Delhi High Court
Annu Chopra vs D.D.A. on 4 January, 2005
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
1. On 8.7.1987, a perpetual lease was executed by the DDA in favor of the petitioner and her husband. By and under the said perpetual lease deed, a 92.25 sq. mtr. plot bearing No. 123, Pocket 11, Block-D, Sector 8, Rohini Residential Scheme was demised in favor of the lessees. Term of the lease required the lessees to construct a residential building on the plot after obtaining sanction from the municipal authorities. Clause (II) 13 of the lease prohibited the lessees from carrying on any trade or business in the dwelling unit to be constructed, save and except with the prior written consent of the Lesser. The clause specified that the building to be constructed was to be used for a residential purpose.
2. Violation of the terms of the lease was made penal in the form of forfeiture of the lease. Clause IV of the perpetual lease deed, regulated the procedure to be followed by DDA while exercising its power for forfeiture of the lease and re-entry. The clause reads as under:-
"IV. No forfeiture or re-entry shall be effected until the Lesser has served on the Lessee a notice in writing.
(a) specifying the particular breach complained of, and
(b) if the breach is capable of remedy requiring the Lessee to remedy the breach and the Lessee fails within such reasonable time as may be mentioned in the notice to remedy the breach if it is capable of remedy; and in the event of forfeiture or re-entry the Lesser may, in his discretion, relieve against forfeiture on such terms and conditions as he thinks proper."
3. A building was constructed after obtaining sanction. Sanction was to construct a residential building. It is not in dispute that a residential building was constructed by the petitioner and her husband. Dispute in the present case is on the issue of misuse and demand raised by DDA in the sum of Rs. 7,90,071/- for condoning the misuse.
4. Clause IV of the lease deed would reveal that DDA has a power to relieve against forfeiture on such terms and conditions as DDA thinks proper. It is the case of DDA that said clause empowers it to relieve against forfeiture by imposing misuse charges.
5. Problem surfaced when DDA announced a policy under which leasehold properties were to be converted to freehold. Petitioner submitted the requisite application on 23.2.2000 seeking conversion of the property from leasehold to freehold. She received a letter dated 12.7.2000 from the DDA. DDA informed that as per its records a school by the name "Morning Bell" was running from the premises in violation of the terms and conditions of the lease and accordingly, DDA was declining to convert the plot from leasehold to freehold. It was followed by another letter dated 10.10.2000 addressed by DDA informing the petitioner that the Lt. Governor, Delhi, exercising power of the lessee, vide order dated 19.9.2000 had determined the lease. Reason for determination of the lease indicated to the petitioner was, misuse in the form of running a school from the premises.
6. A notice dated 22.11.2000 was thereafter found pasted by the petitioner outside her premises. The notice reads as under:-
"NO.2087 Dated: 17.11.2000
From: LEASE ADMN OFFICER
LAB(ROHINI)
To
Shri R.C.Chopra and Smt. Anu Chopra
R/o Plot No.123/D-II, Sector-8,
Rohini,
Delhi- 110 085.
Sub: Plot No.123 Block D, Pocket 11, Sector 8, measuring---sq,mtr in Rohini Residential Scheme.
WHEREAS by virtue of lease deed executed on 8.7.1987 between you/your predecessor in interest and the President of India you were the Lessee of the plot of land referred above.
AND WHEREAS by virtue of Section 22 of DD Act 1957 and the land underneath the lease hold plot has been placed under the management control of the Delhi Development Authority.
AND WHEREAS by virtue of clause II(13) you are not entitled without the written consent of the Lesser to carry on or permit to carry out on the residential plot or any building thereon any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of residential or do or suffer to Lesser may be a nuisance annoyance or disturbance to the Lesser and the persons living in the neighborhood.
AND WHEREAS it has been found that you are using the said land and the building standing thereon or had permitted the same to be used for commercial purpose i.e one shop which is a violation of the terms and conditions of the lease deed and Lesser has right to re-entry after cancellation of the lease.
AND WHEREAS you did not show any sufficient cause and did not get the breach removed in spite of opportunity given to you of being heard.
AND WHEREAS the lease of the above said plot has been cancelled by the Lesser on 22.9.2000 under Clause II(13) of the lease deed for breach of the clause thereof.
You are, therefore, hereby informed that the possession of the plot together with the building and structures standing thereon shall be taken over by the DD(S) I, DDA on 8.12.2000 at _________AM. You should, therefore, be present on the date and time mentioned above and deliver the peaceful possession of the plot to him.
