JUDGMENT
M.K. Chawla, J.
(1) The respondent New Delhi Municipal Committee,hereinafter called ‘the Committee” is the owner of the building known as Palika Parking. On 30th of December, 1986, the Committee invited tenders for licensing of store/godown space measuring 3088 sq. ft. in Palika Parking opposite Regal building, Connaught Circus New Delhi. Only two tenders were received by the stipulated date. The tender of Shri R.P. Jain, the petitioner herein, offering Rs 7. 51 p. sq. ft. per mensum was the highest. The offer of the petitioner was accepted. As per the terms and conditions of the tender 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’ license fee in advance amounting to Rs. 46,381.76. the petitioner 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 the following among other items are required to be completed to make the place goods for habitation :
(I)One exhaust, tender from mentions two, whereas there is onlyone;(ii) the subsoil water is seeping inside the premises at more than one place and had filled the place several times despite heavy work force deployed to throw the water outside.
(2) It appears that the premises were not .made habitable to the satisfaction of the petitioner even though he took over the possession of the premises on 15.5.87 from the Executive Engineer of the Committee. As the dispute lingered on for quite sometime, and the petitioner neither paid the arrears of license fee or executed the license deed furnished by the Committee despite reminders, the allotment in favor of the petitioner was cancelled by the Administrator on 30/10/1987. However, on the request of the petitioner, the matter was reconsidered by the Committee and the order of cancellation was revoked on 1st of December, 1987, without prejudice to the rights and privileges of the Committee. Even thereafter, no amicable solution to the problem of the making the premises habitable was reached. Ultimately,vide order dated 8/04/1988, the Administrator, N Dm C. cancelled the allotment for committing various defaults by the petitioner- The information of 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/godown space 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 license fee with interest at the rate of` 20ø/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 reply before the Estate Officer and simultaneously filed the present petition for the 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 the Chief Fire Officer, M.CD. for habitation of the space at underground park’ing. While issuing the “Rule”, the Division Bench of this Court stayed dispossession of the petitioner and further directed that no final order in the proceedings 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 Memorandum presupposes that the licensed space is fit for habitation and/or store/godown and the petitioner has to abide by the various conditions to put it to permissible use. Immediately after the acceptance of his tender and before the execution of the license deed, the petitioner pointed out the various defects in the construction of the space without which the space cannot be used for storage of sophisticated electronic items like V.C.R. in which business the petitioner is engaged. His main grievance is two-fold : 1.That the subsoil water is seeping inside the premises from more than 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 for storage has been made on “as is where is” basis. It was also stipulated in the tender application form the applicant should first examine the premises/space available at site before submitting the tender. The committee as such is not bound to rectify the defects.
(5) The petitioner is engaged in the business of sale, purchase and manufacture of all sorts of electronic items for the storage of which he offered the maximum license fee for the space. He also completed the formalities of deposit of security amount equal to four months’ license fee as .also twomonths’ license fee in advance in good faith. On inspection of the premises,it was discovered that there was great amount of humidity all around due to seepage where the electronic goods cannot be stored. In the hope that the respondent Committee will make the premises worthwhile for storage of electronic items, the petitioner applied for the issuance of no objection certificate 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 no objection certificate as the premises required structural changes to provide for a second fire escape, approach road, sprinklers system, etc. besides otherrequirements. In face of these two problems, the petitioner requested the respondent Committee to remove the defects so that he is in a position to make use of the premises. The respondents denied their responsibility and took the stand the it was for the petitioner to make the space habitable at his own costs.
(6) The question that requires consideration is as to whether the stand of the respondent-committee is justified and or the petitioner is himself responsible for getting the defects removed at his own costs. The parties have exchanged lot of correspondence on these issues. From that correspondence,it can safely be inferred that not only the respondent committee was liable to set right the defects pointed out by the petitioner but they undertook to remove the same but failed to honour their assurances. The petitioner cannot be made to suffer for the defaults of the respondent to continue to pay the license 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 the allotment was made on “as is where is basis” but as a special gesture ofgoodwill, the concerned Department of the respondent has been requested to look into these points. A copy of this letter was forwarded to the Chief Engineers (C & E) for information. They were further directed to look into the following defects at their earliest so that the space could be banded over to the allottee.
