M/S. FUSION FOODS v. INIDAN TOURISM DEVELOPMENT CORPORATION LIMITED

1. Present writ petition has been filed under Article 227 of the Constitution challenging the judgment and order dated 29th August, 2014 passed by learned District Judge and Sessions Judge, New Delhi whereby petitioner’s appeal being PPA No. 04/2014 challenging the eviction order dated 09th January, 2014 passed by Estate Officer was dismissed. 2014:DHC:4474

2. Learned counsel for the petitioner states that the eviction proceeding had been initiated in violation of the guidelines issued by the Department of Public Enterprises, Ministry of Industry, Government of India inasmuch as the petitioner had made a huge capital investment and was entitled to an initial licence for a period of five years along with a renewal for another five years. In support of his contention, learned counsel for the petitioner draws this Court’s attention to the cross examination of respondent’s General Manager Mr. Vipin Garg. The relevant portion of the cross-examination referred to and relied upon by learned counsel for the petitioner is reproduced hereinbelow:- “.......It is correct that the premises which is presently in the occupation of the respondent was earlier let out to two independent units i.e. Hunt Room and Kamakashi Restaurant. Vol. Hunt Saloon Bar was run by Samrat Hotel while Kamakshi Restaurant was licensed out. It is correct that these two units were divided by a wall in between. It is correct that as per the policies of ITDC of the year 1995, the premises wherein no capital expenditure was required was let out initially for a period of three years and the premises in which capital investment was required was let out for a period of five years. It is also correct that all the agreements as per the policy of 1995 used to cover “subsequent renewals”. It is correct that the respondent removed the wall between the two units of Samrat Hotel to join them as one unit presently known as “CHAKRAS”. It is also correct that as both the units were joined to one unit as CHAKRAS, a lot of structural and operational changes in the interiors, equipments etc. were made. AC ducting was also made by the respondent. It is correct that the respondent had requested the applicant to grant him an initial period of five years in place of three years as stated in the licence agreement as expenditure of capital nature was incurred by him on the premises. It is not in my knowledge if the then General Manger of the applicant had assured the respondent that the licence agreement will be extended to a period of five years in place of three years as capital investment was made by the respondent.............”

3. Learned counsel for the respondent, who appears on advance notice has handed over copies of licence deeds dated 30th August, 2005 and 07th February, 2011 executed between the petitioner and the respondent. The same are taken on record.

4. The period of licence and the renewal clause therein are reproduced hereinbelow:-

2. No second renewal will be permitted, after the expiry of the first renewal period. Open tender will be invited in which the existing licensee will be at liberty to participate unless otherwise debarred.....” (emphasis supplied)

5. Learned counsel for the respondent has also drawn this Court’s attention to the relevant portion of the order passed by the Estate Officer as well as the District Judge. The relevant extract of the impugned orders passed by the District Judge and the Estate Officer are reproduced A) Order dated 29th August, 2014 passed by the District Judge:-

6. Having heard learned counsel for the parties, this Court is constrained to observe that the petitioner has deliberately suppressed the most material and relevant documents, i.e., licence deeds dated 30th February, 2011. After all, all the terms and conditions on the basis of which licence had been granted to the petitioner are contained in the aforesaid documents.

7. In any event, this Court is of the view that the contention advanced by learned counsel for the petitioner is clearly barred by Sections 91 and 92 of the Indian Evidence Act, 1872. The said Sections are reproduced “91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.—When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. Exception 1.—When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2.—Wills [admitted to probate in [India]] may be proved by the probate. Explanation 1.—This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one. Explanation. 2.—Where there are more originals than one, one original only need be proved. Explanation 3.—The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact. 92 - Exclusion of evidence of oral agreement—When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: Proviso (1).-Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party [want or failure] of consideration, or mistake in fact or taw: Proviso (2).-The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document: Proviso (3).-The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4).-The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5).-Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with the express terms of the contract: Proviso (6).-Any fact may be proved which shows in what manner the language of a document is related to existing facts.”

8. There is also no explanation from the petitioner-firm as to what prevented it from assailing the licence period sanctioned to it at the time of entering into the licence agreement on 30th August, 2005. This Court is of the view that having accepted and acted upon the licence deeds dated 30th February, 2011 and having taken advantage thereof for more than six years, the petitioner cannot now turn around and challenge the provisions of licence deeds at this stage.

9. This Court also finds that a similar argument was rejected by a Coordinate Bench of this Court in M/s. Hotel Natraj v. Union of India & Ors. ILR (2008) Supp. 6 Delhi 82. In the said judgment, it was held as under:-