W.P. (C) No. 1239/2010 Page 1 32. *IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 1239/2010 Date of decision: 3rd March, 2010 ASHIT KUMAR JAIN ..... Petitioner Through Mr. Harish Malhotra, Sr. Advocate with Mr. Sunil Ahuja, Advocate. versus NEW DELHI MUNICIPAL COUNCIL & ANR. ..... Respondents Through Mr. Maonoj K. Singh & Mr. Praduman Sewar, Advocates for NDMC. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R 1. Shop No. 27, Yashwant Palace Market, Chankyapuri, New Delhi (hereinafter referred to as the property, for short) was allotted to Mr. Ranjit Batla for a period of five years on monthly licence fee of Rs.1,052/-. There was a specific stipulation against subletting in the written licence deed. 2. Admitted position is that the said Mr. Ranjit Batla entered into a partnership agreement with the petitioner herein on 20th December, 1976. This partnership was dissolved on 31st March, 1977 with Mr. Ranjit Batla giving up all his rights and with the right to the petitioner to carry on business. 3. On 6th May, 1980, the petitioner herein applied for regularization of subletting on payment of compounding charges. By letter dated 19th May, 1982, the respondent-NDMC informed the petitioner that he was W.P. (C) No. 1239/2010 Page 2 required to comply with certain formalities as required by the earlier letter dated 17th November, 1981. It was also stated that the petitioner had failed to make payment of Rs.5,299.12 on account of interest despite of repeated promises. By this letter, some of the payments deposited by the petitioner in form of draft, etc., were returned and the petitioner was informed that the respondent would initiate proceedings under Public Premises (Eviction of Unauthorsied Occupants) Act, 1971 (hereinafter referred to as the Act, for short). 4. It is admitted position that the petitioner did not question and challenge this order dated 19th May, 1982. 5. An association called Yashwant Palace Market Traders Association filed a writ petition in the Supreme Court in the year 1982 challenging increase in licence fee claimed by NDMC for renewal of the licence after expiry of initial term of 5 years. NDMC had demanded increase in licence fee @ 75% as a precondition for renewal. By an interim order, members of the petitioner association were granted interim protection, subject to payment of licence fee with 30% increase. This writ petition was dismissed vide order dated 8th July, 1996 with the Supreme Court observing that they saw no ground to interfere in the said matter. The Supreme Court observed that NDMC would deal with the said matters in accordance with law in a fair and a just manner. The petitioners were given opportunity to make a representation to the NDMC. 6. Yashwant Palace Shopkeepers Traders Association made various representations for waiver of interest or reduction thereof to NDMC specially in view of the dismissal of the writ petition filed by them in the Supreme Court. NDMC with a view to help out the traders/licensees agreed to waive of interest for the period 1983 to 1996, i.e., the period during which the writ petition had remained pending before the Supreme W.P. (C) No. 1239/2010 Page 3 Court. They also agreed to increase licence fee by 30% after every five years instead of 75% increase as was originally demanded in 1981-82. This increase of 30% was applicable, i.e., after every five years upto 2001 and thereafter 10% increase was payable every year. It is, therefore, apparent that substantial concession was granted to the shopkeepers/licensees both in payment of licence fee as well as interest. In fact, interest right from 1983 to 1996 was waived of. The petitioner was informed about the said policy and asked to clear the arrears vide notice/letter dated 8th January, 1999. As per the statement of accounts filed by the petitioner and the respondent, the petitioner had arrears of Rs.1,52,750.36 as on 30th June, 1996. The said amount does not include any interest upto 30th June, 1996. 7. The statement of accounts from July, 1996 till November, 2009 has been filed. The statement of accounts shows that the petitioner made payment @ Rs.1,303/- from July, 1996 onwards till June, 1999 though the licence fee payable during this period was Rs.3,058/- per month. This was in spite of the fact that the petitioner was fully aware that the writ petition filed before the Supreme Court challenging the enhancement stands dismissed and NDMC’s right to claim enhanced licnece fee was accepted. As on June, 1999 because of failure of the petitioner to make the said payments, the principal amount due and payable by the petitioner had increased to Rs.2,15,930/- and he was liable to pay interest of Rs.4,318.60. 8. What is shocking is the conduct of the petitioner thereafter and failure to pay licence fee after June, 1999. The petitioner did not make any payment from July, 1999 to March, 2000 when an amount of Rs.5,200/- was paid. Another payment of Rs.2,610/- was made on 21st June, 2000. No other payment was made in the year, 2000. Thereafter, W.P. (C) No. 1239/2010 Page 4 in the year, 2001, the petitioner made three payments of Rs.5,121/-, Rs.3,110/- and Rs.10,000/- on 23rd February, 2001, 16th March, 2001 and 21st November, 2001. The petitioner did not pay even one rupee during the year, 2002. In the year, 2003, the petitioner made only one payment on 21st November, 2003 of Rs.15,000/-. In 2004, the petitioner made two payments on 7th and 13th July, 2004 of Rs.3,00,000/- and Rs.2265/- respectively. Even after these payments, the petitioner was still liable to pay the principal amount of Rs.88,861/- towards arrears of licence fee and Rs.1,777.22 towards interest. It may be noticed that the eviction order was passed by the Estate Officer on 13th May, 2004 and the petitioner had deposited payment of Rs.3 lacs on 7th July, 2004 in view of the condition imposed by the learned District Judge, who was hearing the appeal against the eviction order. 9. In the year, 2005, only one payment of Rs.2,265/- was made on 11th January, 2005. In the year, 2006, Rs.5,000/- was paid by depositing Rs.2,500/- each on 2nd February, 2006 and 10th April, 2006. In the year, 2007, one payment of Rs.2,500/- was made on 30th March, 2007. In the year, 2008, no payment was made. In the year, 2009, no payment was made till July, 2009. Thereafter the petitioner between 20th August, 2009 till 18th February, 2010 made payment of Rs.10 lacs. 10. The present case is one of repeated, continuous and contumacious defaults with scant regards for obligation to pay licence fee and the rights of NDMC. The payment of Rs.10 lacs has been made only after pressure was put on the petitioner and he became conscious of the fact that he may be evicted. The Estate Officer in his order had recorded that he had given two opportunities to the petitioner to clear the outstanding amounts. Reference in this regard can be made to paragraphs 6 and 7 of the order passed by the Estate Officer. Another opportunity was also W.P. (C) No. 1239/2010 Page 5 granted to the petitioner vide order dated 29th October, 2003 as recorded in paragraph 8 of the order passed by the Estate Officer. The Estate Officer has stated that the petitioner did not try and take advantage of the Amnesty Scheme, which was floated in July, 2002 under which interest was to be charged @ 12% with effect from 1st July, 1992 in spite of earlier higher interest @ 24%. Seeing the conduct of the petitioner, I do not think any indulgence or sympathy should be shown. In fact, showing sympathy in the present case will lead to miscarriage of justice. The writ petition accordingly has no merits and is dismissed. 11. At the request of the learned counsel for the petitioner, it is directed that the respondents will not evict the petitioner for a period of 21 days to enable the petitioner to challenge this order. DASTI. SANJIV KHANNA, J. MARCH 03, 2010 VKR