HIMA KOHLI, J. (ORAL) 1. The present writ petition is directed against the judgment dated 16.01.1992 passed by the learned ADJ before whom, the order dated 21.04.1990 passed by the Estate Officer was assailed. 2. In a nutshell, the facts of the case are that the respondent No. 1 was a tenant under the petitioner, in respect of a portion of Flat No. 1, Shankar Niwas Building, 1515-17, Bhagirath Palace, Chandni Chowk, Delhi, which is a public premises as defined under Section 2 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Act). The respondent No. 1 was a tenant specifically in respect of a premises measuring 196.37 sq. ft. (approximately) on the first floor of the aforesaid premises at a monthly rent of Rs.79.18 paise excluding water and electricity charges. It was the case of the petitioner that as the respondent No.1 was a habitual defaulter of payment of rent and other dues and also sublet the premises to the respondent No. 2 without the written consent of the petitioner, the tenancy of the respondent No.1 was terminated. However, neither the respondent No.1, nor the respondent No. 2 vacated the premises or paid the damages. Hence, the petitioner/Corporation initiated proceedings under Sections 5 and 7 of the Act before the Estate Officer for eviction and recovery of rent/damages. 3. The Estate Officer, vide order dated 22.12.1980, evicted the respondents from the premises. The said order was assailed by the respondents by filing an appeal before the Additional District Judge, Delhi. Vide order dated 11.10.1983, the learned ADJ dismissed the appeal preferred by the respondents No. 1 and 2. Against the aforesaid order, a writ petition was preferred by the respondents No.1 and 2, registered as Civil Writ Petition No. 2713/1983. It is stated by the counsel for the petitioner that during the pendency of the present writ petition, the aforesaid writ petition has been disposed of and the petitioner has received the vacant possession of the premises in question. 4. Insofar as damages in respect of the premises were concerned, the petitioner claimed damages from the respondents No. 1 and 2 on account of unauthorized use and occupation @ Rs.981.85 paise per month w.e.f. 01.01.1981 to 30.09.1985 (i.e., @ Rs.5/- per sq. ft. per month) and w.e.f. 01.10.1985 onwards, at the same rate, besides water charges alongwith interest @ 12% per annum. ft. per month) and w.e.f. 01.10.1985 onwards, at the same rate, besides water charges alongwith interest @ 12% per annum. Thereafter, the petitioner initiated proceedings under the Act before the Estate Officer and filed a claim. The Estate Officer issued a notice to show cause dated 14.11.1985, to the respondents calling upon them to show cause as to why they should not pay the damages as indicated in the said notice for the period w.e.f. 01.01.1981 to 30.09.1985 and for the period w.e.f. 01.10.1985 onwards, damages at the same rate alongwith interest @ 12% per annum till the decision of the case, apart from water charges. The aforesaid notice to show cause was duly replied to by the respondent No. 1 vide reply dated 26.12.1985. The proceedings before the Estate Officer culminated in an order dated 21.04.1990 whereunder, the Estate Officer held that the respondents No. 1 and 2 would be liable to pay damages to the petitioner @ Rs.5/- per sq. ft. per month w.e.f. 14.11.1985, till the payment and w.e.f.1.4.1990, at the same rate alongwith water charges as claimed by the municipal authority till their eviction from the said premises alongwith interest at the rate of 10% per annum in case the damages were not paid within ten days of their falling due. 5. Aggrieved by the aforesaid order of the Estate Officer, the respondents No. 1 and 2 preferred an appeal before the learned ADJ, Delhi, which was decided vide order dated 16.01.1992. The learned ADJ partly allowed the appeal preferred by the respondents by setting aside the order of the Estate Officer insofar as it directed payment of damages to the petitioner @ Rs.981.85 paise w.e.f. 01.10.1985 to 31.03.1990. Instead, directions were issued to the Estate Officer that arrears of damages w.e.f. 01.01.1981 be calculated at the rate of Rs.79.18 paise per month. Aggrieved by the aforesaid order, the petitioner/LIC has preferred the present writ petition. Respondent No.2 could not be served by ordinary process and hence was served by way of publication in the press. However, none appeared on its behalf. Though appearance was entered by the respondent No.1, counter affidavit has not been filed. Nor has any one appeared for the respondent No.1 even today, though matter has remained on the regular board since 6.1.2009. 6. However, none appeared on its behalf. Though appearance was entered by the respondent No.1, counter affidavit has not been filed. Nor has any one appeared for the respondent No.1 even today, though matter has remained on the regular board since 6.1.2009. 