Disposed

Devender Kumar Gupta v. State of Haryana & Ors.

Punjab & Haryana HC1 Apr 2015CWP/22567/2013

Case brief

AI extract

What is this about?

In a writ petition seeking to quash communications regarding lease rent for a liquor vend, the High Court held that rent quantum is not determinable via Article 226. The Court allowed the petitioner to raise defenses in recovery proceedings while ordering payment of admitted amounts and vacating the premises.

What did the court decide?

Petition disposed upholding that rent issues are for recovery proceedings; petitioner gifted to pay admitted amount and vacate premises immediately.

Devender Kumar Gupta Vs State of Haryana… — Service and Employment | Punjab & Haryana HC (2015)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Amended Civil Writ Petition No.22567of2013(O&M)
 RESERVED ON: 26.03.2015
DATE OF DECISION:01.04.2015

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Devender Kumar Gupta

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…..Petitioner

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versus

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State of Haryana and others

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 .....Respondents

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CORAM:- HON'BLE MR.JUSTICE S.J. VAZIFDAR, ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE G.S.SANDHAWALIA

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Present: Mr. Chetan Mittal, Senior Advocate with
Mr. Vivek Singla, Advocate for the petitioner

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Mr. Ashok Singla, Addl. A.G.,
for the respondents
..

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S.J. VAZIFDAR, ACTING CHIEF JUSTICE :

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The petitioner has sought a writ of certiorari to quash
communications dated 30.09.2013, 01.10.2013 and an order dated
03.09.2013 passed by respondent No.5 - Principal Secretary, Tourism
Department, Government of Haryana and a writ of mandamus to accept
lease rent only in respect of land admeasuring only 15,000 square
feet and to be computed as per the excise policy and guidelines of
Haryana Urban Development Authority (HUDA).

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2. There are two major disputes between the parties. The
first relates to the extent of the area in respect whereof the
petitioner is liable to pay rent to the respondents. The second
relates to the rate at which the rent is to be computed. The
petitioner contends that he was in possession of only 15,000 square
feet and that the rent is payable as per the policy of HUDA which
we will refer to. The respondents, the other hand, contend that

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PARKASH CHAND 2015.04.01 17:35 I attest to the accuracy and authenticity of this document

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CWP-22567-2013

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the petitioner is liable to pay rent in respect of 30,000 square
feet and at a much higher rate.

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We are of the view that this petition under Article 226
is not an appropriate proceeding to determine either of the issues.

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3. Respondents No.2,3 and 4 are the Deputy Excise and
Taxation Commissioner (Excise), Director General, Tourism
Department, Haryana and Deputy Commissioner, Faridabad. Respondent
No.5 is the Principal Secretary of the Tourism Department,
Government of Haryana.

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4. The Government of Haryana invited bids to operate L-2/L-
14A vends at Surajkund-I. The petitioner’s bid of Rs.12,25,75,000/-
was accepted.

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5. By a letter dated 16.03.2013 addressed to the Managing
Director of Haryana Tourism Corporation, the Deputy Excise and
Taxation Commissioner (Excise), Faridabad stated that the
HUDA/Haryana Tourism Corporation may allot the petitioner vacant
land to run the vend at reasonable rates.

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Clause 12.17 of the Excise Policy for the year 2013-14,

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which was quoted in the communication, reads as under:

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“12.17 PROVISION OF SPACE FOR RUNNING OF VENDS IN URBAN
AREAS:

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“It has been decided that the Government and its
agencies will try to provide space for running of vends in
urban areas of the State wherever available and possible at
reasonable rates for operating liquor vends in pre-
fabricated structure.”

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6. By a letter dated 29.3.2013, the Haryana Tourism
Department (HTD) informed the petitioner that it had decided to
grant him a lease for the year 2013-14 for the sale of liquor at
the rate to be determined by the Deputy Commissioner, Faridabad, on

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PARKASH CHAND 2015.04.01 17:35 I attest to the accuracy and authenticity of this document

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CWP-22567-2013

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the terms and conditions stipulated. Condition (i) was that the
lease of land was from 01.04.2013 to 31.03.2014. Condition (viii)
was that the exact location of the land to be given on rent was to
be finalized by the Committee comprising of the Deputy
Commissioner, Faridabad, Deputy Excise and Taxation Commissioner
(Excise), Faridabad and a representative of the Department.
Condition (ix) stated that the petitioner would raise a temporary
wooden structure for the shop measuring 100’ x 300’ (30,000 square
feet) at his own cost. The petitioner was put in possession of the
said premises on 01.04.2013.

