Delhi District Court
Natya Veda Institute Of Dance Music And ... vs Delhi Devlopment Authority on 25 January, 2024
IN THE COURT OF MS. PURVA SAREEN,
ADDITIONAL DISTRICT JUDGE-01,
SOUTH, SAKET COURT, NEW DELHI
CS NO.758/2017
DLST-01-006639-2017
M/s Natyaveda Institute of Dance, Music & Arts
Through its Secretary
Sh. Pankaj Nakra,
C-10, Institutional Area, South of IIT,
New Delhi-110016
...........Plaintiff
VERSUS
Delhi Development Authority,
through its Vice Chairman,
Vikas Sadan, INA, New Delhi
...........Defendant
Date of filing : 01.07.2003
Final arguments heard on : 29.11.2023
Judgment pronounced on : 25.01.2024
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
JUDGMENT
1. This is a suit for declaration and permanent injunction filed by the plaintiff against the defendant/DDA .
2. The case of the plaintiff is that the plaintiff is a society registered under the Societies Registration 1860 Act having it registered office at C-10, Qutub Institutional Area, Katwaria Sarai, New Delhi-110016 and Sh.Anil Mahendra was duly authorized vide resolution dated 16.10.2010 to file, institute and verify the present suit on behalf of the plaintiff. Plaintiff is engaged in promoting dance, music and fine arts on no profit Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 1 CS DJ No.758/2017 basis.
3. It is stated that the plaintiff had been allotted a vacant land measuring 852 sq. meters on perpetual leasehold basis on plot bearing no.C-10, Qutub Institutional Area, Katwaria Sarai, New Delhi vide allotment letter dated 18.03.1993 for which perpetual lease deed dated 30.03.1995 was executed. It is further stated that after payment of total premium of Rs.8,23,842/- to the defendant, possession of the said plot was handed over to the plaintiff and thereafter building plan was sanctioned to the plaintiff and form C and D were duly issued by the MCD.
4. It further stated that L & DO, Ministry of Urban Development vide its letter dated 19.11.1999, modified its guidelines on utilization of land allotted for institutional purpose. Since, the property was an institutional property, the said guidelines were applicable to it. Under the said guidelines, in case of subletting upto 40% of total built up area was permitted for subletting and out of that 40%, 15% could be used for residential purpose and not more then 150 sq meters. Further, 15% of the rent realized had to be paid to L & DO. In pursuance of said order, the defendant issued its own policy in respect of institutional land. After completion of said building, a portion of the building was let out to a management institution in accordance with the then existing norms.
5. The lessee was further under obligation not to sell, transfer or part with possession of any part of the suit property without the consent of the defendant and the lessee could not carry on other business other then business of dance and music school without consent of defendant.
Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 2 CS DJ No.758/20176. As per modified guidelines dated 19.11.1999 (i) sub-letting could be done only with prior permission of DDA, (ii) sub-letting could not exceed 25%, (iii) sub-letting was possible only with prior permission and only to permitted entities, (iv) sub-letting was subject to depositing of 10% rent, (v) 15% area could be used for residential purpose and (vi) total sub-letting could not exceed 40%.
7. Plaintiff had constructed the suit property out of his own funds according to the sanctioned plan.
8. It was further submitted that the plaintiff was shocked to receive a show cause notice dated 08.01.2003 wherein it was alleged by the defendant that suit plot had changed hands illegally and the builder had constructed 6 storeys out of which top two storeys were unauthorised construction and it was also alleged that the property was misused by the plaintiff. Plaintiff replied to the said show cause notice vide letter dated 04.03.2003 and refuted all the allegations contained in the said show cause notice. However, without giving any opportunity of personal hearing to the plaintiff, defendant vide its letter dated 19.06.2003 intimated the plaintiff that lease of the said plot has been determined/cancelled and directed the plaintiff to handover the possession of the said land and building to AE (IL), DDA within 15 days failing which further action of resumption of the premises would be initiated against the plaintiff.
