M. K. Chawla ( 1 ) THE respondent New Delhi Municipal Committee,hereinafter called the Committee" is the owner of the building known aspalika Parking. On 30th of December, 1986, the Committee invited tendersfor licensing of store/godown space measuring 3088 sq. ft. in Palika Parkingopposite Regal building, Connaught Circus New Delhi. Only two tenderswere received by the stipulated date. The tender of Shri R. P. Jain, thepetitioner herein, offering Rs 7. 51 p. sq. ft. per mensum was the highest. Theoffer of the petitioner was accepted. As per the terms and conditions of thetender application, the petitioner was asked to deposit the security amounting to Rs. 82,763. 52 after adjusting Rs. 10000. 00deposited as earnest money,and to months licence fee in advance amounting to Rs. 46,381. 76. Thepetitioner agreed to deposit the amounts asked for but in the meantime,he pointed out that the work in the said premises is still in progress, and thefollowing among other items are required to be completed to make the placegoods for habitation : (I) One exhaust, tender from mentions two, whereas there is onlyone; (ii) the subsoil water is seeping inside the premises at more thanone place and had filled the place several times despite heavywork force deployed to throw the water outside. ( 2 ) IT appears that the premises were not. made habitable to thesatisfaction of the petitioner even though he took over the possession ofthe premises on 15. 5. 87 from the Executive Engineer of the Committee. Asthe dispute lingered on for quite sometime, and the petitioner neither paid thearrears of licence fee or executed the licence deed furnished by the Committeedespite reminders, the allotment in favour of the petitioner was cancelledby the Administator on 30/10/1987. However, on the request of thepetitioner, the matter was reconsidered by the Committee and the order ofcancellation was revoked on 1st of December, 1987, without prejudice to therights and privileges of the Committee. Even thereafter, no amicable solutionto the problem of the making the premises habitable was reached. However, on the request of thepetitioner, the matter was reconsidered by the Committee and the order ofcancellation was revoked on 1st of December, 1987, without prejudice to therights and privileges of the Committee. Even thereafter, no amicable solutionto the problem of the making the premises habitable was reached. Ultimately,vide order dated 8/04/1988, the Administrator, N DM C. cancelled theallotment for committing various defaults by the petitioner- The informationof this order was conveyed to the petitioner vide letter dated 14/04/1988 (Annexure P-51) The petitioner was directed to stop the use of store/godownspace for any purpose whatsoever forthwith and hand over its vacant possession to the Executive Engineer, N. D. M. C. He was also required to paya sum of Rs. 2,13,613. 30 as arrears of licence fee with interest at the rateof 20/o from 11. 5. 87. As a consequence of the cancellation of the allotment,proceedings under Sections 5 and 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, were initiated. The petitioner filed his replybefore the Estate Officer and simultaneously filed the present petition forthe issuance of a writ, order or direction in the nature of certiorari for quashing the impugned notice dated 7. 6 88 issued by the Estate Officer, N. D. M. C. directing the Committee to comply with the requirements laid down by thechief Fire Officer, M. CD. for habitation of the space at underground park ing. While issuing the "rule", the Division Bench of this Court stayeddispossession of the petitioner and further directed that no final order in theproceedings under the P. P. Act be passed. ( 3 ) THE terms and conditions for licensing of space meant for storage/godown at underground parking are contained in the Memorandum of Information issued by the Committee vide Annexure a . This Memorandumpresupposes that the licensed space is fit for habitation and/or store/godownand the petitioner has to abide by the vasious conditions to put it to permissible use. Immediately after the acceptance of his tender and before theexecution of the licence deed, the petitioner pointed out the various defectsin the construction of the space without which the space cannot be used forstorage of sophisticated electronic items like V. C. R. in which business thepetitioner is engaged. His main grievance is two-fold : 1. That the subsoil water is seeping inside the premises from morethan one place which requires immediate attention;2. His main grievance is two-fold : 1. That the subsoil water is seeping inside the premises from morethan one place which requires immediate attention;2. That fire protection arrangements need the installation of automatic sprinklers as per the building bye-laws. ( 4 ) THE respondents stand is that the allotment of the space forstorage has