Sd/-
LEASE ADMN.OFFICER for and on behalf of the President of India."
7. At the outset, it may be noted that the violation alleged in the notice dated 17.11.2000 is use of the premises for commercial purposes i.e. one shop.
8. Petitioner responded to the aforesaid notice by and under a letter dated 21.12.2000. In the said letter petitioner wrote back to the DDA to the effect that there was no misuse as alleged. She stated that she was using only one room for giving tuition to the children for preparing them for entering into nursery/K.G classes. Petitioner offered to stop taking tuition classes immediately. She prayed that the lease be restored.
9. DDA took no action.
10. Correspondence ensued between the parties and ultimately on 25.2.2004, petitioner was intimated that lease of the plot has been restored and action for converting the property from leasehold to freehold basis would be taken after ascertaining the details of misuse and other charges, if any.
11. It was followed by a demand dated 23.9.2004. Misuse charges in the sum of Rs. 7,78,071/- and restoration charges in the sum of Rs. 12,000/-, in all, Rs. 7,90,071/-, were demanded from the petitioner and her husband.
12. Present petition was filed praying that the demand towards misuse and restoration charges in sum of Rs. 7,90,071/- be quashed. Mandamus be issued to DDA to convert the property from leasehold to freehold without imposing misuse charges.
13. defense of the DDA is that misuse was detected way back in the year 1990. On 18.1.1991, a notice was issued to the petitioner requiring discontinuation of the misuse. In the notice it was mentioned that if misuse continues, lease would be determined. As per counter affidavit filed, notice was served by pasting at site. Reason for pasting as pleaded by DDA in para 2 of the counter affidavit is:-
"2. . . . . . . However, it appears that either the allottee refused to accept the notice or was unavailable and therefore the said notice was pasted on the wall of the said premises."
14. It is further the case set up by DDA that since misuse continued, another notice dated 24.9.1991 was issued. The said notice was stated to be served by affixation. It is further stated by DDA that site inspections were carried on 20.1.1998, 29.3.2000, 26.2.2001, 23.1.2004, 4.2.2004 and 5.3.2004.
15. It is stated by DDA that on 10.7.1998 (should read 10.7.1997) it received a complaint from the Residents Welfare Association and pursuant thereto another notice was issued to the petitioner on 15.7.1998 requiring her to stop the misuse. It is the case of DDA that lastly notice was issued on 17.11.2000.
16. DDA defends the levy of misuse charges on the ground that there was admittedly a misuse of the property and DDA was entitled to levy misuse charges while relieving the petitioner against forfeiture.
17. In the rejoinder affidavit filed by the petitioner, it is stated that the so-called inspections are self serving documents. At no stage was the petitioner associated with the inspections. It is stated that no notice was ever received by the petitioner. She found none pasted at site. Notice dated 17.11.2000 was the only one which she found pasted at the site. Even this notice referred to running of a shop which was clearly contrary to the case pleaded by DDA. It is stated in the counter affidavit that Section 43 of the Delhi Development Act, 1957 mandates that at the first instance, notice required to be served has to be posted by Registered A.D. Post. Only in the eventuality of the registered notice being returned unserved, service by affixation is permissible. Reliance is also placed on two circulars dated 26.6.2001 and circular dated 8.8.2001 for purposes of levy of misuse charges.
18. The two circulars read as under:-
"F.4(43)/99/Coordn Dated: 26.6.2001 CIRCULAR In partial modification of Circular No. F.4(43)/99/Coordn/ID dt. 3.2.2000 the clarification to the para No. 3 of the Circular No. F.4(43)/99/Coordn./L.D dt. 15.7.99 is as follows:-
1. All cases of conversion where the past misuse/unauthorised construction was reported or the misuse is continuing are to be processed for conversion.
2. The misuse charges would be payable for the period of misuse from the date of detection of misuse till the date of vacation of misuse or up to 28.6.1999 whichever is earlier.
3. All the applications for conversion which had been rejected on account of misuse/unauthorised construction after 28.6.1999 shall be reopened and processed for conversion after recovering misuse charges as per para (2), if applicable.
4. In cases where conversion applications were received and due to continuing misuse/unauthorised construction leases were determined, all such cases would be restored and conversion allowed after recovering misuse charges as per para (2) of application. No restoration charges would be recoverable.
