Gift Centre (Khushal) v. India Tourism Development Corporation Ltd. and Anr

order.

¶14I have considered the controversy keeping in mind the limits of the jurisdiction to be exercised in a petition under Article 227 of the Constitution of India.

¶15In my view, the impugned orders require no interference for the following reasons: A. The petitioners, though were fully aware that their entitlement to occupy the premises was till 31st January, 2008, 29th February, 2008 and 30th October, 2007 respectively, did not remove themselves from the premises inspite of having contracted to do so and continued in occupation of the premises knowing fully well that by doing so they are exposing themselves to the liability for damages for unauthorized use and occupation. B. The petitioners, by their respective letters aforesaid of the year 2011 and 2012, offered to pay licence fee at Rs.350/- per sq.ft. per month with effect from 1st February, 2008 for a period of five years with right of renewal for another five years. C. The damage charges, in law are mesne profits and which in Section 2(12) of the CPC has been defined as those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits. D. The petitioners, by offering to renew the licences in their respective favour with effect from 1st February, 2008, 1st

March, 2008 and 30th October, 2007, for a period of five years, at the rate of Rs.350/- per sq.ft. per month and even if with a right of renewal for another five years i.e. till the year 2018, unequivocally conveyed that the profits which they were receiving from the unauthorized occupation of the premises were at the said rate; E. The use by the petitioners in W.P.(C) Nos.4560/2018 and 4768/2018, in their offers, of the words 'without prejudice' at the top, will not make any difference as the present petitions are concerned with determination of mesne profits. At that time the proceedings for eviction under Section 5 of the PP Act were underway and the petitioners were at issue on, whether the possession of the petitioners of the premises in their respective occupation was unauthorized, with the respondent ITDC contending that the possession was unauthorized and the petitioners contending otherwise. The words 'without prejudice' were thus only to prevent the respondent ITDC from contending that the petitioners, by offering so, had admitted their possession to be unauthorized. The petitioners then, were not at issue qua rate of damage charges; though the Estate Officer had determined damages at Rs.500/- per sq.ft. per month but the petitioners were not claiming the rate to be lower than Rs.350/- per sq. ft. per month. F. It is also not the case of the petitioners that they have not been able to reap the benefit which they would have reaped if the

respondent ITDC had accepted the offer. The petitioners, even if their offers would have been accepted by the respondent ITDC would have earned the right to remain in occupation for 5+5 years from 2008 i.e. till 2018 and which the petitioners in any case have remained. The petitioners thus cannot be heard to contend that while they are being required to perform the obligation which they had undertaken in their offer, they have been deprived of the benefit which they would have derived from their offer. G. Moreover, owing to the definition of mesne profits also as aforesaid, the offer of the petitioners at the rate of Rs.350/- per sq.ft. per month was not by way of settlement. H. The counsels for the petitioners have also explained that the petitioners had offered licence fee at the rate of Rs.350/- per sq.ft. per month because of the same being the reserve price in the tender then floated by the respondent ITDC and which tender was as per the licence fee being paid by the CBI, another occupant of the hotel to the respondent ITDC. The same also belies the fact that the rate offered of Rs.350/- per sq.ft. per month was 'without prejudice'. I. In fact, the rate being paid by the CBI alone was a good measure for the mesne profits. J. As far as the difference between Rs.350/- per sq.ft. per month and Rs.370/- per sq.ft. per month is concerned, it cannot be lost sight of that the definition of mesne profits includes the interest accrued thereon. The petitioners were required to pay

mesne profits if any at the beginning of the month for which the same were due or at least at the end of the month and having not paid the said mesne profits for the last ten years, the difference between Rs.350/- per sq.ft. per month and Rs.370/- per sq.ft. per month is not such, which considering the said fact calls for this Court to reduce the rate of Rs.370/- per sq.ft. per month to Rs.350/- per sq.ft. per month. K. As far as the plea, of other licences granted with effect from the year 2018 at the rate of Rs.250/- per sq.ft. per month is concerned, the same is again of no avail inasmuch as the admitted position is that the petitioners themselves have in the year 2018 bid for rate in excess thereof i.e. at the rate of Rs.377/- per sq.ft. per month and Rs.380/- per sq.ft. per month respectively as licence fee.

¶16The counsel for the petitioners in W.P.(C) Nos.4560/2018 & 4768/2018 at this stage states that the petitioners have yesterday received a communication from the respondent ITDC that their bid has been admitted. The counsel for the petitioners in W.P.(C) Nos.4560/2018 & 4768/2018 at this stage also clarifies that Rs.350/- per sq.ft. per month was offered not owing to the same being reserve price but owing to the respondent ITDC in private negotiations demanding the said rate at that stage. It is rather stated that at that time there was no concept of reserve price. The counsel for the petitioners in W.P.(C) Nos.4560/2018 & 4768/2018 also states that M/s Victory Carpet was also in unauthorized occupation and it is for this reason only that the question of levy of damages arose. The counsel for the petitioners in W.P.(C) Nos.4560/2018 & 4768/2018 lastly states that had

licences been renewed at Rs.350/- per sq.ft. per month, the petitioners would have been entitled to gate pass and which was not issued to them and without which the petitioners were unable to bring in fresh goods for sale and unable to take their goods out for sale.