been made on "as is where is" basis. It was also stipulated in thetender application form the applicant should first examine the premises/spaceavailable at site before submitting the tender. The committee as such is notbound to rectify the defects. ( 5 ) THE petitioner is engaged in the business of sale, purchase andmanufacture of all sorts of electronic items for the storage of which he offeredthe maximum licence fee for the space. He also completed the formalities ofdeposit of security amount equal to four months licence fee as. also twomonths licence fee in advance in good faith. On inspection of the premises,it was discovered that there was great amount of humidity all around due toseepage where the electronic goods cannot be stored. In the hope that therespondent Committee will make the premises worthwhile for storage ofelectronic items, the petitioner applied for the issuance of no objectioncertificate from the Chief Fire Officer, M. C. D. as per the terms and conditions of the tender. The office of the Chief Fire Officer refused to issue noobjection certificate as the premises required structural changes to providefor a second fire escape, approach road, sprinklers system, etc. besides otherrequirements. In face of these two problems, the petitioner requestedthe respondent Committee to remove the defects so that he is in aposition to make use of the premises. The respondents denied their responsibility and took the stand the it was for the petitioner to make the spacehabitable at his own costs. ( 6 ) THE question that requires consideration is as to whether the standof the respondent-committee is justified and or the petitioner is himself responsible for getting the defects removed at his own costs. The parties haveexchanged lot of correspondence on these issues. From that correspondence,it can safely be inferred that not only the respondent committee was liable toset right the defects pointed out by the petitioner but they undertook toremove the same but failed to honour their assurances. The parties haveexchanged lot of correspondence on these issues. From that correspondence,it can safely be inferred that not only the respondent committee was liable toset right the defects pointed out by the petitioner but they undertook toremove the same but failed to honour their assurances. The petitioner cannotbe made to suffer for the defaults of the respondent to continue to pay thelicence fee without putting the premises to any use. To arrive at this conclusion, I would only like to refer to the letters of the officers of the respondent-committee undertaking to mend the defects but failed to carry them out. ( 7 ) EX. P-5 is the letter dated 13/01/1987 from the Director (Estates) to the petitioner wherein he was informed that even though theallotment was made on "as is where is basis" but as a special gesture ofgoodwill, the concerned Department of the respondent has been requested tolook into these points. A copy of this letter was forwarded to the Chiefengineers (C and E) for information. They were further directed to look intothe following defects at their earliest so that the space could be banded overto the allottee. ( 8 ) THE Manager (parking) vide his note dated 26. 8. 86 has reportedthat provisions for 2 exhaust fans have been made in the above space andaccordingly incorporated in the tender documents; (I) Exhaust fan (the tender form mentions to whereas there is onlyone) (ii) the soil water is seeping inside the premises from more thanone space and have filled the place several times despite heavywork-force having been deployed to throw water outside. Thespace between the adjacent walls (of the parking) needs to begunilting. (iii) the water proofing being done at the moment is insufficient; (iv) the Development Officer from the Oriental Insurance Co. Ltd. has categorically asked for gunilting and dry floor/etc, beforethey can issue the requisite Insurance cover. ( 9 ) THE Chief Engineers were requested to intimate the Estate Department of the action taken on these items. A reminder on the same lines wassent to the Chief Engineer (C) on 19/01/1987 requiring him to ensurethat the seepage problem does not exist any longer and to provide for anopening for installing another exhaust fan. ( 9 ) THE Chief Engineers were requested to intimate the Estate Department of the action taken on these items. A reminder on the same lines wassent to the Chief Engineer (C) on 19/01/1987 requiring him to ensurethat the seepage problem does not exist any longer and to provide for anopening for installing another exhaust fan. The Director of Estate in theirletter dated 3/02/1987 to the Chief Engineer (C), (P-8) emphasisedthat as the petitioner has since completed the formalities like the deposit ofsecurity and advance licence fee, it is desirable that the condition of thepremises is made habitable useable and free from