5. Where the conversion has been allowed and misuse/unauthorised construction still continuing, the matter shall be referred to the concerned Enforcement Agency for further necessary action.
6. Cases wherein the conversion has already been allowed, misuse charges already paid, shall not be reopened.
This issues with the approval of vice-Chairman, DDA.
Sd/-
(Asma Manzar) Director"
F.4.(43)99 Coordn. Dated 8.8.2001
CIRCULAR
1. All cases of conversion where the past misuse/unauthorised construction was reported or the misuse is continuing may be processed for conversion according to the procedure set out here.
2. The misuse charges would be payable for the period of misuse from the date of detection of misuse till the date of vacation of misuse or up to 28.6.1999 whichever is earlier.
3. All the applications for conversion which had been rejected on account of misuse/unauthorised construction after 28.6.1999 shall be reopened and processed for conversion after recovering misuse charges as per para (2), if applicable.
4. In case, where conversion applications have been received but due to continuing misuse/unauthorised construction leases stood determined. All such cases, on request of applicants, would be examined for restoration with the approval of the competent authority. Only after the orders of restoration by competent authority, conversion will be allowed after recovery of restoration charges and misuse charges as per para 2, if applicable.
5. Where the conversion has been allowed and misuse/unauthorised construction still continuing, the matter shall be referred to the concerned Enforcement Agency for further necessary action.
6. Cases wherein the conversion has already been allowed, misuse charges already paid, shall not be reopened."
This issues with the approval of vice-Chairman, DDA.
Sd/-
(Asma Manzar) Director"
19. Record of the Delhi Development Authority was summoned by the Court to ascertain how misuse charges were determined and how the notices claimed to be issued by DDA were served. Record shows that on 9.12.2003 petitioner wrote a letter admitting using 1 room for giving tuitions to pre nursery and K.G. Children to prepare them for interviews. One more letter of the petitioner was also noticed, and being relevant, is being noted.
20. On 27.12.2000, petitioner wrote a letter to the DDA as under:-
"The Director (RL) Delhi Development Authority, Vikas Sadan, I.N.A., New Delhi.
Sub: REStorATION OF PLOT NO.123, D-11, SECtor-8, ROHINI. F.9(430)82/LSB(Rohini) Sir, Kindly refer to your notice pasted outside the building mentioned above. This notice has given me a rude shock in as much as no notice was notice was given to me for explaining my position prior to cancellation of the allotment or orders regarding taking over of the property. There is no misuse of the property, as alleged, in as much as I am using only one room for giving tuition to the children for preparing them for entry into Nursery/K.G. Classes. This use is neither in violation of Master Plan nor Zonal Development Plan of the area. It appears that on the basis of some mis-information, action has been initiated against me. Had I been given any notice or opportunity to place full facts before you, I am sure, action would not have been initiated against me.
Inspite of the fact that there is no misuse of the property, I am willing to stop taking tuitions with immediate effect in as much as I do not want to violate any law.
You are, therefore, requested that the allotment of the aforesaid property may kindly be restored.
Thanking you, Yours faithfully, sd/-
(ANU CHOPRA) 123, D-11, Sector-8, Rohini."
21. Misuse charges in sum of Rs. 7,78,071/- being charged from the petitioner are calculated as under:-
Period Area Rate Plot Area Total Area Sum
1.4.97 to
31.3.98 55.27 60.88 10,516/- 92.25 13.9
100 1,22,418/-
1.4.98 to 31.3.2001 Do 13,732/- 92.25
"
4,79,569/-
1.4.2001 to
31.3.2002 Do 15,126/- 92.25 " 1,76,084/-
22. Record of the DDA would show that the matter was referred for opinion to the Chief Legal Advisor of DDA. His opinion dated 22.3.2004 is to be found on pages 46/N to 52/N of the file. The same reads as under.
"With reference to the note of the department at pre-page 1, I have carefully gone through the relevant nothings and documents on the file.
The nothings in this file starts w.e.f. 28.2.1990(I/N). For the period prior to the aforesaid date, the main file is reported to have been mis-placed and, for the mis-placement of the main file, the responsibility is yet to be fixed by the department.