¶17The counsel for the petitioners in W.P.(C) No.5778/2018 adopts the arguments of the counsel for the petitioners in W.P.(C) Nos.4560/2018 & 4768/2018 save the argument with respect to gate pass. It is stated that the petitioners in W.P.(C) No.5778/2018 was not troubled qua the gate pass.

¶18The counsel for the respondent ITDC states that the communication sent to the petitioners was only of acceptance of their technical bids and not of admission of their bids.

¶19As far as the argument of the counsel for the petitioners in W.P.(C) Nos.4560/2018 & 4768/2018 qua gate pass is concerned, it is unbelievable that the petitioners would have been in a position to carry on their business from the premises in their occupation for a period of ten years since 1st February, 2008, without being able to take in or take out any goods. If that had been the position, the petitioners would have claimed an interim relief specifically in this regard and no such specific interim relief was ever claimed. Moreover, from the fact that the petitioners in W.P.(C) No.5778/2018 did not face any problem in this regard, it is evident that the petitioners in W.P.(C) Nos.4560/2018 & 4768/2018 have also not suffered on this account.

¶20The counsel for the respondent ITDC states that the licence of CBI at the rate of Rs.350/- per sq.ft. per month was with effect from 8th October, 2010 with 10% increase per annum in licence fee.

¶21There is thus no merit in the petitions.

¶22Dismissed.

No costs.

Dasti.

RAJIV SAHAI ENDLAW, J. SEPTEMBER 25, 2018 'gsr'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision 25th September, 2018. + W.P.(C) 4560/2018 & CM No.17699/2018 (for stay) GIFT CENTRE (KHUSHAL) ..... Petitioner Through: Mr. Sanjay Gupta, Adv. Versus INDIAN TOURISM DEVELOPMENT CORPORATION LTD. AND ANR. ..... Respondents Through: Mr. Deepak Thukral, Adv. AND + W.P.(C) 4768/2018 & CMs No.18418/2018 (for stay) & 18419/2018 (for exemption) M. A. RAMZANA ..... Petitioner Through: Mr. Sanjay Gupta, Adv. Versus INDIAN TOURISM DEVEOPMENT CORPORATION LTD. AND ANR. ..... Respondents Through: Mr. Deepak Thukral, Adv. AND + W.P.(C) 5778/2018 & CM No.22525/2018 (for stay) ROMILA BAHL & ANR ..... Petitioners Through: Mr. Saraswata Mohapatra, Adv. Versus INDIAN TOURISM DEVELOPMENT CORPORATION LTD & ORS ..... Respondents Through: Mr. Deepak Thukral, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. These three petitions under Articles 226 and 227 of the Constitution of India impugn the orders [(i) dated 14th March, 2018 in PPA No.30/2017, (ii) 5th April, 2018 in PPA No.31/2017; and, (iii) 27th April, 2018 in PPA No.209/2016 respectively, all of the Court of District Judge, New Delhi acting as Appellate Officer under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971] of dismissal in part of appeals preferred by the petitioners against the orders [dated 24th February, 2010, 2nd March, 2010 and 16th August, 2010 respectively of the Estate Officer of the respondent India Tourism Development Corporation Ltd. (ITDC) in exercise of powers under Sections 5 and 7 of the PP Act] of eviction of the petitioners from shops No.1, 9 and 21 respectively, Main Shopping Arcade of the Ashok Hotel, Chanakyapuri, New Delhi and of recovery of damage charges at the rate of Rs.500/- per sq. ft. per month for each of the shop aforesaid, with effect from 1st February, 2008, 1st March, 2008 and 30th September, 2008 respectively till the date of handing over of actual possession of the premises respectively. The District Judge, in appeal, however reduced the rate of damages to Rs.370/- per sq.ft. per month. 2. All the three petitions were entertained and notice thereof issued. 3. Though there is no interim stay of the orders in either of the three petitions but each of the petitioners undertook to pay to the respondent ITDC, damage charges at the rate of Rs.370/- per sq. ft. per month till the date of possession. 4. Though challenge in these petitions was to both, order of eviction under Section 5 of PP Act as well as order of recovery of damage charges under Section 7 of the PP Act but the challenge to the order of eviction under Section 5 PP Act does not survive. The respondent ITDC, invited bids for licences of the premises in occupation of each of the petitioners and each of the petitioners participated in the said bids and furnished undertakings to this Court that in the event of the bids of the petitioners being not accepted, the petitioners will vacate the premises in their respective occupation within ten days thereof. The said undertakings of the petitioners were accepted and petitioners ordered to be bound therewith. Now, the challenge in these petitions is confined only to the order of recovery of damage charges under Section 7 of the PP Act. The counsels for petitioners confirm. The discussion hereafter shall thus be confined to the said damage charges only. 5. The counsel for the petitioners in W.P.(C) Nos.4560/2018 & 4768/2018 and the counsel for the petitioners in W.P.(C) No.5778/2018, on enquiry state that the bids have not been opened as yet. 6. The counsel for the respondent ITDC confirms and states that the bids are likely to be opened within a few days and the communication in this regard will be sent to the petitioners. 7. It is not in dispute that (i) the licences of each of the petitioners with respect to the premises in their respective occupation were valid till 31st January, 2008, 29th February, 2008 and 30th October, 2007 respectively and each of th