stagnating subsoil waterpresent there which comes from the basement floor. The Chief Engineer wasdirected to get the aforementioned defects rectified at the earliest as thepetitioner s complaint is genuine. Before proceeding further on this aspect, atthis stage, it is relevent to dwell on the problem of provision of fire fightingarrangement. ( 10 ) AS pointed out earlier, the petitioner applied to the office of thedelhi Fire Service for the issuance of no objection certificate for basementspace, at underground Palika parking in terms of the tender. The Chief Fireofficer vide his letter dated 13/07/1987 (P-24) informed the petitionerwith a copy to the Chief Architect, N. D. M. C. that during the inspection, ithas been observed that this basement has been constructed and allotted to thepetitioner for use of store/godown by the N. D. M. C. has only one staircasehaving the width of 1. 25 meters as means of escape which is quite inadequate. It was also pointed out that the basement has not been provided with themechanical ventilation and alternative lighting arrangements having no fireprotection arrangements. The petitioner was informed that the no objectioncertificate for this basement can only be considered if adequate fire protectionmeasures as detailed below are provided :- 1. Clear access-way for the fire engine not less than 5 metres shallbe provided upto the entrance of the basement from the mainroad. 2. The entire basement shall be protected with the automaticsprinkler, installation in accordance with clause K-10. 3 ofappendix K, bye-laws 1 to 17. 2, and installation of one firehydrant near the entrance with complete Hose Box and Hosereal. 3. The construction of the basement shall meet the requirement ofclause 14. 12 of Bldg. Bye-laws. 4. The portable fire extinguisher of different types must be provided as marked on the plan. 3 ofappendix K, bye-laws 1 to 17. 2, and installation of one firehydrant near the entrance with complete Hose Box and Hosereal. 3. The construction of the basement shall meet the requirement ofclause 14. 12 of Bldg. Bye-laws. 4. The portable fire extinguisher of different types must be provided as marked on the plan. The extinguishers shall bear ISICertificate mark. These shall be in accordance with IS 2190and IS 2217. ( 11 ) SUBSEQUENTLY, the Chief Fire Officer vide his letter dated 2 4/09/1987 (P-32) to the petitioner again emphasized that the recommendations made by him on 13/07/1987, are in accordance with theunified Building Bye-laws, 1983 and in the absence of its compliance, it willnot be possible for the Delhi Fire Service to give you N. O. C. for occupancypurposes. This view was reaffirmed by the Chief Fire Officer in his letterdated 5. 10. 87 (P-35 ). It is not disputed that the issuance of the no objectioncertificate from the Chief Fire Officer is a pre-condition to the use of thepremises. ( 12 ) AS the situation was getting out of control inasmuch as thepetitioner declined to occupy the space unless it is set right and the respondent-Committee was insisting that the removal of defects, if any, is the, responsibility of the petitioner, a joint inspection of the premises was held on 6/11/1987. The Superintending Engineer then required theexecutive Engineer (C-l) to immediately attend to the repairs of seepage inhis letter of the same date (P-39 ). He observed :- "the basement floor near Palika Parking licensed to Sh. Rajendraprasad Jain was inspected with you on Friday 6. 11. 87 on receipt ofnumber of complaints from the licensee for persistance of the sub-soil water seepage in the basement due to which be is not able touse the godown. It was observed that there was regular seepagealong the brick wall and minor seepage arround columns. Itappeared that repair work was done earlier around the columnswhich had reduced the seepage but sings of seepage were still visible. The trench made along the brick wall in the floor was full of sub-soil water. As this work was executed through M/s N. B. C. C. a Govt. ofindia Undertaking on actual cost plus overbeads and the waterproofing was got done by them through a specialised agency whobad submitted a guarantee of 10 years against any seepage etc. The trench made along the brick wall in the floor was full of sub-soil water. As this work was executed through M/s N. B. C. C. a Govt. ofindia Undertaking on actual cost plus overbeads and the waterproofing was got done by them through a specialised agency whobad submitted a guarantee of 10 years against any seepage etc. Youare advised to issue necessary notice to M/s N. B. C. C. to have theseepage attended without any delay. The specialised firm will haveto attend to the seepage at their own cost as the seepage hasappeared even in a period of less than I year of its completion. The necessary action for repairs to the seepage may be takenon top priority as firm to whom the basement has been