(8) The Manager (parking) vide his note dated 26.8.86 has reported that provisions for 2 exhaust fans have been made in the above space and accordingly incorporated in the tender documents; (I)Exhaust fan (the tender form mentions to whereas there is only one)(ii) the soil water is seeping inside the premises from more than one space and have filled the place several times despite heavy work-force having been deployed to throw water outside. The space 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, before they 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 was sent to the Chief Engineer (C) on 19/01/1987 requiring him to ensure that the seepage problem does not exist any longer and to provide for an opening for installing another exhaust fan. The Director of Estate in their letter dated 3/02/1987 to the Chief Engineer (C), (P-8) emphasised that as the petitioner has since completed the formalities like the deposit of security and advance license fee, it is desirable that the condition of the premises is made habitable useable and free from stagnating subsoil water present there which comes from the basement floor. The Chief Engineer was directed to get the aforementioned defects rectified at the earliest as the petitioner’s complaint is genuine. Before proceeding further on this aspect, at this 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 the Delhi Fire Service for the issuance of no objection certificate for basementspace, at underground Palika parking in terms of the tender. The Chief Fire Officer vide his letter dated 13/07/1987 (P-24) informed the petitioner with a copy to the Chief Architect, N.D.M.C. that during the inspection, it has been observed that this basement has been constructed and allotted to the petitioner for use of store/godown by the N.D.M.C. has only one staircase having 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 the mechanical ventilation and alternative lighting arrangements having no fire protection arrangements. The petitioner was informed that the no objection certificate for this basement can only be considered if adequate fire protection measures as detailed below are provided :- 1.Clear access-way for the fire engine not less than 5 metres shall be provided up to 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 of appendix K, bye-laws 1 to 17.2, and installation of one fire hydrant near the entrance with complete Hose Box and HoseReal.3. The construction of the basement shall meet the requirement of clause 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 ISI Certificate 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 the Unified Building Bye-laws, 1983 and in the absence of its compliance, it will not 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 letter dated 5.10.87 (P-35). It is not disputed that the issuance of the no objection certificate from the Chief Fire Officer is a pre-condition to the use of the premises.
(12) As the situation was getting out of control inasmuch as the petitioner 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 the Executive Engineer (C-l) to immediately attend to the repairs of seepage in his 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 of number of complaints from the licensee for persistence of the sub-soil water seepage in the basement due to which be is not able to use the godown. It was observed that there was regular see page along the brick wall and minor seepage around columns. It appeared that repair work was done earlier around the columns which 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. of India Undertaking on actual cost plus over beads and the waterproofing was got done by them through a specialised agency who bad submitted a guarantee of 10 years against any seepage etc. You are advised to issue necessary notice to M/s N.B.C.C. to have these page attended without any delay. The specialised firm will have to attend to the seepage at their own cost as the seepage has appeared even in a period of less than I year of its completion.The necessary action for repairs to the seepage may be taken on top priority as firm to whom the basement has been licensed has been representing time and again at various levels on this account and have been putting the entire blame on the Civil Engineering Department for not getting seepage attended. The various representations submitted by the Licensee for provision of fire protection works in the premises as per the requirement of Chief Fire Officer Delhi as per unified Bldg, bye-laws 1983 be also put up urgently.”
(13) The sum total of the correspondence exchanged between the parties and the admissions of the officers of the respondent committee at various stages leave no doubt in my mind that it was the responsibility of the respondent-committee to make the premises workable by removing the two main defects.
(14) This view finds support from the report of the Sub Committee constituted by the Administrator, N.D.M.C. to decide the future course of action in respect of the godown space allotted to the petitioner. The meeting of this Committee was held on 26/05/1988 under the Chairmanship of Shri J.S. Mehrotra, Financial Adviser. The other members of the Committee were Additional Chief Engineer (Electrical), Chief Architect. Superintending Engineer (Civil), Director (Estate), the Deputy Law Officer and the Assistant Director (Estate). The Sub Committee thoroughly considered the matter with the background of the representations of the petitioner. The following conclusions were drawn:- “THE first important point which he has been raising relates to seepage in the premises allotted to him. The SuperintendingEngineer informed the Committee that the repairs are needed to be done but since Shri R.P. Jain has not been allowing the staff of the Civil Engineering Department entry, for carrying out repairs on one ground or the other, the work could not be carried out. IfN.D M.C. agrees for carrying out repairs to check seepage, etc it is very 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 may take around one month.The second point which has been raised by Shri R.P. Jain relates to provision of a fire fighting arrangement. The Committee discussed all aspects in detail. C.A. and the Superintending Engineer (C) pointed out that there are two categories of fire safety measures. The first category relates to provisions for fire escape, exhaust and sprinklers.These measures relate with the construction and these are to be carried out by N.D. M.C. The second category of fire safety device relates to the fire extinguishers and such other minor items for which expenditure should be incurred by the allottee.”