Be that as it is. The nothings/documents on the file shows that Smt. Anu Chopra and Sh. R.C. Chopra are the allottees of plot No. 123, Pocket-11, Block-D, Sector-8, Rohini Residential Scheme. A perpetual lease deed in respect of the aforesaid plot was executed in their favor on 8.7.1987. After construction, on 18.12.99, both of them moved an application for conversion of the property from lease hold to free hold. After examination, as the department found that a school "Morning Bell" was being run in the building in question in violation of terms and conditions of lease deed, so vide note dated 11.5.99 at 24/N, the department decided to reject the request of conversion and communicated the same to the applicant vide letter dt. 12.7.2000(95/C). Besides this, vide nothings at 25/N to 29/N, department also decided to determine the lease deed of the property and communicated the same to the sub-lessee vide letter dated 17.11.2000(101/C).
On the receipt of the above communication, sub lessee moved an application dt. 27.12.2000(108/C) requesting for restoration of the lease deed on the ground that neither she had mis-used the property in question nor any notice was served upon them for explaining the position prior to cancellation of allotment. The stand of the allottee Mrs. Chopra, in the above said letter, was that, in fact, she was using only one room of the building of giving tuition to the children for preparing them for entry into Nursery/K.G. Classes. She further stated in the said letter that although the aforesaid act was not in violation of Master Plan and Zonal Development Plan, yet she was willing to stop the same with immediate effect as she did not want to violate any law. Thereafter, again vide letter dt. 9.12.2003 (116/C) Mrs. Anu Chopra, while reiterating the grounds as mentioned in the above letter dt. 27.12.2000, requested the department to restore the allotment of the property. After examination, the department decided to restore the same subject to payment of mis-use and restoration charges and communicated the same to the allottee vide letter dt. 25.2.2004. Thereafter, on the point of period as well as area for which applicants are liable to pay mis-user charges, the matter has been referred to this office.
Before answering the above question, first of all, I would like to discuss whether determination of the lease, in this case, was legal or not and further, whether the decision to reject the conversion application was justified or not i.e. in accordance with the policy on the subject.
So far as the question as to whether determination of lease was in accordance with law or as per policy or not, after careful examination of the relevant nothings and documents, particularly notices on the record, my answer is in negative because of the following reasons:
(A) It is the admitted case of the department that the lease in question had been determined for violation of clause II (13) of the Lease Deed, the relevant provisions of which states as under:-
"The Lessee shall not without the written consent of the Lesser use, or permit to be carried on the residential plot or building thereon any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of private or dwelling or do or suffer to be done therein any act, or things whatsoever which in the opinion of the Lesser may be a nuisance, annoyance or disturbance to the Lesser and persons living in the neighborhood."
However, before determining the lease, as per clause IV of the Lease Deed, a written notice (i) specifying the particular breach complained of and (ii) if the breach is capable of remedy, requiring the lessee to remedy the breach within the reasonable time, is required to be given. Besides this, way back in 1967, the Authority had passed a resolution No. 546 laying down the procedure to be adopted in cases of violation of terms and conditions of lease deed (copy placed on the correspondence side). One of the foremost condition in the aforesaid resolution was, a registered AD show cause notice giving 30 days for remedying the breach/breaches should be issued as soon as a breach comes to the knowledge of the authorities and this notice should also describe the breach/breaches existing in the premises. Although, it is the case of the department that the above formalities were complied with, but after going through the documents on the record, I have noticed the following short comings.
(i) As per the noting at 1/N, the first show cause notice which was issued to the lessee is not on the record.
(ii) So far as the second show cause notice dt. 18.1.91 (9/C) is concerned, it was never sent by registered AD because the original notice (12/C) as well as original AD card (10/C) are still on the file. As far as the third show cause notice dt. 24.9.91 (15/C) is concerned, although at the top of it, it is mentioned as Regd. AD but the same appears to have not been sent/served by the aforesaid mode because neither any acknowledgment of the receipt of the notice is on the file nor any documentary evidence is placed on record to show that the said notice was sent by registered A.D.
(iii) The department's case of service of the show cause notices dt. 18.1.91 and 24.9.91 by pasting also does snot inspire any confidence. As per section 43 of the DD Act, notice to the individual is deemed to be served when (i) it is given or tendered to him or (ii) if such person cannot be found, is affixed at some conspicuous part of the last known place of residence or is given/tendered to some adult member of his family. In this case, the report on the back of the notices at 13/C and 15/C does not say that as Mrs. Chopra was not available inspite of several visits, therefore, it was pasted at the site. Otherwise also, it does not appeal to the logic as to why the notices were pasted at the site when, according to the case of the department, she was running the school there and thus, the allottee was supposed to be available.