licensedhas been representing time and again at various levels on thisaccount and have been putting the entire blame on the Civilengineering Department for not getting seepage attended. Thevarious representations submitted by the Licensee for provision offire protection works in the premises as per the requirement ofchief Fire Officer Delhi as per unified Bldg, bye-laws 1983 be alsoput up urgently. " ( 13 ) THE sum total of the correspondence exchanged between theparties and the admissions of the officers of the respondent committee atvarious stages leave no doubt in my mind that it was the responsibility of therespondent-committee to make the permises workable by removing the twomain defects. ( 14 ) THIS view finds support from the report of the Sub Committeeconstituted by the Administrator, N. D. M. C. to decide the future course ofaction in respect of the godown space alloted to the petitioner. The meetingof this Committee was held on 26/05/1988 under the Chairmanship ofshri J. S. Mehrotra, Financial Adviser. The other members of the Committeewere Additional Chief Engineer (Electrical), Chief Architect. Superintendingengineer (Civil), Director (Estate), the Deputy Law Officer and the Assistantdirector (Estate ). The Sub Committee thoroughly considered the matter withthe background of the representations of the petitioner. The following conclusions were drawn:- "the first important point which he has been raising relates toseepage in the premises allotted to him. The Superintendingengineer informed the Committee that the repairs are needed to bedone but since Shri R. P. Jain has not been allowing the staff of thecivil Engineering Department entry, for carrying out repairs on oneground or the other, the work could not be carried out. Ifn. The Superintendingengineer informed the Committee that the repairs are needed to bedone but since Shri R. P. Jain has not been allowing the staff of thecivil Engineering Department entry, for carrying out repairs on oneground or the other, the work could not be carried out. Ifn. D M. C. agrees for carrying out repairs to check seepage, etc it isvery essential that the premises should be handed over by Shri R. P. Jain to N D. M. C. He further explains that the repair work maytake around one month. The second point which has been raised by Shri R. P. Jain relatesto provision of a fire fighting arrangement. The Committee discussedall aspects in detail. C. A. and the Superintending Engineer (C) pointed out that there are two categories of fire safety measures. The firstcategory relates to provisions for fire escape, exhaust and sprinklers. These measures relate with the construction and these are to becarried out by N. D. M. C. The second category of fire safety devicerelates to the fire extinguishers and such other minor items forwhich expenditure should be incurred by the allottee. " ( 15 ) THE above said reccommendations finally set at rest the controversy inasmuch as the respondent committee took upon itself to remove thedefects of seepage and make structural changes to provide fire escape, exhaustand sprinklers. ( 16 ) IN their counter before this court, the respondents presisted thatas per the terms of the tender notice, is was the duty of petitioner to get thedefects removed, if any and make it useable and continue to pay the licencefee. Learned counsel emphasised that the defects, if any. have been attendedto and the premises are fit for occupation. The petitioner denied the correctness of this assertion. In order to know the exact position of the basement,p. K. Bahri, J. vide order dated 309 88. directed the Chief Architect of therespondent Committee to inspect the premises and submit a report about thecondition of the space as to whether the same is fit for occupation and if notwhat improvements or repairs are required to be done to make it fit foroccupation. In compliance with this direction, Shri S. D. Satpute, Chiefarchitect inspected the basement premises at Palika Parking shopping centreon 18/10/1988 in the presence of the petitioner. In compliance with this direction, Shri S. D. Satpute, Chiefarchitect inspected the basement premises at Palika Parking shopping centreon 18/10/1988 in the presence of the petitioner. Shri G. S. Chaturvedi,director Estate, Shri V. P. Sangal, Superintending Engineer (Civil) and Shriarun Kumar, Manager, Palika Parking, In his report dated 21/10/1988, be pointed out that the premises have not been used for lone time andthere is presence of water all over the floor of the basement to a depth ofabout 50 mm (2 inches) He also pointed out that for the purposes of ventilation, only one exhaust fan has been provided whereas the position of thesecond exhaust fan has been blocked with ply-board for security reasons. He also noticed that no fire safety/protection arrangements have beenprovided. In his opinion, as per the present condition, the basement