6. Counsel for the petitioner states that the impugned order dated 16.01.1992 is erroneous inasmuch as the learned ADJ wrongly arrived at the conclusion that the Estate Officer decided damages for the period w.e.f. 01.09.1985 to 31.03.1990 irrespective of the fact that no show cause notice for claiming damages for the said period had been issued or served upon the respondents No. 1 and 2. In this regard, he draws the attention of the Court to the show cause notice dated 14.11.1985 (Annexure-B). A perusal of the aforesaid notice shows that the Estate Officer had called upon the respondents to show cause as to why they should not pay damages for the period w.e.f. 01.01.1981 to 30.09.1985, as also for the subsequent period w.e.f. 01.10.1985 onwards, till a decision of the case. In these circumstances, it has to held that the observation of the learned ADJ to the effect that the Estate Officer assessed the damages for the period, which was not even referred to him, is contrary to the documents on the record. As a consequence, it can also not be held that in the absence of notice to show cause, the respondents were not given a fair opportunity of hearing. Hence, the order passed by the learned ADJ to the aforesaid extent, being contrary to the material placed on the record, cannot be upheld and is set aside. 7. Insofar as the assessment of damages is concerned, the observations of the Estate Officer, are contained from page-13 onwards of his order. He observed that the respondents had not led any documentary evidence to show that the market rate of rent prevalent at the time of termination of their tenancy was less than what has been claimed by the petitioner/corporation. While discussing the importance of the commercial area in question, the Estate Officer held that being an area of high commercial value, the premises in question was likely to fetch a good rental. The material placed on record by the petitioner was taken into consideration by the Estate Officer. While discussing the importance of the commercial area in question, the Estate Officer held that being an area of high commercial value, the premises in question was likely to fetch a good rental. The material placed on record by the petitioner was taken into consideration by the Estate Officer. In this regard, he referred to a registered Lease Deed executed on 29.01.1986 between the petitioner/Corporation and one Shri Sudhir Gupta, pertaining to the same building, wherein the monthly rent was fixed at the rate of Rs.300/- for portion measuring 58.51 sq. ft. payable w.e.f. 01.09.1985, which comes to more than Rs.5/- per sq. ft. per month. It was also taken note of by the Estate Officer that the said premises was situated under the staircase and was quite insignificant as compared to the premises under the occupation of the respondents, which was situated on the first floor of the building. The petitioner also produced the original Rent Ledger in respect of the premises, let out to Shri Sudhir Gupta to prove that the rent was regularly paid and the agreement was duly complied with since 01.09.1985. 8. Taking into consideration the aforesaid material placed on the record and keeping in view the provisions of Rule 8 of the Act, the Estate Officer turned down the plea of the petitioner/Corporation to claim prevalent market rate for the block of four years, eight months starting from the period w.e.f. 01.01.1981 to 31.08.1985. He held that the same could not be allowed in the absence of any material, and as the prevalent market rent could be ascertained, hence, benefit was given to the respondents by holding that they were liable to pay damages equal to the agreed monthly rent for the period w.e.f. 01.01.1981 to 31.08.1985. For the subsequent period w.e.f. 01.09.1985, it was held that the respondents were liable to pay damages at the rate of Rs.5/- per sq. ft. per month, i.e., Rs.981.85 paise per month till the actual vacation of the premises, besides water charges. As against the claim of the petitioner for grant of interest at the rate of 12% per annum, the Estate Officer granted interest at the rate of 10% per annum on the arrears w.e.f. 14.11.1985, i.e., the date of issue of the notice to show cause till payment. 9. As against the claim of the petitioner for grant of interest at the rate of 12% per annum, the Estate Officer granted interest at the rate of 10% per annum on the arrears w.e.f. 14.11.1985, i.e., the date of issue of the notice to show cause till payment. 