(iv) So far as notice dt. 24.9.91 which is stated to have been posted on the premises in question is concerned (back of 15/C), it is observed that the report of the concerned officials itself is totally contradictory. The first noting on the back of this notice is that the notice has been pasted on the given address and it is dt. 7.11.91. The nothings below it of the witness and other officers of DDA are dt. 7.10.91, 8.10.91 and 14.10.91. It is not understandable as to how after the posting date of 7.11.91, witnesses could attest it on the dates of October 1991. It only shows falsity of the reports.
The aforesaid discussion, therefore, leads to the only inference that the aforesaid notices were neither served by registered post nor by personal delivery or by affixation.
In addition to above, the note of the department at 3/N says that, as, per the inspection note dt. 4.2.92 (back of 19/C) the building was being used for residential purposes only, therefore, the case be closed. From 1992 till January 1998 there is no action by the department on the file. It means that the department was satisfied that there was not violation of the terms and conditions of the lease deed during the period as alleged in the notices dt. 18.1.91 and 24.9.91.
After this, when in January 1998, department again came to know about running of the school, it was supposed to serve fresh notice to the allottee requesting to remove the breach of misuse within 30 days. The department, however, did not issue any such notice. On the other hand, it sent a notice dt. 15.7.98 and 25.8.98 (30/C and 33/C) asking the allottee to show cause why, for breach of the clause II (13) of the lease deed, the same should not be cancelled. Again, against the mandate of authority resolution No. 546/1967, the said notices by pasting is concerned, that also does not inspire confidence because neither it is mentioned as to whom the said notices were tendered for service, nor there is any witness to the process of service by pasting. Such services can never be accepted as a valid service by any court of law.
As per the Inspection report on the file as well as documents submitted by allottee, the property however, is double storeyed i.e ground floor and first floor.
In nut shell, as in this case, notices were not sent under registered AD as required under the Authority resolution No. 546/1967, as area under misuse was not mentioned in the notices, as the service of the notice by pasting was not valid as well as in accordance with the provisions of Section 43 of the DD Act, therefore, determination of the lease deed was not in accordance with law and in case of any legal dispute, DDA will have no legs to stand.
Now I come to the question whether decision to reject the processing of application was justified or not as per the existing policy. In this regard, the Circular of the department bearing No. F.4(43)99/Coord. Dt. 8.8.2001 and placed on the correspondence side (117/C) is very relevant. In view of the said circular, the application for conversion should have been processed, at the most by recovering mis-use charges.
Now I have come to the question of period as well as the area for which the applicant is liable to pay misuse charges. In the note at 35-36/N, the department has given the mis-use details as under:
S.No. MISUSE AREA DATE OF DATE OF
START CLOSING
1. School (Tuition) 11.87 sqm. 18.1.91 4.2.92
2. School (Tuition) 55.27 sqm. April 97 March 99
3. Morning Bell 182.64 sqm. April 99 March02
School
4. Area of plot= 92.25 & P.C.A. = 92.25x66% = 60.88 sqm.
I disagree with the aforesaid note of the department for the following reasons.
(A) Our own record shows that as per report dt. 4.2.92 (back of 19/C) the building was being used for residential purposes only. The said report is supported by the ration card of the allottee of the given address. On the basis of the aforesaid report, the department vide note dt. 7.4.92 had proposed to close the case. As no action on the said note was taken, it is presumed that the misuse proceedings were dropped and, therefore, no mis-use charges can be recovered for the said period i.e. 18.1.91 to 4.2.92.
After 1992 there was no report of inspection up to 20.1.98 when it was again noted in the file that the school was being run in the premises.
(B) So far as the proposal of mis-use charges from April 1997 to March 1999 is concerned, it is found that there is no report on file prior to 20.1.98 and as such it is not understandable as to how the misuse charges can be levied from April 1997. Further more, the report of JE dt. 20.1.98 (5/N) does not given any detail of the area which was under misuse. The second report on file dt. 1.6.98(9/N) is also of no help on the point as the premises were found locked and so there was no inspection of the area being misused. In these circumstances, our earlier stand of 18.1.91 and the stand of the allottee that tuitions were taken in one room only must be accepted and misuse charges from 20.1.98 to March 1999 should be on the basis of 11.87 sq. mts.