9. Thereafter, plaintiff approached the office of the defendant for cancellation of said notice, however, instead of withdrawing said cancellation notice, defendant threatened the plaintiff that in case Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 3 CS DJ No.758/2017 plaintiff does not hand over the possession to the defendant within 15 days, defendant would evict the plaintiff forcibly from the premises.
10. The plaintiff filed a suit bearing no.222 of 2003 titled as "M/s Natyaveda Institute of Dance, Music and Arts Vs. Delhi Development Authority" for declaration and permanent injunction against the defendant before Ld. Civil Judge, Tis Hazari Court.
11. After taking the said property on perpetual lease hold , the plaintiff raised the building on the said plot with his own funds and the said building ceased to be a public premises. MCD in connivance with the defendant on 15.11.2006 illegally and malafidely without giving any prior show cause notice and any opportunity, sealed the said property. The sole tenant in the building filed an application before Hon'ble High Court of Delhi seeking permission to allow them to remove their belongings. On 14.12.2006, directions were issued to MCD to de-seal the property to enable the tenants to remove their belongings. Since 29.01.2007, admittedly there is no leasing of the said premises and since the tenant had vacated the premises, the plaintiff wrote a letter dated 04.07.2007 and requested the defendant that lease of the plaintiff should be restored and undertook to use the property as per terms and conditions of said perpetual lease deed. The plaintiff on 27.09.2007, 24.02.2008 and 25.09.2009 again and again requested the defendant for restoration of said lease. The plaintiff obtained the minutes of the meeting held on 03.06.2009 by filing an RTI application.
12. Plaintiff further averred that a property of a society namely Habitat India located in the same area as that of the plaintiff was sealed by the Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 4 CS DJ No.758/2017 defendant on similar grounds which had been de-sealed. There had been no sub-letting since February 2007. The plaintiff also averred that the entity to whom a portion of the property was leased by the plaintiff was under the category of permitted legal entities as per the policy of the defendant and as per terms and conditions of the prescribed format of the application form issued by defendant for seeking permission to sub-let institutional premises.
13. Meanwhile, an office order no.01/2008 was issued by L & DO whereby terms and conditions relating to sub-letting by socio cultural institution was reconsidered. Revised guidelines were also issued as per which maximum area which could be sub let could not increased 25% of the total built up area and permissible sub tenants were notified and in case of permissive entity, lease lessee had to pay 15% of rent realized. It further stipulated that if the area sublet was beyond 25%, then lessee was to pay 20% of rent received. The order also provided for penalty if sub- letting was done to non permissible entity. The defendant had introduced a policy for condoning the past and present misuse by this order. 3(II) covered the sub-letting without permission but within permissible limit and to permitted organization and 3(III) covered sub-letting to non permitted organizations and where total area was more then 25%.
14. Plaintiff stated that he fell within clause 3(II) and hence as per office order 1/2008 was liable to deposit 20% of the rent received in respect of the whole area sublet. The plaintiff has received a total rent of Rs.4,38,32,555/- and plaintiff is liable to deposit only to the extent of 20% of the total rent received. The plaintiff is ready to deposit the 20% amount i.e. Rs.87,66,511/- for which plaintiff issued a statutory notice to Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 5 CS DJ No.758/2017 the defendant to accept the 20% amount but defendant failed to give any response.
15. The defendant has threatened the plaintiff by raising illegal demands under clause 3(iii) of the order no.1 of 2008 and also to dispossess the plaintiff. Whereas the defendant is bound to de-seal the said property after taking necessary misuser charges as has been done in the case of Habitat India. The said order no.1 of 2008 has been amended by Ministry of Urban Development, Govt of India vide order no.4 of 2012 dated 22.08.2012 changing the policy of sub-letting socio cultural institution in respect of institutional area and plaintiff falls within the said category.