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7. It must be noted at this stage that the rate at which

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the rent was to be charged was not determined between the
petitioner and HTD. It was yet to be determined. Only the terms and
conditions of the lease other than the rate were stipulated in the
communication dated 29.03.2013. This is of considerable importance
in view of what transpired between the parties thereafter.

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8. Mr. Chetan Mittal, the learned senior counsel appearing
on behalf of the petitioner contended that the policy of HUDA
contained in its internal communication dated 18.3.2011 was
applicable between the petitioner and the Haryana Tourism
Department (HTD). The term of the policy relating to the rate of
rent reads as under:

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“In case the Department of Excise & Taxation,
Haryana does not opt for allotment of built up booth/SCO
sites/buildings and go for open designated spaces, the
allotment shall be subject to the following terms &
conditions:

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i) The Collector rate (for Commercial
Property, if available separately), as
revised from time to time in that
sector/area shall be the basis for
computing the price and the rental should
be 6% of that price for the full excise
year.”

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PARKASH CHAND 2015.04.01 17:35 I attest to the accuracy and authenticity of this document

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CWP-22567-2013

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This condition is in the internal communication dated 18.3.2011
from the Chief Administrator HUDA to all the Administrators and
Estate Officers of HUDA. The subject of the communication is
“Guidelines regarding providing space for opening of liquor vends.”
The Collector rate for commercial premises for registration
purposes in Tehsil Faridabad was Rs.14,000/- per square yard for
the year 2013-14 (Annexure P-16).

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9. In other words, according to petitioner, the rent
payable is 6% of the value of the area actually in the possession
of the petitioner calculated at Rs.14,000/- per square yard.

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10. There is, however, nothing to indicate that the
guidelines contained in the said internal communication of HUDA
dated 18.03.2011 is binding upon the HTD. Nor is there anything to
indicate that the HTD had accepted these rates to be applicable in
respect of the lease granted to the petitioner. Had the rate been
applicable at the outset, it would have been so mentioned in the
said communication dated 29.03.2013. Instead, as we mentioned
earlier, the communication expressly stated that the lease was
granted to the petitioner “at the rate to be determined by the
Deputy Commissioner, Faridabad ……”. Therefore, prima facie, at
least the HTD had not accepted the rates contained in HUDA’s
internal circular dated 18.03.2011.

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11. The correspondence that ensued thereafter also does not
indicate that the guidelines contained in HUDA’s internal
communication dated 18.03.2011 were adopted by the Haryana Tourism
Department. The correspondence that ensued between the parties is
as follows.

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PARKASH CHAND 2015.04.01 17:35 I attest to the accuracy and authenticity of this document

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CWP-22567-2013

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12. By a letter dated 22.04.2013, the HTD informed the
petitioner that the Deputy Commissioner had recommended the rent at
Rs.9,16,850/- per month for 30,000/- square feet and accordingly
called upon him to deposit the amount. The petitioner by his reply
dated 01.05.2013 contended that the rate specified in HUDA’s
internal circular dated 18.03.2011 ought to be applied. The
petitioner also contended that the 30,000 square feet area formally
handed over by HTD on 01.04.2013 was not free of encroachment. He
contended that the actual area available was only 9800 square feet.
He agreed to pay the rent after making the above adjustments as to
the rate and area.

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13. The Haryana Tourism Department by a letter dated
03.06.2013 addressed to the Deputy Commissioner, Faridabad,
requested the Deputy Commissioner to look into the petitioner’s
representation contained in his letter dated 01.05.2013. The Deputy
Director, by a letter dated 20.09.2013, informed the petitioner
that the matter had been considered by the Committee under the
Chairmanship of the Deputy Commissioner, Faridabad. The Committee
recommended a revised reduced rent at Rs.40,000/- per square yard
instead of Rs.55,000/- per square yard and had also agreed that the
area stood reduced to 15,000 square feet. The petitioner was called
upon to pay the rent accordingly.