(C) Coming to the proposed period April 99 to March 2002, it is observed that the report of JE dt. 29.3.2000 (23/N) is also self contradictory and cannot be relied upon for calculating the area under misuse. The building, admittedly, is a double storeyed building consisting of ground floor and 1st floor whereas the JE says that it has been constructed up to second floor. It appears that the JE had some misunderstanding and as such he has calculated the area under misuse on the basis that the building is three storeyed. This conclusion is fortified by the report of JE ho inspected the building in question on 4.2.2004 and gave his report on 33/N reporting that area under misuse was 55.27 sq. mtrs. Therefore, the proposal to calculate the misuse for the area measuring 182.6 sq. mtrs stand belied by our own inspection and as such from April 1999 to March 2002 the area of misuse can be taken as 55.27 sq. mts.
The aforesaid proposal to impose the misuse charges is primarily supportable for the reason that the allottee himself is offering to pay misuse charges. Otherwise, in the absence of proper show cause notice to stop misuse and proper show cause notice before termination of lease, it would be very difficult for the department to make out a case for cancellation of lease or imposition of misuse charges in the court of law.
Sd/-
(S.K. TANDON) Director (RL) Chief Legal Advisor"
23. It is followed by a note of the Vice-Chairman, DDA dated 5.7.2004. It reads as under:-
"I have seen the file and the detailed note of CLA. Without going into details of the mode and manner of the issue/service of the show cause notes, which of course is a matter about which the department needs to be very careful, I agree with the view expressed by CLA so far as the alleged misuse charges pertaining to the period of 1991-1992 is concerned. This is in view of the fact that the inspection carried out on 4.2.92 (back of page 19/c) indicated that the building was being used for residential purposes only. Also, no further steps had been taken by way of raising any demand for misuse during the period under reference and it could be argued that, irrespective of whether there had been effective service of the notices, the misuse had been stopped.
In so far as the misuse of the property again after 1997 is concerned, CLA in his note at page 42/N (Para-B) has pointed out that there is no report on the file prior to 20.1.98 onwards. Besides, it has been stated that the report of 20.1.98 did not give any details of the area under misuse. In the light of this, CLA has suggested that we may go by the stand of the allottee that tuitions were being taken on only one room and misuse charges may be calculated on the basis of an area of 11.87 sq. mts for the period 20.1.98 to March 1999. For the remaining period, he has suggested, basically on the same ground that the area of misuse had not been clearly reported, that the same may be taken as 55.27 sq. mts based on the admission of the allottee and the report of the JE on page 35-36/N. Since there was a mention in this file to a vigilance reference, I have also seen the vigilance file in which it has mentioned that, on the basis of a complaint received in the matter, a site inspection was carried out on 22.10.97 and misuse was found to be running in the premises. Therefore, the report of the inspection on 20.1.98 should really be seen as continuation of the same. In view of all this, for reckoning the area of misuse for the period prior to March, 1999 also, it would be appropriate to go by the report on pages 35-36/N keeping in view that no specific area had been indicated in the earlier inspection reports, as also the statement of the allottee that tuition to nursery level children was being given in the premises.
The misuse charges may be calculated accordingly taking the starting date to be April, 1997 as indicated in the report on page 35/N (the complaint had, in fact, alleged misuse from a period even earlier). As regards, the observation of CLA regarding the manner of issuing the show cause notices, etc. we must ensure due care in this regard. Guidelines have also been issued recently for more detailed reporting. Proper compliance of the same must also be ensured.
Sd/-
(MADHUKAR GUPTA) Vice Chairman 5.7.2004"
24. Note submitted on the file by the Chief Legal Advisor of the DDA, to my mind is a complete note and correctly lays down the legal position. It has to be noted that the note of the legal advisor records that for the period prior to 28.2.90, nothing is on the file, probably because the main file was missing. The file which has been produced before me and which was before the Chief Legal Adviser commences with a note dated 28.2.1990. We, therefore, have nothing on record as to how the alleged first notice was issued or, if at all, served upon the petitioner. It is to be noted that petitioner has denied receipt of any notice.
25. As far as the second notice dated 18.1.1991 is concerned, the same continues to exist, in original, on the file of DDA. The third notice dated 24.9.1991 has an endorsement on the rear that it was pasted at site. However, at the top of the notice the words: "Regd. A.D." are to be found. It is obvious that this notice was never served by post. The report at the rear pertaining to service by affixation is not preceded by any endorsement that the noticee refused to receive the notice or was not available. It is also important to note that above the endorsement dated 7.10.1991 showing pasting at site, is a noting dated 7.11.1991 recording that it has been posted to the noticee.