16. The plaintiff further stated that the Income Tax Office also exempted the plaintiff vide certificate no.CIT-VI/TE(278)/80/1377 dated 10.03.1981. Under the clause of office order no.4 of 2012, the plaintiff was now liable to pay only 10% of the rent realized from sub-letting and defendant was bound to follow the policy issued by Ministry of Urban Development, Govt of India. Hence, the present suit had been filed.
17. Vide order dated 21.11.2013, the Hon'ble High Court of Delhi (Predecessor Court) permitted the plaintiff to amend its plaint. At the same time noting the objection of the defendant that the plaintiff could not be given the benefit of office order no.1/2008.
18. Defendant filed the written statement stating that certain societies were allotted lands by DDA on concessional rates as these societies were charitable in nature and had been formed for achiving some social objectives. However, it came to light that these societies had been using Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 6 CS DJ No.758/2017 institutional plots contrary to terms and objectives for which they were formed. The Hon'ble Delhi High Court passed orders for sealing such buildings and directions were give to DDA to lodge FIR with the Delhi police for taking appropriate action. As per the written statement the plaintiff also was one such society which had sublet the entire constructed area to management institution IIPM for running management and other courses therefrom. A show cause notice was issued to the society and the response was not found satisfactory and therefore lease was cancelled. Eviction proceedings were also initiated which were challenged. Meanwhile, revised recommendations were issued by Govt of India and in the light of aforesaid policy, it was decided to extend the benefit of office order no.01/2008 to those societies who were willing to comply with the terms and condition of the office order.
19. Meanwhile, DDA also sought clarification from L & DO with regard to said office order asking for the share of rent of lessor in case of misuse for the area in excess of 75 % of area and also sought clarifications as to how such a share would be calculated. In its clarification, L & DO wrote that where the area sublet to non permitted organization was more than 75% of the total built up area. The allottee institution shall share the rent @ 50% of the rent realized which would be calculated on the basis of flat percentage specified against the category under which the organization falls.
20. DDA further submits in its preliminary objection that the suit was misconceived and not valued correctly. The DDA further stated that as there was no challenge of the plaintiff to the office order no.1/2008 and the calculation of misuse charges, the suit was without any basis and was Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 7 CS DJ No.758/2017 liable to be dismissed. Defendant also gave its parawise reply to the plaint denying the contents and raising specific objections to the same.
21. It was further stated that the plaintiff had not obtained any prior permission for subletting from DDA and subletted 100% built up area to the commercial organizations unauthorizedly. All the allegations of the plaintiff in its plaint were denied by the defendant.
22. Plaintiff filed the replication wherein it reiterated its case and controverted the stand taken by defendant in the written statement. From the pleadings of the parties, followings issues were framed on 15.07.2014:-
i) Whether the plaintiff is entitled to decree of declaration as prayed for? OPP
ii) Whether the suit has been properly valued for the relief of declaration ? OPP
iii) Whether the plaintiff institution is covered under Clause 3 (ii) or Clause 3 (iii) of the Office Order No.1 od 2008, and if so to what effect ? OPP
iv) Whether Office Order no.4 of 2012 dated 22.08.2012, applied to socio-cultural institutions to which land has been allotted by the DDA? OPP
v) Whether office Order No.4 of 2012 amends/supersedes Office Order No.1 of 2008 ? OPP
vi) Relief.
23. Thereafter, matter was listed for plaintiff's evidence. Plaintiff examined witness as under :-
Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 8 CS DJ No.758/2017(I) Anil Mahindra was examined as PW1 who tendered his affidavit as Ex.PW1/A and relied upon the documents Ex.PW1/1 to Ex.PW1/16 and Mark A to E.
(i) Copy of Board Resolution, Ex.PW1/1.
(ii) Copy of memorandum, Ex.PW1/2.
(iii) Copy of lease deed, Ex.PW1/3.
(iv) Copy of office circular dated 19.11.1999, Ex.PW1/4.
(v) Show cause notice dated 08.01.2003, Ex.PW1/5.
(vi) Copy of notice dated 19.06.2003, Ex.PW1/6.
