for the Respondent could not justify the finding in the impugned judgment of there being no fresh license executed between the parties or of its termination and thus, this finding cannot be sustained and to this extent, the impugned judgment is set aside.

9. Instead of giving liberty to the petitioner to recover the dues as per law, Appellate Authority ought to have remanded this matter qua the quantum of damages alone with liberty to the Respondent to lead evidence after allowing Respondent's application of 6th September, 2006.

10. In New India Assurance Company Ltd. vs. Nusli Neville Wadia & Anr., (2008) 3 SCC 279, Apex Court has reiterated that in eviction matters under the Public Premises (Eviction of Unauthorised Occupants)

W.P. (C) No.4474/2007 Page 3 Act, 1971, positive evidence has to be led first and though issues are not required to be specifically framed, but the principle issues between the parties must be known to the Estate Officer. Since petitioner has already lead positive evidence qua the quantum of damages, therefore, Respondent ought to be permitted to lead evidence in rebuttal. Consequently, the Respondent's application of 6th September, 2006 is allowed and the Respondent is permitted to lead evidence qua the quantum of damages before the Estate Officer. As petitioner's eviction is justified, in view of the letter of 5th January, 1996 and of its termination vide communication of 30th August, 1996, therefore, this petition is partly allowed to the extent of remanding this matter to the Estate Officer with direction to permit the Respondent to promptly lead evidence on quantum of damages and thereafter to pass a reasoned order as to what damages, if any, the Respondent is liable to pay.

11. While upholding the eviction of the petitioner from the shop in question, this petition is disposed of in the aforesaid terms. Parties to appear before the Estate Officer on 27th February, 2012 for proceeding in accordance with the law. Consequently, pending application for stay is disposed of as infructuous.

12. No costs.

                                                           (SUNIL GAUR)
                                                              JUDGE
       February 07, 2012
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W.P. (C) No.4474/2007                                                      Page 4