26. It seems a little strange that a noting of 7.10.1991 is to be found after the noting of 7.11.1991. I may record that the learned Chief Legal Advisor of DDA has adversely commented upon the aforesaid and has opined that it only shows the falsity of the report.
27. It is interesting to note that at page 19/C of the file, there is an inspection report dated 4.2.1992. It reads as under:-
"Re-inspected the site and it is to report that building has been constructed up to first floor and Smt. Chopra was available and building is being used as residential at the time of inspection. Photo-copy of the ration-card is enclosed herewith bearing No. 471071, Circle No. 41.
Submitted please.
Sd/-
(Illegible) 4.2.1992"
28. This appears to be the reason why DDA closed the chapter, though there is no official note to said effect.
29. Though, DDA is not levying any misuse charges prior to 1.4.1997, aforesaid position shows how officers of DDA were conducting themselves. It also shows the falsity of the alleged complaint received by DDA in 1997 from the Residents Welfare Association. The said complaint records that a school was being run since last 10 years.
30. Even the alleged complaint filed by the Residents Welfare Association makes an interesting reading. It is on a plain paper, having a number printed thereon. The embossed printed number is '008910'. Not only is the document not on the letter head, signatures are wholly illegible. The document being created by somebody cannot be ruled out. It is highly unnatural for the Residents Welfare Association to make a complaint on a plain paper and that too being of a nature that its availability could be found only in government offices (evidenced by a printed number on the paper).
31. Record shows that notices which DDA claims were sent to the petitioner are apparently served by affixation. None of them records that the petitioner was not available or that she refused to accept the notices. Learned Chief Advisor of DDA has rightly commented in his note that such service can never be accepted as a valid service in a court of law. It is interesting to note that DDA has withdrawn it's order determining the lease by recording that in law, petitioner has not been served with any prior notice but same notices are being used for purposes of levy of misuse charges.
32. I have noted above clause IV of the perpetual lease deed. Perpetual lease deed requires the Lesser, before effecting forfeiture or re-entry to serve a notice on the lessee, notice to be in writing, specifying the particular breach complained of and requiring the lessee to remedy the breach. It is obvious that before a right of forfeiture or re-entry which would include the right of relief against forfeiture on terms, would accrue to DDA, DDA would be obliged to serve upon the lessee a notice specifying the breach and requiring the breach to be remedied.
33. Record of DDA does not show any such notice being served. Learned Chief Legal Advisor has rightly opined that in the absence of said condition precedent being complied with by DDA, there is no occasion to proceed for forfeiture, or while proceeding in said direction, levy misuse charges to relieve against forfeiture.
34. I have noted above in para 18, two circulars dated 26.6.2001 and 8.8.2001 issued by DDA. Said circulars clearly specify that misuse charges would be payable for the period of misuse from the date of detection of misuse till the date of vacation of misuse or up to 28.6.1999 whichever is earlier.
35. DDA is seeking to levy misuse charges with effect from 1.4.1997. There is no noting on the file pertaining to misuse during this period save and accept a report dated 20.1.1998. The said inspection report records:-
"Inspected the site and reported that the school Morning Bells is being run in the premises No. 123, Pocket D-11, Sector 8.
Submitted please, Sd/-
(Illegible) 20.1.98"
36. The report does not indicate that the petitioner or her husband were associated in the inspection. In the file of the vigilance, I find a note dated 22.2.1997. It records that on inspection a school was found running from the site. Though the note is dated 22.2.1997 it records that site was inspected on 22.10.1997. The note above it is dated 20.10.1997 and the one below is dated 27.10.1997. It is apparent that the note cannot be of 22.2.1997. It has to be of 22.10.1997.
37. Since file of the DDA prior to 20.2.1990 is missing, it cannot be ascertained as to what is the nature of the inspection report pursuant whereto notices dated 18.1.1991 and 24.2.1991 were issued.
38. As per circulars dated 26.6.2001 and 8.8.2001, noted in para 18 above, DDA in any case, would not be entitled to charge misuse prior to 20.10.1997 i.e. the date of detection of misuse, ignoring the fact that the inspection is not based on the petitioner joining in the inspection.
39. The circulars of the DDA aforesaid limit the date of misuse up to 28.6.1999 or till date of vacation of misuse, whichever is earlier.