(vii) Copy of show cause notice dated 22.07.2003, Ex.PW1/7.
(viii) Copy of order dated 03.09.2004, Ex.PW1/8.
(ix) Copy of order dated 14.12.2006, Ex.PW1/9.
(x) Receipt of letter dated 24.02.2008, Ex.PW1/10.
(xi) Copy of letter dated 31.08.2009, Ex.PW1/11.
(xii) Minutes of meeting dated 03.06.2009, Ex.PW1/12.
(xiii) Copy of office order no.1.2008, Ex.PW1/13.
(xiv) Copy of CM No.5525/2009, Ex.PW1/14.
(xv) Copy of office order no.4 of 2012, Ex.PW1/15. (xvi) Copy of certificate dated 10.03.1981, Ex.PW1/16. (xvii) Mark A to E. In his cross examination witness stated that the plaintiff society was a charitable society. He stated that the premises was wrongly sealed by defendant without verifying the facts and the area which was let out was only around 46% and not 100% as alleged. Plaintiff was specifically asked if the society had got the plan sanctioned to which he replied in the affirmative further stating that four floors plus a loft was allowed as per the sanctioned plan and height of the building was also within the sanctioned limit. He denied that a six storey building had been Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 9 CS DJ No.758/2017 constructed specifically stating that it was a four storey building and floors were having a height of 12-13 feet, therefore, it was difficult to have proper air conditioning. Hence, the height of the loft was raised to 8 feet which gave a look of a floor which was not usable. He further disclosed that the property was sealed on the directions of the court.
Court appointed monitoring committee and building was still lying sealed. The witness denied that there was any assignment of property in contravention of the DDA by laws. Witness denied that the case of the plaintiff did not fall within clause 3(ii) of the office order no.1/2008. The plaintiff further stated that they had been filing Income Tax Returns also and that no notice under Section 53(B) of DDA Act was required in the present case.
24. Thereafter, matter was listed for defendants evidence. Defendant examined his witness as under :-
(I) Vivek Chaudhary was examined as DW1 who was the Assistant Director, DDA. He tendered his affidavit in evidence and stated that allotment letter dated 18.03.1993 and lease deed was executed on 30.03.1995 by defendant in favour of plaintiff society. The plaintiff had violated clause 13 of the lease deed and all the societies who had violated the conditions, FIR was got registered against them and appropriate action was taken against them. As per the defendant, the plot had changed hands illegally and was sublet to other organizations for commercial purposes. When the field staff of the defendant inspected the plot on 24.12.2002, it found that the building was constructed upto 6 th floor with basement and 100% of the constructed area was sublet to IIPM. Show cause notice was issued on 08.01.2003 and plaintiff society replied to the same saying that the plot belonged to the society and construction was in Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 10 CS DJ No.758/2017 accordance with sanctioned plan and building was also being used for the purpose for which lease was granted. On 19.05.2003, inspection was done again and an inspection report was prepared as per which premises were being used for running business degree courses.
As there was unauthorized transfer by society, the allotment was cancelled on 19.06.2003 for violation of terms and conditions of the lease deed. The plaintiff was directed to handover the possession of the building failing which further action could be taken. As the plaintiff society did not handover the possession, eviction proceedings were initiated. Plaintiff society challenged the eviction and cancellation proceedings stating that they had not exceeded the permissible limit. FIR was also registered against the plaintiff. The MCD sealed the property on 15.11.2006 on request of DDA. The defendant further stated the liability of the plaintiff got crystallized when plaintiff admitted its liability in terms of office order no.1/2008. The witness further stated that the plaintiff was falling under Sub Clause 3(iii) as no prior permission of DDA was taken for subletting and 100% of total built up area was sublet which was 100% being misused and therefore charges were to be levied as per circular no.1/2008 Clause 3(iii). As per the DDA, it had sought clarifications from L & DO as per which the society had to share a rent @ 50% of the rent realized and misuse charges as the excess area of sub- letting was beyond 75%. The said share had to be calculated on the basis of flat percentage specified against the category under which the organization fell. Witness further stated that the office order no.4/2012 had been adopted by DDA only on 10.02.2015. Witness denied that by way of office order no.4/2012, Govt of India had amended office order no.1/2008 and therefore the plaintiff could not avoid its liability for misuse and was covered under Order no.1/2008.
Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 11 CS DJ No.758/2017Witness relied upon the documents as under :-
(i) Inspection report dated 24.12.2002, Ex.DW1/1.
(ii) Inspection report dated 19.05.2003, Ex.DW1/2.
(iii) Order dated 03.06.2003, Ex.DW1/3.
(iv) Newspaper advertisement dated 01.10.2003, Ex.DW1/4.
(v) Notesheets from allotment of file of plaintiff, Ex.DW1/5.
(vi) Order dated 23.11.2006, Ex.DW1/6.
(vii) Letter dated 07.11.2006, Ex.DW1/7.
(viii) FIR no.62/2007, Ex.DW1/8.
(ix) Letter dated 04.08.2011, Ex.DW1/9.
(x) Letter dated 05.08.2011, Ex.DW1/10.
In his cross examination, witness could not tell who had inspected the suit property but it was stated that it was Engineering Wing of DDA. He denied that the inspection report was vague and non specific stating that plaintiff society had sublet 100% constructed portion of the premises for commercial activities against the terms and conditions of the lease deed. He further stated that although subletting was permitted but it was subject to conditions mentioned in clause 4 of the said policy. He denied that some portion of the constructed space was sublet to permitted organizations. He denied that no personal hearing was granted to the plaintiff before determination of the lease deed. He denied that the building constructed by the plaintiff was not a public premises. He also denied that after sub-letting 40% the rest of the area was in occupation of the plaintiff which was used for the purpose for which it was alloted. Witness further admitted that permission was granted to Population Foundation of India for subletting 60% of the built up area as a special case by Ministry of Urban Development on the ground of nature of work. Witness could not answer when specifically asked about permitting of Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 12 CS DJ No.758/2017 change of land use for commercial purpose to India Tourism Development Corporation Ltd (ITDC Ltd). On being asked if the suit property could be used for any other purpose including change of use upon payment of additional premium, the witness answered that as per clause 13 it was the discretion of the defendant. Witness admitted that DDA had been restoring the cancelled lease deeds which were similarly placed accordingly to policy of order no.1/2008. Witness admitted that office order no.4/2012 had been adopted by DDA vide office circular dated 10.02.2015. Witness denied that plaintiff society was liable to pay misuse charges as per office order no.4/2012. Witness further admitted that DDA was charging 10% subletting charges and allowing upto 50% subletting in sicio-cultural institution which sought permission from DDA after adopting office order no.4/2012. Witness stated that suit property was covered under Public Premises Act and therefore proceedings under Public Premises Act were initiated by DDA. Witness also admitted that plaintiff society was entitled for restoration of lease deed in terms of application policy of DDA.
25. Thereafter, defendant did not examine any other witness in defence. Hence, defendant evidence was closed.
26. Thereafter final arguments were addressed by both the parties and after hearing final arguments and going the through the records carefully, my issue wise findings are as under:-
Issue No. i) Whether the plaintiff is entitled to decree of declaration as prayed for? OPP.
iii) Whether the plaintiff institution is covered under Clause 3 (ii) or Clause 3 (iii) of the Office Order No.1 of 2008, and if so to what Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 13 CS DJ No.758/2017 effect ? OPP Issue No. iv) Whether Office Order no.4 of 2012 dated 22.08.2012, applied to socio-cultural institutions to which land has been allotted by the DDA? OPP. AND Issue no. v) Whether office Order No.4 of 2012 amends/supersedes Office Order No.1 of 2008 ? OPP .
27. All the above issues are taken up together for discussion as they are interconnected. Onus to prove all these four issues was on the plaintiff. The plaintiff through this suit has challenged the decision of the DDA terminating its lease vide letter dated 19.06.2003. The lease of the plaintiff was terminated on the following grounds:
(i) The premises have been illegally transferred to some builder.
