7# % 13.12.2010 Present:- Mr.Manoj Kumar, Advocate for the petitioner. Mr.Nilava Banerjee, Advocate for the respondent- NDMC. +W.P.(C) No.1058/2010 and C.M.No.2200/2010 * By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner seeks directions 4 to set aside the order dated 25.08.2009 passed by the learned Appellat.e Court. The short controversy arising out of the present petition is whether the present petitioner along with the respondents No.2 and 3 are liable to pay the amount towards the license fee/damages for the period w.e.f. 15.04.1983 till 02.01.1985. The plea taken by the petitioner before this Court as well as before the Courts below has been that vide letter dated 23.08.1983 M/s. Star Electronics through its partner Mr. Sunil Khanna and Mr. Harsh Khanna had approached the Director of Estates, NDMC to surrender the possession of the shop in question i.e. Shop bearing No. M-10, Palika Bazar, New Delhi. In the said letter it was also Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified submitted by them that they had already deposited the amount of Rs.41,565/- i.e. an amount of Rs.33,255/- towards the security and an amount of Rs.8,313/- as advance for one month license fee and the said amount should be adjusted against the amount of rent as was due in respect of the said shop. It was also submitted by them that if there was any balance even after adjustment of the said' amount then they 4 should be accordingly intimated. It is also the case of the petitioner that vide his letter, dated 22.07.1983 and thereafter through letters dated 30.01.1984, 07.02.1984 and 16.05.1984 the petitioner had intimated to the respondent that he had already retired from the said partnership firm and therefore, had no liability to pay the license fee or the damages in respect of the said shop. 3. Mr.Manoj Kumar, counsel appearing for the petitioner has thus argued that once the said shop was surrendered by the surviving partners of the licensee i.e. M/s. Star Electronics, then neither the present petitioner nor the respondents No.2 and 3 could have been made liable to pay the license fee/damages for the period w.e.f. (0 4 15.04.1983 till 02.01.1985. The present petition has been supported by the respondent No.2, who was one of the partners of the said firm against whom also the proceedings were initiated under the P.P. Act claiming damages. 4. The present petition has been strongly opposed by the respondent-NDMC. Mr.Banerjee, counsel appearing for NDMC, has argued that neither the -present petitioner nor the other two partners had delivered the actual physical possession of the said shop in question, possession of which was in fact 'taken by the respondent-NDMC on 02.01.1985. Counsel further submits that in terms of. Clause-31 of the License Deed the licensee could surrender the possessiOn of. the licensed premises after giving one month's notice in writing and the possession could be delivered by the licensee on the expiry of the said one month's period. Contention of counsel, for the respondent is that no such notice was sent by 'the licensee in the present case and, therefore, letter dated 23.08.1983 written by the licensee could not have been treated by the respondent as notice in terms of Clause-3 1 of the license deed. Counsel also submits that it was obligatory on the part of the licensee to clear all the dues including the damages etc. before handing over the possession of the licensed shop as the clearance of the dues before handing over the possession was a pre-requisite before accepting the possession from the licensee. Counsel also submits that the letter dated 23.08.1983 was not sent by all the three partners of the firm and, therefore, the respondent could not have accepted the same. Counsel also submits that the security amount deposited by the licensee was not meant for the adjustment of the license fee alone, but for adjustment of various other municipal dues including damages,. if any, caused to the licensed premises. Counsel also submits that vide letter dated 07.02.1985, the present petitioner himself called upon the respondent not to release 4 the said security amount in favour of the other two partners without his consent. The said request was reiterated by the petitioner vide his letter dated 30.01.1984. I have heard learned counsel for the parties. 1Vide license deed dated 02.04.1982, the shop bearing No.M-10, Palika Bazar, New Delhi was licensed by the respondent in favour of M/s. Star Electronics which was a partnership concern comprising of three partners i.e. the present petitioner Satish Sharma, Mr.Sunil Khanna and Mr.Harsh Khanna, the respondentsNo.2 and 3 herein. The duration of the said license deed was for a period of five years and the license came into effect w.e.f. 15.04.1983. The said license was granted by the respondent in favour of the said licensee at the rate of Rs.8,313/- per month. 7. On the last date of hearing, the respondent took time to take instructions in the matter so as to apprise this Court as to what steps were taken by the respondent-NDMC in response to the letter dated 23.08.1983 sent by the licensee through its two partners. Counsel for the respondent has now taken a stand that it was not obligatory on the part of the respondent to have accepted the said offer as the same was not given by all the three partners of the partnership firm M/s. Star Electronics. In the impugned order, the learned appellate court has also taken note of the fact that the said licensee had expressed the intention to surrender the premises through their letter dated J3- 23.08.1983, the receipt of which was duly admitted by the witness Mr.B.M.Kumar, who appeared from the side of the respondent-NDMC. The appellate court also observed that nothing could be explained by the respondent-NDMC as to what action was taken by them after having received the said letter. The appellate court thus found that there was contributory negligence on the part of the NDMC in not receiving back the possession of the premises in question, although the same was offered by the licensee through its two partners. 'Due to such lapse on the part of the NDMC, the appellate court found that the respondent-NDMC cannot claim damages at any higher rate and must also share the loss on account of their said negligent act. The appellate court, however, found the present petitioner and the respondents No.2 and 3 liable to pay the monthly license fee at the, rate of Rs.8,313/- for the period w.e.f. 15.04.1983 till 02.01.1985. This Court does not find any merit in the said finding of the learned appellate court and the Estate Officer as no reasonable explanation has come forth from the side of the respondent-NDMC as to why the possession was not accepted by them when the licensee through its two partners had approached their office to surrender back the possession. If there was any defect in the said offer or any formality was required to be completed by the licensee, then it was incumbent on the part of the respondent-NDMC to have apprised the same to the licensee. The respondent has not disputed the fact that the said letter dated 23.8.1983 was received by them and; therefore, in view of the said admission of the receipt of the said letter, nothing prevented the respondent from taking back the possession of the licensed premises. If there was any mala fide intention on the part of the licensee than that would have been exposed had the respondent acted in time. It is also not in dispute • that an amount of Rs.8,313/- was deposited by the licensee towards one month advance rent and Rs.33,255/- towards security. The said offer to surrender the licensed premises was made by the licensee on 23.08.1983 and, therefore, the respondent can claim the rent only for the period w.e.f. 15.04.1983 till 23.08.1983 when the said offer to surrender was made by the licensee. If after giving adjustment of the 1-~~ said amount, any amount is still found payable by the said licensee, then a fresh demand can be raised by the respondent. It is, however, made clear that the present petitioner and the respondents No.2 and 3 are in no way liable to pay any amount for the period w.e.f. 23.08.1983 till 02.0 1.1985 as the fault was squarely on - the part of the respondent-NDMC in not taking timely action to take back the possession of the licensed premise once the same was offered by the licensee, through a written letter. At. 8. With the above directions, the present petition is disposed of. December 13, 2010 KAILASBHIR, J dc • 2 - IA V-W