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2002 DIGILAW 1874 (DEL)

VISHNU DEV BHAGAT v. UNION OF INDIA

2002-12-20

MANMOHAN SARIN

body2002
MANMOHAN SARIN ( 1 ). Rule. ( 2 ) PETITIONER, numbering, 22, who are allottees of shops at Vasant Vihar Shopping Complex have filed the present petition, seeking a writ/direction to restrain the respondents from cancelling their licences and recovering the licence fee from the date of allotment of the shops. It is also prayed that the payment of licence fee be waived till the water and electricity is made available for the shopping complex, without which it is impossible to carry on business activities. ( 3 ) PETITIONERS submit that the Directorate of Estates, Marketing Section had called for sealed tenders for allotment of shops/stalls at Vasant Vihar complex in July, 1998. Shops/stalls were allotted to the highest bidders. Respondents had also fixed a minimum fee and as such the bidder had to quote a figure higher. than the minimum/reserved fee. Petitioners" grievance is that while inviting tenders, respondents did not disclose that water and electricity were not available. Upon issuance of allotment letters, successful bidders were asked to deposit money equivalent to six months licence fee and advance for one month and thereupon licence deeds were executed. ( 4 ) LEARNED counsel for the petitioner submits that there was no water and electricity and in the present time, it is impossible to carry on and transact any business in the absence of these basic amenities. There were other hindrances and difficulties like the absence of a proper approach. It is claimed by the petitioner that access only through a by-lane. The main access being blocked by a boundary wall raised by the CBI Residents Welfare Association. It is urged that there was no provision for emergency services like fire service. Despite the absence of these basic amenities, exorbitant licence fee was sought to be demanded from the date of allotment. ( 5 ) PETITIONERS agitated at various forums with a view to get relief and even, the matter was raised in the Parliament. DVB had taken the decision that premises fell under unelectrified area and connection could not be granted. On the other hand, respondents issued demand-cum-show cause notices on 11. 2. 1999. Petitioners claim that the demand-cum-show cause notices were not served in accordance with law. Petitioners, therefore, by this petition sought waiver of licence fee till the provision of water, electricity and other basic amenities. ( 6 ) MR. On the other hand, respondents issued demand-cum-show cause notices on 11. 2. 1999. Petitioners claim that the demand-cum-show cause notices were not served in accordance with law. Petitioners, therefore, by this petition sought waiver of licence fee till the provision of water, electricity and other basic amenities. ( 6 ) MR. JAYANT Bhushan, learned counsel for the respondents submits that there was no representation made in the notice inviting tender that water and electricity supply were available for the shops/stalls. Mr. Bhushan submits that the shops/stalls were auctioned on "as is whereas Basis". Petitioners were fully aware of the factual situation at site. He further submits that in fact petitioners had been carrying on their business. Water was available from 10. 7. 1998. Electricity provision was also made on 11. 12. 1999. Thereafter it was for the individual allottees to apply for and obtein electric connection. ( 7 ) SHOW cause notice in this case was issued on 16. 4. 1999. By the interim order, respondents were restrained from cancelling the licences. Pleadings were completed. Vide order dated 29. 2. 2000, in view of the non-availability of electricity, respondents were directed to consider the feasibility of reducing the licence fee. Respondents, in the month of October, 2000, moved CM. No. 6147/2000 for vacation of the restraint order against cancellation of the licences. Respondent in the application reiterated their earlier argument of the shops/stalls having been auctioned on "as is whereas Basis" and the shopkeepers having been carrying on their business. It was asserted that electrification work was completed on 11. 12. 1999. Petitioners join issue with regard to the said date and claim that it was only on 17. 4. 2000 that electric supply could be made available. ( 8 ) THE Court purely as an interim measure and without prejudice to the rights and contentions of the parties, directed the petitioners to deposit 50% of the licence fee from the date of allotment upto end february, 2000 and from 1. 3. 2000 petitioners were directed to deposit the entire licence fee. Time of two months was granted to the petitioners for making the payment of entire arreats. The entire arrears were required to be cleared before 31. 12. 2000. Petitioners were also directed to continue to pay the licence fee as per the licence agreement on or before 10th of each month. Time of two months was granted to the petitioners for making the payment of entire arreats. The entire arrears were required to be cleared before 31. 12. 2000. Petitioners were also directed to continue to pay the licence fee as per the licence agreement on or before 10th of each month. in the event of default, stay against the cancellation of the licence granted was to automatically stand vacated. Mr. Bhushan submits that petitioners failed to comply with the order dated 1. 11. 2000 and accordingly the licences of allottees were cancelled in accordance with law, as the restraint order automatically stood vacated upon their default in complying with the order dated 1. 11. 2000. Three of the petitioners approached the Court, namely, Mr. Manoj kumar Gupta, petitioner No. 2, Mr. Gaurav Sethi, petitioner No. 5 and Ms. Kanchan Sharma, petitioner no. 20, allottees of shops No. 3,6 and 26 respectively. The aforesaid three petitioners prayed that their default be condoned and they were willing to pay the interest at the rate of 12% per annum and thereafter abide by the order. Vide order dated 21. 11. 2002, the aforesaid three petitioners were directed to do so. ( 9 ) THE possession which emerges is that the petitioners claim that electricity was made available only on 17th April, 2000 while the respondents contend that it was available on 11th December, 1999. Thus, disputed period is of four months. In this view of the matter, the interim order fixing liability to pay complete licence fee from the month of February, 2000 is fair and equitable. Now I am coming to the question as to whether the petitioners are liable to pay any licence fee or not? There is some merit in the contention of the petitioners that when the respondent announced the availability of shops with the caption "vasant Vihar Shopping Complex", in present times, one can , proceed on the assumption that there would be no such complex without the availability of basic amenities such as electricity. Yet at the same time, the terms and conditions on "as is whereas basis" and the petitioners were expected to have inspected the site and seen the factual position. It is also not in dispute that all the petitioners duly took possession and occupied the premises. Petitioners also claims to have set up the fittings, fixtures and furnishings for carrying on the business. It is also not in dispute that all the petitioners duly took possession and occupied the premises. Petitioners also claims to have set up the fittings, fixtures and furnishings for carrying on the business. Water is stated to have been available from the very beginning. The respondents contend that the petitioners were carrying on business and in some of the trade business could be carried out without electricity also. The fact remains that the petitioners continued to be in possession. In these circumstances a fair, just and equitable order would be that the petitioners are charged 50% of the licence fee upto the end February, 2000. Ordered accordingly. All the petitioners except petitioners No. 2, 5 and 20 have failed to comply with the interim order and avail the benefit thereunder. Accordingly, all petitioners, except petitioners No. 2, 5 and 20, are not entitled to any relief, as their licences already stands cancelled on account of the default in compliance with the order of payment of licence fee. However, petitioners No. 2,5 and 20 are stated to have complied with the order and paid 50% of the licence fee upto end February, 2000 together with 12% interest for the period of default. The licences only of these petitioners be restored within four weeks, without payment of any restoration fee, subject to verification of payment of licence fee. As regards the remaining petitioners, they are not entitled to any relief and their petitions stands dismissed.