cannotbe used and the premises are required to be properly treated with suitablewater proofing to overcome the problem of seepage of sub soil water, including water proofing treatment for walls and roofs The ventilation also requiresimprovement. The requirement of fire safety be provided so that thebasement could be used without any risk damage to the stored goods. Healso noticed that the petitioner has eracted few cabins with limber partitionsbut the same appear to have been abandoned half way. Alongwith thisreport, he also filed the photographs of the premises. ( 17 ) THE respondent tried to overcome the report of the Localcommissioner and preferred to file the objections by alleging that no wateron the staircase leading to the premises was found and that the Woodenstructures have been constructed by the petitioner within 4/5 days of the dateof the inspection. ( 18 ) ACCORDING to the respondent, the water must have been pouredand collected on the basement as sub soil water could not ooze and collect inthe manner as shown in the photographs. ( 19 ) THE objections on the face of it are devoid of any substance. Itis just not possible for the petitioner to have collected such a huge quantityof water from somewhere else and store it in the premises. The Managerpalika Parking and the staff of the respondent committee would not allowanybody to bring water from outside and then store it in the basement. Thechief Architect is the seniormost officer of the N. D. M. C. and his reportdeserves due regard. I have no hesitation to accept the report. The Managerpalika Parking and the staff of the respondent committee would not allowanybody to bring water from outside and then store it in the basement. Thechief Architect is the seniormost officer of the N. D. M. C. and his reportdeserves due regard. I have no hesitation to accept the report. This reportwill finally settle the controversy sought to be raised by the respondent-committee of their responsibility to make the premises habitable beforerequiring the petitioner to pay the licence fee. ( 20 ) I do not agree with the contention of the learned counsel for therespondent that the petitioner started raising the unnecessary and uncalledfor controversy after taking possession of the premises with a view to avoidthe payment of huge amount of licence fee. This is not the correct position. The possession slip is dated 15/05/1987. Before that he had not onlydeposited the security and two months advance licence fee amounting tomore than Rs. 1. 50 lakhs but at the same time had also pointed out vide hisletters dated 8. 1. 87 and 13. 1. 87, P-4 and P-7 respectively that he will beliableto pay licence fee only after the premises are put in a habitable conditionand are in a useable state of affairs free from stagnating sub soil water whichis coming out from the basement floor besides other works to be completedby the respondent. It was only on the assurance of the respondent Committeethat the defects would be attended to that the petitioner bona fide tookpossession of the premises. ( 21 ) TILL this date, the respondent-committee has not fulfilled theirobligation to make the premises habitable with the result that the petitionerhas not been able to start his business and put the premises to a proper use. Hein fact has suffered a lot in his business, instead, the respondent-committeecancelled the allotment and initiated proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, in order to put pressure on thepetitioner. This action of the respondent-Committee is unjust, arbitrary andimproper. It being a civil authority, it is the bounden duty of the N. D. M. C. to fulfil their obligations and when the premises is fit for occupation, thenstart charging the licence fee ( 22 ) LEARNED counsel for the respondent on the basis of the correspondence contended that the petitioner himself is responsible for the delay inexecution of work for the removal of the defects. This is not the case borneout from the correspondence referred to above. The petitioner, according tothe learned counsel, is still ready and willing to occupy the premises andforget about the loses which he has suffered so far. He undertakes to startbis business and pay the licence fee as soon as the premises are made fit foroccupation, For this long delay, the petitioner is not to be blamed. ( 23 ) IN the result, the petition succeeds. The notice dated 7. 688 ofrespondent no. 3 issued under Public Premises (Eviction of Unauthorisedoccupants) Act, is hereby quashed. The respondent no. 1 is also restrainedfrom charging licence fee. The respondent No. 1 is directed to fulfil theirobligation of stopping the seepage to the satisfaction of the Chief Engineer (Civil), N. D M. C. and providing the premises with fire safety measures aspointed out by the Chief Fire Officer before requiring the petitioner to paythe licence fee, No costs.