9. In the impugned order dated 16.01.1992, the learned ADJ arrived at a conclusion that the Estate Officer had not applied his independent mind and was biased in arriving at the aforesaid conclusion. He went on to observe that the cross-examination of the witnesses produced by the petitioner to ascertain market rent, had not been taken into consideration by the Estate Officer before returning a finding with regard to the quantum of damages. He also observed that apart from the case of Sudhir Gupta, where a letting order was passed by the competent authority, i.e., the Zonal Manager of the petitioner/Corporation, no other case of letting was considered by the Estate Officer. It was also noted that there was another tenant in the said property, namely, Hari Talkies from whom damages were claimed at the rate of Rs.1.50 paise per sq. ft. and yet another tenant, namely, Shaukat Abdul Tahir, from whom damages were claimed at the rate of Rs.2/- per sq. ft. 10. The order of the Estate Officer has been faulted by the learned ADJ by making an observation to the effect that he ought not to have placed intrinsic reliance upon the decision of the Zonal Manager of the petitioner/Corporation for the purpose of awarding damages against the respondents. In this regard, counsel for the petitioner submits that insofar as the aforesaid two tenants, referred to by the learned ADJ in para-3 of the impugned order, are concerned, their tenancy had been terminated by the petitioner/Corporation long before the termination of the tenancy pertaining to the premises under the occupation of the respondents and that litigations in respect of the said tenancies were also pending. He also states that the learned ADJ erred in arriving at the conclusion that the amount of Rs.1.50 paise per sq. ft. and Rs.2/- per sq. ft. being paid by the aforesaid tenants, was towards `rent. This fact is borne out from a perusal of the impugned order where the word damages and not `rent is used in respect of the amounts paid by the aforesaid parties. ft. and Rs.2/- per sq. ft. being paid by the aforesaid tenants, was towards `rent. This fact is borne out from a perusal of the impugned order where the word damages and not `rent is used in respect of the amounts paid by the aforesaid parties. Furthermore, the observation of the learned ADJ that the Estate Officer could not have relied on the rate as decided by the Zonal Manager of the petitioner/Corporation while assessing quantum of damages is unjustified for the reason that the Lease Deed registered in respect of the premises in question and relied upon by the Estate Officer, was voluntarily entered into by a third party with the petitioner/Corporation. It was not a case where any `damages were imposed by the Zonal Manager, but a case where a party entered into the arrangement of his free will and volition and had no objection to pay the rent agreed upon. 11. That the registered Lease Deed came into existence on 29.01.1986, while damages in respect of the premises, subject matter of the present writ petition, were fixed by the Estate Officer for the period w.e.f. 01.09.1985, cannot be a ground to hold that the said Lease Deed could not be taken into consideration for the purpose of fixing the rent for a period starting from three months prior to existence of the registered Lease Deed. A perusal of The Public Premises (Eviction of Unauthorized Occupants) Rules, 1971 indicates the parameters, which are required to be taken into consideration by the Estate Officer while assessing damages for unauthorized use or occupation of any public premises. One of the criteria for assessing the quantum of damages is the rent which could have been realized if the premises had been let out for the period of unauthorized occupation, to a private person. It is undisputed that Shri Sudhir Gupta was a private person, who, of his own free will, approached the petitioner/Corporation for taking on lease a portion of premises on the ground floor under the staircase of the same premises, wherein the respondents were in occupation, the only difference being that the respondents were under occupation of the first floor of the same premises. Hence, there is no scope of holding that there was lack of exercise of choice by the said tenant while entering into the Lease Deed with the petitioner/Corporation. Hence, there is no scope of holding that there was lack of exercise of choice by the said tenant while entering into the Lease Deed with the petitioner/Corporation. On the basis of the evidence led before him, the learned Estate Officer was justified in assessing the quantum of damages on the basis of the guidelines laid down in Rule 8. Thus, the Estate Officer cannot be faulted for placing reliance on the aforesaid Lease Deed. Furthermore, apart from cross-examining PW-1, a witness who appeared on behalf of the petitioner/Corporation, the respondents on their own did not produce any evidence to demolish the case of the petitioner/Corporation for claiming damages at the rate of Rs.5/- per sq.ft. per month and to establish the rent that would have been realized if the premises had been let out for the period of unauthorized occupation to a private person. 12. In view of the aforesaid discussion, this Court is of the opinion that the present writ petition is liable to be allowed. Accordingly, the impugned order dated 16.01.1992 in so far as it sets aside and quashes the order of the learned Estate Officer directing the respondents No. 1 and 2 to pay damages at the rate of Rs.981.85 paise for the period w.e.f. 01.10.1985 to 31.03.1990, is set aside. The order of the Estate Officer is restored. The writ petition is disposed of. 13. Parties are left to bear their own costs.