40. There is, then to be found an inspection report dated 29.3.2000. The said report records that the building constructed is up to second floor. It records that the entire building is being misused for running a school. It records that the plot area is 92.25 square meters. It records that the covered area is 66% of the plot area. It records that the covered area on each floor would be 60.88 Sq. mts. Area of misuse has been determined as 3 x 60.88 = 182.64 Sq. mts.
41. Here again, the learned Chief Legal Advisor of DDA has found it to be a case of false report. Admittedly, building in question is a double storied building. It has a ground floor and a first floor. From where the inspecting officer found a third floor remains a mystery. It has to be noted again that said report does not associate the petitioner.
42. Record of the DDA would reveal that property was caused to be re-inspected on 23.1.2004. The report records that the building was lying vacant but some furniture like school tables, stools and signboard were found lying in the ground floor in two rooms. The inspecting officer was directed to state the dimensions of the two rooms. He reported on 4.2.2004 as under:-
"As directed above, measured the area of said rooms with attached office etc. as (5.85 x 5.45 + 2.65 x 2.60 + 2.60 x 1.78 and 4.15 x 2.86 i.e. 31.88 Sq. Mtrs. + 6.89 + 4.63 and 11.87 Sq. Mtrs). Total 55.27 Sq. Mtrs."
43. It is strange that this very officer on 23.1.2004 recorded school furniture lying in two rooms but proceeds vide note dated 4.2.2004 to note dimensions of 7 areas.
44. From where the 2 rooms got converted into 7 areas remains a mystery.
45. The petitioner in her letter dated 27.12.2000 admitted that she was conducting pre-nursery classes to prepare children for admission into Nursery and K.G. Classes from one room. This room measures 11.87 Sq. Mtrs.
46. It has to be noted that the total covered area on the ground floor is 60.88 Sq. Mtrs. DDA has noted area of misuse on the ground floor being 55.27 Sq. Mtrs. This calculation is of 7 spaces and is contrary to the nothings of the DDA that school furniture was found in two rooms. Under no circumstances can DDA recover misuse charges for an area of 55.27 Sq. Mtrs.
47. It has also to be appreciated in this context that if a house-wife were to use a room in the residential house for training toddlers, dominant user of the house would continue to be residential. It would be highly debatable whether in such a situation, any misuse charges can be levied.
48. Clause IV of the perpetual lease deed is indeed a salutary provision. As in the instant case, a house-wife may put to use only a room or may be two in the house, unmindful of the consequences. If put to notice, she may retrace her steps for the reasons that earning would be far too less as compared to the misuse charges levied.
49. Since, in the instant case record of the DDA does not show any prior notice being served upon the petitioner, no misuse charges can be levied. However, counsel for the petitioner submitted that petitioner would not like to retract from the concession given by her in letter dated 9.12.2003. In that view of the matter, in view of circulars dated 26.6.2001 and 8.8.2001, misuse charges which can be levied from the petitioner have to be restricted to the period 22.10.1997 up to 28.6.1999. It has to be noted that record of DDA shows that the dealing assistant of DDA has put a note on the file that matter for levy of misuse has to be dealt with as per circulars dated 26.6.2001 and 8.8.2001. The said note is dated 17.12.2003. The note has been approved by the Director (RL) on 17.12.2003.
50. For the area qua which misuse charges can be levied, area calculated by DDA being 55.27 Sq. Mtrs. has been found to be the ipsi dixit of the officers of the DDA. Petitioner admitted using 11.87 Sq. Mtrs. area for running pre-nursery/KG classes. Since strictly speaking petitioner would not be liable to make any payment towards misuse charges and whatever flows towards the coffers of the DDA is as per her concession, misuse charges have to be calculated by treating 11.87 Sq. Mtrs. area as being misused.
51. Rule is made absolute. Impugned letter dated 23.9.2004 is quashed in so far misuse charges in sum of Rs. 7,78,071/- are demanded. Mandamus is issued to DDA to raise a demand on the petitioner for misuse charges treating area misused as 11.87 Sq. Mtrs. Period of misuse to be restricted from 22.10.1997 to 28.6.1999. On the petitioner paying the revised demand, application of the petitioner for conversion of the property from lease hold to free hold would be processes. DDA would raise the revised demand within 4 weeks from today. Petitioner would pay the same within 4 weeks thereafter. Within 4 weeks of receipt of misuse charges, DDA would execute the conveyance deed converting the land from lease hold to free hold subject to the petitioner paying the stamp duty and any other unpaid charges and on completing formalities.
52. No costs.