(15) The above said recommendations finally set at rest the controversy inasmuch as the respondent committee took upon itself to remove the defects of seepage and make structural changes to provide fire escape, exhaust and sprinklers.
(16) In their counter before this court, the respondents persisted that as per the terms of the tender notice, is was the duty of petitioner to get the defects removed, if any and make it useable and continue to pay the licensefee. Learned counsel emphasised that the defects, if any. have been attended to 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 the respondent Committee to inspect the premises and submit a report about the condition of the space as to whether the same is fit for occupation and if not what improvements or repairs are required to be done to make it fit foroccupation. In compliance with this direction, Shri S.D. Satpute, Chief Architect inspected the basement premises at Palika Parking shopping center on 18/10/1988 in the presence of the petitioner. Shri G.S. Chaturvedi,Director Estate, Shri V.P. Sangal, Superintending Engineer (Civil) and Shri Arun Kumar, Manager, Palika Parking, In his report dated 21/10/1988, be pointed out that the premises have not been used for lone time and there is presence of water all over the floor of the basement to a depth of about 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 the second 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 cannot be used and the premises are required to be properly treated with suitable water 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 THE basement could be used without any risk damage to the stored goods. He also noticed that the petitioner has erected few cabins with limber partitions but the same appear to have been abandoned half way. Along with thisreport, he also filed the photographs of the premises.
(17) The respondent tried to overcome the report of the Local Commissioner and preferred to file the objections by alleging that no water on the staircase leading to the premises was found and that the Wooden structures have been constructed by the petitioner within 4/5 days of the date of the inspection.
(18) According to the respondent, the water must have been poured and collected on the basement as sub soil water could not ooze and collect in the manner as shown in the photographs.
(19) The objections on the face of it are devoid of any substance. It is just not possible for the petitioner to have collected such a huge quantity of water from somewhere else and store it in the premises. The Manager Palika Parking and the staff of the respondent committee would not allow anybody to bring water from outside and then store it in the basement. The Chief Architect is the seniormost officer of the N.D.M.C.and his report deserves due regard. I have no hesitation to accept the report. This report will finally settle the controversy sought to be raised by the respondent-committee of their responsibility to make the premises habitable before requiring the petitioner to pay the license fee.
(20) I do not agree with the contention of the learned counsel for the respondent that the petitioner started raising the unnecessary and uncalled for controversy after taking possession of the premises with a view to avoid the payment of huge amount of license fee. This is not the correct position.The possession slip is dated 15/05/1987. Before that he had not only deposited the security and two months’ advance license fee amounting to more than Rs. 1.50 lakhs but at the same time had also pointed out vide his letters dated 8.1.87 and 13.1.87, P-4 and P-7 respectively that he will be liable to pay license fee only after the premises are put in a habitable condition and are in a useable state of affairs free from stagnating sub soil water which is coming out from the basement floor besides other works to be completed by the respondent. It was only on the assurance of the respondent Committee that the defects would be attended to that the petitioner bona fide took possession of the premises.
(21) Till this date, the respondent-committee has not fulfillled their obligation to make the premises habitable with the result that the petitioner has 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-committee cancelled the allotment and initiated proceedings under the Public Premises(Eviction of Unauthorised Occupants) Act, in order to put pressure on the petitioner. 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 fulfill their obligations and when the premises is fit for occupation, then start charging the license fee
(22) Learned counsel for the respondent on the basis of the correspondence contended that the petitioner himself is responsible for the delay in execution of work for the removal of the defects. This is not the case borne out from the correspondence referred to above. The petitioner, according tothe learned counsel, is still ready and willing to occupy the premises and forget about the loses which he has suffered so far. He undertakes to start his business and pay the license 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 of respondent no. 3 issued under Public Premises (Eviction of UnauthorisedOccupants) Act, is hereby quashed. The respondent no. 1 is also restrained from charging license fee. The respondent No. 1 is directed to fulfill their obligation of stopping the seepage to the satisfaction of the Chief Engineer(Civil), N.D M.C. and providing the premises with fire safety measures as pointed out by the Chief Fire Officer before requiring the petitioner to pay the license fee, No costs.