(ii) The plaintiff had sub-let the premises to a management institute with about 600 students, which amounts to misuse.
(iii) The building has been constructed upto 6 storeys against the sanctioned building plan.
28. In order to decide the legality or illegality of the termination notice it would be pertinent to discuss the grounds mentioned in the said notice in detail.
29. It was claimed by DDA that plaintiff society had illegally transferred the plot to a builder who had constructed 6 storeys against the sanctioned plan unauthorizedly by violating the terms and conditions of the lease. In response to the said claim of DDA to the show cause notice it was stated by the plaintiff society that plot belonged to the society Natyaveda and the construction of the said plot was carried out by the society in Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 14 CS DJ No.758/2017 accordance with sanctioned plan. Even the height of the building was as per the sanctioned height by MCD. DDA had not led any documentary evidence to show that plot had changed hands with the builder as alleged in the show cause notice. Even the witness examined by the DDA did not depose on this aspect. Accordingly it is merely an allegation and has not been corroborated with any supportive evidence.
30. Further, the allegation that the plot had been constructed upto six storeys is uncorroborated as DW-1 in his cross-examination had stated that the only documents available with DDA was newspaper cutting dated 01.10.2003. He further admitted that from the photograph of building in the newspaper it could not ascertained as to how many storeys had been constructed therein. The said witness could not prove at any point of time that the officials of DDA inspected the property from inside to ascertain the number of storeys in the building. The person who inspected the property was also neither made a witness nor any application was made for summoning him to the court to prove the inspection report. Once DDA had terminated the lease of the plaintiff on the ground of illegal construction some substantial evidence should have been led to prove the same. The newspaper cutting can not suffice the purpose of proving that the property had been constructed upto six storeys against the sanctioned plan.
31. On the other hand, it has been claimed by the plaintiff witness that the construction of the building was as per the sanctioned plan. He also volunteered to produce the sanction plan to corroborate his stand.
32. Bare allegation is not sufficient to terminate the lease on this ground Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 15 CS DJ No.758/2017 once the plaintiff has claimed that building was constructed as per sanction plan. The onus was on DDA to disprove the same which it has failed to do. Accordingly this ground stands not proved.
33. It was claimed by DDA that letting out the property to IIPM meant that the property was let out for commercial purposes, other than the one for which the lease was granted. However, it is admitted by DW-1 that as per the sub-letting policy of DDA for the year 1999 Ex.PW1/4 (by which the plaintiff was governed), the plaintiff was entitled to sublet the constructed portion subject to conditions mentioned in the said policy. Hence it is admitted on part of DDA that subletting the property was permissible and the plaintiff could have sublet the same in compliance of conditions mentioned in the said policy.
34. Further it is admitted by DW-1 that plaintiff could have sublet the plot to the organization in case the same did not fall under the prohibited category as mentioned in the clause 4 (a) of the said policy. The said witness could not prove that IIPM falls under the prohibited category specified in clause 4(a) of 1999 policy.
35. Further it was also claimed by DDA that 100% of the premises was let out to IIPM. On the contrary, it was the case of plaintiff that only 40% of the constructed area was let out and rest of the area was in occupation of the plaintiff and was being used for the purpose for which the lease was granted. The defendant had failed to prove that 100% property was let out by the plaintiff as the witness could not prove that the alleged inspection of the property was carried out on 24.12.2002. Moreover there was no mention of the said fact of letting out the property in the show cause Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 16 CS DJ No.758/2017 notice. Further, it was not denied by DW-1 that the grounds for termination of the lease deed were different with the ones in the show cause notice dated 08.01.2003 and cancellation notice dated 19.06.2003. The inspection report dated 24.12.2002 relied upon by the DDA had not been filed in original, only a copy of the same had been brought on record which was marked PW1/1. No leave of court was taken to lead secondary evidence. Hence the said document cannot be said to be proved as per law.
