Delhi High Court
Ashima Infrastructures Pvt Ltd vs North Delhi Municipal ... on 8 January, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 20th DECEMBER, 2017
DECIDED ON : 8th JANUARY, 2018
+ FAO 475/2017 & CM 44050/17
ASHIMA INFRASTRUCTURES PVT LTD ..... Appellant
Through : Mr.Rajesh Gupta, Advocate with
Mr.Harpreet Singh & Mr.Pranjal, Advocates.
versus
NORTH DELHI MUNICIPAL CORPORATION & ANR
..... Respondents
Through : Ms.Mini Pushkarna, Standing Counsel with
Ms.Anushruti & Ms.Vasundhara Nayyar, Advocates.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Present appeal has been preferred by the appellant -
Ashima Infrastructures Pvt. Ltd. to challenge the legality and
correctness of an order dated 27.11.2017 of learned Addl. District
Judge whereby its application under Order XXXIX Rule 1 & 2 CPC
was dismissed. The appeal is contested by the respondents.
2. I have heard the learned counsel for the parties and have
examined the file. It is not in dispute that NOCs/ permissions dated
30.10.2012 and 27.11.2012 were issued by the respondents NDMC to
the appellant allotting advertisement display rights over sites
mentioned therein. It is also not at issue that Clause (iii) in the said
NOCs/ permissions was common and it read :
"The permission for display of advertisement shall
be valid for 5 years. The permission can be
extended further on the sole discretion of the
Commissioner, North Delhi Municipal
Corporation. The license fee will start after 3
months from the date of NOC issued by NDMC or
after the installation of the advertisement
structures on the site."
3. The limited controversy in the present proceedings is
with respect to the date of commencement of the NOCs / permissions.
It is urged by the appellant's counsel that the NOCs are completely
silent as to when the period is to start. It is urged that since licence fee
was to be charged after the expiry of three months from the date of
issuance of NOC or the installation of the advertisement structures on
the sites, the period was to commence from February, 2013 to come to
an end in February, 2018 regarding first contract and for second
contract, it was to commence from March, 2013 to come to an end in
March, 2018. It is so as it required minimum three months time to the
allottee to complete installation etc. to avail the benefit of the
permissions and for that reason no licence fee was payable for that
period. Apparently, the actual contract was expected to commence
only after three months of the grant of NOCs.
4. Learned counsel for the NDMC urged that the impugned
order does not suffer from any illegality or irregularity. The period for
five years is to commence from the date of grant of NOCs/
permissions and no other interpretation whatsoever can be tenable.
5. Terms and conditions of the grant of NOCs/ permissions
are very specific, unambiguous and definite. Clause (iii) of the NOCs
/ permissions specifically provides that the allotment was for five
years. No particular date has been mentioned in the document as to
when the period is to commence. In the absence of any specific date
as to when the allotment is to commence, obvious interpretation is that
the period is to run from the date of grant of the NOCs/ permissions
itself. No other logical interpretation can be given to enlarge the
period of allotment. There is no mention in the document that the
period of allotment shall be beyond five years in any eventuality. It
does not mention if the period was to run from the date of payment of
licence fee after the expiry of three months from the date of issuance
of the NOCs/ permissions. The appellant cannot be permitted to
interpret the Clause (iii) in whimsical manner of its own to extend the
period of allotment beyond five years. It is relevant to note that the
appellant was involved in various litigations regarding the NOCs /
permissions. At no stage, the appellant sought any clarification as to
when the period is to commence. Throughout in the earlier
proceedings, it was the appellant's case that the said allotment was
only for a period of five years. Any other interpretation given to the
terms and conditions contained in Clause (iii) of the agreement would
enlarge the period beyond five years and such an interpretation would
be beyond the scope of the agreement.
6. Learned Trial Court has given sound reasons while
interpreting the Clause (iii) at issue. Specific reasons have been
incorporated in the impugned order as to what would be the
consequences if the interpretation given by the appellant was accepted.
This Court finds no valid reasons to take different view.
7. The impugned order based upon fair appreciation of facts
and law deserves no intervention.
8. The NDMC sought clarification by moving IA
14709/2017 in CS(COMM) 1413/2016 and by an order dated
12.12.2017 this Court in para No.9 of the order observed :
"9. In this view of the matter, all that needs to
be clarified is that the interim order in this suit will
not come in the way of the defendant North Delhi
Municipal Corporation (NrDMC) taking action
treating the agreements to have come to an end on
29th October, 2017 and 26th November, 2017,
inasmuch as the said dispute is not the subject
matter of this suit. Any action by the defendant
NrDMC in this regard will however be subject to
the orders in FAO No.475/2017."
9. Needless to say, the allotment period for five years is to
commence from the dates of execution of the documents i.e. w.e.f.
30.10.2012 and 27.11.2012 respectively. The said period has come to
an end on 29.10.2017 and 26.11.2017. Despite that, the appellant has
continued to enjoy the site by displaying the advertisement beyond the
period of five years. Apparently, NDMC will be at liberty to charge
damages from the appellant as per law for the extended period beyond
the period of NOCs/ permissions.
10. In view of the above, the appeal lacks merit and is
dismissed with costs `50,000/-. Pending application also stands
disposed of.
11. Copy of the order be sent to the Court concerned for
information.
(S.P.GARG)
JUDGE
JANUARY 08, 2018 / tr