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14. However, by a further letter dated 30.09.2013, the
letter dated 03.06.2013 was withdrawn. Consequently, by a letter
dated 01.10.2013, a fresh demand in accordance with the earlier
demand was made by HTD. The petitioner relied upon the report of
the Kanungo dated 01.08.2013 which indicated that the petitioner
was in occupation of the area of only 15,000 square feet. The

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PARKASH CHAND 2015.04.01 17:35 I attest to the accuracy and authenticity of this document

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CWP-22567-2013

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respondent No.5, Principal Secretary, Tourism Department,
Government of Haryana by the impugned order dated 20.09.2013,
rejected the petitioner’s contentions and upheld the respondents’
contention to the effect that the petitioner was liable to pay rent
as demanded, and in respect of 30,000 square feet. He further held
that the petitioner had defaulted in paying the rent. An enquiry
was also directed as to why possession of the land was handed over
to the petitioner on 01.04.2013 by the officials of HTD when the
licencee had not deposited the advance lumpsum rent of
Rs.1,10,02,200/-.

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15. Prima facie, there does not appear to have been an
agreed rate at which the rent was to be paid. Whether the
petitioner was bound in law to pay the rent demanded by the
respondents is another matter altogether. It would not be
appropriate in a petition under Article 226 of the Constitution of
India for the Court to determine the rate at which the rent is
payable by the petitioner to the respondents.

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16. The respondents’ contention that the petitioner was
bound to pay the rent as contended by them must be determined in
proceedings for the recovery thereof. Mr. Singla, the learned
counsel appearing on behalf of the Haryana Tourism Development
Corporation agreed that the amounts could be recovered by the
respondents from the petitioner even as arrears of land revenue
only after the determination of the quantum of rent payable by the
petitioner in appropriate proceedings. It would always be open to
the petitioner to raise any contentions including those raised in
this writ petition as a defence to any action taken or proceedings
filed by the respondents for the recovery of the rent. The

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PARKASH CHAND 2015.04.01 17:35 I attest to the accuracy and authenticity of this document

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CWP-22567-2013

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dismissal of this petition cannot possibly affect any defence that
the petitioner may have in such proceedings.

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17. Mr. Mittal expressed an apprehension that the petitioner
could be considered to be a defaulter and would, therefore, be
barred from bidding and applying for leases in future.

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 In view of what we have observed earlier and in view of
the record as it stands, it cannot be said at this stage that the
petitioner is in default. The issue of the quantum of rent is yet
to be determined. This would depend upon the area found to be in
the petitioner’s possession as well as the rate at which the rent
was to be computed.

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18. Indeed, the petitioner must pay the admitted amount in
any event forthwith. There would be no excuse for not doing so.
The respondents, in turn, would be entitled to accept the same
entirely without prejudice to their rights and contentions
including for the recovery of further amounts.

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19. Mr. Mittal fairly stated that by 31.03.2015 the
petitioner, in any event, would have to vacate the premises which
are the subject matter of this petition. The petitioner’s
undertaking to do so is accepted and it is also so ordered hereby.

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20. The writ petition is, therefore, disposed of by the
following order:-

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 The petitioner is at liberty to raise all contentions
including those raised in the present writ petition in any
proceedings that the respondents may adopt or in respect of any
action that the respondents may take for the recovery of the
amounts higher than that admitted by the petitioner. The admitted

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PARKASH CHAND 2015.04.01 17:35 I attest to the accuracy and authenticity of this document

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CWP-22567-2013

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amount or the balance thereof, if any, shall be paid by 30.04.2015.
The petitioner states that he has vacated and handed over vacant
and peaceful possession of the premises under the 2013-15 Excise
Policy. In any event, he shall forthwith do so. Any breach of this
order shall be viewed very strictly. There shall be no order as to
costs.

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01.04.2015 (G.S.SANDHAWALIA)
parkash*JUDGE

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PARKASH CHAND 2015.04.01 17:35 I attest to the accuracy and authenticity of this document

Devender Kumar Gupta v. State of Haryana & Ors.

Case brief

What is this about?

What did the court decide?

Devender Kumar Gupta v. State of Haryana & Ors.

Case brief

What is this about?

What did the court decide?

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