36. Though the lease of the plaintiff had been terminated by the DDA on the ground of subletting against the terms of the policy of 1999, however, it was admitted by DW1 that DDA had granted permission from time to time for subletting to the societies. DDA had also granted permission for subletting even upto the extent of 60%. It was also admitted by DW-1 that same subletting policy was applicable to the society to which the permission was granted for sub-letting 60% of the built up area and was also applicable to the plaintiff society. DDA thus failed to prove that property was let out to IIPM by the plaintiff to the extent of 100%. However, it was admitted by the plaintiff that the property was let out to IIPM without the consent of DDA. As per the provisions of the policy of 1999 and even the later policy by which the plaintiff is now governed i.e. the policy of 2008 subletting by societies without consent could be remedied by payments of certain percentage of rent to DDA.
37. Even otherwise, the lease of the plaintiff was terminated on the basis of show cause notice however the ground of subletting was not mentioned in the said show cause notice. Accordingly defendant could not have terminated the lease on the basis of this ground.
Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 17 CS DJ No.758/201738. As far as the question whether plaintiff fell under clause 3(ii) or clause 3(iii) is concerned, the office order no.1/2008 had introduced a policy in order to condone the past and present misuse in institutional property. As there had been no subletting since February, 2007, the plaintiff fell under the category of permitted legal entity. Further, DDA could not prove IIPM to be in prohibited category and DDA also failed to prove that 100% property was sublet by the plaintiff. The plaintiff further wrote a letter dated 24.02.2008 to the defendant requesting them to restore the said lease deed as the building constructed on the said property had been vacated by the tenant on 29.01.2007. Alongwith the said letter, the plaintiff also enclosed office order No.1/2008 dated 17.01.2008 issued by Ministry of Urban Development wherein the policy regarding subletting without prior permission had been laid out in clause 3(ii). As per the avements of the plaint, placing reliance on the office order no.1/2008, another society by the name of M/s Habitat India was de-sealed. The court has perused the order of de-sealing and it is observed that Habitat India was also located in the Institutional Area as that of the plaintiff and was sealed for similar reasons as had been done in the case of the plaintiff. Considering the case of Habitat India, the plaintiff has prayed that de-sealing should be done in his case also on the ground of parity. It is pertinent to note that office order no.1/2008 was introduced for condoning the past and present misuse in institutional properties and if subletting was within the permissible limit, even if the same was without permission, then the extent of penalty required to be paid under the policy was to the tune of 50% of the rent collected by the society. However, if the sub-letting was to non permitted organization and the same was extended to the entire built up area, then the penalty was maximum as Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 18 CS DJ No.758/2017 provided under the said policy. It is claimed by the defendant that the terms and conditions of the lease deed had been violated by the plaintiff by changing the use of the alleged plot without permission of the DDA. It was claimed by DDA that plaintiff had let out 100% of the property to IIPM for commercial purpose and had thereby violated the terms and conditions of the lease deed.
39. Except for a bald allegation by DW1 that 100% of the property was let out no evidence was led by DDA to prove that the entire property was let out. DDA relied on inspection report dated 24.12.2002 Mark DW1/1 which categorically stated that the whole premises has been sublet to IIPM since the last 3 years. Firstly the original inspection report had not been brought on record to prove the same nor any official who carried out the alleged inspection had been brought in the witness box to prove that the said inspection was carried out. DW-1 who was the sole witness produced by DDA had expressed his unawareness about the fact that whether the notice of the said inspection was served upon the plaintiff or that. Moreover, on the basis of said inspection report show cause notice dated 08.01.2003 was issued which did not find mention of the fact of subletting to IIPM which creates a serious doubt about the inspection report dated 24.12.2002. Since the witness produced by DDA was not present at the time of inspection, hence he could not have proved the said report. Interestingly, the other inspection report relied upon by the DDA Mark DW1/2 dated 14.05.2003 finds mention of the fact that building was inspected from outside and the information was taken from the security guard. DW-1 admitted that no inspection was carried out by the officials inside the building. No name of the security guard had been mentioned from whom the information was received and reliance on Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 19 CS DJ No.758/2017 newspaper cutting was unreliable and cannot be used as an evidence to prove that the building was either constructed upto 6 storeys or that the same was against the sanctioned plan.
40. It is evident that the defendant has failed to prove that IIPM falls under the prohibited category specified in clause of 4(a) of 1999 policy. Further, the defendant has also failed to prove that 100% property was let out by the plaintiff as the witness could not prove that the alleged inspection of the property was carried out on 24.12.2002. As the defendant has failed to prove that the suit premises were not sublet to permitted legal entities, he falls under clause 3(ii) and not clause 3(iii) of the office order of 1/2008. The forth issue also accordingly stands decided in favour of the plaintiff and against the defendant.
41. As far as fifth issue is concerned, the following amendment was made in the office Order no.1/2008 and as per the order, the following sub clauses were added/amended qua socio cultural institutions.
1) Any institutions exempted under Income Tax Act 1961 shall be permitted to sublet upto 50% of the total built up space.
2) In all such cases of permitted sub-letting as in point 1 above, 10% of the rent realized by the lessee/allottee institution shall be payable to the Lessor/Land Owning agency based on the rent deed.
The plaintiff stated that their institute fell under office order no.4/2012 as it had been adopted by the DDA whereas the DDA contented that the charges had to be calculated in terms of office order no.1/2008.
42. After going through the entire submissions and both the office orders, it Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 20 CS DJ No.758/2017 is clear that office order no.4/2012 dated 10.01.2015 amended office order no.1/2008, therefore, the office order no.4/2012 was applicable and not office order no.1/2008. Hence, issue no.5 also stands decided in favour of the plaintiff and against the defendant.
43. Hence, the defendant has failed to prove firstly that the grounds on which the lease was terminated were the ones mentioned in the show cause notice. Secondly that the premises have been illegally sold to the builder. Thirdly that the property is constructed unauthorizedly against the sanctioned plan or that the subletting was impermissible. The defendant has also failed to prove that officer order no.1/2008 was applicable or that the institution was covered under clause 3(iii) or clause 3(ii). Hence, all the four issues i.e. issue bearing no.1, 3, 4 and 5 stands decided in favour of the plaintiff and against the defendant.
44. Now, I shall decide the issue no.2 which is as under :-
ii) Whether the suit has been properly valued for the relief of declaration ? OPD The onus to prove this issue was on the defendant. No evidence has been led by defendant to show that the suit is not properly valued for the purpose of Court fee and jurisdiction. Further, during final arguments also, no written submissions have been filed nor oral arguments addressed on this issue. Therefore, being a technical issue no.2 is decided in favour of the plaintiff and against the defendants.
45. Relief :- In view of aforesaid discussion, suit is decreed in favour of plaintiff and against the defendant and the cancellation notice dated 19.06.2003 Mark E is hereby declared null and void. The lease Mark D Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 21 CS DJ No.758/2017 with respect to property bearing no.C-10, Institutional Area, South IIT, New Delhi-110016 is hereby restored and suit property is directed to de- sealed.
46. Further, decree of permanent injunction in favour of the plaintiff and against the defendant is passed and defendant is restrained from in any manner threatening the plaintiff of raising any illegal demand under clause 3(iii) of the office order no.1/2008 and further restrained from dispossessing or taking any coercive measure/action whatsoever against the plaintiff society in respect of the property bearing no.C-10, Qutab Institutional Area, Katwaria Sarai, New Delhi.
47. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced in the open court (PURVA SAREEN)
on 25th January 2024 ADJ-01, SOUTH, SAKET
NEW DELHI
(Digital signature not provided by concerned branch, hence, judgment is uploaded without digital signature) Natya Veda Institute of Dance Music & Arts Vs DDA Page No. 22 CS DJ No.758/2017